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EXHIBIT D.1
VOTING AND SUPPORT AGREEMENT
AGREEMENT, dated as of June 18, 2001 (this "Agreement"), by
and among Allied Capital Corporation, a Maryland corporation ("Acquiror"), and
the persons set forth on Schedule 1 hereto (collectively, the "Shareholders").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Allied Capital Lock
Acquisition Corporation, a Delaware corporation and an indirect wholly-owned
subsidiary of Acquiror (the "Merger Sub"), and SunSource Inc., a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger
(as such agreement may hereafter be amended from time to time, the "Merger
Agreement"; capitalized terms used and not defined herein having the
respective meanings ascribed to them in the Merger Agreement) pursuant to
which the Merger Sub will be merged with and into the Company (the "Merger");
WHEREAS, the Stockholders collectively own of record or are
Beneficial Owners (as defined in Section 1 below) of shares (the "Shares") of
common stock, par value $0.01 per share, of the Company ("Common Stock"); and
WHEREAS, as an inducement and a condition to entering into
the Merger Agreement, Acquiror has required that the Stockholders agree, and
the Stockholders have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements
contained herein, the parties hereto hereby agree as follows:
1. Provisions Concerning Shares. Each Shareholder
hereby agrees that during the period commencing on the date hereof and
continuing until this Section 1 terminates pursuant to Section 5 hereof, at
any meeting of the holders of shares of Common Stock, however called, or in
connection with any written consent of the holders of shares of Common Stock,
such Shareholder shall vote (or cause to be voted) the Shares held of record
or Beneficially Owned (as defined below) by such Shareholder, whether now
owned or hereafter acquired and entitled to vote thereon, (i) in favor of the
adoption of the Merger Agreement and any actions required in furtherance and
consistent with the terms thereof and hereof; (ii) against any action or
agreement that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement (after giving effect to any materiality or similar
qualifications contained therein); and (iii) except as otherwise
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agreed to in writing in advance by Acquiror, against the following actions
(other than the Merger and the transactions contemplated by the Merger
Agreement): (A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company; (B) a sale,
lease or transfer of a material amount of assets of the Company, or a
reorganization, recapitalization, dissolution or liquidation of the Company;
(C) (1) any change in a majority of the persons who constitute the board of
directors of the Company; (2) any change in the present capitalization of the
Company or any amendment of the Company's Certificate of Incorporation or
By-Laws; (3) any other material change in the Company's corporate structure or
business. None of the Stockholders shall enter into any agreement or
understanding with any person the effect of which would be inconsistent or
violative of the provisions and agreements contained in Section 1 or 2 hereof.
For purposes of this Agreement, "Beneficially Own" or "Beneficial Ownership"
with respect to any securities shall mean having "beneficial ownership" of
such securities (as determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), including pursuant to
any agreement, arrangement or understanding, whether or not in writing.
Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a person shall include securities
Beneficially Owned by all other persons with whom such person would constitute
a "group" as within the meanings of Section 13(d)(3) of the Exchange Act.
2. Other Covenants, Representations and Warranties. Each
Shareholder hereby agrees, severally and not jointly, and represents and
warrants as to itself to Acquiror as follows:
(a) Ownership of Shares. Each Shareholder is the
Beneficial Owner of the number of shares set forth opposite such Shareholder's
name on Schedule I hereto. On the date hereof, such Shares constitute all of
the shares of Common Stock owned of record or Beneficially Owned by such
Shareholder. Such Shareholder has with respect to the Shares Beneficially
Owned by such Shareholder sole voting power and sole power to issue
instructions with respect to the matters set forth in Section 1 hereof, sole
power of disposition, sole power of conversion, sole power to demand appraisal
rights and, subject to the receipt of any required governmental approvals,
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all such Shares Beneficially Owned by such Shareholder,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Such Shareholder has all
necessary power, authority or competence (if a natural person) to execute,
deliver and perform this Agreement. The execution, delivery and performance of
this Agreement by such Shareholder will not violate any other agreement to
which such Shareholder is a party including, without limitation, any voting
agreement, stockholders agreement or voting trust. The execution and delivery
of this Agreement by such Shareholder, the performance by such Shareholder of
its obligations hereunder and the consummation by such Shareholder of the
transactions contemplated hereby have been duly authorized in the case of such
Shareholder who is not natural a person by all requisite action on the part of
such Shareholder, and no other corporate or other proceedings on
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the part of such Shareholder are necessary to approve this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by such Shareholder, and is enforceable
against such Shareholder in accordance with its terms.
(c) No Conflicts. (A) No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by such Shareholder
and the consummation by such Shareholder of the transactions contemplated
hereby and (B) none of the execution and delivery of this Agreement by such
Shareholder, the consummation by such Shareholder of the transactions
contemplated hereby or compliance by such Shareholder with any of the
provisions hereof shall (1) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to
any third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which such Shareholder is a party or by which such Shareholder or any of such
Shareholder's properties or assets may be bound, or (2) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to such Shareholder or any of such Shareholder's properties or
assets.
(d) No Solicitation. From and after the date hereof and
continuing until this Section 2(d) terminates pursuant to Section 5 hereof,
such Shareholder shall immediately cease any existing discussions or
negotiations with any third parties conducted prior to the date hereof with
respect to any Acquisition Proposal. Such Shareholder, in his capacity as
such, shall not, directly or indirectly, through any officer, director,
employee, representative or agent of the Company or of any of the Company's
Subsidiaries or otherwise, (i) solicit or initiate any Acquisition Proposal,
(ii) except as permitted by the Merger Agreement, engage in negotiations or
discussions concerning or provide any nonpublic information to any person or
entity relating to, any Acquisition Proposal or (iii) agree to or approve any
Acquisition Proposal.
(e) Restriction on Transfer, Proxies and
Non-Interference. Such Shareholder shall not, directly or indirectly, during
the period commencing on the date hereof and continuing until this Section
2(e) terminates pursuant to Section 5 hereof: (i) except (A) as contemplated
by the Merger Agreement, or (B) as a result of the operation of law, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to or consent to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, any or all of their
Shares or any interest therein; (ii) except as contemplated by this Agreement,
grant any proxies or powers of attorney, deposit any Shares Beneficially Owned
by such Shareholder into a voting trust or enter into a voting agreement with
respect to any Shares; or (iii) take any action that would make any of its
representations or warranties contained herein untrue or incorrect or have the
effect of
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preventing or disabling any of them from performing his or her obligations
under this Agreement.
(f) Reliance by Acquiror. Such Shareholder understands
and acknowledges that Acquiror is entering into the Merger Agreement in
reliance upon such Shareholder's execution and delivery of this Agreement.
3. Further Assurances. From time to time, at the other
party's request and without further consideration, each Shareholder, on the
one hand, and Acquiror, on the other hand, shall execute and deliver such
additional documents and take all such further lawful action as may be
necessary or desirable in Acquiror's reasonable judgment to consummate and
make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement and the Merger Agreement.
4. Stop Transfer. Each Shareholder agrees with, and
covenants to, Acquiror that such Shareholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing the Shares, unless such transfer is made
in compliance with this Agreement. In the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which
or for which any or all of the Shares may be changed or exchanged.
5. Termination. Except as otherwise provided herein,
the covenants and agreements contained in Sections 1 through 4 hereof with
respect to the Shares shall terminate (a) in the event the Merger Agreement is
terminated in accordance with the terms of Article 12 thereof, upon such
termination, and (b) in the event the Merger is consummated, at the Effective
Time.
6. Reorganization. Each shareholder and the Acquiror
understands that the Merger is intended to qualify as a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended, and agrees that it will not take any action or omit to take any
action, including taking any position on any tax return, inconsistent with
such qualification or that would disqualify the Merger as a reorganization.
Notwithstanding the foregoing, if Acquiror elects the cash consideration
option under Article III B of the Merger Agreement, then this Section 6 shall
be null and void and of no force and effect whatsoever.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agree-
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ments and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
(b) Assignment. Except for any assignment pursuant to a
transfer permitted by Section 2(e)(i), this Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors.
(c) Amendments, Waivers, Etc. This Agreement may not
be amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
relevant parties hereto.
(d) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, or when sent by facsimile transmission
(with receipt confirmed by an electronically generated written confirmation),
addressed as follows (or to such other address as a party may designate by
notice to the others):
If to the Shareholders: To the addresses set forth on the Signature Pages
hereto
with a concurrent copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telecopy No.: (000) 000-0000
If to Acquiror: Allied Capital Corporation
0000 Xxxxxxxxxxxx Xxx., 0xx Xxxxx
Xxxxxxxxxx, X.X., 00000
Attention: Xxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
with a concurrent copy to:
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
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(e) Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision
had never been contained herein.
(f) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be entitled,
at law or in equity.
(g) Remedies Cumulative. All rights, powers and
remedies provided under this Agreement or otherwise available in respect
hereof at law or in equity shall be cumulative and not alternative, and the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance
by any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
(i) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto. Without limiting the foregoing,
no direct or indirect holder of any equity interests or securities of any
party hereto (whether such holder is a limited or general partner, member,
stockholder or otherwise), nor any affiliate of any party thereto, nor any
director, officer, employee, representative, agent or other controlling person
of each of the parties hereto and their respective affiliates, shall have any
liability or obligation arising under this Agreement or the transactions
contemplated hereby.
(j) Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
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(k) Submission to Jurisdiction; Venue. Any action or
proceeding against any party hereto with respect to this Agreement shall be
brought in the courts of the State of Delaware or of the United States located
in the State of Delaware, and, by execution and delivery of this Agreement,
each party hereto hereby irrevocably accepts for himself, herself or itself
and in respect of his, her or its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each party hereto irrevocably consents
to the service of process at any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such party at his, her or its address set
forth on the signature page, such service to become effective 30 days after
such mailing. Nothing herein shall affect the right of any party hereto to
serve process on any other party hereto in any other manner permitted by law.
Each party hereto irrevocably waives any objection which it may now have or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in the
courts referred to above and hereby further irrevocably waives and agrees not
to plead or claim in any such court that any such action or proceeding brought
in any such court has been brought in an inconvenient forum.
(l) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY ACTION, SUIT OR
PROCEEDING.
(m) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Acquiror and the Stockholders have
caused this Agreement to be duly executed as of the day and year first above
written.
ALLIED CAPITAL CORPORATION
By: /s/ XXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Managing Director
/s/ XXXXXXX X. XXXXXXX, XX.
-------------------------------------
Xxxxxxx X. Xxxxxxx, XX.
[Address]
/s/ XXXXXX X. XXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
/s/ XXX X. XXXXXXX
-------------------------------------
Xxx X. Xxxxxxx
[Address]
/s/ X. X. XXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxx
[Address]
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[Address]
/s/ XXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxxx
[Address]
/s/ XXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxxx
[Address]
/s/ O. XXXXXX XXXXXX
-------------------------------------
O. Xxxxxx Xxxxxx
[Address]
/s/ XXXXXXX X. XXXXX
-------------------------------------
Xxxxxxx X. Xxxxx
[Address]
/s/ XXXXXX X. XXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxx
[Address]
/s/ XXXXXX XXXXX
-------------------------------------
Xxxxxx X. Xxxxx, Xx.
[Address]
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/s/ XXXXXXXX X. XXXXXXX
-------------------------------------
Xxxxxxxx X. Xxxxxxx
[Address]
/s/ XXXXXXX X. XXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxx
[Address]
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SCHEDULE I
Xxxxxxx Xxxxxxx 107,000
Xxxxxx Xxxxxxx 39,626
Xxx Xxxxxxx 32,220
Xxxxxxx Xxxxxx 20,000
Xxxxxx Xxxxxxxx 703,988
Xxxxxx Xxxxxxxx 421,753
O. Xxxxxx Xxxxxx 9,619
Xxxxxxx Xxxxx 6,660
Xxxxxx Xxxxxxx 21,774
Xxxxxx Xxxxx 26,551
Xxxxxxxx Xxxxxxx 11,741
Xxxxxxx Xxxxxxx 14,339
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