EXHIBIT 99.2
PIROD SHAREHOLDERS VOTING AGREEMENT
PIROD SHAREHOLDERS VOTING AGREEMENT (this "Agreement"), dated December
22, 1998 by and between ▇▇▇▇ Industries, Inc., a Delaware corporation
("▇▇▇▇"), and the stockholders of PiRod Holdings, Inc., a Delaware
corporation ("PIROD") listed on Schedule A hereto (the "Shareholders").
WHEREAS, capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement (as defined below);
WHEREAS, ▇▇▇▇ and PIROD propose to enter into an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement") pursuant to which PIROD
shall be merged with and into ▇▇▇▇ (the "Merger"), upon the terms and
conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, the Shareholders beneficially own PIROD
Shares (the "Owned Shares");
WHEREAS, the Boards of Directors of ▇▇▇▇ and PIROD have adopted
resolutions approving the Merger and recommending that ▇▇▇▇'▇ stockholders
and PIROD's stockholders, respectively, vote to approve the Merger;
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, ▇▇▇▇ has required that the Shareholders agree to vote all of the
Owned Shares, together with any PIROD Shares acquired after the date hereof,
whether upon the exercise of options or warrants, conversion of convertible
securities or otherwise (collectively, the "Shares"), on the terms and
subject to the conditions provided for in this Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by ▇▇▇▇
and PIROD of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
VOTING AGREEMENT; PROXY
SECTION 1.1. VOTING. Each of the Shareholders hereby agrees that,
subject to the Voting Conditions set forth below, at any meeting of the
stockholders of PIROD, however called, and at every adjournment or
postponement thereof, and in any action by written consent of the
stockholders of PIROD, it shall (i) appear at the meeting or otherwise cause
its Shares to be counted as present thereat for purposes of establishing a
quorum, (ii) vote its Shares in favor of the Merger and approval and adoption
of the Merger Agreement, (iii) vote its Shares against any action or
agreement that would result in a breach in any material respect of any
representation, warranty or covenant of PIROD in the Merger Agreement, and
(iv) vote its Shares against any action or agreement (other than the Merger
Agreement or the transactions
contemplated thereby) that would impede, interfere with, delay, postpone or
attempt to discourage the Merger, including any other extraordinary corporate
transaction, such as a merger, reorganization or liquidation involving PIROD
and a third party or any other proposal of a third party to acquire PIROD.
The obligation of the Shareholders to vote their Shares pursuant to the
preceding sentence is subject to satisfaction of each of the following
conditions (the "Voting Conditions"): (x) there shall have been no amendment
or modification of (including any waiver of any provision of) the Merger
Agreement that is in any manner adverse to the Shareholders or PIROD (unless
such amendment or modification has been agreed to in writing by the
Shareholders and PIROD) and (y) there shall not have been any action taken,
or any statute, rule, regulation, judgment, order or injunction promulgated,
enacted, entered or enforced, by any state, federal or foreign government or
governmental authority or by any court, domestic or foreign, that makes the
vote of the Shares by the Shareholders illegal or otherwise prohibited.
SECTION 1.2. IRREVOCABLE PROXY. As security for the Shareholders'
obligations under Section 1.1 hereof and subject to Section 2.1 hereof, each
Shareholder hereby irrevocably constitutes and appoints ▇▇▇▇ as its attorney
and proxy pursuant to the provisions of Section 212(c) of the GCL, with full
power of substitution and resubstitution, to vote the Shares at any meeting
of stockholders of PIROD, however called, or in connection with any action
by written consent by the stockholders of PIROD, in each case only as and to
the extent provided in clauses (ii), (iii) and (iv) of Section 1.1 hereof;
PROVIDED, HOWEVER, that ▇▇▇▇ shall not have the right to vote the Shares
unless each of the Voting Conditions shall have been satisfied as of the time
of such vote; and PROVIDED, FURTHER, HOWEVER, that in any such vote or other
action pursuant to such proxy, ▇▇▇▇ shall not in any event have the right
(and such proxy shall not confer the right) to vote against the Merger, to
vote to reduce the consideration to be received by the PIROD stockholders or
to otherwise amend or modify (or waive any provision of) the Merger
Agreement. The proxy granted pursuant to this Section 1.2 shall irrevocably
cease and shall be of no further force or effect upon (x) any violation by
▇▇▇▇ of any of the terms of this Agreement or (y) the termination of the
Merger Agreement or this Agreement in accordance with its terms. THIS PROXY
AND POWER OF ATTORNEY IS IRREVOCABLE, SUBJECT TO THE FOREGOING AND SECTION
2.1 HEREOF, AND COUPLED WITH AN INTEREST. Each Shareholder hereby revokes all
other proxies and powers of attorney with respect to the Shares that it may
have heretofore appointed or granted and shall take all further actions as
may be necessary or desirable to evidence such revocation, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by such Shareholder with respect
thereto, other than as contemplated by Section 1.1 hereof.
ARTICLE II
TERMINATION
SECTION 2.1. TERMINATION. This Agreement shall terminate on the
earlier of (i) the consummation of the Merger or (ii) the termination of the
Merger Agreement in accordance with its terms; PROVIDED, HOWEVER, that if the
Merger Agreement is terminated by PIROD pursuant to Section 8.1.3(a) thereof
as a result of a Takeover Proposal, this Agreement shall not terminate until
the 60th day following the date on which notice of such Takeover Proposal was
first
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provided by PIROD to ▇▇▇▇ in accordance with Section 5.1.8 of the Merger
Agreement; PROVIDED, FURTHER, that notwithstanding anything to the contrary
in this Agreement, the Shareholders shall have the ability, after the
Shareholders determine in good faith, after consultation with their legal and
financial advisers, that a Takeover Proposal that has not been solicited,
initiated or encouraged after the date hereof in violation of clause 4.3(i)
herein may reasonably be expected to result in a Superior Proposal,
throughout such 60-day period, to confirm to the third party that has made
such Takeover Proposal orally or in writing that it intends (subject to such
qualifications as the Shareholders deem appropriate) to enter into a voting,
tender or other agreement with such Third Party with respect to the Shares
upon termination of this Agreement.
SECTION 2.2. EFFECT OF TERMINATION. In the event of a termination of
this Agreement as provided in Section 2.1 hereof, (i) this Agreement and all
obligations hereunder (including, without limitation, the obligations of the
Shareholders pursuant to Section 1.1 and Article IV hereof and the proxy
appointment under Section 1.2 hereof) shall forthwith become void and of no
further force or effect and (ii) there shall be no liability or obligation on
the part of ▇▇▇▇ or any of the Shareholders or their respective officers,
directors or partners hereunder thereafter; PROVIDED, HOWEVER, that nothing
herein shall relieve any party from liability for any breach hereof prior to
such termination.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇. ▇▇▇▇ hereby
represents and warrants to the Shareholders as follows:
(a) ORGANIZATION, DUE AUTHORIZATION. ▇▇▇▇ is a corporation duly
organized, validly existing and in good standing under the laws of Delaware.
▇▇▇▇ has full corporate power and authority to execute and deliver this
Agreement. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly authorized
by the Board of Directors of ▇▇▇▇, and no other corporate proceedings on the
part of ▇▇▇▇ are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by ▇▇▇▇ and constitutes a valid and binding agreement
of ▇▇▇▇, enforceable against ▇▇▇▇ in accordance with its terms, subject to
the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium or similar law affecting creditors' rights generally and general
principles of equity.
(b) NO CONFLICTS. Other than in connection with or in compliance with
the provisions of the GCL with respect to the transactions contemplated
hereby, the federal securities laws, the securities laws of the various
states, the HSR Act and foreign laws, no authorization, consent or approval
of, or filing with, any court or any public body or authority is necessary
for the consummation by ▇▇▇▇ of the transactions contemplated by this
Agreement. The execution, delivery and performance of this Agreement by ▇▇▇▇
will not constitute a breach, violation or default (or any event which, with
notice or lapse of time or both, would constitute a default)
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under, or result in the termination of, or accelerate the performance
required by, or result in a right of termination or acceleration under, or
result in the creation of any lien or encumbrance upon any of the properties
or assets of ▇▇▇▇ under, any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument to which ▇▇▇▇ is a party or by
which its properties or assets are bound, other than breaches, violations,
defaults, terminations, accelerations or creation of liens and encumbrances
which, in the aggregate, would not materially impair the ability of ▇▇▇▇ to
perform its obligations hereunder.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
Shareholder hereby represents and warrants to ▇▇▇▇ as follows:
(a) ORGANIZATION, DUE AUTHORIZATION. It has been duly formed and is
validly existing as a partnership under the laws of the state of Delaware and
has the power and authority to enter into this Agreement and consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by its general partner, and no other
partnership proceedings on its part are necessary to authorize this Agreement
or to consummate the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by it and constitutes a valid
and binding agreement of it, enforceable against it in accordance with its
terms, subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium or similar law affecting creditors' rights generally
and general principles of equity.
(b) TITLE; VOTING RIGHTS. It has good and valid title to the Owned
Shares and warrants to purchase PIROD Shares shown as owned by it on Schedule
A hereto, free and clear of any lien, charge, encumbrance or claim of
whatever nature. Except pursuant to this Agreement and the Stockholders
Agreement, such Shares are not subject to any voting trust agreement or other
contract, agreement, arrangement, commitment or understanding restricting or
otherwise relating to the voting, dividend rights or disposition of such
Shares.
(c) OWNERSHIP OF PIROD SHARES. On the date hereof, it owns, of record
or beneficially, the PIROD Shares shown as owned by it on Schedule A hereto.
It has sole voting power and sole power of disposition with respect to such
Shares, with no restrictions, subject to applicable federal securities laws,
on its rights of disposition pertaining thereto except as set forth in
Section 3.2(d) hereof and the Stockholders Agreement.
(d) NO CONFLICTS. Other than in connection with or in compliance with
the provisions of the GCL, the federal securities laws, the NASD, the
securities or takeover laws of the various states, the HSR Act and foreign
laws, no authorization, consent or approval of, or filing with, any court or
any public body or authority is necessary for the consummation by it of the
transactions contemplated by this Agreement. The execution, delivery and
performance of this Agreement by it will not constitute a breach, violation
or default (or any event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate
the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien or encumbrance upon
any of its properties or assets under, any note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument to which it is a
party or by which its properties or assets are bound, other than breaches,
violations, defaults,
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terminations, accelerations or creation of liens and encumbrances which, in
the aggregate, would not materially impair its ability of to perform its
obligations hereunder.
ARTICLE IV
COVENANTS OF EACH SHAREHOLDER
Each Shareholder hereby covenants and agrees as follows:
SECTION 4.1. RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE. It
hereby agrees, while this Agreement is in effect, and except as contemplated
hereby, not to (i) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of its Owned Shares or Shares (other
than to another Shareholder who is a party to this Agreement), (ii) grant any
proxies, powers of attorney or other authorization or consent, deposit any
shares of capital stock of PIROD into a voting trust or enter into a voting
agreement with respect to any such 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 preventing or disabling it from performing
its obligations under this Agreement.
SECTION 4.2. ADDITIONAL SHARES. It hereby agrees, while this Agreement
is in effect, to promptly notify ▇▇▇▇ in writing in accordance with Section
6.3 hereof of the number of new PIROD Shares acquired by it, if any, after
the date hereof and shall provide a certificate to ▇▇▇▇ which shall reaffirm
its representations and warranties set forth in Section 3.2 with respect to
such additional Shares.
SECTION 4.3. NO SOLICITATION. It shall, and shall direct officers,
partners, employees, representatives and agents to, immediately cease any
discussions or negotiations with any parties other than ▇▇▇▇ that may be
ongoing with respect to a Takeover Proposal. While this Agreement is in
effect, it shall not, and shall not authorize or permit any of its officers,
partners or employees or any investment banker, financial advisor, attorney,
accountant or other representative retained by it or any of them to, directly
or indirectly, (i) solicit, initiate or encourage any inquiries or the making
of any proposal that constitutes, or may reasonably be expected to lead to,
any Takeover Proposal, or (ii) participate in any discussions or negotiations
regarding any Takeover Proposal; PROVIDED, HOWEVER, that if, at any time
prior to the Effective Time, it determines in good faith, after consultation
with its financial and legal advisers, that a Takeover Proposal that has not
been solicited, initiated or encouraged after the date hereof in violation of
clause (i) above may reasonably be expected to result in a Superior Proposal,
it and PIROD may (x) furnish information with respect to PIROD and its
subsidiaries to the third party that has made such Takeover Proposal (and to
any investment banker, financial advisor, attorney, accountant or other
representative retained by such party) pursuant to a customary and reasonable
confidentiality agreement and (y) participate in negotiations regarding such
Takeover Proposal.
SECTION 4.4. NO APPRAISAL RIGHTS; OTHER STOCKHOLDERS. Each Shareholder
hereby agrees, while this Agreement is in effect, that it will not exercise any
appraisal rights to which it may be entitled under the GCL with respect to the
Merger. Each Shareholder agrees to use its
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commercially reasonable best efforts to cause each other stockholder of PIROD
not a party to this Agreement to vote in favor of the Merger and approval and
adoption of the Merger Agreement at any meeting of stockholders of PIROD or
in any action by written consent of the stockholders of PIROD.
ARTICLE V
OTHER AGREEMENTS
SECTION 5.1. FURTHER ASSURANCES. From time to time, at the request of
▇▇▇▇ or any Shareholder, and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
action as may be necessary or desirable to consummate and make effective the
transactions contemplated by Article I of this Agreement.
SECTION 5.2. PUBLIC ANNOUNCEMENTS. Each of ▇▇▇▇ and the Shareholders
agrees that it will not issue any press release or otherwise make any public
statement with respect to this Agreement or the transactions contemplated
hereby without the prior consent of the other party, which consent shall not
be unreasonably withheld or delayed; PROVIDED, HOWEVER, that such disclosure
can be made without obtaining such prior consent if (i) the disclosure is
required by law or by obligations imposed pursuant to any agreement with the
NASD and (ii) the party making such disclosure has first used its
commercially reasonable best efforts to consult with the other party about
the form and substance of such disclosure.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. NON-SURVIVAL. The respective representations and
warranties made herein shall terminate upon the termination of this
Agreement.
SECTION 6.2. ENTIRE AGREEMENT; ASSIGNMENT. This Agreement constitutes
the entire agreement among the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter
hereof. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties. Except for the UNR
Asbestos-Disease Claims Trust, whom the parties agree is a third party
beneficiary of this Agreement, nothing in this Agreement, express or implied,
is intended to confer upon any person, other than the parties hereto and
their successors and permitted assigns, any rights or remedies under or by
reason of this Agreement.
SECTION 6.3. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed do have been duly received if so given) by hand delivery, telegram,
telex or telecopy, by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as
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Federal Express, providing proof of delivery. All communications hereunder
shall be delivered to the respective parties at the following addresses:
To the Shareholders as follows:
▇▇▇▇ Capital, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Principal
Copy to:
▇▇▇▇▇ ▇. Learner, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To ▇▇▇▇:
▇▇▇▇ Industries, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Copy to:
▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇
Three First National Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
SECTION 6.4. GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by and construed in accordance with the internal laws of the State
of Delaware, without giving effect to principles of conflicts of laws of the
State of Delaware or any other jurisdiction that, in either case, would call
for the application of the substantive laws of any jurisdiction other than
Delaware. Each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of any federal court located in the State of Delaware
or any Delaware state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, and consents to
service of process by notice as provided in this Agreement, (ii) agrees that
it will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court and (iii) agrees that it will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a federal or state court sitting
in the State of Delaware. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an
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injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
federal court located in the State of Delaware or in any Delaware state
court, this being in addition to any other remedy to which they are entitled
at law or in equity.
SECTION 6.5. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, all of which shall be shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
SECTION 6.6. DESCRIPTIVE HEADINGS. The descriptive headings used
hereby are inserted for convenience of reference only and are not intended to
be part of or to effect the meaning or interpretation of this Agreement.
SECTION 6.7. 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.
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IN WITNESS WHEREOF, ▇▇▇▇ and the Shareholders have caused this Agreement
to be duly executed as of the day and year first above written.
▇▇▇▇ INDUSTRIES, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
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SCHEDULE A
Number and Class of PIROD Number and Class of PIROD
Shares Beneficially Owned Shares Subject to Warrants
(excluding warrant shares) --------------------------
-------------------------
▇▇▇▇ CAPITAL FUND V, L.P. 88,289 of Class A-1 Common None
9,810 of Class L Common
By ▇▇▇▇ Capital Partners V, L.P.,
its general partner
By ▇▇▇▇ Capital Investors V, Inc.
its general partner
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Managing Director
▇▇▇▇ CAPITAL FUND V-B, L.P. 232,099 of Class A-2 Common None
25,789 of Class L Common
By ▇▇▇▇ Capital Partners V, L.P.,
its general partner
By ▇▇▇▇ Capital Investors V, Inc.,
its general partner
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Managing Director
BCIP ASSOCIATES 36,315 of Class A-3 Common None
4,774 of Class L Common
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: a general partner
BCIP TRUST ASSOCIATES, L.P. 23,831 of Class A-3 Common 54 Shares of Class L Common
1,854 of Class L Common
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: a general partner
▇▇▇▇ CAPITAL V MEZZANINE FUND, L.P. 28,420 of Class A-4 Common 3,158 of Class L Common
By ▇▇▇▇ Capital V Mezzanine Partners,
L.P.,
its general partner
By ▇▇▇▇ Capital Investors V, Inc.
its general partner
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Managing Director
BCM CAPITAL PARTNERS, L.P. 20,653 of Class A-5 Common 2,295 of Class L Common
By ▇▇▇▇ Capital V Mezzanine Partners,
L.P,
its general partner
▇▇▇▇ Capital Investors V, Inc.,
its general partner
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Managing Director