EXHIBIT (c)(3)
TENDER AND OPTION AGREEMENT
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TENDER AND OPTION AGREEMENT, dated as of January 16, 2000 (the
"Agreement"), among Siemens Energy & Automation, Inc., a Delaware corporation
("Parent"), Malibu Acquisition Corp., a Pennsylvania corporation and a wholly
owned subsidiary of Parent ("Purchaser"), ▇▇▇▇▇ Products Co., a Pennsylvania
corporation (the "Company") and the persons listed on Schedule A hereto (each a
"Stockholder" and, collectively, the "Stockholders").
WHEREAS, Parent, Purchaser and the Company, propose to enter into an
Agreement and Plan of Merger dated as of the date hereof (as the same may be
amended or supplemented, the "Merger Agreement") providing for, among other
things, the making of a cash tender offer (as such offer may be amended from
time to time as permitted under the Merger Agreement, the "Offer") by Purchaser
for (i) all of the issued and outstanding shares of common stock, par value
$1.00 per share, of the Company (the "Company Common Stock") and (ii) all of the
issued and outstanding shares of Series A preferred stock, par value $1.00 per
share, of the Company (the "Company Preferred Stock," and together with the
Company Common Stock, the "Shares") and the merger of the Company and Purchaser
on the terms and conditions set forth in the Merger Agreement (the "Merger");
WHEREAS, each Stockholder is the beneficial owner (as hereinafter
defined) of the Shares set forth opposite such Stockholder's name on Schedule A
hereto; such Shares, as such may be adjusted by stock dividend, stock split,
recapitalization, combination or exchange of shares, merger, consolidation,
reorganization or other change or transaction of or by the Company, together
with Shares that may be acquired after the date hereof by such Stockholder,
including shares of Company Common Stock issuable upon the exercise of options
(including the Options set forth in Schedule A) and upon conversion of Company
Preferred Stock, being collectively referred to herein as the "Securities" of
such Stockholder; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have required that the Stockholders enter into
this Agreement;
NOW, THEREFORE, to induce Parent and Purchaser to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein and intending to be legally bound hereby, the parties agree as follows:
Section 1. Certain Definitions. Capitalized terms used but not
otherwise defined herein have the meanings ascribed to such terms in the Merger
Agreement.
Section 2. Representations and Warranties of the Stockholders. Each
Stockholder, severally and not jointly, represents and warrants to Parent and
Purchaser, as of the date hereof and as of the Closing (as defined herein), as
follows:
(a) Such Stockholder is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which meaning
will apply for all purposes of this Agreement) of, and has good title to,
all of the Securities, free and clear of any mortgage, pledge,
hypothecation, rights of others claim, security interest, charge,
encumbrance, title defect, title retention agreement, voting trust
agreement, interest, option, lien, charge or similar restriction or
limitation, including any restriction on the right to vote, sell or
otherwise dispose of the Securities (each, a "Lien"), except as set forth
in this Agreement or Schedule A (which Liens set forth on Schedule A shall
be fully released and extinguished without recourse no later than
immediately upon payment of the proceeds from the sale of such Shares to
Parent or Purchaser pursuant to this Agreement) and except with respect to
a Stockholder which is a trust or a pension plan, for the rights of its
beneficiaries and participants.
(b) The Securities set forth opposite his or its name on
Schedule A constitute all of the securities (as defined in Section 3(a)(10)
of the Exchange Act, which definition will apply for all purposes of this
Agreement) of the Company beneficially owned, directly or indirectly, by
such Stockholder.
(c) Except for the Securities, such Stockholder does not,
directly or indirectly, other than as disclosed on Schedule A, beneficially
own or have any option, warrant or other right to acquire any securities of
the Company that are or may by their terms become entitled to vote or any
securities that are convertible or exchangeable into or exercisable for any
securities of the Company that are or may by their terms become entitled to
vote, nor is such Stockholder subject to any Contract, commitment,
arrangement, understanding, restriction or relationship, other than this
Agreement, that provides for such Stockholder to vote or acquire any
securities of the Company. Such Stockholder holds exclusive power to vote
the Securities and has not granted a proxy to any other person (as defined
in the Merger Agreement, which meaning will apply for all purposes of this
Agreement) to vote the Shares, subject to the limitations set forth in this
Agreement.
(d) Such Stockholder has full legal capacity, power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder and such execution delivery and performance have been
authorized by such Stockholder, and no other proceedings or actions by such
Stockholder are necessary therefor.
(e) This Agreement has been duly executed and delivered by such
Stockholder and, assuming this Agreement constitutes a valid and binding
agreement of Parent, Purchaser and the Company, is a valid and binding
obligation of such Stockholder enforceable against such Stockholder in
accordance with its terms.
(f) Neither the execution and delivery of this Agreement nor
the performance by such Stockholder of his or its obligations hereunder
will conflict with, result in a violation or breach of, or constitute a
default (or an event that, with notice or lapse of time or both, would
result in a default) or give rise to any right of termination, amendment,
cancellation, or acceleration or result in the creation of any Lien on any
Securities under, (i) any Contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which such Stockholder is a party
or by which such Stockholder is bound or (ii) any injunction, judgment,
writ, decree, order or ruling applicable to the Stockholder; except for
conflicts, violations,
breaches, defaults, terminations, amendments, cancellations, accelerations
or Liens that would not individually or in the aggregate be reasonably
expected to prevent or materially impair or delay the performance by such
Stockholder of its obligations hereunder.
(g) Neither the execution and delivery of this Agreement nor
the performance by such Stockholder of his or its obligations hereunder
will violate any law, decree, statute, rule or regulation applicable to the
Stockholder or require any order, consent, authorization or approval of,
filing or registration with, or declaration or notice to, any court,
administrative agency or other governmental body or authority, the
violation of which or failure to take any such action could, individually
or in the aggregate, be reasonably expected to prevent or materially impair
or delay the performance by such Stockholder of its obligations hereunder,
other than any required notices or filings pursuant to the ▇▇▇▇-▇▇▇▇▇-
▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder (the "HSR Act"), foreign antitrust or
competition laws or the federal or state securities laws.
(h) Except as set forth in Section 3.8 of the Merger
Agreement, no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement or the Merger Agreement based
upon arrangements made by or on behalf of such Stockholder that is or will
be payable by the Company or any of its subsidiaries.
(i) Such Stockholder understands and acknowledges that Parent
is entering into, and causing Purchaser to enter into, the Merger Agreement
in reliance upon such Stockholder's execution, delivery and performance of
this Agreement.
(j) To the extent such Stockholder is a trust, such
Stockholder has supplied to Parent or Purchaser true and correct copies of
all documents establishing, organizing, governing or controlling such trust
including any order, decree or other judicial pronouncement affecting such
trust documents, and all such documents remain in full force and effect.
Section 3. Representations and Warranties of the Company. The Company
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represents and warrants to Parent and Purchaser, as of the date hereof and
as of the Closing, as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania, has the requisite corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder, and
has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement.
(b) This Agreement has been duly executed and delivered by
the Company and, assuming this Agreement constitutes the valid and binding
agreement of each of the Stockholders, Parent and Purchaser, is a valid and
binding obligation of the Company, enforceable against it in accordance
with its terms.
(c) Neither the execution and delivery of this Agreement nor
the performance by the Company of its obligations hereunder will conflict
with, result in a violation
or breach of, or constitute a default (or an event that, with notice or
lapse of time or both, would result in a default) or give rise to any right
of termination, amendment, cancellation, or acceleration or result in the
creation of any Lien on the assets or properties of the Company under, (i)
its articles of incorporation or bylaws, (ii) any Contract, commitment,
agreement, understanding, arrangement or restriction of any kind to which
the Company is a party or by which the Company is bound or (iii) any
judgment, writ, decree, order or ruling applicable to the Company; except
in the case of clauses (ii) and (iii) for conflicts, violations, breaches
or defaults that would not individually or in the aggregate be reasonably
expected to prevent or materially impair or delay the performance by the
Company of its obligations hereunder.
(d) Neither the execution and delivery of this Agreement nor
the performance by the Company of its obligations hereunder will violate
any law, decree, statute, rule or regulation applicable to the Company or
require any order, consent, authorization or approval of, filing or
registration with, or declaration or notice to, any court, administrative
agency or other governmental body or authority, the violation of which or
failure to take any such action could, individually or in the aggregate, be
reasonably expected to prevent or materially impair or delay the
performance by the Company of its obligations hereunder, other than any
required notices or filings pursuant to the HSR Act, foreign antitrust or
competition laws or the federal or state securities laws.
(e) The Company has taken all necessary corporate or other
action (including approval by the Board of Directors of the Company) to
render the provisions of Sections 2538 through 2588, inclusive, of the PBCL
and, to its knowledge, any other applicable anti-takeover statutes, rules
or regulations inapplicable to this Agreement and the Merger Agreement and
the transactions contemplated hereby and thereby.
Section 4. Representations and Warranties of Parent and Purchaser. Parent
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and Purchaser represent and warrant to the Stockholders, as of the date
hereof and as of the Closing, as follows:
(a) Each of Parent and Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of their
respective jurisdiction of incorporation, has the requisite corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate
action to authorize the execution, delivery and performance of this
Agreement.
(b) This Agreement has been duly executed and delivered by
Parent and Purchaser and, assuming this Agreement constitutes a valid and
binding agreement of the Company and each of the Stockholders, is a valid
and binding obligation of each of Parent and Purchaser, enforceable against
each of them in accordance with its terms.
(c) Neither the execution and delivery of this Agreement nor
the performance by Parent and Purchaser of their respective obligations
hereunder will conflict with, result in a violation or breach of, or
constitute a default (or an event that, with notice or lapse of time or
both, would result in a default) or give rise to any right of termination,
amendment, cancellation, or acceleration under, (i) their respective
certificates of incorporation or bylaws, (ii)
any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which Parent or Purchaser is a party or by which
Parent or Purchaser is bound or (iii) any judgment, writ, decree, order or
ruling applicable to Parent or Purchaser; except in the case of clauses
(ii) and (iii) for conflicts, violations, breaches or defaults that would
not individually or in the aggregate be reasonably expected to prevent or
materially impair or delay the performance by Parent or Purchaser of their
obligations hereunder.
(d) Neither the execution and delivery of this Agreement nor
the performance by Parent and Purchaser of their respective obligations
hereunder will violate any law, decree, statute, rule or regulation
applicable to Parent or Purchaser or require any order, consent,
authorization or approval of, filing or registration with, or declaration
or notice to, any court, administrative agency or other governmental body
or authority, the violation of which or failure to take any such action
would not individually or in the aggregate be reasonably expected to
prevent or materially impair or delay the performance by Parent or
Purchaser of their obligations hereunder, other than any required notices
or filings pursuant to the HSR Act, foreign antitrust or competition laws
or the federal or state securities laws.
(e) Any Securities acquired upon exercise of the Purchase
Option (as defined herein) will be acquired for Parent's or Purchaser's own
account, and will not be, and the Purchase Option is not being, acquired by
Parent and Purchaser with a view to public distribution thereof in
violation of any applicable provisions of the Securities Act of 1933, as
amended (the "Securities Act").
Section 5. Transfer of the Shares. During the term of this Agreement,
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except with the written consent of Parent or Purchaser or as otherwise
expressly provided herein, each Stockholder agrees that such Stockholder
will not (a) tender into any tender or exchange offer or otherwise sell,
transfer, pledge, assign, hypothecate or otherwise dispose of, or encumber
with any Lien, any of the Securities, except for (i) transfers to any
spouse or descendant of such Stockholder, or any trust or retirement plan
or account for the benefit of such Stockholder, spouse or descendant;
provided that any such transferee agrees in writing to be bound by the
terms of this Agreement and (ii) transfers by operation of law provided
that any such transferee shall be bound by the terms of this Agreement, (b)
purchase or otherwise voluntarily acquire any Securities (otherwise than in
connection with a transaction of the type described in Section 6 or by
exercising any of the Options or, subject to clause (e) below, conversion
of Company Preferred Stock), (c) deposit the Securities into a voting
trust, enter into a voting agreement or arrangement with respect to the
Securities or grant any proxy or power of attorney with respect to the
Shares, (d) enter into any Contract, option or other arrangement (including
any profit sharing arrangement) or undertaking with respect to the direct
or indirect sale, transfer, pledge, assignment, hypothecation or other
disposition of any interest in or the voting of any Securities or any other
securities of the Company, (e) convert any shares of Company Preferred
Stock into shares of Company Common Stock unless directed to do so by
Parent or Purchaser or unless the Company Preferred Stock is called for
redemption by the Company not in violation of the Merger Agreement or (f)
take any other action that would in any way destroy, materially diminish or
impair the voting power or economic rights or other rights attributable to
such Stockholder's Shares or materially restrict, limit or interfere with
the performance of such
Stockholder's obligations hereunder or the transactions contemplated hereby
or which would otherwise materially diminish the benefits of this Agreement
to Parent or Purchaser.
Section 6. Adjustments.
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(a) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of
capital stock or other securities of the Company on, of or affecting the
Shares or the like or any other action that would have the effect of
changing a Stockholder's ownership of the Company's capital stock or other
securities or (ii) a Stockholder becomes the beneficial owner of any
additional Shares of or other securities of the Company, then the terms of
this Agreement will apply to the shares of capital stock held by such
Stockholder immediately following the effectiveness of the events described
in clause (i) or such Stockholder becoming the beneficial owner thereof, as
described in clause (ii), as though they were Securities hereunder.
(b) Each Stockholder hereby agrees, while this Agreement
is in effect, to promptly notify Parent and Purchaser of the number of any
new Securities acquired by such Stockholder, if any, after the date hereof,
provided that the acquisition of Company Common Stock upon the exercise of
Options set forth on Schedule A shall not require such notification. The
Company agrees that it shall promptly notify Parent and Purchaser upon the
exercise of Options set forth on Schedule A if the aggregate number of
shares of Company Common Stock in respect of such exercises exceeds 10,000
shares (subject to adjustment for stock dividends, stock splits,
recapitalization, combinations, exchange of shares or the like).
Section 7. Tender of Securities. Each Stockholder hereby agrees that
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such Stockholder will validly tender (or cause the record owner of such
shares to validly tender) and sell (and not withdraw, except in the event
the Purchase Option is exercised, in which case such withdrawal shall be
for the limited purpose of consummating the Purchase Option) pursuant to
and in accordance with the terms of the Offer as promptly as reasonably
possible and in any event prior to the tenth business day after
commencement of the Offer (or the earlier of the expiration date of the
Offer and the fifth business day after such Shares, as the case may be, are
acquired by such Stockholder if the Stockholder acquires Shares after the
date hereof), all of the then outstanding Shares beneficially owned by such
Stockholder (including the shares of Company Common Stock and Company
Preferred Stock outstanding as of the date hereof and set forth on Schedule
A opposite such Stockholder's name). In the event, notwithstanding the
provisions of the first sentence of this Section 7, any Shares beneficially
owned by a Stockholder are for any reason withdrawn from the Offer or are
not purchased pursuant to the Offer, such Shares will remain subject to the
terms of this Agreement. Each Stockholder acknowledges that Purchaser's
obligation to accept for payment and pay for Shares tendered in the Offer
is subject to all the terms and conditions of the Offer.
Section 8. Voting Agreement. Each Stockholder, by this Agreement, does
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hereby (a) agree that at any annual, special, postponed or adjourned
meeting of the stockholders of the Company it will cause the Shares such
Stockholder beneficially owns to be counted as present (or absent if
requested by Parent or Purchaser) thereat for purposes of establishing a
quorum and to vote or consent and (b) except as provided below with regard
to the Company Pension Plan
(the "Pension Plan"), constitute and appoint Parent and Purchaser, or any
nominee thereof, with full power of substitution, during and for the term
of this Agreement, as his true and lawful attorney and proxy for and in his
or its name, place and stead, to vote all the Shares such Stockholder
beneficially owns at the time of such vote, at any annual, special,
postponed or adjourned meeting of the stockholders of the Company (and this
appointment will include the right to sign his or its name (as stockholder)
to any consent, certificate or other document relating to the Company that
laws of the Commonwealth of Pennsylvania may require or permit), in the
case of both (a) and (b) above, (x) in favor of approval and adoption of
the Merger Agreement and approval and adoption of the Merger and the other
transactions contemplated thereby and (y) against (1) any Acquisition
Proposal, (2) any action or agreement that would result in a breach in any
respect of any covenant, agreement, representation or warranty of the
Company under the Merger Agreement or this Agreement and (3) the following
actions (other than the Merger and the other transactions contemplated by
the Merger Agreement): (i) any extraordinary corporate transaction, such as
a merger, consolidation or other business combination involving the Company
or any of its subsidiaries; (ii) a sale, lease or transfer of a material
amount of assets of the Company or any of its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company
or any of its subsidiaries; (iii) (A) any change in a majority of the
persons who constitute the board of directors of the Company or any of its
subsidiaries as of the date hereof; (B) any change in the present
capitalization of the Company or any amendment of the Company's or any of
its subsidiaries' articles or certificate of incorporation or bylaws, as
amended to date; (C) any other material change in the Company's or any of
its subsidiaries' corporate structure or business; or (D) any other action
that is intended, or could reasonably be expected, to impede, interfere
with, delay, postpone, or adversely affect the Offer, the Merger and the
other transactions contemplated by this Agreement and the Merger Agreement.
This proxy and power of attorney is a proxy and power coupled with an
interest, and each Stockholder declares that it is irrevocable until this
Agreement shall terminate in accordance with its terms. Each Stockholder
hereby revokes all and any other proxies with respect to the Shares that
such Stockholder may have heretofore made or granted. For Shares as to
which a Stockholder is the beneficial but not the record owner, such
Stockholder shall use his or its reasonable best efforts to cause any
record owner of such Shares to grant to Parent a proxy to the same effect
as that contained herein. As to the Pension Plan, each member of the
Benefits Committee of the Pension Plan agrees to direct the Trustee of the
Pension Plan to vote its Shares in the manner described in this Section 8
(and the Pension Plan represents to Parent and Purchaser that no other
direction, proxy or action is necessary to vote such Shares accordingly,
subject to the last sentence of Section 23 hereof). Each Stockholder hereby
agrees to permit Parent and Purchaser to publish and disclose in the Offer
Documents and the Proxy Statement and related filings under the securities
laws such Stockholder's identity and ownership of Shares and the nature of
his or its commitments, arrangements and understandings under this
Agreement. Notwithstanding the foregoing, Trust U/D ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
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▇. ▇▇▇▇▇ Trust, u/a dated 1/27/99 and F. ▇▇▇▇▇▇ ▇▇▇▇▇▇ are not bound by the
terms of this Section 8 and each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ are not bound by the terms of this Section 8 in his capacity as an
individual stockholder, but shall be bound by the terms of this Section 8
in his capacity as a member of the Benefits Committee of the Pension Plan.
Section 9. No Solicitation. Each Stockholder agrees that neither such
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Stockholder nor any of such Stockholder's officers, directors, employees,
trustees (in their capacities as such), representatives, agents or
affiliates (including, without limitation, any investment banker, attorney
or accountant retained by any of them) will directly or indirectly
initiate, solicit or encourage (including by way of furnishing non-public
information or assistance), or take any other action to facilitate, any
inquiries or the making or submission of any Acquisition Proposal, or enter
into or maintain or continue discussions or negotiate with any person or
entity in furtherance of such inquiries or to obtain or induce any person
to make or submit an Acquisition Proposal or agree to or endorse any
Acquisition Proposal or assist or participate in, facilitate or encourage,
any effort or attempt by any other person or entity to do or seek any of
the foregoing or authorize or permit any of its officers, directors,
employees, trustees (in their capacities as such) or any of its affiliates
or any investment banker, financial advisor, attorney, accountant or other
representative or agent retained by any of them to take any such action.
Each Stockholder shall promptly (and in any event within one business day)
advise Parent in writing of the receipt of request for information or any
inquiries or proposals relating to an Acquisition Proposal. The terms of
this Section 9 shall not restrict or limit the effect of Section 23 hereof.
Section 10. Grant of Purchase Option.
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(a) Each Stockholder hereby grants to Parent and
Purchaser an irrevocable option (the "Purchase Option") to purchase for
cash, in a manner set forth below, any or all of the Shares (and including
Shares acquired after the date hereof by such Stockholder) beneficially
owned by the Stockholder at a price (the "Exercise Price") per Share equal
to $54.71 per share of Company Common Stock and $21.88 per share of Company
Preferred Stock, as the case may be. In the event of any stock dividends,
stock splits, recapitalizations, combinations, exchanges of shares or the
like, the Exercise Price will be appropriately adjusted for the purpose of
this Section 10.
(b) In the event that (i) the Purchase Option has been
exercised, in whole or in part with respect to any Stockholder, (ii) the
Merger has not been consummated and (iii) within 12 months after the last
exercise of the Purchase Option with respect to any Stockholder Parent or
any affiliate of Parent sells the Shares acquired upon exercise of the
Purchase Option ("Purchase Option Shares") to a third party or parties
(other than an affiliate of Parent) or the Company consummates a merger or
consolidation with, or sells all or substantially all of its assets or
equity interests to, such a third party or parties (the events referred to
in this clause (iii) being referred to herein as a "Subsequent
Transaction"), Parent shall notify each Stockholder from whom or which
Parent or Purchaser acquired Purchase Option Shares within five business
days of the occurrence of such Subsequent Transaction and of the receipt by
Parent or any of its affiliates of proceeds from such Subsequent
Transaction with respect to such Purchase Option Shares. Within five
business days after such receipt of proceeds, whenever the same shall
occur, Parent shall pay to each such Stockholder, by certified check or
official bank check in immediately available funds or by wire transfer of
immediately available funds, as such Stockholder may direct, an amount in
cash and/or shall deliver an amount in kind to such Stockholder (in
accordance with the nature of the consideration received by Parent and any
of its affiliates from such Subsequent Transaction) equal to one-half of
the excess, if any, of (A) the total consideration received by Parent and
any of its affiliates with respect to such Purchase
Option Shares acquired from such Stockholder resulting from such Subsequent
Transaction less the prorated amount of any expenses incurred by Parent or
its affiliates in connection with such Subsequent Transaction over (B) the
total consideration received by such Stockholder pursuant to Section 10(a)
upon exercise of the Purchase Option with respect to such Purchase Option
Shares acquired from such Stockholder. For the purposes of making this
calculation, any non-cash consideration to be paid to such Stockholder
shall be valued at fair market value, and in the event of a dispute over
such fair value, Parent and the Stockholders who or which are to receive
such consideration over such fair value, shall, in good faith, mutually
select an appraiser whose determination shall be final and binding, with
the expenses of the appraiser to be shared equally by Parent, on the one
hand, and such Stockholders proportionately on the other.
(c) In the event that (i) the Purchase Option has not been
exercised as to all of the Shares subject to the Purchase Option, (ii) the
Merger has not been consummated and (iii) at any time before the first
anniversary of the later of the termination of the Merger Agreement under
circumstances where a Termination Fee is payable thereunder or the last day
on which the Purchase Option is exercisable under the terms hereof, a
Stockholder or any affiliate of such Stockholder sells the Shares as to
which the Purchase Option has not been exercised ("Subject Shares") to a
third party or parties (other than an affiliate of Parent) in a Subsequent
Transaction or the Company consummates a Subsequent Transaction, such
Stockholder shall notify Parent within five business days of each of the
occurrence of such a Subsequent Transaction and of the receipt by such
Stockholder or any of its affiliates of proceeds from such a Subsequent
Transaction with respect to such Subject Shares. Within five business days
after such receipt of proceeds, whenever the same shall occur, such
Stockholder shall pay to Parent, by certified check or official bank check
in immediately available funds or by wire transfer of immediately available
funds, as Parent may direct, an amount in cash and/or shall deliver an
amount in kind to Parent (in accordance with the nature of the
consideration received by such Stockholder and any of its affiliates from
such Subsequent Transaction) equal to one-half of the excess, if any, of
(A) the total consideration received by such Stockholder and any of its
affiliates with respect to such Subject Shares resulting from such
Subsequent Transaction over (B) the total consideration which would have
been received by such Stockholder pursuant to Section 10(a) upon exercise
of the Purchase Option had the Purchase Option been so exercised. For the
purposes of making this calculation, any non-cash consideration to be paid
to Parent shall be valued at fair market value, and in the event of a
dispute over such fair value, Parent and the Stockholders who or which are
to pay to Parent such consideration shall, in good faith, mutually select
an appraiser whose determination shall be final and binding, with the
expenses of the appraiser to be shared equally by Parent, on the one hand,
and such Stockholders proportionately on the other. Notwithstanding the
foregoing, each Stockholder acknowledges that it shall not transfer its
Shares except as permitted by Section 5 hereof.
(d) In the event that (i) the Purchase Option has been
exercised, in whole or in part with respect to any Stockholder, (ii) the
Merger is consummated and (iii) Parent and Purchaser have increased the
price per share of either the Company Common Stock or the Company Preferred
Stock payable in the Merger above the Exercise Price set forth in Section
10(a) (it being understood that the payment of any amounts pursuant to the
exercise of dissenters' rights will not be considered for this purpose),
Parent shall pay to each Stockholder from whom Parent or Purchaser
purchased Purchase Option Shares, within two business days
following the Effective Time of the Merger and in the manner set forth in
Section 10(b), an amount equal to the excess of (A) the price per share
paid for the Company Common Stock and Company Preferred Stock in the Merger
over (B) the Exercise Price of the Company Common Stock and/or Company
Preferred Stock, as the case may be, purchased by Parent or Purchaser from
such Stockholder upon exercise of the Purchase Option.
Section 11. Exercise of Purchase Option.
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(a) Subject to the conditions set forth in Section 13
hereof, the Purchase Option may be exercised by Parent or Purchaser, in
whole or in part, at any time or from time to time after the occurrence of
any Trigger Event (as defined below). The Company shall notify Parent
promptly in writing of the occurrence of any Trigger Event, it being
understood that the giving of such notice by the Company or the Stockholder
is not a condition to the right of Parent or Purchaser to exercise the
Purchase Option. In the event Parent or Purchaser wishes to exercise the
Purchase Option, Parent shall deliver to each Stockholder a written notice
(an "Exercise Notice") specifying the total number of Shares it wishes to
purchase from such Stockholder. Each closing of a purchase of Shares (a
"Closing") will occur at a place, on a date and at a time designated by
Parent or Purchaser in an Exercise Notice delivered at least five business
days prior to the date of the Closing.
(b) A "Trigger Event" means any one of the following:
(i) the Merger Agreement becomes terminable under circumstances that
entitle Parent or Purchaser to receive the Termination Fee under Section
8.3(b) of the Merger Agreement (regardless of whether the Merger Agreement
is actually terminated or such Termination Fee is then actually paid), (ii)
the Offer has expired but, due to the failure of the Stockholder to validly
tender and not withdraw all of the then outstanding Shares beneficially
owned by such Stockholder, the Purchaser has not accepted for payment or
paid for all of such Shares, (iii) a tender or exchange offer for some or
all Shares shall have been publicly proposed to be made or shall have been
made by another person, or (iv) it shall have been publicly disclosed or
Parent or Purchaser shall have otherwise learned that after the date of
this Agreement, (A) any person or "group" (as defined in Section 13(d)(3)
of the Exchange Act) (other than Parent or Purchaser or their affiliates)
shall have acquired or proposed to acquire beneficial ownership of more
than 20% of any class or series of capital stock of the Company (including
the Company Common Stock and Company Preferred Stock), through the
acquisition of stock, the formation of a group or otherwise, or shall have
been granted any option, right or warrant, conditional or otherwise, to
acquire beneficial ownership of more than 20% of any class or series of
capital stock of the Company, (B) any such person or group which, prior to
the date of this Agreement, had a Schedule 13D or 13G on file with the SEC
shall have acquired or proposed to acquire beneficial ownership of
additional shares of any class or series of capital stock of the Company,
through the acquisition of stock, the formation of a group or otherwise,
constituting 10% or more of any such class or series, or shall have been
granted any option, right or warrant, conditional or otherwise, to acquire
beneficial ownership of additional shares of any class or series of capital
stock of the Company (including the Company Common Stock and Company
Preferred Stock) constituting 10% or more of any such class or series, (C)
any person (other than Parent or Purchaser or their affiliates) shall have
filed a Notification and Report Form under the HSR Act, or made a public
announcement reflecting an intent to acquire the Company or any assets or
securities of the
Company, or (D) any person or group (other than Parent and Purchaser or
their affiliates) shall have entered into or publicly offered to enter into
a definitive agreement with the Company with respect to a merger,
consolidation or other business combination including the Company.
Notwithstanding the foregoing, it is understood that the execution of this
Agreement by the Stockholders and the performance of their obligations
hereunder shall not, in itself, be deemed to constitute a Trigger Event.
(c) If requested by Parent and Purchaser in the Exercise
Notice, such Stockholder shall exercise all Options (to the extent
exercisable) and other rights (including conversion or exchange rights)
beneficially owned by such Stockholder and shall sell the Shares acquired
pursuant to such exercise to Parent or Purchaser as provided in this
Agreement.
(d) The Company agrees that immediately upon the
purchase of an aggregate of not less than 10% of the voting power of all
outstanding Shares by Purchaser or any of its affiliates pursuant to the
Purchase Option, Purchaser shall be entitled to designate such number of
directors, rounded up to the next whole number, on the Board of Directors
of the Company as will give Purchaser representation on the Board of
Directors of the Company equal to the product of (i) the total number of
directors on the Board of Directors of the Company (giving effect to the
increase in the size of such Board pursuant to this Section 11) and (ii)
the percentage that the number of votes represented by Shares beneficially
owned by Purchaser and its affiliates (including Shares so purchased
pursuant to the Purchase Option) bears to the number of votes represented
by Shares then outstanding. In furtherance thereof, the Company covenants
to Parent and Purchaser that it and its Board of Directors shall, upon the
request of Parent, use their reasonable best efforts promptly either to
increase the size of its Board of Directors or to secure the resignations
of such number of its incumbent directors, or both, as is necessary to
enable such designees of Parent to be so elected or appointed to the
Company's Board of Directors, and, subject to applicable law, the Company
shall take all reasonable actions available to the Company to cause such
designees of Parent to be so elected or appointed (including by calling a
special meeting of its stockholders if so requested by Parent or
Purchaser). At such time, the Company shall, if requested by Parent,
subject to applicable law, also take all reasonable action necessary to
cause persons designated by Parent to constitute at least the same
percentage (rounded up to the next whole number) as is on the Company's
Board of Directors of (i) each committee of the Company's Board of
Directors, (ii) each board of directors (or similar body) of each
subsidiary of the Company and (iii) each committee (or similar body) of
each such board. Such designees of Purchaser shall be assigned to the class
of directors having the latest expiration date for its term of office at
the time of such election.
Section 12. Termination of Purchase Option. The Purchase Option will
------------------------------
terminate upon the earliest of: (i) the Effective Time; (ii) termination of
the Merger Agreement other than upon, during or after the occurrence of a
Trigger Event; (iii) 90 days following any termination of the Merger
Agreement upon, during or after the occurrence of a Trigger Event (or if,
at the expiration of such 90 day period the Purchase Option cannot be
exercised or the Closing thereunder cannot occur by reason of any
applicable judgment, decree, order, injunction, law or regulation, 20
business days after such impediment to exercise or Closing has been removed
or has become final and not subject to appeal); or (iv) the exercise in
full of the Purchase Option and consummation of the Closing with respect
thereto. Upon the giving by Parent or Purchaser
to a Stockholder of the Exercise Notice and the tender of the aggregate Exercise
Price, Parent or Purchaser, as the case may be, subject to applicable law and
the conditions of Section 13, will be deemed to be the holder of record of the
Shares transferable upon such exercise, notwithstanding that the stock transfer
books of the Company are then closed or that certificates representing such
Shares have not been actually delivered to Parent.
Section 13. Conditions To Closing. The obligation of each Stockholder to
---------------------
sell such Stockholder's Shares to Parent or Purchaser hereunder is subject to
the conditions that (i) all waiting periods, if any, under the HSR Act,
applicable to the sale of the Shares or the acquisition of the Shares by Parent
or Purchaser, as the case may be, hereunder have expired or have been
terminated; (ii) all material consents, approvals, orders or authorizations of,
or registrations, declarations or filings with, any court, administrative agency
or other Governmental Entity, if any, required in connection with sale of the
Shares or the acquisition of the Shares by Parent or Purchaser hereunder have
been obtained or made; and (iii) no preliminary or permanent injunction or other
order by any court of competent jurisdiction prohibiting or otherwise
restraining such sale or acquisition is in effect.
Section 14. Closing. At any Closing with respect to Shares beneficially
-------
owned by a Stockholder, (i) such Stockholder will deliver to Parent or
Purchaser, as the case may be, a certificate or certificates in definitive form
representing the number of the Shares specified by Parent or Purchaser, as the
case may be, in its Exercise Notice, such certificate to be registered in the
name of Parent or Purchaser, as the case may be, and (ii) Parent or Purchaser,
as the case may be, will deliver to the Stockholder the aggregate Exercise Price
for the Shares so specified and being purchased by wire transfer of immediately
available funds. Such Stockholder will pay all Stockholder's expenses, and any
and all United States federal, state and local transfer taxes and other similar
charges that may be payable in connection with the preparation, issue and
delivery of stock certificates under this Section 14 in the name of Parent or
Purchaser, as the case may be. At the Closing, each Stockholder shall deliver
to Parent or Purchaser, as the case may be, good title to all of the Securities
beneficially owned by it, free and clear of any Liens.
Section 15. Registration Rights.
-------------------
(a) Following termination of the Merger Agreement, Parent or
Purchaser may in their sole discretion (but shall not be required) by written
notice (the "Registration Notice") to the Company request the Company to
register under the Securities Act all or any part of the Shares acquired by
Purchaser or Parent under the Purchase Option (the "Registrable Securities");
provided that the Company shall not be required to register (i) shares of
Company Preferred Stock, or (ii) an amount of shares of Company Common Stock
which is less than the lesser of (x) 85% of the aggregate number of shares of
Company Common Stock (excluding shares in respect of unexercised Options)
covered by this Agreement or (y) 4% of the aggregate number of shares of Company
Common Stock then outstanding.
(b) The Company shall use its reasonable best efforts to
effect, as promptly as practicable, the registration under the Securities Act of
the Registrable Securities; provided, however, that (i) Parent and Purchaser
will be entitled to no more than one effective registration statement hereunder
and (ii) the Company will not be required to file any such
registration statement at any time after May 31, 2001 or during any period of
time (not to exceed 20 days after such request in the case of clause (A) below
or 45 days in the case of clauses (B) and (C) below) when (A) the Company is in
possession of material non-public information that it reasonably believes would
be detrimental to be disclosed at such time and that such information would have
to be disclosed if a registration statement were filed at that time; (B) the
Company is required under the Securities Act to include audited financial
statements for any period in such registration statement and such financial
statements are not yet available for inclusion in such registration statement;
or (C) the Company determines, in its reasonable judgment, that such
registration would interfere with any proposed financing, acquisition or other
material transaction involving the Company or any of its affiliates. The Company
shall use its reasonable best efforts to cause any Registrable Securities
registered pursuant to this Section 15 to be qualified for sale under the
securities or blue-sky laws of such jurisdictions as Parent or Purchaser may
reasonably request and shall continue such registration or qualification in
effect in such jurisdiction; provided, however, that the Company will not be
required to qualify to do business in, or to consent to general service of
process in, any jurisdiction by reason of this provision.
(c) The registration rights set forth in this Section 15 are
subject to the condition that Parent and Purchaser promptly shall provide the
Company with such information with respect to their Registrable Securities, the
plans for the distribution thereof, and such other information with respect to
such holder as, in the reasonable judgment of counsel for the Company, is
necessary to enable the Company to include in such registration statement all
material facts required to be disclosed with respect to a registration
thereunder.
(d) A registration effected under this Section 15 will be
effected at the Company's expense, except for underwriting discounts and
commissions and the fees and the expenses of counsel to Parent and Purchaser
(which will be paid by Parent and Purchaser), and the Company promptly shall
provide to the underwriters (in connection with an underwritten offering) such
documentation (including certificates, opinions of counsel and "comfort" letters
from auditors) as are customary in connection with underwritten offerings as
such underwriters may reasonably require. In connection with any such
registration, the Company, Parent and Purchaser, as the case may be, agree (i)
to indemnify each other and the underwriters in the customary manner, (ii) to
enter into an underwriting agreement in form and substance customary for
transactions of such type with the underwriters participating in such offering
and (iii) to take all further actions that will be reasonably necessary to
effect such registration and sale (including, if the underwriters deem it
necessary, participating in road-show presentations).
Section 16. No Impairment. The Company will not take any action that will
-------------
in any way destroy or materially diminish or impair the rights and preferences
attributable to the Shares (including the voting rights and power, economic
rights and the percentage ownership interest represented by the Shares)
purchased pursuant to or subject to the Purchase Option, including, without
limitation, the redemption of Company Preferred Stock, issuance of additional
capital stock of the Company or securities convertible, exercisable or
representing a right to such capital stock, amending the Articles of
Incorporation or Bylaws of the Company, declaring a stock dividend, declaring a
stock split, recapitalizing the Company, reclassifying the capital stock of
the Company, reorganizing the Company, or combining or exchanging shares of
capital stock or other securities of the Company.
Section 17. No Inconsistent Agreements. No Stockholder shall enter into any
--------------------------
agreement or understanding with any person or entity the effect of which would
be inconsistent or violative of the provisions of this Agreement.
Section 18. Termination. Subject to Section 25(a), this Agreement will
-----------
terminate (a) upon the later to occur of (i) the termination of the Purchase
Option pursuant to clause (i), (ii) or (iii) of Section 12 or (ii) 90 days after
the final Closing, except for Sections 10, 11, 12, 13, 14 and 15 hereof, which
will only terminate as and when provided therein, or (b) by the mutual consent
of each Stockholder as to its rights and obligations hereunder, the Board of
Directors of the Company and the Board of Directors of Parent.
Section 19. Expenses. Except as otherwise expressly provided herein or in
--------
the Merger Agreement, all costs and expenses incurred by any of the parties
hereto will be borne by the party incurring such costs and expenses. Parent and
Purchaser, on the one hand, and the Company and the Stockholders, on the other
hand, will indemnify and hold harmless the other from and against any and all
claims or liabilities for finder's fees or brokerage commissions or other like
payments incurred by reason of action taken by him, it or any of them, as the
case may be, provided that no Stockholder shall have any obligation to so
indemnify and hold harmless Parent or Purchaser from and against any such claims
by reason of any action taken otherwise than by such Stockholder.
Section 20. Further Assurances. Each party hereto will execute and deliver
------------------
all such further documents and instruments and take all such further action as
may be reasonably necessary in order to consummate the transactions contemplated
hereby. The Company covenants to Parent and Purchaser that it and its Board of
Directors shall (i) use its reasonable best efforts to ensure that no state
takeover statute or similar statute or regulation is or becomes applicable to
the Purchase Option and the Transactions and (ii) if any state takeover statute
or similar statute or regulation becomes applicable to any of the Transactions,
use its reasonable best efforts to ensure that the Purchase Option and the other
Transactions may be consummated as promptly as practicable on the terms
contemplated by this Agreement and the Merger Agreement and otherwise to
minimize the effect of such statute or regulation on the Purchase Option and the
other Transactions. The Company agrees with each Stockholder to comply with the
provisions of Section 5.2(c) and Section 6.14 of the Merger Agreement with
respect to redemption of the Company Preferred Stock.
Section 21. Publicity. A Stockholder shall not issue any press release or
---------
otherwise make any public statements with respect to this Agreement or the
Merger Agreement or the other transactions contemplated hereby or thereby
without the consent of Parent and Purchaser, except as may be required by law or
applicable stock exchange or NASDAQ rules.
Section 22. Stop Transfer Order; Legend. The Company agrees with, and
---------------------------
covenants to, Parent and Purchaser that the Company shall not register the
transfer of any certificate representing any Stockholder's Securities unless
such transfer is made in accordance with the
terms of this Agreement. Each Stockholder agrees to the extent such
Stockholder's Securities are in certificate form and in such Stockholder's
possession or are otherwise reasonably available to such Stockholder to place
the following legend on any and all certificates evidencing the Securities:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER PURSUANT TO THAT CERTAIN TENDER AND OPTION AGREEMENT,
DATED AS OF JANUARY 16, 2000, BY AND AMONG SIEMENS ENERGY & AUTOMATION, INC.,
MALIBU ACQUISITION CORP., ▇▇▇▇▇ PRODUCTS CO. AND CERTAIN STOCKHOLDERS OF ▇▇▇▇▇
PRODUCTS CO. ANY TRANSFER OF SUCH SECURITIES IN VIOLATION OF THE TERMS OF SUCH
AGREEMENT SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
To the extent such Stockholder's Securities are not in certificate form, the
Company and such Stockholder agree to take all reasonable steps to place with
the Company's transfer agent a stop transfer order on such Securities.
Section 23. Stockholder Capacity. No person executing this Agreement makes
--------------------
any agreement or understanding herein in such Stockholder's capacity as a
director or officer of the Company or any subsidiary of the Company. Each
Stockholder signs solely in such Stockholder's capacity as the beneficial owner
of such Stockholder's Shares and nothing herein shall limit or affect any
actions taken by a Stockholder in such Stockholder's capacity as an officer or
director of the Company or any subsidiary of the Company to the extent
specifically permitted by the Merger Agreement (including Section 6.1 of the
Merger Agreement). Notwithstanding any provision to the contrary contained in
this Agreement, the obligations of the Pension Plan under this Agreement are
subject to the applicable provisions of ERISA and the rules and regulations
thereunder and, in the event performance by the Pension Plan of its obligations
hereunder would contravene the applicable provisions of ERISA and the rules and
regulations thereunder and the Pension Plan and Parent receive the written
opinion of independent counsel to the Pension Plan to such effect, the Pension
Plan will be deemed not to be in breach of its obligations under this Agreement
to the extent it will be required to take or not take any action in compliance
with ERISA and the rules and regulations thereunder.
Section 24. Enforcement. Each Stockholder and the Company acknowledge 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 by any Stockholder or the Company. It is accordingly agreed
that Parent and Purchaser will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity. Each Stockholder and the Company further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief. The provisions
of this paragraph are without prejudice to any other rights that another party
hereto may have against the another party hereto for any failure to perform its
obligations under this Agreement. In addition, each Stockholder hereto (i)
consents to submit such party to the personal jurisdiction of the United States
District Court for the Eastern District of Pennsylvania
and the Court of Common Pleas of ▇▇▇▇▇▇▇▇▇▇ County, Pennsylvania in the event
any dispute arises out of this Agreement or any of the transactions contemplated
hereby, (ii) agrees not to attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court, (iii) agrees not to
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than the courts specified in clause (i)
above and (iv) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
Transactions. In furtherance of the foregoing, each Stockholder and the Company
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in the courts specified in clause (i) above,
and hereby further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. The Company
and each Stockholder hereby designates, appoints and empowers the Company as
their true and lawful agent and attorney in-fact in their name, place and ▇▇▇▇▇
to receive and accept on their behalf service of process in any action, suit or
proceeding with respect to any matters as to which it has submitted to
jurisdiction as set forth above.
Section 25. Miscellaneous.
-------------
(a) All representations and warranties contained herein will
terminate as provided in Section 18(a), except that the representations and
warranties contained in Section 2(a) shall survive forever and the
representations and warranties contained in Sections 2(b)-(g), inclusive, and
Section 3 and Section 4 will survive for one year after the termination of the
Purchase Option as set forth in Section 12. The covenants and agreements made
herein will survive in accordance with their respective terms. The
representations and warranties given by each Stockholder herein are not in
derogation or limitation of the representations and warranties given by such
Stockholder in any letters of transmittal or similar documents executed and
delivered by such Stockholder pursuant to the Offer or the Merger.
(b) Any provision of this Agreement may be waived at any time
by the party that is entitled to the benefits thereof. No such waiver, amendment
or supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(c) This Agreement, together with the Merger Agreement and the
other agreements referred to herein and therein, constitute the entire agreement
among the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements among the parties with respect to such matters.
(d) This Agreement will be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
the conflicts of laws principles thereof.
(e) The words "hereof," "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
article, section, paragraph, exhibit and schedule references are to the
articles, sections, paragraphs, exhibits and schedules of this Agreement unless
otherwise specified. Whenever the words "include," "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation." All terms defined in this Agreement shall have the defined meanings
contained herein when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such term. Any agreement, instrument, statute or rule defined or
referred to herein or in any agreement or instrument that is referred to herein
means such agreement, instrument, statute or rule as from time to time amended,
modified or supplemented, including (in the case of agreements and instruments)
by waiver or consent and (in the case of statutes and rules) by succession of
comparable successor statutes and rules and all attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns.
(f) All notices and other communications hereunder will be in
writing and will be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by telecopy, or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to the Company to:
▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
One ▇▇▇▇▇ Square
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to Parent or Purchaser to:
Siemens Energy & Automation, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Dechert Price & ▇▇▇▇▇▇
4000 ▇▇▇▇ Atlantic Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to a Stockholder, at the address set forth on the signature pages
hereto or, if no such address is specified, c/o the Company to the Company's
address as set forth above; or in each case to such other address as any party
may have furnished to the other parties in writing in accordance herewith.
(g) This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one agreement .
(h) This Agreement is binding upon and is solely for the
benefit of the parties hereto and their respective successors, legal
representatives and assigns. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement will be assigned by any of the
parties hereto without the prior written consent of the other parties, except
that Parent and Purchaser will have the right to assign to any direct or
indirect wholly owned subsidiary of Parent or Purchaser any or all rights and
obligations of Parent or Purchaser under this Agreement, provided that any such
assignment will not relieve either Parent or Purchaser from any of its
obligations hereunder.
(i) In the event any term or provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other terms and provisions of this Agreement will
nevertheless remain in full force and effect. Upon any such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto will negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated by this
Agreement are consummated to the fullest extent possible.
(j) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be
cumulative and not alternative,
and the exercise of any thereof by either party will not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party.
(k) The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Agreement.
IN WITNESS WHEREOF, each of the Company, Parent and Purchaser has
caused this Agreement to be signed by its officer or director thereunto duly
authorized and each Stockholder has signed this Agreement, all as of the date
first written above.
SIEMENS ENERGY & AUTOMATION, INC.
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Title: President and CEO
MALIBU ACQUISITION CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇ PRODUCTS CO.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
STOCKHOLDERS:
Trust Under Will of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
MELLON BANK, N.A., Trustee
Under the Will of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, deceased
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title First Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Trustee under the
Will of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, deceased
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Trusts Under Deed of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (I)
and (II)
MELLON BANK, N.A., Trustee under
Deeds of Trust, dated July 7, 1966, of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Settlor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee under Deeds of
Trust, dated July 7, 1966, of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Settlor
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee under Deeds of
Trust, dated July 7, 1966, of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Settlor
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee under Deeds of
Trust, dated July 7, 1966, of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Settlor
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Trust Under Deed of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee under Deed of
Trust, dated January 15, 1988, of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, Settlor, f/b/o ▇▇▇▇▇ ▇.
▇▇▇▇▇, et al.
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee under Deed of
Trust, dated January 15, 1988, of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, Settlor, f/b/o ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, et al.
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee under Deed of
Trust, dated January 15, 1988, of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, Settlor, f/b/o ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, et al.
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ Products Co. Pension Plan
MELLON BANK, N.A., Trustee under
the Amended and Restated Trust
Agreement of ▇▇▇▇▇ Products Co.
Pension Plan
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VICE PRESIDENT
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ PRODUCTS CO. PENSION
PLAN BENEFITS COMMITTEE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
OTHER STOCKHOLDERS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Custodian for Trusts
under the California Gifts to Minor Act
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee under the 1977 ▇▇▇▇▇
Family Trust
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Trustee under the 1977 ▇▇▇▇▇
Family Trust
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-25-
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-26-
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
Under the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust, u/a dated
1/27/99
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ F. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
F. ▇▇▇▇▇▇ ▇▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
c/▇ ▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-27-
SCHEDULE A
----------
--------------------------------------------------------------------------------------------------------------------
Exercisable Unexercisable
Stockholder Common Stock Preferred Stock Options Options
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Trust U/W ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 252,698 172,890 0 0
--------------------------------------------------------------------------------------------------------------------
Trust U/D ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (I) 240,000 0 0 0
--------------------------------------------------------------------------------------------------------------------
Trust U/D ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (II) 60,000 0 0 0
--------------------------------------------------------------------------------------------------------------------
Trust U/D ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ TCM 4,334 0 0 0
JOM 4,333 0 0 0
WBM 4,333 0 0 0
--------------------------------------------------------------------------------------------------------------------
Pension Plan 500,000 0 0 0
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇* 38,412 1,020 1,500 500
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 16,859 1,020 3,000 0
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, custodian 4,225 0 0 0
--------------------------------------------------------------------------------------------------------------------
1977 ▇▇▇▇▇ Family Trust 10,000 0 0 0
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇** 41,470 1,020 3,250 1,750
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 5,000 0 75,000 25,000
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ 0 0 38,000 15,000
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 1,092 0 58,400 4,600
JTWROS
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. and ▇▇▇▇ ▇. ▇▇▇▇▇ 6,022 0 3,000 0
JTWROS
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 0 0 9,000 4,000
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. and ▇▇▇▇ ▇. ▇▇▇▇▇ 4,331 0 3,000 0
JTWROS
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust, u/a dated 2,633 0 3,000 0
1/27/99 ***
--------------------------------------------------------------------------------------------------------------------
F. ▇▇▇▇▇▇ ▇▇▇▇▇▇ 0 0 6,360 0
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 637 0 13,240 6,760
--------------------------------------------------------------------------------------------------------------------
* 20,800 shares of common stock subject to pledge.
** 32,682 shares of common stock subject to pledge.
*** Does not include shares of common stock held in the RCA (▇▇. ▇▇▇▇▇' wife)
Trust, u/a dated 11/18/99, for which ▇▇. ▇▇▇▇▇ is the trustee.
-28-