CONFORMED COPY
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of July 16, 2002, between
Alcoa Inc., a Pennsylvania corporation ("Alcoa"), and the stockholders of The
▇▇▇▇▇▇▇▇▇ Corporation, a Delaware corporation ("Fairchild"), listed on Schedule
A hereto (the "Stockholders").
WHEREAS, Alcoa and Fairchild are entering into the Acquisition Agreement,
dated as of July 16, 2002 (the "Acquisition Agreement"), among Alcoa, Fairchild,
▇▇▇▇▇▇▇▇▇ Holding Corp., a Delaware corporation and an indirect, wholly owned
subsidiary of the Parent ("Fairchild Holding"), and Sheepdog, Inc., a Delaware
corporation and a direct, wholly owned subsidiary of the Parent ("SDI" and
together with the Parent, Fairchild Holding and the subsidiaries of the Parent
set forth on Schedule 1.125 of the Acquisition Agreement, collectively, the
"Sellers"), pursuant to which, among other things, following receipt of the
Shareholder Approval and satisfaction of certain other conditions, the Sellers
will transfer the Fastener Business Assets (other than the Fastener Business
Assets owned or held by the Transferred Fastener Subsidiaries) and the
outstanding capital stock and membership interests, as the case may be, of the
Transferred Fastener Subsidiaries to Alcoa in exchange for the assumption by
Alcoa of the Assumed Fastener Business Liabilities and the payment to the Parent
of the Cash Consideration and the payments under the Earn-Out;
WHEREAS, as a condition precedent to Alcoa entering into the Acquisition
Agreement and completing the transactions contemplated therein, and as an
inducement to Alcoa to do so, the Stockholders have agreed to enter into this
Agreement;
WHEREAS, the transactions contemplated by the Acquisition Agreement are
subject to certain conditions, including the Shareholder Approval;
WHEREAS, each of the Stockholders is, as of the date hereof, the beneficial
owner of the number of shares of Fairchild Common Stock set forth opposite such
Stockholder's name on Schedule A hereto; and
WHEREAS, capitalized terms used and not defined herein shall have the
respective meanings assigned to them in the Acquisition Agreement.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and, intending to be legally bound hereby, the parties agree as
follows:
ARTICLE I
COVENANTS OF THE STOCKHOLDERS
Section 1.1 Agreement to Vote. At the Special Shareholders Meeting and at
any subsequent meeting called in connection with obtaining the Shareholders
Approval, however called, and at every adjournment or postponement thereof, or
in
connection with any written consent of the stockholders of Fairchild given with
respect to the transactions contemplated by the Acquisition Agreement, each of
the Stockholders shall vote all of the shares of Fairchild Common Stock
beneficially owned by such Stockholder in favor of the Acquisition Agreement and
each of the transactions contemplated thereby and any actions required in
furtherance hereof and thereof, and shall vote such shares against any proposals
that are inconsistent with such transactions. Notwithstanding the foregoing,
each of the Stockholders shall remain free to vote such Stockholder's shares of
Fairchild Common Stock with respect to any matter not covered by the preceding
sentence in any manner it deems appropriate. Prior to the date on which (a) the
Acquisition Agreement is terminated in accordance with its terms or (b), if
earlier, the date the transactions contemplated by the Acquisition Agreement are
consummated, each of the Stockholders agrees not to enter, directly or
indirectly, into any agreement, arrangement or understanding with any person to
vote, grant any proxy or give instructions with respect to the voting of the
shares of Fairchild Common Stock in any manner inconsistent with the first
sentence of this Section 1.1.
Section 1.2 Additional Purchases. Each of the Stockholders agrees that any
shares of Fairchild Common Stock that such Stockholder purchases or with respect
to which such Stockholder otherwise acquires beneficial ownership or voting
control after the execution of this Agreement and prior to the date of
termination of this Agreement ("New Shares") shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted shares of
Fairchild Common Stock.
Section 1.3 Restrictions on Transfer. Until and unless this Agreement has
been terminated, each of the Stockholders shall not, except as expressly
permitted in this Agreement, (a) sell, exchange, pledge, encumber or otherwise
transfer or dispose of, any of its shares of Fairchild Common Stock (which for
avoidance of doubt shall include any option to purchase shares of capital stock
of Fairchild exercisable for shares of Fairchild Common Stock pursuant to the
terms of the option), or any interest therein, (b) deposit its shares of
Fairchild Common Stock into a voting trust or enter into a voting agreement or
arrangement with respect to such shares of Fairchild Common Stock or grant any
proxy with respect thereto or (c) enter into any agreement, arrangement,
understanding or undertaking to do any of the foregoing. Notwithstanding the
foregoing, each of the Stockholders may during the term of this Agreement (i)
assign, sell or otherwise transfer any of its shares of Fairchild Common Stock
to a constituent partner or member of such Stockholder which is a partnership or
limited liability company, or to an Affiliate of such Stockholder which is a
corporation, partnership or limited liability company, provided that such
transferee, upon receipt of such shares of Fairchild Common Stock shall
thereupon be bound by this Agreement to the same extent as such Stockholder and
(ii) sell any of its shares of Fairchild Common Stock in accordance with the
volume and manner restrictions set forth in Rule 144 of the Securities Act,
provided that such Stockholder may not sell any of its shares of Fairchild
Common Stock pursuant to subdivision (k) of Rule 144, even if such shares of
Fairchild Common Stock would otherwise be eligible for sale under such
subdivision at the time of such sale, provided that such transferee, upon
receipt of such shares of Fairchild Common Stock shall thereupon be bound by
this Agreement to the same extent as such Stockholder.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and warrants
to Alcoa that:
Section 2.1 Ownership. Such Stockholder is, as of the date hereof, the
beneficial owner of the number of shares of Fairchild Common Stock set forth
opposite such Stockholder's name on Schedule A hereto; such Stockholder has the
sole right to vote such shares of Fairchild Common Stock; and, except as set
forth in Schedule B, there are no restrictions on the right of voting or
disposition by such Stockholder of such shares of Fairchild Common Stock (other
than restrictions on disposition pursuant to applicable securities laws). None
of such shares of Fairchild Common Stock beneficially owned by such Stockholder
are subject to any voting trust or other agreement, arrangement or restriction
with respect to the voting or disposition of such Stockholder's shares of
Fairchild Common Stock. Such Stockholder has good and valid title to all shares
of Fairchild Common Stock free and clear of all Liens (other than any Liens
created hereby).
Section 2.2 Authority and Non-Contravention. Such Stockholder has all
requisite power and authority, and has full legal capacity and is competent, to
enter into this Agreement and to perform its obligations hereunder. The
execution, delivery and performance by such Stockholder of this Agreement and
the consummation by such Stockholder of the transactions contemplated hereby
have been duly authorized by all necessary corporate or limited liability
company action on the part of such Stockholder. Such actions by such Stockholder
(a) require no action by or in respect of, or filing with, any governmental
entity with respect to such Stockholder, other than required filings under the
Exchange Act, if any, (b) do not and will not violate or contravene any
provision of applicable law or any regulation, judgment, injunction, order or
decree binding on such Stockholder or result in the imposition of any
encumbrance on any asset of such Stockholder (other than as provided in this
Agreement with respect to such shares of Fairchild Common Stock) and (c) do not
and will not violate or contravene any contract or other instrument to which
such Stockholder is a party or by which such Stockholder is bound, including,
without limitation, any voting agreement, stockholders agreement or voting
trust.
Section 2.3 Binding Effect. This Agreement has been duly and validly
executed and delivered by such Stockholder and, assuming its due authorization,
execution and delivery by Alcoa, is a legal, valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
Section 2.4 Total Shares. The shares of Fairchild Common Stock set
forth opposite each Stockholder's name on Schedule A hereto are the only shares
of capital stock of Fairchild beneficially owned, as of the date hereof, by such
Stockholder.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF ALCOA
Alcoa represents and warrants to each Stockholder that:
Section 3.1 Corporate Power and Authority. Alcoa has the corporate power
and authority to enter into this Agreement and to perform its obligations
hereunder. The execution, delivery and performance by Alcoa of this Agreement
and the consummation by Alcoa of the transactions contemplated hereby have been
duly authorized by the Board of Directors of Alcoa.
Section 3.2 Binding Effect. This Agreement has been duly and validly
executed and delivered by Alcoa and, assuming its due authorization, execution
and delivery by each Stockholder, is a valid and binding agreement of Alcoa,
enforceable against Alcoa in accordance with its terms.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Additional Documents. Each Stockholder hereby covenants and
agrees to execute and deliver any additional documents necessary or desirable,
in the reasonable opinion of Alcoa, to carry out the intent of this Agreement.
Section 4.2 Termination. This Agreement shall terminate and shall have
no further force or effect as of the earlier to occur of (a) such date the
transactions contemplated by the Acquisition Agreement are consummated or (b)
such date as the Acquisition Agreement shall have been terminated in accordance
with its terms.
Section 4.3 Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such costs or expenses.
Section 4.4 Amendments. No provisions of this Agreement may be modified,
amended, waived, altered or supplemented, except pursuant to a written agreement
executed by each of the parties hereto.
Section 4.5 Entire Agreement. This Agreement and the Acquisition
Agreement constitute the entire agreement between the parties with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
Section 4.6 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or mailed
by registered or certified mail (return receipt requested), postage prepaid,
telecopied (and which is confirmed) or sent by any reputable courier (providing
proof of delivery) to the parties at the following addresses (or at such other
addresses for a party as shall be
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specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof):
If to the Stockholders:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
If to Alcoa:
Alcoa Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to Fairchild:
The ▇▇▇▇▇▇▇▇▇ Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
A copy of any notice, request, demand, certificate or other communication
given hereunder by any party shall be delivered to each other party to this
Agreement as well as to the addressee at the same time as it is given to the
addressee.
Section 4.7 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
executors, personal representatives, successors and assigns, provided that any
assignment of this Agreement or the rights hereunder in whole or in part by any
party hereto without the written consent of the other parties shall be void.
Nothing in this Agreement, express or implied, is intended to confer upon any
other person any rights or remedies under or by reason of this Agreement.
Section 4.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (without regard
to the principles of conflicts of law thereof).
Section 4.9 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 but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision, and this Agreement will be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision or portion of
any provision had never been contained herein. The parties shall endeavor in
good faith negotiations to replace any invalid, illegal or unenforceable
provision with a valid provision the effects of which come as close as possible
to those of such invalid, illegal or unenforceable provision.
Section 4.10 Consent to Jurisdiction. Each of the parties hereto (a)
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 or relates to this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, including, without limitation, a motion to dismiss on the grounds
of forum non conveniens, (c) agrees that it will not bring any action arising
out of or relating to this Agreement or any of the transactions contemplated by
this Agreement in any court other than a federal court sitting in the State of
Delaware or a Delaware state court, and (d) agrees to waive any right to a
trial by jury with respect to any claim, counterclaim or action arising out of
or in connection with this Agreement or the transactions contemplated hereby.
Section 4.11 Enforcement. The parties hereto agree that money damages or
other remedy at law would not be a sufficient or adequate remedy for any breach
or violation of, or default under, this Agreement by them and that in addition
to all other remedies available to them, each of them shall be entitled to the
fullest extent
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permitted by law to an injunction restraining such breach, violation or default
or threatened breach, violation or default and to any other equitable relief,
including, without limitation, specific performance, without bond or other
security being required.
Section 4.12 Binding Effect and Assignment. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns and any
person or entity to which legal or beneficial ownership of such shares of
Fairchild Common Stock or New Shares shall pass whether by operation of law or
otherwise, but, except as otherwise specifically provided herein, neither this
Agreement nor any of the rights, interests or obligations of the parties hereto
may be assigned by either of the parties without prior written consent of the
other.
Section 4.13 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Alcoa and each of the Stockholders listed on
Schedule A hereto have caused this Agreement to be duly executed as of the day
and year first above written.
ALCOA INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
THE ▇▇▇▇▇▇▇ GROUP LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, AS CUSTODIAN
FOR HIS CHILDREN
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FAMILY
FOUNDATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SCHEDULE A
Name Number of Shares Beneficially Owned
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ Corporation Class A Stock Class B Stock
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 442,754 -0-
The ▇▇▇▇▇▇▇ Group LLC 3,193,688 2,533,996
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Custodian for
His Children 38,500 30,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Family Foundation 2,400 -0-
The ▇▇▇▇▇▇▇▇▇ Corporation Savings Plan
(▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇) 2,644 -0-
--------- ---------
Total 3,679,986 2,563,996
Sch. A-1
SCHEDULE B
Name Number of Shares Beneficially Owned
--------------------------------------------------------------------------------
[Name of Stockholder] Class A Stock Class B Stock Encumbrances
Sch. B-1