EXHIBIT 10.1
AMENDED AND RESTATED VOTING AND TENDER AGREEMENT
This AMENDED AND RESTATED VOTING AND TENDER AGREEMENT (this
"AGREEMENT"), dated as of December 22, 2000, by and between MILPI ACQUISITION
CORP., a Delaware corporation ("BUYER"), PLM INTERNATIONAL, INC., a Delaware
corporation ("COMPANY"), and the other parties who have signed this Agreement
(each, a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS") amends and
restates the Voting and Tender Agreement dated as of December 22, 2000 by and
between Buyer, Company and Stockholders.
WHEREAS, each Stockholder is the beneficial owner of the number of
shares of common stock of Company, par value $.01 per share, set forth on the
signature page to this Agreement (such shares, together with any other shares of
capital stock of Company acquired by such Stockholder after the date hereof
(including through the exercise of stock options, warrants or similar rights or
the conversion or exchange of securities) being collectively referred to herein
as the "SHARES" of such Stockholder);
WHEREAS, the respective Boards of Directors of Buyer and Company have
approved the execution of an Agreement and Plan of Merger, dated as of the date
hereof (as the same may be amended, supplemented or otherwise modified in
accordance with its terms, the "MERGER AGREEMENT"), pursuant to which Buyer has,
among other things, agreed to commence a cash tender offer to purchase shares of
Company Common Stock as described in the Merger Agreement, which is to be
followed by the merger of Buyer with and into Company on the terms and
conditions set forth in the Merger Agreement;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Buyer and Company have entered into the Merger Agreement, setting
forth certain representations, warranties, covenants and agreements of the
parties thereto in connection with the Offer and the Merger; and
WHEREAS, as an inducement and an essential condition to Buyer entering
into the Merger Agreement, Company and each Stockholder have agreed to enter
into this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties and agreements contained herein and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. VOTING AGREEMENT. Each Stockholder, severally and not jointly,
covenants and agrees with Buyer that, at any meeting of Company's stockholders,
however called, and any postponement or adjournment thereof, or in connection
with any written consent of Company's stockholders (collectively, the "COMPANY
STOCKHOLDERS MEETING"), such Stockholder shall vote all Shares of such
Stockholder (or, if applicable and requested by Buyer, grant proxies with
respect to such Shares), and shall cause each Affiliate of such Stockholder to
vote all of such Affiliate's Shares (or, if applicable and requested by Buyer,
grant proxies with respect to such Shares), (a) in favor of the adoption and
approval of the Merger Agreement and the transactions contemplated thereby
(including the Merger), and (b) against (i) any proposal made in opposition to
or in competition with the Offer, the Merger or the transactions contemplated by
the Merger Agreement, (ii) any merger, reorganization, consolidation, share
exchange, business
combination, sale of assets or similar transaction with or involving Company
and any party other than Buyer, and (iii) any other action the consummation
of which would reasonably be expected to prevent or delay the consummation of
the Offer, the Merger or the transactions contemplated by the Merger
Agreement.
2. TENDER OF SHARES.
(a) TENDER OF SHARES. Each Stockholder covenants and agrees with
Buyer that it shall tender (or cause to be tendered), and shall cause each
Affiliate of such Stockholder to tender (or cause to be tendered), pursuant
to and in accordance with the terms of the Offer, all of its Shares to Buyer
at the Offer Price. Subject to applicable Law and SEC regulations, each
Stockholder covenants and agrees that it shall not, and shall cause each of
its Affiliates not to, withdraw any Shares tendered by it pursuant to the
Offer.
(b) GRANT OF OPTION. Each Stockholder hereby grants (and shall use
its best efforts to cause each of its Affiliates to grant) to Buyer an
irrevocable option (the "OPTION") to purchase its Shares not validly tendered
pursuant to the Offer, and its Shares validly tendered but withdrawn pursuant
to the Offer, at a price in cash per Share (the "OPTION PRICE") equal to the
Offer Price or any higher price paid by Buyer for any share of Company Common
Stock pursuant to the Offer or the Merger (but excluding any price paid to
any shareholder who exercises dissenter's, appraisal or similar rights in
connection with the Merger).
(c) EXERCISE OF OPTION. The Option shall (i) become exercisable, in
whole but not in part, for all Shares (less any Shares that Buyer has
accepted for payment or paid for pursuant to the Offer) immediately after the
Offer Conditions Satisfaction Date; if, but only if, Buyer has accepted for
payment all shares of Company Common Stock tendered and not withdrawn by the
Offer Conditions Satisfaction Date, and (ii) shall remain exercisable for a
period of 30 days after the first such date on which the Option becomes
exercisable. If the Option does not become exercisable due to (x) the
withdrawal of the Offer prior to the Offer Conditions Satisfaction Date, or
(y) the failure of Buyer to accept for payment all shares of Company Common
Stock tendered and not withdrawn by such date, the Option shall be deemed to
have expired. In the event Buyer wishes to exercise the Option, Buyer shall,
prior to the expiration of the Option, send a written notice to each
Stockholder identifying the time and place for the closing of such purchase
at least three Business Days prior to such closing, which notice may be given
prior to the Option becoming exercisable, and which notice shall be
considered irrevocable.
3. RESTRICTIONS ON TRANSFER. Each Stockholder covenants and agrees with
Buyer that, until after the Effective Time, such Stockholder shall not, and
shall cause each Affiliate of such Stockholder not to, directly or indirectly
(other than pursuant to this Agreement), (a) give, offer, sell, transfer,
assign, pledge, encumber or otherwise dispose of the record or beneficial
ownership (any such act, a "TRANSFER") of, or enter into any contract,
option, commitment or other arrangement (including any profit sharing
arrangement) or understanding for the Transfer of, or consent to any Transfer
of, any or all of such Stockholder's (or Stockholder's Affiliate's) Shares,
or any interest therein, or (b) grant any proxies or enter into any voting
trust or other agreement and arrangement with respect to the voting of any
such
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Shares or deposit any of such Shares into a voting trust. No Transfer of any
Shares in violation of this Section 3 shall be made or recorded on the books
of Company and any such Transfer shall be void and of no effect.
4. COOPERATION. Each Stockholder covenants and agrees with Buyer that it
shall, and shall cause each of its Affiliates to, in connection with carrying
out its obligations under this Agreement, cooperate fully with Buyer in
connection with the Offer, the Merger and the transactions contemplated by
the Merger Agreement.
5. NO SOLICITATION. Each Stockholder covenants and agrees with Buyer
that such Stockholder, in his or her capacity as a shareholder of Company
only, shall not, and shall cause each Affiliate (other than Company) of such
Stockholder not to, directly or indirectly, (a) solicit, initiate or
encourage the submission of any Acquisition Proposal, (b) engage in any
discussions or negotiations with any Person concerning any Acquisition
Proposal, or (c) disclose any nonpublic information relating to Company or
any of its Affiliates to any Person who, to the knowledge of such Stockholder
or Affiliate of such Stockholder, is considering making or has made an
Acquisition Proposal. Each Stockholder shall, and shall cause each Affiliate
(other than Company) of such Stockholder to, (w) notify Buyer and Company as
promptly as practicable (but in no event later than 24 hours) after receipt
by such Person of any Acquisition Proposal or any request for nonpublic
information relating to Company or any of its Affiliates by any Person who,
to the knowledge of such Stockholder or Affiliate of such Stockholder, is
considering making or has made an Acquisition Proposal, (x) provide such
notice orally and in writing and identify the Person making, and the terms
and conditions of, any such Acquisition Proposal, (y) keep Buyer and Company
informed of the status and details of any such Acquisition Proposal, and (z)
cease immediately and cause to be terminated all activities, discussions and
negotiations, if any, with any Persons other than Buyer that are currently
being conducted or which have been conducted prior to the date hereof with
respect to any Acquisition Proposal.
6. CONFIDENTIALITY. Each Stockholder recognizes that successful
consummation of the transactions contemplated by this Agreement (including
the Offer and the Merger) may be dependent upon confidentiality with respect
to the matters referred to herein. In this connection, pending public
disclosure thereof by Buyer and/or Company pursuant to the terms of the
Merger Agreement, each Stockholder hereby agrees, in his or her capacity as a
stockholder of Company only, not to issue any press release or make any other
public statement or disclose or discuss such matters with anyone not a party
to this Agreement (other than such Stockholder's counsel and advisors, if
any) without the prior written consent of Buyer and Company, except as
required by law (including any applicable Schedule 13D or other filings
required under the Securities Exchange Act of 1934, as amended).
7. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER.
(a) Each Stockholder has all necessary power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement by each Stockholder, and the
performance of its obligations hereunder, have been duly and validly authorized
by all necessary action and no other proceedings on the part of any Stockholder
are necessary to authorize the execution and delivery of this Agreement or the
performance of such Stockholder's obligations hereunder. This Agreement has been
duly and validly executed and delivered by each Stockholder and, assuming the
due authorization,
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execution and delivery by the other parties hereto, constitutes a legal,
valid and binding obligation of each Stockholder, enforceable against each
Stockholder in accordance with its terms.
(b) The execution and delivery of this Agreement by each Stockholder
does not, and the performance of this Agreement by each Stockholder will not,
(i) conflict with or violate the certificate of incorporation, by-laws or
other governing documents, if any, of such Stockholder, (ii) require any
consent, approval, authorization, waiver or permit of, of filing with or
notification to, any Governmental Entity, (iii) conflict with or violate any
Law applicable to such Stockholder or by which any property of such
Stockholder is bound or affected, or (iv) result in any breach of or
constitute a default under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a
Lien on any property or asset of such Stockholder pursuant to any contract,
agreement, note, bond, mortgage, indenture, credit agreement, lease, license,
permit, franchise or other instrument or obligation to which such Stockholder
or an of its affiliates is a party or by which such Stockholder or any of its
Affiliates, or any property or asset of such Stockholder or any of its
Affiliates, is bound or affected, except in the case of clauses (iii) and
(iv) for any such conflicts, violations, breaches, defaults or other
occurrences of the type referred to above which would not prevent or
materially delay such Stockholder's ability to perform its obligations under
this Agreement.
8. TERMINATION. This Agreement and all obligations hereunder shall
terminate immediately upon the earlier of (a) the consummation of the Merger,
and (b) the termination of the Merger Agreement; PROVIDED, HOWEVER, that, this
Section 8 and Section 9 shall survive the termination of this Agreement.
9. GENERAL PROVISIONS.
(a) NOTICES. All notices or other communications under this Agreement
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by delivery in person, by facsimile (with confirmation of
receipt), or by registered or certified mail, postage prepaid, return receipt
requested, addressed to the notice address specified on the applicable
signature page to this Agreement.
(b) SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, the parties further agree (without prejudice to a
party's right to contest any injunction or restraining order based upon a
claim of breach of this Agreement to the extent it reasonably believes, in
good faith, that it has a meritorious defense to such a claim for relief)
that each party shall be entitled to an injunction or restraining order 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 right or remedy to which
such party may be entitled under this Agreement, at Law or in equity.
(c) ENTIRE AGREEMENT. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and
supersedes all other prior
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agreements and understandings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof.
(d) ASSIGNMENT; PARTIES IN INTEREST. Neither this Agreement nor any
of the rights, interests or obligations hereunder may be assigned by any of
the parties hereto (whether by operation of Law or otherwise) without the
prior written consent of the other parties. Subject to the foregoing, this
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any Person not a party hereto any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement, including to
confer third party beneficiary rights.
(e) GOVERNING LAW. This Agreement shall be governed in all respects
by the Laws of the State of Delaware (without giving effect to the provisions
thereof relating to conflicts of Law). The exclusive venue for the
adjudication of any dispute or proceeding arising out of this Agreement or
the performance hereof shall be the courts located in Dover County, Delaware,
and the parties hereto and their Affiliates each consents to and hereby
submits to the jurisdiction of any court located in Dover County, Delaware or
Federal courts in Delaware.
(f) HEADINGS. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
(g) CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION.
(i) Capitalized terms used herein and not otherwise defined are
used with the meanings ascribed to them in the Merger Agreement.
(ii) References in this Agreement to any gender shall include
references to all genders. Unless the context otherwise requires, references
in the singular include references in the plural and vice versa. References
to a party to this Agreement or to other agreements described herein means
those Persons executing such agreements.
(iii) The words "include", "including" or "includes" shall be
deemed to be followed by the phrase "without limitation" or the phrase "but
not limited to" in all places where such words appear in this Agreement. The
word "or" shall be deemed to be inclusive.
(iv) This Agreement is the joint drafting product of each of the
parties hereto, and each provision has been subject to negotiation and
agreement and shall not be construed for or against any party as drafter
thereof.
(v) In each case in this Agreement where this Agreement is
represented or warranted to be enforceable will be deemed to include as a
limitation to the extent that enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar Laws affecting the enforcement of creditors' rights generally and to
general equitable principles, whether applied in equity or at Law.
(h) COUNTERPARTS; FACSIMILE SIGNATURE. This Agreement may
be executed in two or more counterparts which together shall constitute a
single agreement. Execution of this
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Agreement may be made by facsimile signature which, for all purposes, shall
be deemed to be an original signature.
(i) SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of Law or public
policy, all other terms and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economics or legal substance
of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon determination that any term or other
provision hereof is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable Law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent
possible.
(j) AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
(k) WAIVER. The parties hereto may, to the extent permitted by
applicable Law, (i) extend the time for the performance of any of the
obligations or other acts of any other party hereto, (ii) waive any
inaccuracies in the representations and warranties by any other party
contained herein or in any documents delivered by any other party pursuant
hereto, and (iii) waive compliance with any of the agreements of any other
party or with any conditions to its own obligations contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall
be valid only if set forth in an instrument in writing signed on behalf of
such party.
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IN WITNESS WHEREOF, Buyer, Company and each Stockholder have caused
this Voting and Tender Agreement to be duly executed and delivered as of the
date first written above.
MILPI ACQUISITION CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
PLM INTERNATIONAL
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman
STOCKHOLDERS:
STEEL PARTNERS II, L.P.
By: Steel Partners, L.L.C., its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, President
Number of Shares Beneficially Owned as of
December 22, 2000:
1,337,300 shares of Common Stock*
Notice Address:
Steel Partners II, L.P.
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▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., 21st Floor
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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* A total of 1,337,300 shares of Common Stock are held by Steel Partners II,
L.P. The general partner of Steel Partners II, L.P. is Steel Partners
L.L.C., of which ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ is the chief executive officer, and
▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ may be deeemed to be the beneficial owner of all such
shares.
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STEEL PARTNERS, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, President
Number of Shares Beneficially Owned as
of December 22, 2000:
1,337,300 shares of Common Stock*
Notice Address:
Steel Partners, L.L.C.
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▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Number of Shares Beneficially Owned as
of December 22, 2000:
1,337,300 shares of Common Stock*
20,000 options
Notice Address:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
c/o Steel Partners II, L.P.
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▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., 21st Floor
-----------------------------
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------
* A total of 1,337,300 shares of Common Stock are held by Steel Partners II,
L.P. The general partner of Steel Partners II, L.P. is Steel Partners
L.L.C., of which ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ is the chief executive officer, and
▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ may be deeemed to be the beneficial owner of all such
shares.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Number of Shares Beneficially Owned as of
December 22, 2000:
304,005 shares of Common Stock
110,000 options
Notice Address:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o PLM International, Inc.
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One Market
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▇▇▇▇▇▇▇ Street Tower, Suite 800
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Number of Shares Beneficially Owned as of
December 22, 2000:
155,477 shares of Common Stock
85,000 options
Notice Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o PLM International, Inc.
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One Market
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▇▇▇▇▇▇▇ Street Tower, Suite 800
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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