Exhibit 99.2
EXECUTION VERSION
SUPPORT AGREEMENT (this "Agreement"), dated as of February 27, 2004,
by and among GMI Holding Corporation, a Delaware corporation ("Parent"), GMI
Merger Corporation, a Delaware corporation ("Purchaser"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Stockholder").
WHEREAS, concurrently with the execution of this Agreement, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Inc., a Delaware corporation (the "Company"), Parent and Purchaser are
entering into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement"; capitalized terms used but not defined in this Agreement have the
meanings ascribed thereto in the Merger Agreement);
WHEREAS, as of the date hereof, Stockholder is the beneficial owner
of 2,066,002 shares of common stock, $0.01 par value, of the Company (such
Shares, together with any other shares of Company Common Stock acquired by
Stockholder after the date hereof, being collectively referred to herein as the
"Stockholder Shares"); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have required that Stockholder enter into this
Agreement and, in order to induce Parent and Purchaser to enter into the Merger
Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Agreements of Stockholder.
(a) Tender. Unless this Agreement shall have been terminated in
accordance with its terms, Stockholder shall (i) as promptly as practicable and
in any event within ten business days of the commencement of the Offer, validly
tender all of the Stockholder Shares into the Offer, pursuant to and in
accordance with the terms of the Offer, and (ii) not withdraw, or cause to be
withdrawn, any Stockholder Shares from the Offer.
(b) Voting. From the date hereof until any termination of this
Agreement in accordance with its terms, at any meeting of the stockholders of
the Company however called (or any action by written consent in lieu of a
meeting) or any adjournment thereof, Stockholder shall vote all Stockholder
Shares (or cause them to be voted), or execute (or cause to be executed) written
consents in respect thereof, (i) in favor of the adoption of the Merger
Agreement and the approval of the Transactions, (ii) against any action or
agreement that would result in a breach of any representation, warranty,
covenant, agreement or other obligation of the Company in the Merger Agreement,
and (iii) against any action that is intended or could reasonably be expected to
prevent, impede, interfere with, delay, postpone or discourage the consummation
of the Offer or the Merger. Any such vote shall be cast (or consent shall be
given) by, or at the direction of, Stockholder in accordance with such
procedures relating thereto so as to ensure that it is duly counted, including
for purposes of determining that a quorum is present and for purposes of
recording the results of such vote (or consent).
(c) Restriction on Transfer; Proxies; Non-Interference; etc. From the
date hereof until any termination of this Agreement in accordance with its
terms, Stockholder shall not (i) sell, transfer (including by operation of law),
give, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to the sale,
transfer, gift, pledge, encumbrance, assignment or other disposition of, any
Stockholder Shares, (ii) deposit any Stockholder Shares into a voting trust or
grant any proxies or enter into a voting agreement, power of attorney or voting
trust with respect to any Stockholder Shares or (iii) take any action that would
make any representation or warranty of Stockholder set forth in this Agreement
untrue or incorrect in any material respect or have the effect of preventing,
disabling or materially delaying Stockholder from performing any of its
obligations under this Agreement.
(d) No Solicitation. Stockholder shall cease, and shall use its
reasonable best efforts to cause its directors, officers, employees, investment
bankers and representatives that have authority for the management of
Stockholder's investment in the Shares to cease, any discussions or negotiations
with any Person that may be ongoing as of the date of this Agreement with
respect to a Takeover Proposal. From the date hereof until any termination of
this Agreement in accordance with its terms, Stockholder shall not, and shall
use its reasonable best efforts to cause its directors, officers, employees,
investment bankers and representatives that have authority for the management of
Stockholder's investment in the Shares not to (i) solicit, initiate or knowingly
encourage (including by way of furnishing information) the initiation of any
Takeover Proposal or (ii) participate in any discussions with any third party
regarding, or furnish to any third party any non-public information in
connection with any Takeover Proposal.
(e) Publication. Stockholder consents to Parent and Purchaser
publishing and disclosing in the Offer Documents Stockholder's identity and
ownership of Company Common Stock and the nature of Stockholder's commitments,
arrangements and understandings under this Agreement.
2. Representation and Warranties of Parent and Purchaser. Parent and
Purchaser each hereby jointly and severally represents and warrants to
Stockholder as follows:
(a) Corporate Organization. Each of Parent and Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization.
(b) Authority. Each of Parent and Purchaser has all necessary
corporate power and authority to execute and deliver this Agreement and to
consummate the Transactions. The execution, delivery and performance by Parent
and Purchaser of this Agreement, and the consummation of the Transactions, have
been duly authorized and approved by their respective Boards of Directors and by
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Parent as the sole stockholder of Purchaser, and no other corporate action on
the part of Parent and Purchaser is necessary to authorize the execution and
delivery by Parent and Purchaser of this Agreement and the consummation by them
of the Transactions. This Agreement has been duly executed and delivered by
Parent and Purchaser and, assuming due and valid authorization, execution and
delivery hereof by Stockholder, constitutes a valid and binding obligation of
each of Parent and Purchaser, enforceable against each of them in accordance
with its terms, subject to the Bankruptcy and Equity Exception.
(c) Consents and Approvals; No Violations.
(i) Except for (A) the filing with the SEC of the Offer Documents
and, if necessary, a Proxy Statement in definitive form, and other filings
required under, and compliance with other applicable requirements of, the
Exchange Act, (B) the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware pursuant to the DGCL and (C) filings required
under, and compliance with other applicable requirements of, Foreign Antitrust
Laws, no consents or approvals of, or filings, declarations or registrations
with, any Governmental Entity are necessary for the consummation by Parent and
Purchaser of the Transactions, other than such other consents, approvals,
filings, declarations or registrations that, if not obtained, made or given,
would not, individually or in the aggregate, reasonably be expected to have a
Parent Material Adverse Effect.
(ii) Neither the execution and delivery of this Agreement by Parent
or Purchaser, nor the consummation by Parent or Purchaser of the Transactions,
nor compliance by Parent or Purchaser with any of the terms or provisions
hereof, will (A) conflict with or violate any provision of the certificate of
incorporation or bylaws of Parent or Purchaser or (B) assuming that the
authorizations, consents, approvals and filings referred to in Section 2(c)(i)
are obtained and made, (x) violate any Law, judgment, writ or injunction of any
Governmental Entity applicable to Parent or any of its subsidiaries or any of
their respective properties or assets, or (y) violate, conflict with, result in
the loss of any material benefit under or constitute a default under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, permit, lease, agreement or other instrument or obligation to
which Parent, Purchaser or any of their respective subsidiaries is a party, or
by which they or any of their respective properties or assets may be bound or
affected, except, in the case of clause (B), for such violations, conflicts,
losses or defaults as would not reasonably be expected to have a Parent Material
Adverse Effect.
(d) Financing. Parent and Purchaser collectively have, and will have
at the date that Purchaser becomes obligated to accept for payment and pay for
Shares pursuant to the Offer, sufficient cash resources available to pay for the
Shares that Purchaser becomes so obligated to accept for payment and pay for
pursuant to the Offer.
3. Representations and Warranties of Stockholder. Stockholder hereby
represents and warrants to Parent and Purchaser as follows:
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(a) Organization; Authority. Stockholder is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Jersey. Stockholder has all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution, delivery and performance by Stockholder of this Agreement, and
the consummation of the transactions contemplated hereby, have been duly
authorized and approved by all necessary action on the part of Stockholder and
no further action on the part of Stockholder is necessary to authorize the
execution and delivery by Stockholder of this Agreement and the consummation by
Stockholder of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Stockholder and, assuming due and valid
authorization, execution and delivery hereof by Parent and Purchaser,
constitutes a valid and binding obligation of Stockholder, enforceable against
Stockholder in accordance with its terms, subject to the Bankruptcy and Equity
Exception.
(b) Consents and Approvals; No Violations.
(i) No consents or approvals of, or filings, declarations or
registrations with, any Governmental Entity are necessary for the consummation
by Stockholder of the transactions contemplated by this Agreement, other than
such other consents, approvals, filings, declarations or registrations that, if
not obtained, made or given, would not, individually or in the aggregate,
reasonably be expected to prevent or materially delay the performance by
Stockholder of any of its obligations under this Agreement.
(ii) Neither the execution and delivery of this Agreement by
Stockholder, nor the consummation by Stockholder of the transactions
contemplated hereby, nor compliance by Stockholder with any of the terms or
provisions hereof, will (A) conflict with or violate any provision of the
organizational documents of Stockholder or (B) assuming that the authorizations,
consents, approvals and filings referred to in Section 3(b)(i), if any, are
obtained and made, (x) violate any Law, judgment, writ or injunction of any
Governmental Entity applicable to Stockholder or any of its properties or
assets, or (y) violate, conflict with, result in the loss of any material
benefit under or constitute a default under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
permit, lease, agreement or other instrument or obligation to which Stockholder
is a party, or by which any of its properties or assets may be bound or
affected, except, in the case of clause (B), for such violations, conflicts,
losses or defaults as would not, individually or in the aggregate, reasonably be
expected to prevent or materially delay the performance by Stockholder of any of
its obligations under this Agreement.
(c) Ownership of Shares. Stockholder beneficially owns all of the
Stockholder Shares. Stockholder owns all of the Stockholder Shares free and
clear of any proxy, voting restriction, adverse claim or other Lien (other than
restrictions in favor of Parent and Purchaser pursuant to this Agreement and
except for such transfer restrictions of general applicability as may be
provided under the Securities Act and the "blue sky" laws of the various States
of the United States). Without limiting the foregoing, except for restrictions
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in favor of Parent and Purchaser pursuant to this Agreement and except for such
transfer restrictions of general applicability as may be provided under the
Securities Act and the "blue sky" laws of the various States of the United
States, Stockholder has sole voting power and sole power of disposition with
respect to all Stockholder Shares, with no restrictions on Stockholder's rights
of voting or disposition pertaining thereto and no Person other than Stockholder
has any right to direct or approve the voting or disposition of any Stockholder
Shares. As of the date hereof, Stockholder does not own, beneficially or of
record, any equity securities of the Company other than 2,066,002 Shares which
constitute Stockholder Shares.
4. Termination. This Agreement shall terminate on the first to occur
of (a) the termination of the Merger Agreement in accordance with its terms, (b)
at such time as the Board of Directors of the Company, pursuant to the
provisions of Section 5.2(b) of the Merger Agreement, withdraws its approval of
the Merger Agreement and the Transactions or its recommendation that the
Company's stockholders accept the Offer and tender their Shares to Purchaser
pursuant thereto, (c) the day after the Offer is terminated or expires, provided
Stockholder has complied with its obligations hereunder, (d) the date that is 90
days after the date hereof, or (e) at Stockholder's election in the event that
the Merger Agreement is amended in a manner that materially adversely affects
Stockholder. Notwithstanding the foregoing, (i) nothing herein shall relieve any
party from liability for fraud or any willful breach of this Agreement and (ii)
the provisions of this Section 4 and Section 5 shall survive any termination of
this Agreement.
5. Miscellaneous.
(a) Expenses. Except as otherwise expressly provided in this
Agreement, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs
and expenses.
(b) Additional Shares. Until any termination of this Agreement in
accordance with its terms, Stockholder shall promptly notify Parent of the
number of Shares, if any, as to which Stockholder acquires record or beneficial
ownership after the date hereof. Any Shares as to which Stockholder acquires
record or beneficial ownership after the date hereof and prior to termination of
this Agreement shall be Stockholder Shares for purposes of this Agreement.
Without limiting the foregoing, in the event of any stock split, stock dividend
or other change in the capital structure of the Company affecting the Company
Common Stock, the number of Shares constituting Stockholder Shares shall be
adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of Company Common Stock or other voting
securities of the Company issued to Stockholder in connection therewith.
(c) Definition of "Beneficial Ownership". For purposes of this
Agreement, "beneficial ownership" with respect to (or to "own beneficially") any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing.
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(d) Further Assurances. From time to time, at the request of Parent
and without further consideration, Stockholder shall execute and deliver such
additional documents and take all such further action as may be reasonably
required to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
(e) Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. This Agreement is not intended to and
shall not confer upon any Person other than the parties hereto any rights
hereunder.
(f) Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that Parent and Purchaser may
assign any of their rights, interests or obligations hereunder to any of their
affiliates or to any financial institution providing financing to pay all or a
portion of the Merger Consideration; provided, however, that any such assignment
shall not relieve Parent or Purchaser from their respective obligations
hereunder. Subject to the preceding sentence, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Any purported assignment not permitted under
this Section 5(f) shall be null and void.
(g) Amendments; Waiver. This Agreement may not be amended or
supplemented, except by a written agreement executed by the parties hereto. Any
party to this Agreement may (A) waive any inaccuracies in the representations
and warranties of any other party hereto or extend the time for the performance
of any of the obligations or acts of any other party hereto or (B) waive
compliance by the other party with any of the agreements contained herein.
Notwithstanding the foregoing, no failure or delay by Parent or Purchaser in
exercising any right hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right hereunder. 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.
(h) Severability. If any term or other provision of this Agreement is
determined by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
terms, provisions and conditions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term or other provision
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.
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(i) Counterparts. This Agreement may be executed in two or more
separate counterparts, each of which shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by the other parties hereto.
(j) Descriptive Headings. Headings of Sections and subsections of
this Agreement are for convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
(k) Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given,
If to Parent or Purchaser, to:
Cerberus Capital Management, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Dev ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
if to Stockholder, to:
The Prudential Insurance Company of America
Four Gateway Center, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
The Prudential Insurance Company of America
Four Gateway Center, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 P.M. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
(l) Drafting. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement and, in the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as jointly drafted by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provision of this Agreement.
(m) GOVERNING LAW; ENFORCEMENT; JURISDICTION; WAIVER OF JURY TRIAL.
(i) 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 LAWS THEREOF.
(ii) THE PARTIES AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE
EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN
ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT IS
ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR
INJUNCTIONS TO PREVENT BREACHES OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY
THE TERMS AND PROVISIONS OF THIS AGREEMENT IN ANY COURT OF THE UNITED STATES
LOCATED IN THE STATE OF DELAWARE OR IN DELAWARE STATE COURT, WITHOUT BOND OR
OTHER SECURITY BEING REQUIRED, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO
WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY.
(iii) 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 THIS AGREEMENT
OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, (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 AND (C) AGREES THAT IT WILL NOT BRING ANY ACTION
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RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY
COURT OTHER THAN A FEDERAL OR STATE COURT SITTING IN THE STATE OF DELAWARE.
(iv) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first above written.
GMI HOLDING CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
GMI MERGER CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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