EXHIBIT L
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TENDER AND OPTION AGREEMENT
among
ALLIEDSIGNAL INC.,
ALLIEDSIGNAL ACQUISITION CORP.
and
THE STOCKHOLDERS LISTED ON SCHEDULE A
Dated as of October 31, 1999
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TENDER AND OPTION AGREEMENT
TENDER AND OPTION AGREEMENT, dated as of October 31, 1999
(this "Agreement"), among AlliedSignal Inc., a Delaware corporation
("Purchaser"), AlliedSignal Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Purchaser ("Merger Sub"), and each of the persons
listed on Schedule A hereto (each a "Stockholder" and, collectively, the
"Stockholders").
RECITALS
WHEREAS, Purchaser, Merger Sub and TriStar Aerospace Co., a
Delaware corporation (the "Company"), have entered 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, an Offer by Merger
Sub for all of the issued and outstanding shares of common stock, par value
$0.01 per share, of the Company (the "Company Common Stock"), and, subsequent
thereto, assuming the Offer is consummated on the terms set forth in the Offer
Documents and all the other conditions to the Merger are satisfied or waived,
the Merger of Merger Sub with and into the Company with the Company as the
surviving corporation in the Merger, pursuant to which the Company will become a
wholly-owned subsidiary of Purchaser;
WHEREAS, each Stockholder is the beneficial owner of the
shares of Company Common Stock and Options set forth opposite such Stockholder's
name on Schedule A hereto (collectively referred to herein as the "Securities"
of such Stockholder; such Securities, as such Securities 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 of Company Common Stock issuable upon
the exercise of Options being referred to herein as the "Shares" of such
Stockholder); and
WHEREAS, as a condition to each of Purchaser and Merger Sub's
willingness to enter into the Merger Agreement, Purchaser and Merger Sub have
requested that the Stockholders enter into, and the Stockholders have agreed to
enter into, this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, 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 Purchaser and
Merger Sub, as of the date hereof and as of the Closing (as defined below), as
follows:
(a) The Stockholder is the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of, and has good title to, all of the
Securities set forth opposite such Stockholder's name on Schedule A, free and
clear of any pledge, hypothecation, claim, security interest, charge,
encumbrance, 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, other than those arising under the
federal and state securities laws (each, a "Lien"), except as set forth in this
Agreement or in Schedule B hereto or disclosed in the Commission Filings filed
prior to the date hereof.
(b) The Securities constitute all of the securities (as
defined in Section 3(a)(10) of the Exchange Act) of the Company beneficially
owned, directly or indirectly, by the Stockholder.
(c) Except for the Securities, the Stockholder does not,
directly or indirectly, 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 the Stockholder subject to any contract,
commitment, arrangement, understanding, restriction or relationship (whether or
not legally enforceable), other than this Agreement, that provides for such
Stockholder to vote or acquire any securities of the Company. The Stockholder
holds exclusive power to vote the Company Common Stock set forth opposite its
name on Schedule A, if any, and has not granted a proxy to any other person to
vote any Company Common Stock (including those issuable upon exercise of the
Options), subject to the limitations under applicable securities laws and the
terms set forth in this Agreement.
(d) This Agreement has been duly executed and delivered by the
Stockholder, and assuming the due authorization, execution and delivery thereof
by the other parties hereto, constitutes the legal, valid and binding obligation
of the Stockholder, enforceable against the Stockholder in accordance with its
terms, except as enforcement against the Stockholder may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws relating to creditors rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(e) Neither the execution and delivery of this Agreement nor
the performance by the Stockholder of the Stockholder's 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 Shares under, (i) any
contract, commitment, agreement, understanding,
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arrangement or restriction of any kind to which the Stockholder is a party or by
which the 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 expected to prevent or
materially impair or delay the consummation by such Stockholder of the
transactions contemplated hereby.
(f) Neither the execution and delivery of this Agreement nor
the performance by the Stockholder of the Stockholder's obligations hereunder
will violate any Law 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, other than any required notices or filings pursuant to the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, foreign antitrust or competition laws or the federal
securities laws.
(g) No investment banker, broker, finder or other intermediary
is, or will be, entitled to a fee or commission from Merger Sub, Purchaser or
the Company in respect of this Agreement based on any arrangement or agreement
made by or on behalf of such Stockholder in this Agreement or otherwise in his
or her capacity as a stockholder of the Company.
(h) The Stockholder understands and acknowledges that
Purchaser is entering into, and causing Merger Sub to enter into, the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement.
Section 3. Representations and Warranties of Purchaser and Merger Sub.
Purchaser and Merger Sub each hereby represents and warrants to the Company that
(a)(i) it has full corporate right, power and authority to execute and deliver
this Agreement and to perform all of its obligations hereunder; (ii) such
execution, delivery and performance have been duly authorized by all requisite
corporate action by Parent and Merger Sub, as applicable, and no other corporate
proceedings are necessary therefor; (iii) this Agreement has been duly and
validly executed and delivered by Parent and Merger Sub, as applicable, and
represents a valid and legally binding obligation of Parent and Merger Sub, as
applicable, enforceable against Parent in accordance with its terms; and (iv)
any Company Common Stock acquired by Parent or Merger Sub upon exercise of the
Purchase Option will not be transferred or otherwise disposed of except in
compliance with the Securities Act.
(b) Neither the execution and delivery of this Agreement by
Purchaser or Merger Sub nor the consummation by Purchaser and Merger Sub of the
transactions contemplated hereby shall conflict with or constitute a violation
of or default under any contract, commitment, agreement arrangement or
restriction of any kind to which Purchaser or Merger Sub is a party to or to
which each is bound which would materially
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impair the ability of Purchaser or Merger Sub to purchaser the Shares
beneficially owned by the Stockholder upon exercise of the Purchase Option.
(c) Nether the execution and delivery of this Agreement nor
the performance by Purchaser or Merger Sub of its obligations hereunder will
violate any law applicable to each or require any order, consent, authorization
of approval of, filing or registration with, or declaration or notice to, any
court, administrative agency or other governmental body or authority, other than
any required notices or filings pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, foreign
antitrust or competition laws or the federal securities laws.
Section 4. Transfer of the Shares. During the term of this Agreement,
except 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 (including
by operation of Law), or create any Lien on, any of the Shares, (b) deposit the
Shares into a voting trust, enter into a voting agreement or arrangement with
respect to the Shares or grant any proxy or power of attorney with respect to
the Shares, (c) enter into any contract, option or other arrangement (including
any profit sharing arrangement) or undertaking with respect to the direct or
indirect acquisition or sale, transfer, pledge, assignment, hypothecation or
other disposition of any interest in or the voting of any Shares or any other
securities of the Company, (d) exercise any rights (including, without
limitation, under Section 262 of the Delaware Law) to demand appraisal of any
Shares which may arise with respect to the Merger, or (e) take any other action
that would in any way restrict, limit or interfere with the performance of such
Stockholder's obligations hereunder or the transactions contemplated hereby.
Notwithstanding the foregoing, each Stockholder may transfer Securities to (x)
an affiliate of the Stockholder, (y) any member of the immediate family of the
Stockholder or trusts for the benefit of family members of the Stockholder or
(z) any organizations qualifying under Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended, if and to the extent that any individual or entity
referred to in clauses (x), (y) and (z), agrees to be bound by this Agreement.
Section 5. Adjustments. (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 and other securities of the Company
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 Shares hereunder.
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(b) Each Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Purchaser and Merger Sub of the number of any new
Shares acquired by such Stockholder, if any, after the date hereof.
Section 6. Tender of Shares of Company Common Stock. Each Stockholder
hereby agrees that such Stockholder will validly tender (or cause the record
owner of such shares to validly tender) and sell pursuant to and in accordance
with the terms of the Offer not later than the tenth business day after
commencement of the Offer (or the earlier of the expiration date of the Offer
and the tenth business day after such shares of Company Common Stock are
acquired by such Stockholder if the Stockholder acquires shares of Company
Common Stock after the date hereof), or, if the Stockholder has not received the
Offer Documents by such time, within two business days following receipt of such
documents, all of the then outstanding shares of Company Common Stock
beneficially owned by such Stockholder (including the shares of Company Common
Stock outstanding as of the date hereof and shares of Company Common Stock
issued following the exercise (if any) of the Options, in each case as set forth
on Schedule A hereto opposite such Stockholder's name). Upon the purchase by
Purchaser or Merger Sub of all of such then outstanding shares of Company Common
Stock beneficially owned by such Stockholder pursuant to the Offer in accordance
with this Section 6, this Agreement will terminate as it relates to such
Stockholder. In the event, notwithstanding the provisions of the first sentence
of this Section 6, any shares of Company Common Stock beneficially owned by a
Stockholder are for any reason withdrawn from the Offer or are not purchased
pursuant to the Offer, such shares of Company Common Stock will remain subject
to the terms of this Agreement. Each Stockholder acknowledges that Purchaser's
obligation to accept for payment and pay for the shares of Company Common Stock
tendered in the Offer is subject to all the terms and conditions of the Offer.
Section 7. Voting Agreement. Each Stockholder, by this Agreement, does
hereby (a) agree to appear (or not appear, if requested by Purchaser or Merger
Sub) at any annual, special, postponed or adjourned meeting of the stockholders
of the Company or otherwise cause the shares of Company Common Stock such
Stockholder beneficially owns to be counted as present (or absent, if requested
by Purchaser or Merger Sub) thereat for purposes of establishing a quorum and to
vote or consent, and (b) constitute and appoint Purchaser and Merger Sub, 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 name,
place and ▇▇▇▇▇, to vote all the shares of Company Common Stock 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 the laws of the State
of Delaware 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 (other than the Merger and the other
transactions contemplated thereby), (2) any
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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 and (3) any other action that is intended, or could be expected, to
impede, interfere with, delay, postpone, or adversely affect the Offer, the
Merger and the other transactions contemplated by this Agreement or 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 of Company Common
Stock as to which a Stockholder is the beneficial but not the record owner, such
Stockholder shall use his or its best efforts to cause any record owner of such
Shares to grant to Purchaser a proxy to the same effect as that contained
herein. Each Stockholder hereby agrees to permit Purchaser and Merger Sub 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.
Section 8. No Solicitation. Except as otherwise permitted under Section
26 of this Agreement, each Stockholder agrees that neither such Stockholder nor
any of such Stockholder's 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 representatives, agents
or 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 advise Purchaser in writing of the
receipt of request for information or any inquiries or proposals relating to an
Acquisition Proposal.
Section 9. Grant of Purchase Option. The Stockholder hereby grants to
Purchaser and Merger Sub an irrevocable option (the "Purchase Option") to
purchase for cash at a price (the "Exercise Price") set forth below, in a manner
set forth below, free and clear of all Liens, any or all of the Shares (and
including Shares acquired after the date hereof by such Stockholder)
beneficially owned by the Stockholder, including, without limitation, by
requiring the Stockholder to exercise any or all Options. The Exercise Price for
shares of Company Common Stock shall be equal to the Merger Consideration. 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
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9. The amount payable pursuant to this Section 9 shall be subject to all
applicable withholding taxes.
Section 10. Exercise of Purchase Option.
(a) Subject to the conditions set forth in Section 12 hereof,
the Purchase Option may be exercised by Purchaser or Merger Sub, in whole or in
part, at any time or from time to time after the occurrence of any Trigger Event
(as defined below). To the extent known by such Stockholder, each Stockholder
shall notify Purchaser promptly in writing of the occurrence of any Trigger
Event or an event which could lead to a Trigger Event (as provided in Section
6.4 of the Merger Agreement), it being understood that the giving of such notice
by the Stockholder is not a condition to the right of Purchaser or Merger Sub to
exercise the Purchase Option. In the event Purchaser or Merger Sub wishes to
exercise the Purchase Option, Purchaser shall deliver to each Stockholder a
written notice (an "Exercise Notice") specifying the total number of Shares
(including the number of Shares subject to Options to be purchased) it wishes to
purchase from such Stockholder. Each closing of a purchase of Shares (a
"Closing") will occur at a place in Dallas, Texas, on a date and at a time
designated by Purchaser or Merger Sub in an Exercise Notice delivered at least
two business days prior to the date of the Closing. At the request of the
Stockholder following receipt of an Exercise Notice, Parent or Merger Sub shall
advance (an "Advance") to such Stockholder an amount in cash, by wire transfer
of immediately available funds, equal to the aggregate per share exercise price
of the Options pursuant to which the underlying Shares are to be acquired
pursuant to the Exercise Notice (it being understood that Shares subject to
Options to be acquired pursuant to the Exercise Notice will be in the order of
the lowest exercise price to the highest). No Advance shall be made unless the
Stockholder shall have concurrently properly exercised such Options and
delivered irrevocable instructions to the transfer agent of the Company (and
others as may be necessary under the Options) to issue and deliver directly to,
and in the name of, Parent or Merger Sub (as applicable) the Shares to be issued
upon exercise of the Options. The Advance shall be an offset against any
Exercise Price payable to the respective Stockholder at the Closing.
(b) A "Trigger Event" means any one of the following: (i) the
Merger Agreement becomes terminable under circumstances that entitle Purchaser
or Merger Sub to receive the Fee under Section 6.4 of the Merger Agreement
(regardless of whether the Merger Agreement is actually terminated and whether
such Fee is actually paid) or (ii) the Offer is consummated but, due solely to
the failure of the Stockholder to validly tender and not withdraw all of the
then outstanding shares of Company Common Stock beneficially owned by such
Stockholder, the Purchaser has not accepted for payment or paid for all of such
shares of Company Common Stock.
(c) If requested by Purchaser and Merger Sub in the Exercise
Notice, such Stockholder shall exercise and/or convert all Options (to the
extent exercisable and convertible) and other rights (including conversion or
exchange rights), other than Options with exercise or conversion prices above
the Merger Consideration, beneficially
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owned by such Stockholder, and shall, if directed by Purchaser and Merger Sub,
tender the shares of Company Common Stock acquired pursuant to such exercise or
conversion into the Offer or sell such shares of Company Common Stock to
Purchaser or Merger Sub as provided in this Agreement.
Section 11. Termination. This Agreement will terminate (a) pursuant to
Section 6 or (b) upon the earliest of: (i) the Effective Time; (ii) termination
of the Merger Agreement in accordance with its terms other than upon, during the
continuance of, or after, a Trigger Event or an event which could lead to a
Trigger Event (as provided in Section 6.4 of the Merger Agreement); or (iii) 180
days following the earlier of (x) any termination of the Merger Agreement, upon,
during the continuance of or after a Trigger Event or (y) termination of the
Merger Agreement under circumstances that could lead to a Trigger Event (as
provided in Section 6.4 of the Merger Agreement) (or if, at the expiration of
such 180 day period the Purchase Option cannot be exercised by reason of any
applicable judgment, decree, order, injunction, law or regulation, five business
days after such impediment to exercise has been removed or has become final and
not subject to appeal). Upon the giving by Purchaser or Merger Sub to the
Stockholder of the Exercise Notice and the tender of the aggregate Exercise
Price (less all Advances), Purchaser or Merger Sub, as the case may be, 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
Purchaser. Notwithstanding the termination of this Agreement, Purchaser will be
entitled to purchase the Shares subject to the Purchase Option if it has
exercised the Purchase Option in accordance with the terms hereof prior to the
termination of this Agreement and the termination of this Agreement will not
affect any rights hereunder which by their terms do not terminate or expire
prior to or as of such termination.
Section 12. Conditions To Closing. The obligation of each Stockholder
to sell such Stockholder's Shares to Purchaser or Merger Sub hereunder is
subject to the conditions that (i) all waiting periods, if any, under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, applicable to the sale of the Shares or the acquisition
of the Shares by Purchaser or Merger Sub, as the case may be, hereunder have
expired or have been terminated; (ii) all 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 the sale of the Shares or the acquisition of the Shares by
Purchaser or Merger Sub 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 13. Closing. At any Closing with respect to Shares beneficially
owned by a Stockholder, (a) such Stockholder will deliver to Purchaser, Merger
Sub or their respective designee a certificate or certificates in definitive
form representing the number of the Shares designated by Purchaser or Merger
Sub, as the case may be, in its Exercise
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Notice, free and clear of all Liens, such certificate to be registered in the
name of Purchaser, Merger Sub or their respective designee and (b) Purchaser or
Merger Sub, as the case may be, will deliver to the Stockholder the excess, if
any, of (i) the aggregate Exercise Price for the Shares so designated and being
purchased over (ii) any outstanding Advances by wire transfer of immediately
available funds. If Purchaser or Merger Sub shall require a Stockholder to
exercise Options, the delivery of certificates representing the Shares subject
to such Options shall be made concurrently with the delivery of the Exercise
Price, less any Advances, for the Shares so delivered.
Section 14. Survival of Representations and Warranties. All
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive for twelve months after the termination
hereof. The covenants and agreements made herein will survive in accordance with
their respective terms.
Section 15. Expenses. Except as otherwise provided in the Merger
Agreement, all costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such expenses.
Section 16. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered the same agreement.
Section 17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to principles of conflicts of laws thereof.
Section 18. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered by hand, mailed by
registered or certified mail (return receipt requested) or sent by prepaid
overnight courier (with proof of service) or confirmed to facsimile to the
parties as follows (or at such other addresses for a party as shall be specified
by like notice) and shall be deemed given on the date on which so
hand-delivered, or sent by confirmed telecopier and on the day after it has been
so mailed or sent by courier:
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To Purchaser or Merger Sub:
(a) Purchaser:
AlliedSignal Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Merger Sub:
AlliedSignal Acquisition Corp.
c/o AlliedSignal Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Stockholder, at the address set forth on Schedule A hereto or
to such other address as any party may have furnished to the other parties in
writing in accordance herewith with a copy (which shall not constitute notice)
to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Simeon Gold, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 19. Miscellaneous.
(a) This Agreement shall not, nor shall any of the rights or
interests hereunder, be assigned by any party hereto or assignable by operation
of law or otherwise without the prior written consent of the other parties
hereto; provided, however, that Purchaser may assign its rights hereunder to an
affiliate, but nothing shall relieve the assignor from its obligations
hereunder. Subject to the preceding sentence, this
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Agreement shall be binding upon and shall inure to the benefit to the parties
hereto and their respective successors and assigns.
(b) The headings contained in this Agreement are for reference
purposes and shall not affect in any way the meaning or interpretation of this
Agreement. In this Agreement, unless the context otherwise requires, words
describing the singular number shall include the plural and vice versa, and
words denoting any gender shall include all genders and words denoting natural
persons shall include corporations and partnerships and vice versa. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be understood to be followed by the words "without limitation."
(c) 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.
Section 20. Severability. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or unenforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
Section 21. Enforcement of Agreement; Waiver of Jury Trial. (a) 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 its
specific terms or was 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 hereof in
any court, this being in addition to any other remedy to which they are entitled
at law or in equity.
(b) Each of the parties irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any and all rights to
trial by jury in connection with any litigation arising out of or relating to
this Agreement.
Section 22. Waiver, Etc. 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
11
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.
Section 23. Amendment. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
Section 24. Further Assurances. (a) Each party hereto will execute and
deliver all other documents and instruments and take all other actions that may
be reasonably necessary in order to consummate the transactions provided for by
such exercise.
(b) Each of the Stockholders will execute and deliver all
documents and instruments and take all other actions that may be reasonably
necessary to permit the Purchaser to exercise all rights granted to the
Purchaser by such Stockholder and obtain all benefits contemplated under this
Agreement with respect to the rights granted by such Stockholder.
Section 25. 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 Purchaser and Merger Sub; provided, however, that a
Stockholder may, without the prior consent of Purchaser and Merger Sub, issue a
press release or otherwise make such public statement (i) as may be required by
Law if he has provided Purchaser and Merger Sub with prior written notice, (ii)
as otherwise provided in Section 26 herein, (iii) concerning the status of the
Stockholder as a party to this Agreement, the terms hereof, and its Beneficial
Ownership of the Securities required pursuant to Section 13(d) of the Exchange
Act, or (iv) required in the Proxy Statement.
Section 26. 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. Each Stockholder signs solely in such
Stockholder's capacity as the beneficial owner of such Stockholder's Shares.
Notwithstanding anything herein to the contrary, 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 to the extent specifically permitted by the
Merger Agreement or consistent with his fiduciary duties.
12
IN WITNESS WHEREOF, each of the Purchaser and Merger Sub 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.
ALLIEDSIGNAL INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President - Aerospace Services
ALLIEDSIGNAL ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
STOCKHOLDERS
/s/ P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
SCHEDULE A
--------------------------------------------------------------------------------------------
Stockholder Address Number of Number of
Shares Options
P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. 1,459,447 1,534,022
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. 136,522 602,276
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------------------
Schedule B
1. 300,000 shares of Company Common Stock held by P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ are
pledged as collateral to Deutsche Bank ▇▇▇▇ ▇▇▇▇▇.
2. 36,512 shares of Company Common Stock held by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ are pledged
to TriStar Aerospace, Inc., a Company subsidiary as collateral for a $75,000
promissory note.
