<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 22, 1998
--------------------
ROHN INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-08009 36-3060977
(State or other jurisdiction of (Commission File (IRS Employer
incorporation or organization) Number) Identification No.)
6718 WEST PLANK ROAD
PEORIA, ILLINOIS 61604
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (309) 697-4400
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<PAGE>
ITEM 5. OTHER EVENTS.
On December 22, 1998, ROHN Industries, Inc. (the "Company") entered
into an Agreement and Plan of Merger (the "Merger Agreement") with PiRod
Holdings, Inc., a Delaware corporation ("PiRod"), pursuant to which PiRod will
merge with and into the Company (the "Merger"), with the Company as the
surviving corporation.
The Merger Agreement, which was unanimously approved by the boards of
both companies, also provides for the conversion of up to 52.5 percent of the
outstanding shares of common stock, par value $0.01 per share (the "Common
Stock"), of the Company into the right to receive $3.78 per share in cash. If
the holders of more than the permitted number of shares of Common Stock elect
cash, the cash will be issued proportionately to those stockholders, who will
retain the balance of their shares. The outstanding shares of PiRod common stock
will be converted into a total of approximately 7.9 million shares of the
Company's Common Stock.
The transaction will be financed by the Company and will consist of
approximately $166.5 million of new senior indebtedness. Approximately $61.3
million of such financing will be used to repay existing indebtedness of the
Company and PiRod. Following the Merger, it is expected that existing
stockholders of the Company and PiRod will own approximately 76% and 24%,
respectively, of the outstanding shares of Common Stock of the Company.
The transaction is conditioned upon stockholder and regulatory
approval, including expiration of the applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act, and other customary closing
conditions. The Merger Agreement also provides for the payment of a termination
fee by the Company or PiRod under certain conditions. The Company anticipates
that the Merger will be consummated on or about March 15, 1999.
In connection with the execution of the Merger Agreement, the UNR
Asbestos-Disease Claims Trust (the "Trust"), the majority stockholder of the
Company, entered into a Trust Voting Agreement with PiRod, pursuant to which
the Trust agreed, among other things, to vote its shares of Common Stock in
favor of the Merger and approval and adoption of the Merger Agreement.
Certain stockholders of PiRod (the "PiRod Stockholders"),
representing 55.0% of the outstanding capital stock of PiRod, entered into a
PiRod Shareholders Voting Agreement (the "PiRod Voting Agreement") with the
Company, pursuant to which the PiRod Stockholders agreed, among other things,
to vote their shares of PiRod common stock in favor of the merger and
approval and adoption of the Merger Agreement.
Also in connection with the Merger Agreement, a Stockholders Agreement
dated as of December 22, 1998 (the "Stockholders Agreement") was entered into
among the Company, the Trust, the PiRod Stockholders and PH, Inc., a stockholder
of PiRod, pursuant to which such parties established certain rights and
obligations concerning their relationship with each other
<PAGE>
from and after the Merger. The parties agreed that as of the effective time
of the Merger, the Trust shall have the right to designate four individuals,
and the PiRod Stockholders shall have the right to designate two individuals,
to serve on the Company's Board of Directors. The remaining directors shall
consist of Brian Pemberton, the President and Chief Executive Officer of the
Company, and Myron Noble, the President of PiRod, and two independent
directors. Each party to the Stockholders Agreement agreed with that it would
vote for the election of the individuals nominated in accordance with the
Stockholders Agreement.
The foregoing description of certain terms of the Merger Agreement,
the PiRod Voting Agreement and the Stockholders Agreement is qualified in its
entirety by reference to the Merger Agreement, the PiRod Voting Agreement and
the Stockholders Agreement, copies of which are attached as Exhibits to this
report and are incorporated herein by reference.
Note: Forward-looking statements included in this Report with respect
to the Merger are subject to certain risks and uncertainties that could cause
actual events and results to differ materially from those set forth in such
statements. Such risks and uncertainties include, without limitation: the
possible inability of the Company and PiRod to complete the Merger as scheduled,
if at all, and those associated with the ability of the combined company to
successfully integrate the operations of PiRod following the Merger;
unanticipated negative results of litigation, governmental proceedings or
environmental matters; the sensitivity of the companies' businesses to economic
conditions and competition; and other risks and uncertainties as may be detailed
from time to time in the Company's public announcements and Securities and
Exchange Commission filings.
ITEM 7. EXHIBITS
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<S> <C>
99.1 Agreement and Plan of Merger dated as of December 22, 1998 by and
between ROHN Industries, Inc. and PiRod Holdings, Inc.
99.2 PiRod Shareholders Voting Agreement, dated as of December 22, 1998 by
and between ROHN Industries, Inc. and the stockholders of PiRod
Holdings, Inc.
99.3 Stockholders Agreement, dated as of December 22, 1998 among ROHN
Industries, Inc., the UNR Asbestos-Disease Claims Trust, Bain Capital
Fund V, L.P., Bain Capital Fund V-B, L.P., BCIP Trust Associates,
L.P., Bain Capital V Mezzanine Fund, L.P., BCM Capital Partners, L.P.
BCIP Associates, and PH, Inc.
</TABLE>
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ROHN INDUSTRIES, INC.
By: /s/ Brian B. Pemberton
-------------------------------------
Brian B. Pemberton
President and Chief Executive Officer
Dated: December 28, 1998
<PAGE>
ROHN INDUSTRIES, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------- ----------------------
<S> <C>
99.1 Agreement and Plan of Merger dated as of December 22, 1998 by and
between ROHN Industries, Inc. and PiRod Holdings, Inc.
99.2 PiRod Shareholders Voting Agreement, dated as of December 22, 1998 by
and between ROHN Industries, Inc. and the stockholders of PiRod
Holdings, Inc.
99.3 Stockholders Agreement, dated as of December 22, 1998 among ROHN
Industries, Inc., the UNR Asbestos-Disease Claims Trust, Bain Capital Fund
V, L.P., Bain Capital Fund V-B, L.P., BCIP Trust Associates, L.P., Bain
Capital V Mezzanine Fund, L.P., BCM Capital Partners, L.P. BCIP Associates,
and PH, Inc.
</TABLE>
<PAGE>
EXHIBIT 99.1
AGREEMENT AND PLAN OF MERGER
BETWEEN
ROHN INDUSTRIES, INC.
AND
PIROD HOLDINGS, INC.
DATED AS OF DECEMBER 22, 1998
<PAGE>
TABLE OF CONTENTS
Page
----
1. The Merger................................................................1
1.1. Surviving Corporation............................................1
1.2. Effective Time...................................................1
1.3. Effect of the Merger.............................................2
1.4. Certificate of Incorporation; By-Laws............................2
1.5. Directors and Officers...........................................2
1.6. Conversion of Securities.........................................2
1.7. Fractional Shares................................................8
1.8. Warrants of PIROD................................................8
1.9. Options of PIROD.................................................9
1.10. ROHN Shareholder Meeting........................................10
1.11. PIROD Shareholder Action........................................10
1.12. Additional Actions..............................................10
2. Closing..................................................................11
3. Representations and Warranties of ROHN...................................11
3.1. Organization, Good Standing, etc................................11
3.2. Authorized ROHN Shares, Absence of Options, Warrants, etc.......11
3.3. Effect of Agreement.............................................12
3.4. Contracts and Commitments.......................................13
3.5. SEC Filings; Financial Statements...............................13
3.6. Absence of Liabilities..........................................14
3.7. Absence of Certain Changes or Events............................14
3.8. Tax and Other Returns...........................................15
3.9. Employment Arrangements.........................................16
3.10. Property........................................................16
3.11. Patents, Trademarks, etc........................................16
3.12. Absence of Defaults by Others...................................17
3.13. Litigation......................................................17
3.14. Disclosure Documents............................................17
3.15. Brokers' and Finders' Fees......................................17
3.16. Insurance.......................................................18
3.17. Pension, Retirement and Profit Sharing Plans....................18
3.18. Environmental Matters...........................................18
3.19. Labor Matters...................................................19
3.20. Compliance with Laws and Court Orders...........................20
3.21. Licenses and Permits............................................20
4. Representations and Warranties of PIROD..................................20
4.1. Organization, Good Standing, etc................................20
4.2. Authorized Shares, Absence of Options, Warrants, etc............21
4.3. Effect of Agreement.............................................22
4.4. Contracts and Commitments.......................................22
i
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4.5. Financial Statements............................................23
4.6. Absence of Liabilities..........................................23
4.7. Absence of Certain Changes or Events............................24
4.8. Tax and Other Returns...........................................25
4.9. Employment Arrangements.........................................25
4.10. PROPERTY........................................................25
4.11. Patents, Trademarks, etc........................................25
4.12. Absence of Defaults by Others...................................26
4.13. Litigation......................................................26
4.14. Disclosure Documents............................................26
4.15. Brokers' and Finders' Fees......................................26
4.16. Insurance.......................................................27
4.17. Pension, Retirement and Profit Sharing Plans....................27
4.18. Environmental Matters...........................................27
4.19. Financing.......................................................28
4.20. Ownership of ROHN Shares........................................28
4.21. Labor Matters...................................................29
4.22. Compliance with Laws and Court Orders...........................29
4.23. Licenses and Permits............................................29
5. Conduct and Transactions Prior to Closing Date...........................29
5.1. Conduct of Business by ROHN and PIROD Pending the Closing Date..29
5.2. Agreements of ROHN and PIROD....................................32
5.3. Reasonable Efforts; Notification................................32
6. Conditions Precedent to the Closing......................................34
6.1. Conditions to the Obligations of Both Parties...................34
6.2. Conditions to the Obligations of ROHN...........................35
6.3. Conditions to the Obligations of PIROD..........................36
7. Amendment of Agreement; Waivers..........................................37
7.1. Amendment.......................................................37
7.2. Waiver..........................................................37
8. Termination..............................................................38
8.1. Termination.....................................................38
8.2. Notice and Effect of Termination................................38
9. Miscellaneous............................................................39
9.1. Procedure for Termination, Amendment, Extension or Waiver.......39
9.2. Survival of Representations and Warranties......................39
9.3. Notices.........................................................39
9.4. Expenses........................................................40
9.5. Headings........................................................40
9.6. Governing Law; Jurisdiction.....................................40
9.7. Assignment......................................................41
9.8. Officers' and Directors' Insurance; Indemnification.............41
9.9. ROHN and PIROD Material Adverse Effect..........................42
ii
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9.10. Entire Agreement................................................42
9.11. Confidentiality.................................................42
9.12. Knowledge.......................................................43
iii
<PAGE>
<TABLE>
<CAPTION>
Defined Term Section Defined Term Section
- ------------ -------- ------------- --------
<S> <C> <C> <C>
Agreement Preamble PIROD Financial Statements 4.5
Applicable PIROD Merger Consideration 1.6.1 PIROD Material Adverse Effect 9.9
ASTs 3.18.5 PIROD Option 1.9
Bankruptcy Court 3.3 PIROD Plan 4.17
Cash Consideration 1.6.3(a) PIROD Real Estate 4.18.1
Cash Election Number 1.6.4(a) PIROD Schedule 4
Cash Election Shares 1.6.3(a) PIROD Shares 1.6.1
Cashed Shares 1.6.6(a) PIROD Shareholders Preamble
Certificate of Merger 1.2 PIROD Shareholders
Voting Agreement Preamble
Closing 2 PIROD Stockholders Agreement 4.2
Code Preamble PIROD Warrant 1.8.4
D&O Insurance 9.8.1 Proration Factor 1.6.4(b)
Effective Time 1.2 Proxy Statement 1.8.2
Election Date 1.6.5(b) RCRA 3.18.5
Environmental Laws 3.18.1 Retained ROHN Shares 1.6.3(b)
ERISA 3.17 ROHN Preamble
Exchange Act 3.14 ROHN's Balance Sheet 3.6
Exchange Agent 1.6.5(b) ROHN Certificate 1.6.3(a)
Exchange Fund 1.6.6(a) ROHN A-7 Exchange Warrant 1.8.3
Financing Letter 4.19 ROHN Class Exchange Warrant 1.8.2
Form of Election 1.6.5(b) ROHN Exchange Options 1.9
FTC 3.3 ROHN Exchange Warrant 1.8.4
GCL 1.1 ROHN Material Adverse Effect 9.9
Governmental Entity 3.3 ROHN Meeting 1.10.1
Hazardous Substance 3.18.3 ROHN Options 3.2
HSR Act 5.3.1 ROHN Plan 3.17
Jackson Exchange Warrant 1.8.1 ROHN Real Estate 3.18.1
Jackson Warrant 1.8.1 ROHN SEC Reports 3.5
Justice 3.3 ROHN Schedule 3
Maximum Premium 9.8.1 ROHN Shares Preamble
Merger Preamble ROHN Shareholders Preamble
NASD 3.3 ROHN Stockholders Agreement Preamble
Order 5.3.3 SEC 1.6.5(b)
PCBs 3.18.5 Securities Act 1.10.4
Permits 3.21; 4.23 Superior Proposal 8.1.3(a)
Plan of Reorganization 3.3 Surviving Corporation 1.1
PIROD Preamble Takeover Proposal 5.1.8
PIROD's Balance Sheet 4.6 10-K 3.5
PIROD Certificate 1.6.1 10-Q 3.5
PIROD Class A Shares 1.6.1 Trust Preamble
PIROD Class A-7 Warrant 1.8.3 Trust Voting Agreement Preamble
PIROD Class L Warrants 1.8.2 USTs 3.18.5
PIROD Class L Shares 1.6.1
</TABLE>
iv
<PAGE>
AGREEMENT AND PLAN OF MERGER, dated as of December 22, 1998 (this
"Agreement"), between ROHN Industries, Inc., a Delaware corporation ("ROHN"),
and PiRod Holdings, Inc., a Delaware corporation ("PIROD").
WHEREAS, the respective boards of directors of ROHN and PIROD have approved
the merger of ROHN and PIROD upon the terms and subject to the conditions set
forth in this Agreement (the "Merger");
WHEREAS, in furtherance of the Merger, the boards of directors of ROHN and
PIROD have adopted resolutions approving the Merger, the voting agreements
(described below), and recommending that ROHN's stockholders (the "ROHN
Shareholders") and PIROD's stockholders (the "PIROD Shareholders"),
respectively, vote to approve the Merger;
WHEREAS, the Merger is intended to qualify as a reorganization under
Section 368(a)(1)(A) of the Internal Revenue Code (the "Code") with respect to
the PIROD Shareholders and to be treated under the Code as a redemption of
certain shares of ROHN common stock, $.01 par value ("ROHN Shares") from certain
ROHN Shareholders;
WHEREAS, concurrently with the execution of this Agreement and as an
inducement to ROHN and PIROD to enter into this Agreement, PIROD and the UNR
Asbestos-Disease Claims Trust (the "Trust"), are entering into a voting
agreement of even date herewith (the "Trust Voting Agreement") and ROHN and
certain PIROD Shareholders are entering into a voting agreement of even date
herewith (the "PIROD Shareholders Voting Agreement") pursuant to which the Trust
and certain PIROD Shareholders have agreed, upon the terms and subject to the
conditions set forth therein, to vote in favor of the Merger; and
WHEREAS, concurrently with the execution of this Agreement, the Trust and
all the PIROD Shareholders are entering into a Stockholders Agreement of even
date herewith (the "ROHN Stockholders Agreement") pursuant to which the parties
have agreed to certain matters following the Merger;
Now, therefore, the parties hereto agree as follows:
1. THE MERGER.
1.1. SURVIVING CORPORATION. Upon the terms and subject to the conditions
set forth in Section 6, and in accordance with the Delaware General Corporation
Law (the "GCL"), at the Effective Time (as defined in Section 1.2) PIROD shall
be merged with and into ROHN. As a result of the Merger, the separate corporate
existence of PIROD shall cease and ROHN shall continue as the surviving
corporation of the Merger (the "Surviving Corporation").
1.2. EFFECTIVE TIME. As promptly as practicable after the satisfaction or,
if permissible, waiver of the conditions set forth in Section 6, the parties
hereto shall cause the Merger to be consummated by filing a Certificate of
Merger with the Secretary of State
<PAGE>
of the State of Delaware (the "Certificate of Merger") in such form as
required by, and executed in accordance with the relevant provisions of, the
GCL (the date and time of such filing being (the "Effective Time").
1.3. EFFECT OF THE MERGER. At the Effective Time, the effect of the Merger
shall be as provided in the applicable provisions of the GCL. Without limiting
the generality of the foregoing, and subject thereto, at the Effective Time all
the property, rights, privileges, powers and franchises of ROHN and PIROD shall
vest in the Surviving Corporation, and all debts, liabilities and duties of ROHN
and PIROD shall become the debts, liabilities and duties of the Surviving
Corporation.
1.4. CERTIFICATE OF INCORPORATION; BY-LAWS.
1.4.1. The Certificate of Incorporation of ROHN shall be the
Certificate of Incorporation of the Surviving Corporation until
thereafter amended as provided by law and such Certificate of
Incorporation.
1.4.2. The By-Laws of ROHN shall be amended and restated, effective
as of the Effective Time, as set forth in Exhibit 1.4.2 hereto. The
By-Laws of ROHN, as so amended and restated, shall be the By-Laws of
the Surviving Corporation until thereafter amended as provided by law,
the Certificate of Incorporation of the Surviving Corporation and such
By-Laws.
1.5. DIRECTORS AND OFFICERS. The initial directors of the Surviving
Corporation, each to hold office in accordance with the Certificate of
Incorporation and By-Laws of the Surviving Corporation, and the officers of the
Surviving Corporation, shall be the directors (determined in accordance with the
ROHN Stockholders Agreement) and officers of ROHN, respectively, in each case to
serve until their respective successors are duly elected or appointed and
qualified.
1.6. CONVERSION OF SECURITIES. At the Effective Time, by virtue of the
Merger and without any action on the part of PIROD, ROHN, or the holders of any
of the following securities:
1.6.1. Common Stock of PIROD. All of the shares of Class A
common stock, $0.001 par value per share, of PIROD (the "PIROD Class A
Shares") issued and outstanding immediately prior to the Effective
Time shall be converted into the right to receive 3.7282 ROHN Shares
and all of the shares of Class L common stock, $0.001 par value per
share, of PIROD (the "PIROD Class L Shares") issued and outstanding
immediately prior to the Effective Time shall be converted into the
right to receive 61.6859 ROHN Shares (the "Applicable PIROD Merger
Consideration"). The PIROD Class A Shares and the PIROD Class L
Shares are referred to collectively herein as the "PIROD Shares."
Exhibit 1.6.1 hereto lists the aggregate number of ROHN Shares that
each holder of PIROD Shares will be entitled to receive upon
consummation of the Merger. All PIROD Shares so converted into the
2
<PAGE>
right to receive the Applicable PIROD Merger Consideration shall no
longer be outstanding, shall automatically be cancelled and retired
and shall cease to exist, and each holder of a certificate
representing any such PIROD Shares (a "PIROD Certificate") shall, to
the extent such PIROD Certificate represents PIROD Shares, cease to
have any rights with respect thereto, except the right to receive the
Applicable PIROD Merger Consideration upon surrender of the PIROD
Certificate in accordance with Section 1.6.6.
1.6.2. Cancellation of Treasury Stock. Each PIROD Share that is
owned by PIROD or by any wholly-owned subsidiary of PIROD, and each
ROHN Share that is owned by ROHN or any wholly-owned subsidiary of
ROHN, shall automatically be canceled and retired and shall cease to
exist, and no cash or other consideration shall be delivered or
deliverable in exchange therefor.
1.6.3. Retention or Exchange of ROHN Shares. Except as
otherwise provided herein and subject to Sections 1.6.4 and 1.6.5,
each ROHN Share issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger, be treated as follows:
(a) each ROHN Share with respect to which an election to
receive $3.78 in cash (the "Cash Consideration") has been made
and not revoked in accordance with Section 1.6.5 (the "Cash
Election Shares") shall be converted into the right to receive
the Cash Consideration. All ROHN Shares so converted into the
right to receive the Cash Consideration shall no longer be
outstanding, shall automatically be canceled and retired and
shall cease to exist, and each holder of a certificate
representing any such ROHN Shares (a "ROHN Certificate") shall
cease to have any rights with respect thereto.
(b) each other ROHN Share (the "Retained ROHN Shares") shall be
retained by the holder thereof.
1.6.4. Proration.
(a) Notwithstanding anything in this Agreement to the contrary,
the aggregate number of ROHN Shares (the "Cash Election Number") to be
converted into the right to receive the Cash Consideration shall be
equal to that number obtained by dividing the Available Cash by $3.78.
For purposes of this Section 1.6.4(a), Available Cash shall be equal
to the least of: (A) $105.0 million; (B) the product of $3.78
multiplied by the total number of Cash Election Shares; and (C) the
total borrowings made available to the Surviving Corporation at the
Effective Time under its senior credit agreement for the purpose of
paying the Cash Consideration plus (ii) $12.8 million, MINUS the sum
of (a) the total amount of indebtedness of ROHN and PIROD
3
<PAGE>
to be repaid in connection with the Merger, including any and all accrued
but unpaid interest thereon, premiums and prepayment penalties, if any,
(b) the good faith estimate of the amount of fees and expenses
incurred by ROHN and PIROD in connection with the Merger and the
transactions contemplated thereby (including all investment banking,
legal and accounting fees and expenses); and (c) the difference, if
any, between the amount of cash-on-hand of the Surviving Corporation
at the Effective Time and $12.8 million (but only to the extent such
amount of cash-on-hand is less than $12.8 million).
(b) If the number of Cash Election Shares is greater than the
Cash Election Number, then each Cash Election Share shall (i) receive
the Cash Consideration in accordance with the terms of Section
1.6.3(a) or (b) be retained as a Retained ROHN Share in accordance
with the terms of Section 1.6.3(b) in the following manner:
(i) A proration factor (the "Proration Factor") shall be
determined by dividing the Cash Election Number by the total
number of Cash Election Shares.
(ii) The number of Cash Election Shares converted into the
right to receive cash in accordance with the terms of Section
1.6.3(a) shall be determined by multiplying the Proration Factor
by the total number of Cash Election Shares covered by such
election, rounded down to the nearest whole number.
(iii) All Cash Election Shares, other than those shares
that shall receive cash in accordance with Section 1.6.4(b)(ii),
shall be deemed to be Retained ROHN Shares (on a consistent basis
among ROHN Shareholders who made the election referred to in
Section 1.6.3(a), pro rata to the number of ROHN Shares as to
which they made such election).
1.6.5. Election Procedures.
(a) Each person who, on or prior to the Election Date (as
defined in Section 1.6.5(b) below), is a record holder of ROHN Shares
will be entitled, subject to Section 1.6.4 hereof, to make an
unconditional election on or prior to such Election Date specifying
the number of ROHN Shares which he desires to have converted into the
right to receive the Cash Consideration.
(b) Subject to any required clearance by the Securities and
Exchange Commission (the "SEC"), ROHN shall prepare a form of election
(the "Form of Election"), which form shall be subject to the
reasonable approval of PIROD, to be mailed by ROHN with the Proxy
Statement (as defined below) to the record holders of ROHN Shares as
of the record date
4
<PAGE>
for ROHN Shareholder Meeting (as defined below), which Form of Election
shall be used by each record holder of ROHN Shares who elects to specify
the number of ROHN Shares which he desires to have converted into the
right to receive the Cash Consideration in the Merger, subject to the
provisions of Section 1.6.4 hereof. ROHN will use its commercially
reasonable best efforts to make the Form of Election available to all
persons who become holders of ROHN Shares during the period between such
record date and the Election Date, with a copy of the Proxy Statement.
Any such holder's election shall have been properly made only if such
bank or trust company as shall be mutually acceptable to ROHN and PIROD,
acting as exchange agent (the "Exchange Agent") shall have received at
its designated office, by 5:00 p.m., New York City time on the business
day immediately prior to the date of the ROHN Shareholder Meeting (the
"Election Date"), a Form of Election properly completed and signed and
accompanied by ROHN Certificates to which such Form of Election relates,
duly endorsed in blank or otherwise in a form acceptable for transfer on
the books of ROHN (or by an appropriate guarantee of delivery of such
ROHN Certificates as set forth in such Form of Election from a firm
which is a member of a registered national securities exchange or of the
National Association of Securities Dealers, Inc. or a commercial bank or
trust company having an office or correspondent in the United States,
provided such ROHN Certificates are in fact delivered to the Exchange
Agent within three New York Stock Exchange trading days after the date
of execution of such guarantee of delivery).
(c) Any Form of Election may be revoked by the holder submitting
it to the Exchange Agent only by written notice received by the
Exchange Agent (i) prior to 5:00 p.m., New York City time on the
Election Date or (ii) after the Election Date, if ROHN and PIROD
determine, on or prior to the Election Date, that the Closing (as
hereinafter defined) is not likely to occur within three business days
following the Election Date, in which case any Form of Election shall
remain revocable until a subsequent date which shall be a date prior
to the Closing determined by ROHN and PIROD. In addition, all Forms
of Election shall automatically be revoked if the Exchange Agent is
notified in writing by ROHN and PIROD that the Merger Agreement has
been terminated. If a Form of Election is revoked, the ROHN
Certificates (or guarantees of delivery, as appropriate) to which such
Form of Election relates shall be promptly returned to the ROHN
Shareholder submitting the same to the Exchange Agent.
(d) The determination of the Exchange Agent shall be binding
with respect to whether or not elections have been properly made or
revoked pursuant to this Section 1.6.5 and when elections and
revocations were received by it. If the Exchange Agent determines
that any election was not properly made, such ROHN Shares shall be
treated by the Exchange Agent as Retained ROHN Shares. The Exchange
Agent
5
<PAGE>
shall also make all computations as to the allocation and the
proration contemplated by Section 1.6.4, and any such computation
shall be conclusive and binding on the holders of ROHN Shares. The
Exchange Agent may, with the mutual agreement of ROHN and PIROD, make
such rules as are consistent with this Section 1.6.5 for the
implementation of the elections provided for herein as shall be
necessary or desirable fully to effect such elections.
1.6.6. Exchange or Retention of ROHN Shares; Exchange of PIROD
Shares.
(a) By the Effective Time, ROHN and PIROD shall take all steps
necessary to cause to be deposited on a timely basis with the Exchange
Agent in an account (the "Exchange Fund") the Cash Consideration to
which holders of ROHN Shares shall be entitled at the Effective Time
pursuant to Section 1.6.3(a) and Section 1.6.4(b) (the "Cashed
Shares").
(b) Promptly after the Effective Time, ROHN shall cause the
Exchange Agent to mail to each record holder of a PIROD Certificate a
form of letter of transmittal which shall specify that delivery shall
be effected, and risk of loss and title to such PIROD Certificates
shall pass, only upon proper delivery of such PIROD Certificates to
the Exchange Agent and instructions for use in surrendering such PIROD
Certificates and receiving the Applicable PIROD Merger Consideration
in respect thereof.
(c) Promptly after the Effective Time, the Exchange Agent shall
pay to the record holder on the Election Date of ROHN Certificates
that represented Cashed Shares the Cash Consideration multiplied by
the number of Cashed Shares, in consideration therefor. Upon such
payment, such ROHN Certificate shall forthwith be cancelled. Promptly
after the Effective Time, ROHN shall also cause the Exchange Agent to
mail to each record holder a certificate for the Cash Election Shares
which are deemed to be Retained ROHN Shares pursuant to Section
1.6.4(b)(iii) hereof.
(d) If the Cash Consideration (or any portion thereof) is to be
delivered to any person other than the person in whose name the ROHN
Certificate surrendered is registered, it shall be a condition to such
right to receive such Cash Consideration that the ROHN Certificate so
surrendered shall be properly endorsed or otherwise be in proper form
for transfer and that the person surrendering such ROHN Certificate
shall pay to the Exchange Agent any transfer or other taxes required
by reason of the payment of the Cash Consideration to a person other
than the registered holder of the ROHN Certificate surrendered, or
shall establish to the satisfaction of the Exchange Agent that such
tax has been paid or is not applicable.
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(e) Until surrendered in accordance with Section 1.6.6(b), each
PIROD Certificate (other than PIROD Certificates representing PIROD
Shares held in the treasury of PIROD or by any wholly-owned subsidiary
of PIROD) shall represent solely the right to receive the Applicable
PIROD Merger Consideration relating thereto. If the Applicable PIROD
Merger Consideration is to be delivered to any person other than the
person in whose name the PIROD Certificate surrendered is registered,
it shall be a condition to such right to receive such Applicable PIROD
Merger Consideration that the PIROD Certificate so surrendered shall
be properly endorsed or otherwise be in proper form for transfer and
that the person surrendering such PIROD Certificate shall pay to the
Exchange Agent any transfer or other taxes required by reason of the
payment of the Applicable PIROD Merger Consideration to a person other
than the registered holder of the Certificate surrendered, or shall
establish to the satisfaction of the Exchange Agent that such tax has
been paid or is not applicable.
(f) Promptly following the date which is six months after the
Effective Time, the Exchange Agent shall deliver to the Surviving
Corporation all cash, securities and other documents in its possession
relating to the transactions described in the Agreement, and the
Exchange Agent's duties shall terminate. Thereafter, each holder of a
PIROD Certificate may surrender such PIROD Certificate to ROHN and
(subject to applicable abandoned property, escheat and similar laws)
receive in consideration therefor the Applicable PIROD Merger
Consideration related thereto, without any interest thereon.
(g) After the Effective Time, there shall be no transfers on the
stock transfer books of the Surviving Corporation or of PIROD of any
ROHN or PIROD Shares which were outstanding immediately prior to the
Effective Time and, in the case of ROHN Shares, which were entitled to
the Cash Consideration. If, after the Effective Time, certificates
formerly representing PIROD Shares are presented to ROHN or the
Exchange Agent for exchange for the Applicable PIROD Merger
Consideration, they shall be surrendered and cancelled in return for
the payment of the Applicable PIROD Merger Consideration relating
thereto.
(h) None of ROHN, PIROD or the Exchange Agent shall be liable to
any person in respect of any Cash Consideration or Applicable PIROD
Merger Consideration delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law. If any PIROD
Certificates shall not have been surrendered prior to seven years
after the Effective Time (or immediately prior to such earlier date on
which the Applicable PIROD Merger Consideration would otherwise
escheat to or become the property of any governmental entity), any
such distributions or cash in respect of such PIROD Certificate shall,
to the extent permitted by applicable law, become
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the property of the Surviving Corporation, free and clear of all claims
or interest of any person previously entitled thereto.
1.7. FRACTIONAL SHARES. No certificate or script representing fractional
ROHN Shares shall be issued upon the surrender for exchange of PIROD
Certificates, no dividend or distribution of ROHN shall relate to such
fractional share interests and such fractional share interests will not entitle
the owner thereof to vote or to any rights of a stockholder of ROHN. Any
fractional ROHN Share interests will be settled in cash by the Exchange Agent
from funds made available to it by ROHN or PIROD, such cash to be equal to the
fraction of a ROHN Share to which the party surrendering a PIROD Certificate
would otherwise be entitled times the average reported closing price for ROHN
Shares on the Nasdaq National Market System on the five trading days preceding
the Closing.
1.8. WARRANTS OF PIROD.
1.8.1. The Jackson Warrant. The outstanding warrant for PIROD
Class L Shares issued to Jackson National Life Insurance Company (the
"Jackson Warrant") shall be converted into a warrant (the "Jackson
Exchange Warrant") to purchase that number of ROHN Shares equal to
61.6859 times the number of Class L PIROD Shares purchasable under the
Jackson Warrant immediately prior to the Effective Time (without
regard to actual restrictions on exercisability), and with other terms
and conditions that are the same as the terms and conditions of such
Jackson Warrant immediately before the Effective Time; provided,
however, that the exercise price to purchase each ROHN Share under the
Jackson Exchange Warrant will be adjusted so that the aggregate
exercise price of all ROHN Shares under such Jackson Exchange Warrant
is equal to the aggregate price of all PIROD Class L Shares under the
Jackson Warrant so converted.
1.8.2. Other Class L Warrants. Each of the outstanding warrants
for Class L Shares other than the Jackson Warrant (each a "PIROD Class
L Warrant") shall be converted into a warrant (each a "ROHN Class L
Exchange Warrant") to purchase that number of ROHN Shares equal to
46.5854 times the number of Class L PIROD Shares purchasable under the
PIROD Class L Warrant immediately prior to the Effective Time (without
regard to actual restrictions on exercisability), and with other terms
and conditions that are the same as the terms and conditions of such
PIROD Class L Warrant immediately before the Effective Time; provided,
however, that the exercise price to purchase each ROHN Share under the
ROHN Class L Exchange Warrant will be adjusted so that the aggregate
exercise price of all ROHN Shares under such ROHN Class L Exchange
Warrant is equal to the aggregate price of all PIROD Class L Shares
under the PIROD Class L Warrant so converted.
1.8.3. Class A-7 Warrants. The outstanding warrant for PIROD Class
A-7 Shares (the
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<PAGE>
"PIROD A-7 Warrant") shall be converted into a warrant (the "ROHN A-7
Exchange Warrant") to purchase that number of ROHN Shares equal to
3.7282 times the number of Class A-7 PIROD Shares purchasable under the
PIROD A-7 Warrant immediately prior to the Effective Time (without
regard to actual restrictions on exercisability), and with other terms
and conditions that are the same as the terms and conditions of such
PIROD A-7 Warrant immediately before the Effective Time; provided,
however, that the exercise price to purchase each ROHN Share under the
ROHN A-7 Exchange Warrant will be adjusted so that the aggregate
exercise price of all ROHN Shares under such ROHN A-7 Exchange Warrant
is equal to the aggregate price of all PIROD Class A-7 Shares under the
PIROD A-7 Warrant so converted.
1.8.4. General. The Jackson Warrant, the PIROD Class L Warrants
and the PIROD Class A-7 Warrant are collectively referred to as the
"PIROD Warrants". The Jackson Exchange Warrant, the ROHN Class L
Exchange Warrants and the ROHN A-7 Exchange Warrant are each referred
to as a "ROHN Exchange Warrant". Exhibit 1.8.4 hereto lists the
number of ROHN Shares, and the exercise price per share thereof, that
will be issuable pursuant to each ROHN Exchange Warrant to be issued
in connection with Merger upon conversion of the PIROD Warrants. In
connection with the issuance of the ROHN Exchange Warrants, ROHN shall
(i) reserve for issuance the number of ROHN Shares that will in the
aggregate become subject to the ROHN Exchange Warrants pursuant to
this Section 1.8 and (ii) from and after the Effective Time, upon the
exercise of the ROHN Exchange Warrants, make available for issuance
all ROHN shares covered thereby, subject to the terms and conditions
applicable thereto.
1.9. OPTIONS OF PIROD. Each of the outstanding stock options issued under
PIROD's 1997 Stock Option Plan (each a "PIROD Option") shall be converted into
an option (each a "ROHN Exchange Option") to purchase that number of ROHN Shares
equal to the Applicable PIROD Merger Consideration times the number of PIROD
Shares of the applicable class purchasable under the PIROD Option immediately
prior to the Effective Time (without regard to actual restrictions on
exercisability), and with other terms and conditions that are the same as the
terms and conditions of such PIROD Option immediately before the Effective Time;
provided, however, that the exercise price to purchase each ROHN Share under a
ROHN Exchange Option will be adjusted so that the aggregate exercise price of
all ROHN Shares under such ROHN Exchange Option is equal to the aggregate
exercise price of all PIROD Shares under the PIROD Option so converted. Exhibit
1.9 hereto lists the number of ROHN Shares, and the exercise price per share
thereof, that will be issuable pursuant to each ROHN Exchange Option to be
issued in connection with the Merger. The ROHN Exchange Options shall satisfy
the provisions of Section 424(a) of the Code. In connection with the issuance
of the ROHN Exchange Options, ROHN shall (i) reserve for issuance the number of
ROHN Shares that will become subject to the ROHN Exchange Options pursuant to
this Section 1.9 and (ii) from and after the Effective Time, upon the exercise
of the ROHN Exchange Options, make available for
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<PAGE>
issuance all ROHN Shares covered thereby, subject to the terms and conditions
applicable thereto.
1.10. ROHN SHAREHOLDER MEETING. ROHN, acting through its board of
directors, shall, in accordance with applicable law:
1.10.1. duly call, give notice of, convene and hold an annual or
special meeting of ROHN Shareholders (the "ROHN Meeting") as soon as
practicable for the purpose of approving and adopting this Agreement;
1.10.2. subject to a determination in good faith by ROHN's board
of directors of its fiduciary duties under applicable law, include in
the proxy statement for, or any information statement with respect to,
the ROHN Meeting (the "Proxy Statement") the recommendation of its
board of directors that ROHN Shareholders vote in favor of the
approval and adoption of this Agreement; and
1.10.3. use all commercially reasonable best efforts (i) to
obtain and furnish the information required to be included by it in
the Proxy Statement, and, after consultation with PIROD, respond
promptly to any comments made by the SEC with respect to the Proxy
Statement and any preliminary version of the Proxy Statement and cause
the Proxy Statement to be mailed to ROHN Shareholders at the earliest
practicable time, and (ii) subject to the fiduciary duties of the
board of directors under applicable law, to obtain the necessary
approval of the Merger by ROHN Shareholders.
1.10.4 use commercially reasonable best efforts to prepare and
file with the SEC, and have declared effective by the SEC, a
registration statement on Form S-4 registering under the Securities
Act of 1933 (the "Securities Act") the ROHN Shares issuable in the
Merger.
1.11. PIROD SHAREHOLDER ACTION. PIROD shall cause the PIROD
Shareholders to take all action necessary, in accordance with applicable law,
to approve this Agreement as soon as reasonably practicable.
1.12. ADDITIONAL ACTIONS. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any further deeds,
assignments or assurances in law or any other acts are necessary or desirable
(a) to vest, perfect or confirm in the Surviving Corporation its right, title or
interest in, to or under any of the rights, properties or assets of ROHN or
PIROD or (b) to otherwise carry out the provisions of this Agreement, each of
ROHN and PIROD and its directors and officers shall be deemed to have granted to
such Surviving Corporation an irrevocable power of attorney to execute and
deliver all such deeds, assignments or assurances in law and to take all acts
necessary, proper or desirable to vest, perfect or confirm title to and
possession of such rights, properties or assets in the Surviving Corporation and
otherwise to carry out the provisions of this Agreement, and the directors and
officers of the Surviving Corporation
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<PAGE>
are authorized in the name of ROHN and PIROD, as the case may be, or
otherwise to take any and all such action.
2. CLOSING.
Immediately preceding and consummating with the filing of the Certificate
of Merger referred to in Section 1.2, a closing (the "Closing") shall take place
at such date, time and place, subject to Section 9 hereof, as the parties may
agree upon as soon as practicable after the satisfaction of the conditions (or
due waiver thereof) set forth in Section 6. The time and date of the Closing
are referred to in this Agreement as the Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF ROHN.
ROHN represents and warrants (except as set forth in the 10-K or 10-Q, as
herein defined, or in that certain schedule dated the date hereof (the "ROHN
Schedule") and delivered to PIROD prior to the execution hereof) that:
3.1. ORGANIZATION, GOOD STANDING, ETC. ROHN and each of its subsidiaries
are corporations duly organized, validly existing and in good standing under the
laws of the respective states of their incorporation, have all requisite power
to own their properties and to carry on their businesses as now being conducted
and are duly qualified to do business and are in good standing in all other
jurisdictions in which qualification as a foreign corporation is required,
except for such failure to be qualified and in good standing, if any, which when
taken together with all other such failures of ROHN and its subsidiaries would
not in the aggregate have a ROHN Material Adverse Effect (as defined in Section
9.9). Each such corporation, state or country of incorporation and jurisdiction
is set forth in Section 3.1 of the ROHN Schedule. ROHN has heretofore made
available to PIROD a complete and correct copy of the Certificate of
Incorporation and the By-Laws or equivalent organizational documents, each as
amended to the date of this Agreement, of ROHN and each of its subsidiaries.
Such Certificates of Incorporation, By-Laws and equivalent organizational
documents are in full force and effect. Neither ROHN nor any subsidiary is in
violation of any provision of its Certificate of Incorporation, By-Laws or
equivalent organizational documents, except for such violations that would not,
individually or in the aggregate, have a ROHN Material Adverse Effect.
3.2. AUTHORIZED ROHN SHARES, ABSENCE OF OPTIONS, WARRANTS, ETC. The
authorized capital stock of ROHN consists of 60,000,000 ROHN Shares, of which
52,816,009 ROHN Shares are issued and outstanding as of the date of this
Agreement and 635,016 ROHN Shares are held in its treasury. All of the
outstanding ROHN Shares are, and all ROHN Shares issuable upon due exercise of
outstanding employee stock options ("ROHN Options") will be, when issued in
accordance with the terms of the ROHN Options, duly authorized, validly issued,
fully paid and nonassessable by ROHN. There are no voting trusts or other
agreements or understandings with respect to the voting of any ROHN Shares known
to ROHN (other than the Trust Voting Agreement); and there are no outstanding
options, warrants, calls, rights of conversion or exchange or other rights,
commitments or agreements of any character relating to the authorized or issued
ROHN
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<PAGE>
Shares known to ROHN, except for the exercise rights of the holders of ROHN
Options with respect to a maximum of 1,160,000 ROHN Shares, agreements with
respect to a maximum of 280,000 ROHN Shares issued pursuant to Restricted Stock
Agreements, which ROHN Options (with numbers of ROHN Shares, exercise prices,
holders and duration) and Restricted Stock Agreements (with the number of ROHN
Shares covered by each agreement and parties thereto) are set forth on Section
3.3 of the ROHN Schedule, and the need for Bankruptcy Court approval of a sale
of the Shares by the Trust as noted in Section 3.3 below. ROHN is the owner of
all outstanding capital stock of each of its subsidiaries; no capital stock of
any of such subsidiaries is held in the treasury of any of such subsidiaries;
there are no other shares of capital stock of any class of any of such
subsidiaries reserved for issuance as of the date of this Agreement; there are
no voting trusts or other agreements or understandings with respect to the
voting of any of the equity securities of such subsidiaries; and there are no
outstanding options, warrants, calls, rights of conversion or exchange or other
rights, commitments or agreements of any character relating to equity securities
of any of such subsidiaries. All such capital stock has been duly authorized
and validly issued and is fully paid and non-assessable. Section 3.2 of the
ROHN Schedule lists all stocks, bonds, debentures and other interests in or
securities of such subsidiaries and of other business enterprises owned by ROHN
or any of its subsidiaries.
3.3. EFFECT OF AGREEMENT. The execution, delivery and performance by ROHN
of this Agreement and the consummation by ROHN of the transactions contemplated
hereby are within ROHN's corporate powers and, except for any required approval
by the ROHN Shareholders by majority vote in connection with the consummation of
the Merger, have been duly authorized by all necessary corporate and stockholder
action. This Agreement constitutes a valid and binding agreement of ROHN,
enforceable against ROHN in accordance with its terms, subject to the effect of
any applicable bankruptcy, reorganization, insolvency, moratorium or similar law
affecting creditors' rights generally and general principles of equity. The
execution and delivery of this Agreement by ROHN and the consummation of the
Merger have been duly authorized by the board of directors of ROHN, do not
require the consent, approval or authorization of or filing with any person or
any Federal, state or local government or any court, administrative agency or
commission or other domestic or foreign governmental authority or agency (a
"Governmental Entity") other than the approval of ROHN Shareholders at the ROHN
Shareholder Meeting, the filing of the Certificate of Merger contemplated by
Section 1.2, the filings with the SEC, the National Association of Securities
Dealers, Inc. ("NASD"), the Federal Trade Commission (the "FTC") and the U.S.
Department of Justice ("Justice") contemplated by Section 5.3.1, the approval of
the sale of ROHN Shares held by the Trust by the United States District Court
for Northern District of Illinois, Eastern Division (the "Bankruptcy Court") as
provided in the Consolidated Plan of Reorganization dated March 14, 1989 (the
"Plan of Reorganization") and the consents, waivers or approvals from persons
party to specified contracts listed in Section 3.3 of the ROHN Schedule and will
not, subject to obtaining the aforesaid consents, waivers or approvals and
making the aforesaid filings, and except such as would not reasonably be
expected to have a ROHN
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<PAGE>
Material Adverse Effect, violate any law, statute, regulation, injunction,
order or decree of any governmental agency or authority or court, or conflict
with or result in a breach of or constitute a default under any of the terms
or provisions of any mortgage, note, bond or indenture or material obligation
to which ROHN or any of its subsidiaries is a party or by which it or any of
its or their properties may be bound. Subject to securing the consents,
waivers and approvals required under the agreements set forth in Section 3.3
of the ROHN Schedule, the execution and delivery of this Agreement by ROHN
and the consummation of the Merger will not give to others any interests or
rights, including rights of termination or cancellation, in or with respect
to any material property, asset, contract, agreement, license or other
commitment or instrument of ROHN or any of its subsidiaries, except as would
not reasonably be expected to have a ROHN Material Adverse Effect.
3.4. CONTRACTS AND COMMITMENTS. Neither ROHN nor any of its subsidiaries
is in breach or violation of or in default (i) under any of the terms or
provisions of any mortgages, leases, notes, bonds, indentures, commitments,
contracts, agreements, licenses or other instruments to which such corporation
is a party or by which it or any of its properties is bound and which is listed
in Section 3.4 of the ROHN Schedule or which singularly is or in the aggregate
are otherwise material to the business, properties, financial condition or
operations of such corporation, (ii) under any law, judgment or decree, or any
order, rule or regulation applicable to such corporation or to any of its
properties or (iii) in the payment of any of its obligations for borrowed funds,
and there exists no known condition or known event which, after notice or lapse
of time or both, would constitute a default in connection with any of the
foregoing, except any such breach, violation or default that would not
reasonably be expected to have a ROHN Material Adverse Effect. Section 3.4 of
the ROHN Schedule contains a correct and complete list of the following:
(i) each loan, credit agreement, guarantee, indenture, note, mortgage, security
agreement or similar document or instrument to which ROHN or any of its
subsidiaries is a party or by which any of ROHN's or any of its subsidiaries'
assets or properties are bound; (ii) each lease of personal property to which
ROHN or any of its subsidiaries is a party or by which any of ROHN or its
subsidiaries are bound; and (iii) any other agreement, contract or commitment to
which ROHN or any of its subsidiaries is a party or by which any of ROHN's or
any of its subsidiaries' assets or properties are bound which is a collective
bargaining agreement or which involves a future commitment by ROHN or any of its
subsidiaries in excess of $25,000 and which cannot be terminated without
liability on 90 days or less notice (the "ROHN Material Contracts"). ROHN has
delivered to PIROD a true and complete copy of each of the ROHN Material
Contracts. Each of the ROHN Material Contracts is a valid and binding
obligation of ROHN or its subsidiary, as applicable, enforceable in accordance
with its terms, and is in full force and effect, subject to bankruptcy,
reorganization, receivership and other laws affecting creditors' rights
generally.
3.5. SEC FILINGS; FINANCIAL STATEMENTS. ROHN has filed all forms,
reports, registrations, proxy statements, schedules and documents required to
be filed by it with the SEC since January 1, 1996 and has heretofore made
available to PIROD, in the form filed with the SEC (excluding any exhibits
thereto), (i) its Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 (the "10-K"), (ii) its Quarterly Reports on Form 10-Q
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<PAGE>
for the periods ended March 31, 1998, June 30, 1998 and September 30, 1998
(the last such Report referred to as the "10-Q"), (iii) all proxy statements
relating to ROHN's meetings of stockholders (whether annual or special) held
since January 1, 1996 and (iv) all other forms, reports, other registration
statements and schedules (other than the quarterly reports not referred to in
clause (ii) above and preliminary materials) filed by ROHN with the SEC since
January 1, 1996 (the forms, reports and other documents referred to in
clauses (i), (ii), (iii) and (iv) above being referred to herein
collectively, as the "ROHN SEC Reports"). The ROHN SEC Reports and any
forms, reports and other documents filed by ROHN with the SEC after the date
of this Agreement (x) were prepared in accordance with the requirements of
the Securities Act and the Exchange Act, as the case may be, and the rules
and regulations thereunder and (y) did not at the time they were filed
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements made therein, in the light of circumstances under which they were
made, not misleading. Except to the extent that the information contained in
the ROHN SEC Reports has been revised or superseded by a later filed ROHN SEC
Report, the ROHN SEC Reports do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. No subsidiary of
ROHN is required to file any form, report or other document with the SEC.
The financial statements contained in the 10-K and the 10-Q fairly present
the consolidated financial condition of ROHN and all its subsidiaries as at
the dates thereof and the consolidated results of operations and changes in
financial position for the periods indicated, all in conformity with
generally accepted accounting principles applied on a consistent basis
(except as otherwise stated therein or, in the case of unaudited financial
statements, as permitted by Form 10-Q). For the purposes of this Agreement,
all financial statements of ROHN shall be deemed to include any notes to such
financial statements.
3.6. ABSENCE OF LIABILITIES. Except for liabilities or obligations which
would not reasonably be expected to have a ROHN Material Adverse Effect, neither
ROHN nor any of its subsidiaries has any material liabilities or obligations,
either accrued, absolute, contingent or otherwise, which have not been (i)
reflected in ROHN's Balance Sheet as of September 30, 1998, referred to in
Section 3.5 ("ROHN's Balance Sheet"), (ii) specifically described in Section 3.6
of the ROHN Schedule, (iii) incurred in the ordinary course of ROHN's business
since September 30, 1998, or (iv) incurred under or in connection with this
Agreement.
3.7. ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30, 1998,
except as disclosed in Section 3.7 of the ROHN Schedule, (i) neither ROHN nor
any of its subsidiaries has sustained any damage, destruction or loss by reason
of fire, flood, accident or other calamity (whether or not covered by insurance)
that would reasonably be expected to have a ROHN Material Adverse Effect; (ii)
there have been no changes in the condition (financial or otherwise), business,
net worth, assets, properties, obligations or liabilities (fixed or contingent)
of ROHN or any of its subsidiaries that would reasonably be expected to have a
ROHN Material Adverse Effect; (iii) neither ROHN nor any of its
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<PAGE>
subsidiaries has incurred any obligation for the payment of money extending
more than one year, except for operating leases entered into in the ordinary
course of business; (iv) neither ROHN nor any of its subsidiaries has paid
any obligation or liability (fixed or contingent) except current liabilities
included in ROHN's Balance Sheet and current liabilities incurred since
September 30, 1998 in the ordinary course of business or pursuant to the
terms of this Agreement; (v) ROHN has not declared any other dividend or
other distribution on or with respect to any ROHN Shares; (vi) ROHN has not
purchased, redeemed or otherwise acquired for a consideration, directly or
indirectly, any ROHN Shares or other securities of ROHN; (vii) neither ROHN
nor any of its subsidiaries has disposed of, or agreed to dispose of, any
material property or asset, other than in the ordinary course of business and
for a consideration at least equal to the fair value of such property or
asset, nor has it leased to others, or agreed so to lease, any property or
asset except in the ordinary course of business and for a consideration at
least equal to the fair rental value of such property or asset; (viii)
neither ROHN nor any of its subsidiaries has made any expenditures or
commitments for the purchase, acquisition, construction or improvement of a
capital asset except in the ordinary course of business and in an aggregate
amount not exceeding $500,000; (ix) neither ROHN nor any of its subsidiaries
has amended its Certificate or Articles of Incorporation or By-Laws; (x)
neither ROHN nor any of its subsidiaries has (A) granted any severance or
termination pay to any director, officer or employee of ROHN or any
subsidiary, (B) entered into any employment, deferred compensation or other
similar agreement (or any amendment to any such existing agreement) with any
director, officer or employee of ROHN or any subsidiary, (C) increased
benefits payable under any existing severance or termination pay policies or
employment agreements, (D) increased compensation, bonus or other benefits
payable to directors, officers or employees of ROHN or any subsidiary or (E)
entered into any new, or amended or modified any existing, collective
bargaining agreement; (xi) ROHN has not effected any split, combination or
reclassification of any shares of its outstanding capital stock or any
issuance or the authorization of any issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital stock;
(xii) neither ROHN nor any of its subsidiaries has made any change in
accounting methods, principles or practices by ROHN or its subsidiaries
materially affecting the consolidated assets, liabilities or results of
operations of ROHN or its subsidiaries, except insofar as may be required by
a change in generally accepted accounting principles; and (xiii) except as
set forth above, neither ROHN nor any of its subsidiaries has entered into
any other transaction or contract other than in the ordinary course of
business.
3.8. TAX AND OTHER RETURNS. Except as set forth in Section 3.8 of the ROHN
Schedule (i) all material federal tax returns and tax reports required to be
filed by ROHN or any of its subsidiaries have been filed with the appropriate
governmental agencies where such returns and reports are required to be filed;
(ii) all material state and local tax returns and tax reports required to be
filed by ROHN or any of its subsidiaries in those states where either ROHN or
any of its subsidiaries have qualified to do business, and which relate to
income, profits, franchise or property taxes, have been filed with the
appropriate governmental agencies in such jurisdiction; (iii) all federal,
state, local and
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foreign income, profits and franchise taxes (including interest and
penalties) shown due on the tax returns and tax reports referred to in (i)
and (ii) of this paragraph have been fully paid or adequately reflected as a
liability on ROHN's Balance Sheet; (iv) no waivers of statutes of limitation
have been given or requested; and (v) there are no potential federal tax
deficiencies or state and local tax deficiencies with respect to the returns
and reports filed by ROHN and referred to in (i) and (ii) of this paragraph
which may arise from issues which have been raised or which have not yet been
raised but which reasonably might be expected to be raised by the Internal
Revenue Service or appropriate governmental agencies and reasonably might be
expected to have a ROHN Material Adverse Effect.
3.9. EMPLOYMENT ARRANGEMENTS. Except as disclosed in Section 3.9 of the
ROHN Schedule, neither ROHN nor any of its subsidiaries is a party to any
employment, commission or consultant contract, written or oral, with any present
or former officer, director or employee, or any collective bargaining agreement,
nor does ROHN or any of its subsidiaries have any ROHN Plans (as defined in
Section 3.17). Except as disclosed in Section 3.9 of the ROHN Schedule, since
September 30, 1998 there has been no change in any such plan or arrangement or
in compensation to any director or officer, or any change, either material in
amount or other than in the ordinary course of business, in compensation to any
other employee of ROHN or any of its subsidiaries.
3.10. PROPERTY. ROHN and each of its subsidiaries have good and
marketable title in fee simple to all of the real property respectively owned
by them, and good and marketable title to all of the other tangible
properties and assets respectively owned by them, free and clear of all
mortgages, liens, pledges, restrictions, charges or encumbrances of any
nature whatsoever, except (i) liens for taxes not yet delinquent; (ii) liens
being contested in good faith by appropriate proceedings; (iii) such
imperfections of title and encumbrances, if any, as do not materially detract
from the value of, or materially interfere with the present use of, such
property; and (iv) for those listed in Section 3.10 of the ROHN Schedule.
Neither ROHN nor any of its subsidiaries has received notice of violation of
any zoning regulation, ordinance or other law, order, regulation or
requirement relating to real property owned or leased by it which violation
would reasonably be expected to have a ROHN Material Adverse Effect.
3.11. PATENTS, TRADEMARKS, ETC. Section 3.11 of the ROHN Schedule
correctly lists all domestic and foreign letters patent, patent applications,
patent and know-how licenses, royalty agreements, trade names, trademark
registrations and applications, common law trademarks, copyrights and
copyright registrations and applications held by ROHN or any of its
subsidiaries. Unless otherwise indicated in the ROHN Schedule, ROHN or such
subsidiary owns the entire right, title and interest in and to the same. All
such letters patent, patent applications, patent and know-how licenses,
royalty agreements, trade names, trademark registrations and applications,
common law trademarks, copyrights, copyright registrations and applications
are subject to no pending or, to the best of the knowledge of ROHN or any of
its subsidiaries, threatened litigation or other adverse claims except as set
forth in Section 3.11 of the ROHN Schedule. Neither ROHN nor any of its
subsidiaries has received notice that the use by it of such patents,
trademarks, trade name
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rights or copyrights infringe upon or conflict with any patent, trademark,
trade name right or copyright of others.
3.12. ABSENCE OF DEFAULTS BY OTHERS. No party with whom ROHN or any of
its subsidiaries has an agreement which is of material importance to the
business, properties, financial condition or operations of ROHN or any of its
subsidiaries is in default thereunder, except a default which would not
reasonably be expected to have a ROHN Material Adverse Effect.
3.13. LITIGATION. Except as disclosed in Section 3.13 of the ROHN
Schedule, neither ROHN nor any of its subsidiaries is a party to or
threatened with any litigation, governmental or other proceeding,
investigation, strike or other labor dispute or other controversy which might
affect the validity of this Agreement or which, individually or in the
aggregate, might reasonably be expected to have a ROHN Material Adverse
Effect, and there is no outstanding order, writ, injunction or decree of any
Governmental Entity against or affecting ROHN or any of its subsidiaries or a
material portion of their respective businesses, properties, assets or
goodwill.
3.14. DISCLOSURE DOCUMENTS.
3.14.1. Each document required to be filed by ROHN with the SEC
in connection with the transactions contemplated by this Agreement
will, when filed, comply as to form with the applicable requirements
of the Securities Act and the Securities Exchange Act of 1934 (the
"Exchange Act"), and none of the information supplied or to be
supplied by ROHN for inclusion in any such document filed by ROHN or
PIROD will contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
3.14.2. At the time the ROHN Proxy Statement or any amendment or
supplement thereto is first mailed to the ROHN Shareholders and at the
time such shareholders vote on adoption of this Agreement, the ROHN
Proxy Statement, as supplemented or amended, if applicable, will not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not
misleading.
3.14.3. The representations in this Section 3.14 shall not apply
to any information in such documents which is supplied by or on behalf
of PIROD.
3.15. BROKERS' AND FINDERS' FEES. Except as disclosed in Section 3.15
of the ROHN Schedule, no agent, broker, person or firm acting on behalf of
ROHN or under its authority has claimed or is or will be entitled to any
commission or broker's or finder's fee from ROHN in connection with the
transactions contemplated by this Agreement. True and
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complete copies of any agreements regarding any such commission or fee have
been provided to PIROD.
3.16. INSURANCE. Section 3.16 of the ROHN Schedule correctly lists and
briefly describes all policies of fire, liability, workmen's compensation,
life, business interruption and other types of insurance held by ROHN or any
of its subsidiaries. All such insurance policies are in full force and
effect.
3.17. PENSION, RETIREMENT AND PROFIT SHARING PLANS. Section 3.17 of the
ROHN Schedule lists each pension, profit sharing, stock-bonus, thrift or
other retirement plan, employee stock ownership plan, deferred compensation,
stock purchase, performance share, bonus or other incentive plan, severance
plan, health or welfare plan or other similar plan, agreement, arrangement or
understanding, whether or not reduced to writing and whether or not such plan
is or is intended to be qualified under Section 401(a) of the Code,
including, without limitation, any employee welfare benefit plan or employee
pension benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") ("ROHN Plan"), maintained or
sponsored by ROHN or any of its subsidiaries. Each ROHN Plan is in full
force and effect and has been administered in all material respects in
accordance with its terms and is and has been, and each plan administrator
and fiduciary of a ROHN Plan is and has been, in compliance in all material
respects with all applicable requirements of ERISA (including the funding,
reporting and disclosure and prohibited transaction provisions thereof) and
other applicable laws, regulations and rulings. Each ROHN Plan intended to
qualify under Section 401(a) of the Code is so qualified. Except as set
forth in Section 3.17 of the ROHN Schedule, no ROHN Plan is a "defined
benefit plan" (within the meaning of Section 3(35) of ERISA) or a
"multi-employer plan" (within the meaning of Section 3(37) of ERISA), has
terminated or partially terminated and no complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any such
multi-employer plan has occurred. ROHN or one of its subsidiaries has made,
accrued or provided for all contributions required under each ROHN Plan.
3.18. ENVIRONMENTAL MATTERS.
Except as disclosed in Section 3.18 of the ROHN Schedule, to ROHN's
knowledge and except such as could not reasonably be expected to have a ROHN
Material Adverse Effect:
3.18.1. ROHN and its current subsidiaries, and all properties
currently owned or leased by ROHN and its subsidiaries (collectively
"ROHN Real Estate"), are in compliance with all applicable
environmental and health and safety laws (collectively "Environmental
Laws"). Properties and subsidiaries formerly owned by ROHN were, as
of the date of sale or divestiture of those properties or
subsidiaries, in compliance with all Environmental Laws.
3.18.2. Neither ROHN nor any of its current subsidiaries has
received any written notice within the past five years that ROHN or
its current or
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former subsidiaries has any liability, responsibility or obligation,
whether fixed, unliquidated, absolute or contingent, under any
Environmental Laws, or that they are subject to threatened or pending
claims, actions, suits, proceedings or investigations under such laws,
for fines or penalties, or for investigation, expense, removal or
response action to effect compliance with or discharge any obligation or
claim under such laws.
3.18.3. There is no past or continuing release or threat of
release, without an issued permit or permit application, of any
hazardous substance as defined in 42 U.S.C. Section 9601(14) or
petroleum, including crude oil or any fraction thereof (collectively,
"Hazardous Substance") into the environment, at or from the ROHN Real
Estate that necessitates reporting or response actions under
Environmental Law. There was no past release, without an issued
permit or permit application, of any Hazardous Substances into the
environment, at or from a facility formerly owned or operated by ROHN
or a former subsidiary of ROHN where the release occurred prior to the
time such facility or subsidiary was sold or divested by ROHN, that
necessitated reporting or response actions by PIROD or its former
subsidiary where such response action was not completed.
3.18.4. There have been no Hazardous Substances used or
generated by ROHN or any of its current subsidiaries, or former
subsidiaries prior to their sale or divestiture from ROHN, that have
been disposed of or come to rest at any site that has been included on
the National Priorities List, or any comparable state or local list.
3.18.5. There never has been any and there are no underground or
above-ground storage tanks ("USTs" or "ASTs") located on, and there
are no polychlorinated biphenyls ("PCBs"), PCB-containing equipment,
or hazardous waste as defined by the Resource Conservation and
Recovery Act ("RCRA") or comparable state or local laws, disposed on
the ROHN Real Estate. Prior to the sale or divestiture of such other
real property previously owned, leased or used by ROHN or any of its
former subsidiaries, there were no USTs or ASTs located on such
property or PCBs or hazardous waste disposed of on such properties
where such USTs, ASTs, PCBs or hazardous waste had not been removed in
accordance with Environmental Laws.
3.18.6. There currently are no Hazardous Substances in the soil
or groundwater at, or migrating from any ROHN Real Estate, the
concentration of which exceeds the most lenient of applicable federal
or state standards consistent with the future industrial use of the
ROHN Real Estate.
3.19. LABOR MATTERS. Except as set forth in Section 3.19 of the ROHN
Schedule, ROHN and each of its subsidiaries are, and for the past three years
have remained, in compliance with all currently applicable laws respecting
labor and employment practices, terms and conditions of employment and wages
and hours, and is not engaged in any
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unfair labor practice, except where the failure to comply with which or
engagement in which, as the case may be, individually or in the aggregate,
has not had, and would not reasonably be expected to have, a ROHN Material
Adverse Effect. There is no unfair labor practice charge or complaint
pending or, to the knowledge of ROHN, threatened against ROHN before the
National Labor Relations Board. Except as otherwise set forth in Section
3.19 of the ROHN Schedule, there are no strikes, slowdowns, union
organizational or union decertification campaigns or other protected
concerted activity under the National Labor Relations Act or, to the
knowledge of ROHN, threats thereof, by or with respect to any employees of
ROHN.
3.20. COMPLIANCE WITH LAWS AND COURT ORDERS. Neither ROHN nor any of
its subsidiaries is in violation of, or has for the past three years
violated, and to the knowledge of ROHN none is under investigation with
respect to or has been threatened to be charged with or given notice of any
violation of, in each case, by any governmental agency or authority, any
applicable law, rule, regulation, judgment, injunction, order or decree,
except for violations that have not had, and would not reasonably be expected
to have, individually or in the aggregate, a ROHN Material Adverse Effect.
3.21. LICENSES AND PERMITS. Except as set forth on Section 3.21 of the
ROHN Schedule or except as has not had, and would not reasonably be expected
to have, individually or in the aggregate, a ROHN Material Adverse Effect,
(i) the Permits are valid and in full force and effect, (ii) neither ROHN or
any subsidiary is in default under, and no condition exists that with notice
or lapse of time or both would constitute a default under, the Permits and
(iii) none of the Permits will be terminated or impaired or become
terminable, in whole or in part, as a result of the transactions contemplated
hereby. "Permits" for purposes of this Section 3.21 means each material
license, franchise, permit, certificate, approval or other similar
authorization affecting, or relating in any way to, the assets or business of
ROHN and its subsidiaries.
4. REPRESENTATIONS AND WARRANTIES OF PIROD.
PIROD represents and warrants (except as set forth in the April 1998
Confidential Memorandum and in the PIROD Financial Statements (as defined below)
and in that certain schedule dated the date hereof (the "PIROD Schedule"), all
of which have been delivered to ROHN prior to the execution hereof) that:
4.1. ORGANIZATION, GOOD STANDING, ETC. PIROD and each of its subsidiaries
are corporations duly organized, validly existing and in good standing under the
laws of the respective states of their incorporation, have all requisite power
to own their properties and to carry on their businesses as now being conducted
and are duly qualified to do business and are in good standing in all other
jurisdictions in which qualification as a foreign corporation is required,
except for such failure to be qualified and in good standing, if any, which when
taken together with all other such failures of PIROD and its subsidiaries would
not in the aggregate have a PIROD Material Adverse Effect (as defined in Section
9.9). Each such corporation, state or country of incorporation and jurisdiction
is set forth in Section 4.1 of the PIROD Schedule. PIROD has heretofore made
available to ROHN a
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complete and correct copy of the Certificate of Incorporation and the By-Laws
or equivalent organizational documents, each as amended to the date of this
Agreement, of PIROD and each of its subsidiaries. Such Certificates of
Incorporation, By-Laws and equivalent organizational documents are in full
force and effect. Neither PIROD nor any subsidiary is in violation of any
provision of its Certificate of Incorporation, By-Laws or equivalent
organizational documents, except for such violations that would not,
individually or in the aggregate, have a PIROD Material Adverse Effect.
4.2. AUTHORIZED SHARES, ABSENCE OF OPTIONS, WARRANTS, ETC. The authorized
capital stock of PIROD consists of 19,178,000 shares of Class A-1 Common Stock
of PiRod (the "Class A-1 Common"), 235,000 shares of Class A-2 Common Stock of
PiRod (the "Class A-2 Common"), 61,000 shares of Class A-3 Common Stock of PiRod
(the "Class A-3 Common"), 35,000 shares of Class A-4 Common Stock of PiRod (the
"Class A-4 Common"), 25,000 shares of Class A-5 Common Stock of PiRod (the
"Class A-5 Common"), 355,000 shares of Class A-6 Common Stock of PiRod (the
"Class A-6 Common"), 21,000 shares of Class A-7 Common Stock of PiRod (the
"Class A-7 Common"), and 90,000 shares of Class L Common Stock of PiRod (the
"Class L Common"). As of the date of this Agreement, 88,289 shares of Class A-1
Common, 232,099 shares of Class A-2 Common, 60,146 shares of Class A-3 Common,
28,420 shares of Class A-4 Common, 20,653 shares of Class A-5 Common, 351,497
shares of Class A-6 Common and 76,776 shares of Class L Common are issued and
outstanding. No PiRod Shares are held in treasury. All of the outstanding
PIROD Shares are, and all PIROD Shares issuable upon due exercise of outstanding
PIROD Options and PIROD Warrants will be, when issued in accordance with the
terms of the PIROD Options and PIROD Warrants, duly authorized, validly issued,
fully paid and nonassessable by PIROD. There are no voting trusts or other
agreements or understandings with respect to the voting of any such Shares known
to PIROD (other than the PIROD Shareholders Voting Agreement and the
Stockholders Agreement dated as of August 28, 1996 (the "PIROD Stockholders
Agreement"), a true and complete copy of which has been delivered to ROHN by
PIROD); and there are no outstanding options, warrants, calls, rights of
conversion or exchange or other rights, commitments or agreements of any
character relating to the authorized or issued PIROD Shares known to PIROD,
except for (i) as set forth in PIROD's Certificate of Incorporation, the
Stockholders Agreement and the PIROD Shareholders Voting Agreement and
(ii) exercise of rights of the holders of PIROD Options with respect to a
maximum of 12,250 shares of Class A-1 Common and of the holders of PIROD
Warrants with respect to a maximum of 20,028 shares of Class A-7 Common and
12,238 shares of Class L Common, which PIROD Options and PIROD Warrants (with
numbers and classes of PIROD Shares, exercise prices, holders and duration) are
set forth on Section 4.2 of the PIROD Schedule, PIROD is the owner of all
outstanding capital stock of each of its subsidiaries; no capital stock of any
of such subsidiaries is held in the treasury of any of such subsidiaries; there
are no other shares of capital stock of any class of any of such subsidiaries
reserved for issuance as of the date of this Agreement; there are no voting
trusts or other agreements or understandings with respect to the voting of any
of the equity securities of such subsidiaries; and there are no outstanding
options,
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warrants, calls, rights of conversion or exchange or other rights,
commitments or agreements of any character relating to equity securities of
any of such subsidiaries. All such capital stock has been duly authorized
and validly issued and is fully paid and non-assessable. Section 4.2 of the
PIROD Schedule lists all stocks, bonds, debentures and other interests in or
securities of such subsidiaries and of other business enterprises owned by
PIROD or any of its subsidiaries.
4.3. EFFECT OF AGREEMENT. The execution, delivery and performance by
PIROD of this Agreement and the consummation by PIROD of the transactions
contemplated hereby are within PIROD's corporate powers and, except for any
required approval by the PIROD Shareholders by majority vote in connection
with the consummation of the Merger, have been duly authorized by all
necessary corporate and stockholder action. This Agreement constitutes a
valid and binding agreement of PIROD, enforceable against PIROD in accordance
with its terms, subject to the effect of any applicable bankruptcy,
reorganization, insolvency, moratorium or similar law affecting creditors'
rights generally and general principles of equity. The execution and
delivery of this Agreement by PIROD and the consummation of the Merger have
been duly authorized by the board of directors of PIROD, do not require the
consent, approval or authorization of or filing with any person or any
Governmental Entity other than the approval of PIROD Shareholders, the filing
of the Certificate of Merger contemplated by Section 1.2, the filings with
the SEC, the NASD, the FTC and Justice contemplated by Section 5.3.1, and the
consents, waivers or approvals from persons party to specified contracts
listed in Section 4.3 of the PIROD Schedule and will not, subject to
obtaining the aforesaid consents, waivers or approvals and making the
aforesaid filings, and except such as would not reasonably be expected to
have a PIROD Material Adverse Effect, violate any law, statute, regulation,
injunction, order or decree of any governmental agency or authority or court,
or conflict with or result in a breach of or constitute a default under any
of the terms or provisions of any mortgage, note, bond or indenture or
material obligation to which PIROD or any of its subsidiaries is a party or
by which it or any of its or their properties may be bound. Subject to
securing the consents, waivers and approvals required under the agreements
set forth in Section 4.3 of the PIROD Schedule, the execution and delivery of
this Agreement by PIROD and the consummation of the Merger will not give to
others any interests or rights, including rights of termination or
cancellation, in or with respect to any material property, asset, contract,
agreement, license or other commitment or instrument of PIROD or any of its
subsidiaries, except as would not reasonably be expected to have a PIROD
Material Adverse Effect.
4.4. CONTRACTS AND COMMITMENTS. Neither PIROD nor any of its
subsidiaries is in breach or violation of or in default (i) under any of the
terms or provisions of any mortgages, leases, notes, bonds, indentures,
commitments, contracts, agreements, licenses or other instruments to which
such corporation is a party or by which it or any of its properties is bound
and which is listed in Section 4.4 of the PIROD Schedule or which singularly
is or in the aggregate are otherwise material to the business, properties,
financial condition or operations of such corporation, (ii) under any law,
judgment or decree, or any order, rule or regulation applicable to such
corporation or to any of its properties or (iii) in
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the payment of any of its obligations for borrowed funds, and there exists no
known condition or known event which, after notice or lapse of time or both,
would constitute a default in connection with any of the foregoing, except
any such breach, violation or default that would not reasonably be expected
to have a PIROD Material Adverse Effect. Section 4.4 of the PIROD Schedule
contains a correct and complete list of the following: (i) each loan, credit
agreement, guarantee, indenture, note, mortgage, security agreement or
similar document or instrument to which PIROD or any of its subsidiaries is a
party or by which any of PIROD's or any of its subsidiaries' assets or
properties are bound; (ii) each lease of personal property to which PIROD or
any of its subsidiaries is a party or by which any of PIROD or its
subsidiaries are bound; and (iii) any other agreement, contract or commitment
to which PIROD or any of its subsidiaries is a party or by which any of
PIROD's or any of its subsidiaries' assets or properties are bound which is a
collective bargaining agreement or which involves a future commitment by
PIROD or any of its subsidiaries in excess of $25,000 and which cannot be
terminated without liability on 90 days or less notice (the "PIROD Material
Contracts"). PIROD has delivered to ROHN a true and complete copy of each of
the PIROD Material Contracts. Each of the PIROD Material Contracts is a
valid and binding obligation of PIROD or its subsidiary, as applicable,
enforceable in accordance with its terms, and is in full force and effect,
subject to bankruptcy, reorganization, receivership and other laws affecting
creditors' rights generally.
4.5. FINANCIAL STATEMENTS. PIROD heretofore has delivered to ROHN a
true and complete copy of (i) PIROD's consolidated balance sheets of PIROD
and all its subsidiaries as of December 28, 1997 and December 29, 1996 and
the related statements of earnings and changes in financial position for the
period from July 24, 1996 to December 29, 1996 and the year ended December
31, 1997 as audited by PricewaterhouseCoopers and (ii) PIROD's unaudited
consolidated balance sheets and the related statements of earnings and
changes in financial position of PIROD and all its subsidiaries for the
three- and nine-month periods ended September 27, 1998 and 1997 (the "PIROD
Financial Statements"). The PIROD Financial Statements fairly present the
consolidated financial condition of PIROD and all its subsidiaries as at the
dates thereof and the consolidated results of operations and changes in
financial position for the periods indicated, all in conformity with
generally accepted accounting principles applied on a consistent basis
(except as otherwise stated therein). For the purposes of this Agreement,
all PIROD Financial Statements shall be deemed to include any notes to such
financial statements.
4.6. ABSENCE OF LIABILITIES. Except for liabilities or obligations
which would not reasonably be expected to have a PIROD Material Adverse
Effect, neither PIROD nor any of its subsidiaries has any material
liabilities or obligations, either accrued, absolute, contingent or
otherwise, which have not been (i) reflected in PIROD's Balance Sheet as of
September 27, 1998, referred to in Section 4.5 ("PIROD's Balance Sheet"),
(ii) specifically described in Section 4.6 of the PIROD Schedule, (iii)
incurred in the ordinary course of PIROD's business since September 27, 1998,
or (iv) incurred under or in connection with this Agreement.
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4.7. ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 27, 1998,
except as disclosed in Section 4.7 of the PIROD Schedule, (i) neither PIROD
nor any of its subsidiaries has sustained any damage, destruction or loss by
reason of fire, flood, accident or other calamity (whether or not covered by
insurance) that would reasonably be expected to have a PIROD Material Adverse
Effect; (ii) there have been no changes in the condition (financial or
otherwise), business, net worth, assets, properties, obligations or
liabilities (fixed or contingent) of PIROD or any of its subsidiaries that
would reasonably be expected to have a PIROD Material Adverse Effect; (iii)
neither PIROD nor any of its subsidiaries has incurred any obligation for the
payment of money extending more than one year, except for operating leases
entered into in the ordinary course of business; (iv) neither PIROD nor any
of its subsidiaries has paid any obligation or liability (fixed or
contingent) except current liabilities included in PIROD's Balance Sheet and
current liabilities incurred since September 30, 1998 in the ordinary course
of business or pursuant to the terms of this Agreement; (v) PIROD has not
declared any other dividend or other distribution on or with respect to any
PIROD Shares; (vi) PIROD has not purchased, redeemed or otherwise acquired
for a consideration, directly or indirectly, any PIROD Shares or other
securities of PIROD; (vii) neither PIROD nor any of its subsidiaries has
disposed of, or agreed to dispose of, any material property or asset, other
than in the ordinary course of business and for a consideration at least
equal to the fair value of such property or asset, nor has it leased to
others, or agreed so to lease, any property or asset except in the ordinary
course of business and for a consideration at least equal to the fair rental
value of such property or asset; (viii) neither PIROD nor any of its
subsidiaries has made any expenditures or commitments for the purchase,
acquisition, construction or improvement of a capital asset except in the
ordinary course of business and in an aggregate amount not exceeding
$500,000; (ix) neither PIROD nor any of its subsidiaries has amended its
Certificate or Articles of Incorporation or By-Laws; (x) neither PIROD nor
any of its subsidiaries has (A) granted any severance or termination pay to
any director, officer or employee of PIROD or any subsidiary, (B) entered
into any employment, deferred compensation or other similar agreement (or any
amendment to any such existing agreement) with any director, officer or
employee of PIROD or any subsidiary, (C) increased benefits payable under any
existing severance or termination pay policies or employment agreements, (D)
increased compensation, bonus or other benefits payable to directors,
officers or employees of PIROD or any subsidiary or (E) entered into any new,
or amended or modified any existing, collective bargaining agreement; (xi)
PIROD has not effected any split, combination or reclassification of any
shares of its outstanding capital stock or any issuance or the authorization
of any issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock; (xii) neither PIROD nor any of
its subsidiaries has made any change in accounting methods, principles or
practices by PIROD or its subsidiaries materially affecting the consolidated
assets, liabilities or results of operations of PIROD or its subsidiaries,
except insofar as may be required by a change in generally accepted
accounting principles; and (xiii) except as set forth above, neither PIROD
nor any of its subsidiaries has entered into any other transaction or
contract other than in the ordinary course of business.
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4.8. TAX AND OTHER RETURNS. Except as set forth in Section 4.8 of the
PIROD Schedule (i) all material federal tax returns and tax reports required to
be filed by PIROD or any of its subsidiaries have been filed with the
appropriate governmental agencies where such returns and reports are required to
be filed; (ii) all material state and local tax returns and tax reports required
to be filed by PIROD or any of its subsidiaries in those states where either
PIROD or any of its subsidiaries have qualified to do business, and which relate
to income, profits, franchise or property taxes, have been filed with the
appropriate governmental agencies in such jurisdiction; (iii) all federal,
state, local and foreign income, profits and franchise taxes (including interest
and penalties) shown due on the tax returns and tax reports referred to in (i)
and (ii) of this paragraph have been fully paid or adequately reflected as a
liability on PIROD's Balance Sheet; (iv) no waivers of statutes of limitation
have been given or requested; and (v) there are no potential federal tax
deficiencies or state and local tax deficiencies with respect to the returns and
reports filed by PIROD and referred to in (i) and (ii) of this paragraph which
may arise from issues which have been raised or which have not yet been raised
but which reasonably might be expected to be raised by the Internal Revenue
Service or appropriate governmental agencies and reasonably might be expected to
have a PIROD Material Adverse Effect.
4.9. EMPLOYMENT ARRANGEMENTS. Except as disclosed in Section 4.9 of the
PIROD Schedule, neither PIROD nor any of its subsidiaries is a party to any
employment, commission or consultant contract, written or oral, with any present
or former officer, director or employee, or any collective bargaining agreement,
nor does PIROD or any of its subsidiaries have any PIROD Plans (as defined in
Section 4.17). Except as disclosed in Section 4.9 of the PIROD Schedule, since
September 27, 1998 there has been no change in any such plan or arrangement or
in compensation to any director or officer, or any change, either material in
amount or other than in the ordinary course of business, in compensation to any
other employee of PIROD or any of its subsidiaries.
4.10. PROPERTY. PIROD and each of its subsidiaries have good and
marketable title in fee simple to all of the real property respectively owned
by them, and good and marketable title to all of the other tangible
properties and assets respectively owned by them, free and clear of all
mortgages, liens, pledges, restrictions, charges or encumbrances of any
nature whatsoever, except (i) liens for taxes not yet delinquent; (ii) liens
being contested in good faith by appropriate proceedings; (iii) such
imperfections of title and encumbrances, if any, as do not materially detract
from the value of, or materially interfere with the present use of, such
property; and (iv) for those listed in Section 4.10 of the PIROD Schedule.
Neither PIROD nor any of its subsidiaries has received notice of violation of
any zoning regulation, ordinance or other law, order, regulation or
requirement relating to real property owned or leased by it which violation
would reasonably be expected to have a PIROD Material Adverse Effect.
4.11. PATENTS, TRADEMARKS, ETC. Section 4.11 of the PIROD Schedule
correctly lists all domestic and foreign letters patent, patent applications,
patent and know-how licenses, royalty agreements, trade names, trademark
registrations and applications, common law trademarks, copyrights and
copyright registrations and applications held by
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PIROD or any of its subsidiaries. Unless otherwise indicated in the PIROD
Schedule, PIROD or such subsidiary owns the entire right, title and interest
in and to the same. All such letters patent, patent applications, patent and
know-how licenses, royalty agreements, trade names, trademark registrations
and applications, common law trademarks, copyrights, copyright registrations
and applications are subject to no pending or, to the best of the knowledge
of PIROD or any of its subsidiaries, threatened litigation or other adverse
claims except as set forth in Section 4.11 of the PIROD Schedule. Neither
PIROD nor any of its subsidiaries has received notice that the use by it of
such patents, trademarks, trade name rights or copyrights infringe upon or
conflict with any patent, trademark, trade name right or copyright of others.
4.12. ABSENCE OF DEFAULTS BY OTHERS. No party with whom PIROD or any of
its subsidiaries has an agreement which is of material importance to the
business, properties, financial condition or operations of PIROD or any of
its subsidiaries is in default thereunder, except a default which would not
reasonably be expected to have a PIROD Material Adverse Effect.
4.13. LITIGATION. Except as disclosed in Section 4.13 of the PIROD
Schedule, neither PIROD nor any of its subsidiaries is a party to or
threatened with any litigation, governmental or other proceeding,
investigation, strike or other labor dispute or other controversy which might
affect the validity of this Agreement or which, individually or in the
aggregate, might reasonably be expected to have a PIROD Material Adverse
Effect, and there is no outstanding order, writ, injunction or decree of any
Governmental Entity against or affecting PIROD or any of its subsidiaries or
a material portion of their respective businesses, properties, assets or
goodwill.
4.14. DISCLOSURE DOCUMENTS.
4.14.1. Each document required to be filed by PIROD with the SEC
in connection with the transactions contemplated by this Agreement
will, when filed, comply as to form with the applicable requirements
of the Securities Act and the Exchange Act, and none of the
information supplied or to be supplied by PIROD for inclusion in any
such document filed by PIROD or ROHN, including the ROHN Proxy
Statement, will contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.14.2. The representations in this Section 4.14 shall not apply
to any information in such documents which is supplied by or on behalf
of ROHN.
4.15. BROKERS' AND FINDERS' FEES. Except as disclosed in Section 4.15
of the PIROD Schedule, no agent, broker, person or firm acting on behalf of
PIROD or under its authority has claimed or is or will be entitled to any
commission or broker's or finder's fee from PIROD in connection with the
transactions contemplated by this Agreement. True
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and complete copies of any agreements regarding any such commission or fee
have been provided to ROHN.
4.16. INSURANCE. Section 4.16 of the PIROD Schedule correctly lists and
briefly describes all policies of fire, liability, workmen's compensation,
life, business interruption and other types of insurance held by PIROD or any
of its subsidiaries. All such insurance policies are in full force and
effect.
4.17. PENSION, RETIREMENT AND PROFIT SHARING PLANS. Section 4.17 of the
PIROD Schedule lists each pension, profit sharing, stock-bonus, thrift or
other retirement plan, employee stock ownership plan, deferred compensation,
stock purchase, performance share, bonus or other incentive plan, severance
plan, health or welfare plan or other similar plan, agreement, arrangement or
understanding, whether or not reduced to writing and whether or not such plan
is or is intended to be qualified under Section 401(a) of the Code,
including, without limitation, any employee welfare benefit plan or employee
pension benefit plan within the meaning of ERISA ("PIROD Plan"), maintained
or sponsored by PIROD or any of its subsidiaries. Each PIROD Plan is in full
force and effect and has been administered in all material respects in
accordance with its terms and is and has been, and each plan administrator
and fiduciary of a PIROD Plan is and has been, in compliance in all material
respects with all applicable requirements of ERISA (including the funding,
reporting and disclosure and prohibited transaction provisions thereof) and
other applicable laws, regulations and rulings. Each PIROD Plan intended to
qualify under Section 401(a) of the Code is so qualified. Except as set
forth in Section 4.17 of the PIROD Schedule, no PIROD Plan is a "defined
benefit plan" (within the meaning of Section 3(35) of ERISA) or a
"multi-employer plan" (within the meaning of Section 3(37) of ERISA), has
terminated or partially terminated and no complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any such
multi-employer plan has occurred. PIROD or one of its subsidiaries has made,
accrued or provided for all contributions required under each PIROD Plan.
4.18. ENVIRONMENTAL MATTERS.
Except as disclosed in Section 4.18 of the PIROD Schedule, to PIROD's
knowledge and except such as could not reasonably be expected to have a PIROD
Material Adverse Effect:
4.18.1. PIROD and its current subsidiaries, and all properties
currently owned or leased by PIROD and its subsidiaries (collectively
"PIROD Real Estate"), are in compliance with all Environmental Laws.
Properties and subsidiaries formerly owned by PIROD were, as of the
date of sale or divestiture of those properties or subsidiaries, in
compliance with all Environmental Laws.
4.18.2. Neither PIROD nor any of its current subsidiaries has
received any written notice within the past five years that PIROD or
its current or former subsidiaries has any liability, responsibility
or obligation,
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whether fixed, unliquidated, absolute or contingent, under any
Environmental Laws, or that they are subject to threatened or pending
claims, actions, suits, proceedings or investigations under such laws,
for fines or penalties, or for investigation, expense, removal or
response action to effect compliance with or discharge any obligation or
claim under such laws.
4.18.3. There is no past or continuing release or threat of
release, without an issued permit or permit application, of any
Hazardous Substance into the environment, at or from the PIROD Real
Estate that necessitates reporting or response actions under
Environmental Law. There was no past release, without an issued
permit or permit application, of any Hazardous Substances into the
environment, at or from a facility formerly owned or operated by PIROD
or a former subsidiary of PIROD where the release occurred prior to
the time such facility or subsidiary was sold or divested by PIROD,
that necessitated reporting or response actions by PIROD or its former
subsidiary where such response action was not completed.
4.18.4. There have been no Hazardous Substances used or
generated by PIROD or any of its current subsidiaries, or former
subsidiaries prior to their sale or divestiture from PIROD, that have
been disposed of or come to rest at any site that has been included on
the National Priorities List, or any comparable state or local list.
4.18.5. There never has been any and there are no underground or
above-ground USTs or ASTs located on, and there are no PCBs,
PCB-containing equipment, or hazardous waste as defined by RCRA or
comparable state or local laws, disposed on the PIROD Real Estate. Prior
to the sale or divestiture of such other real property previously owned,
leased or used by PIROD or any of its former subsidiaries, there were no
USTs or ASTs located on such property or PCBs or hazardous waste
disposed of on such properties where such USTs, ASTs, PCBs or hazardous
waste had not been removed in accordance with Environmental Laws.
4.18.6. There currently are no Hazardous Substances in the soil
or groundwater at, or migrating from any PIROD Real Estate, the
concentration of which exceeds the most lenient of applicable federal
or state standards consistent with the future industrial use of the
PIROD Real Estate.
4.19. FINANCING. PIROD has delivered to ROHN a true and correct copy of
a "highly confident" letter from J. P. Morgan Securities Inc. and Morgan
Guaranty Trust Company of New York (Exhibit A hereto) (the "Financing
Letter"), which letter has not been modified or withdrawn.
4.20. OWNERSHIP OF ROHN SHARES. None of PIROD or any direct or indirect
subsidiary of PIROD beneficially owns any ROHN Shares (other than pursuant to
the Trust Voting Agreement).
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4.21. LABOR MATTERS. Except as set forth in Section 4.21 of the PIROD
Schedule, PIROD and each of its subsidiaries are, and for the past three
years have remained, in compliance with all currently applicable laws
respecting employment practices, terms and conditions of employment and wages
and hours, and is not engaged in any unfair labor practice, except where the
failure to comply with which or engagement in which, as the case may be,
individually or in the aggregate, has not had, and would not reasonably be
expected to have, a PIROD Material Adverse Effect. There is no unfair labor
practice charge or complaint pending or, to the knowledge of PIROD,
threatened against PIROD before the National Labor Relations Board. Except
as otherwise set forth in Section 4.21 of the PIROD Schedule, there are no
strikes, slowdowns, union organizational or union decertification campaigns
or other protected concerted activity under the National Labor Relations Act
or, to the knowledge of PIROD, threats thereof, by or with respect to any
employees of PIROD.
4.22. COMPLIANCE WITH LAWS AND COURT ORDERS. Neither PIROD nor any of
its subsidiaries is in violation of, or for the past three years has PIROD or
any of its subsidiaries violated, and to the knowledge of PIROD none is under
investigation with respect to or has been threatened to be charged with or
given notice of any violation of, in each case, by any governmental agency or
authority, any applicable law, rule, regulation, judgment, injunction, order
or decree, except for violations that have not had, and would not reasonably
be expected to have, individually or in the aggregate, a PIROD Material
Adverse Effect.
4.23. LICENSES AND PERMITS. Except as set forth on Section 4.23 of the
PIROD Schedule or except as has not had, and would not reasonably be expected
to have, individually or in the aggregate, a PIROD Material Adverse Effect,
(i) the Permits are valid and in full force and effect, (ii) neither PIROD or
any subsidiary is in default under, and no condition exists that with notice
or lapse of time or both would constitute a default under, the Permits and
(iii) none of the Permits will be terminated or impaired or become
terminable, in whole or in part, as a result of the transactions contemplated
hereby. "Permits" for purposes of this Section 4.23 means each material
license, franchise, permit, certificate, approval or other similar
authorization affecting, or relating in any way to, the assets or business of
PIROD and its subsidiaries.
5. CONDUCT AND TRANSACTIONS PRIOR TO CLOSING DATE.
5.1. CONDUCT OF BUSINESS BY ROHN AND PIROD PENDING THE CLOSING DATE. From
the date hereof until the Closing Date, except as otherwise contemplated by this
Agreement or as may be consented to in writing by the other, each of ROHN and
PIROD on its behalf and on behalf of their subsidiaries:
5.1.1. shall conduct their businesses only in the ordinary
course, and shall use their commercially reasonable best efforts to
preserve substantially intact their business organizations, shall keep
available the services of their present officers and employees and to
preserve their present relationships with persons having significant
business relations therewith.
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5.1.2. shall make no change in their Certificate or Articles of
Incorporation or By-Laws, except to the extent that any such change is
necessary in order for the parties to consummate the transactions
contemplated by this Agreement or to cause any conditions to the
Closing Date to be met.
5.1.3. shall make no purchase, redemption or other acquisition
of any outstanding ROHN or PIROD Shares or other securities of ROHN or
PIROD or any of their subsidiaries; and no option, warrant or other
right to acquire and no securities convertible into any ROHN or PIROD
Shares or any other equity securities of ROHN or PIROD or any of their
subsidiaries shall be granted or issued.
5.1.4. No dividend, distribution or payment shall be declared,
made or paid in respect of any ROHN or PIROD Shares or any other
equity securities of ROHN or PIROD.
5.1.5. Except as disclosed in the ROHN or PIROD Schedule or as
may be required by the provisions of contracts, agreements or ROHN or
PIROD Plans listed in the ROHN or PIROD Schedule, (i) no increase
shall be made in the compensation payable to directors, officers or
employees except in the ordinary course of business consistent with
past practices to employees other than executive officers; (ii) no
profit sharing, incentive, bonus, pension, retirement or similar
payments shall be made, except in the ordinary course of business
consistent with past practices; (iii) no existing contract or
agreement shall be amended, and no new contract or agreement entered
into, with respect to such compensation or payments; (iv) no new or
amended collective bargaining agreements shall be entered into; and
(v) no new or amended employment or severance agreements shall be
entered into.
5.1.6. No party or subsidiary shall (i) make any borrowings,
except in the ordinary course of business under bank lines of credit
for periods not to exceed ninety days (and successive refinancings of
such borrowings for like periods), or guarantee obligations of others;
(ii) make or commit to make any capital expenditures not already
committed to by such party or subsidiary or acquisitions of the stock
or assets of any other entities, in each case, exceeding $250,000
individually, or $500,000 in the aggregate; (iii) enter into any
merger or consolidation with any other person; or (iv) except as
disclosed in the ROHN or PIROD Schedule, make any sale or conveyance
of any of its assets, except in the ordinary course of business.
5.1.7. Each party and its subsidiaries shall use their
commercially reasonable best efforts to maintain in full force and
effect until the Closing Date the insurance policies listed in their
respective ROHN or PIROD Schedule and to obtain substitute insurance
for any policies not so
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maintained, shall promptly advise the other of any fires, accidents or
other casualties occurring on or before the Closing Date which
singularly or in the aggregate materially affect the value of their
business and properties and shall, to the extent necessary, obtain
endorsements to such policies to provide that both parties shall have
the benefit of protection under such policies for casualties occurring
on or before the Closing Date as their interests may appear.
5.1.8. Each party shall, and shall direct its officers,
directors, employees, representatives and agents to, immediately cease
any discussions or negotiations with any parties that may be ongoing
with respect to a Takeover Proposal (as hereinafter defined). ROHN
and PIROD shall not, and shall not authorize or permit any of their
officers, directors or employees or any investment banker, financial
advisor, attorney, accountant or other representative retained by them
to, directly or indirectly, (i) solicit, initiate or encourage any
inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Takeover Proposal or
(ii) participate in any discussions or negotiations regarding any
Takeover Proposal; provided, however, that if, at any time prior to
the Effective Time, the board of directors of ROHN or PIROD determines
in good faith, after consultation with its financial and legal
advisers, that a Takeover Proposal that has not been solicited,
initiated or encouraged after the date hereof in violation of clause
(i) above may reasonably be expected to result in a Superior Proposal
(as defined in Section 8.1.3(iii)), ROHN or PIROD may (x) furnish
information with respect to itself and its subsidiaries to the third
party that has made such Takeover Proposal (and to any investment
banker, financial advisor, attorney, accountant or other
representative retained by such party) pursuant to a customary and
reasonable confidentiality agreement and (y) participate in
negotiations regarding such Takeover Proposal. For purposes of this
Agreement, "Takeover Proposal" means any bona fide written proposal
made by a third party to acquire, directly or indirectly, more than
50% of the voting power of the equity interests or of the assets of
ROHN or PIROD; provided, however, that a change in the terms of a
proposal submitted prior to the date hereof shall be deemed a new
Takeover Proposal. A party shall within 24 hours advise the other
orally and in writing of any request for information or of any
Takeover Proposal or any inquiry regarding the making of a Takeover
Proposal and shall keep the other party informed of the status of any
change to the terms of a Takeover Proposal. Nothing contained in this
Section 5.1.8 shall prohibit ROHN or PIROD from at any time taking and
disclosing to its shareholders a position or change thereof with
respect to the Merger or, pursuant to Rule 14e-2(a) under the Exchange
Act, with respect to a third party tender offer, or from making any
disclosure to its shareholders if, in the good faith judgment of its
board of directors, after consultation with outside counsel,
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failure so to disclose would create a material risk of liability for
breach of its fiduciary duties to its shareholders under applicable law.
5.2. AGREEMENTS OF ROHN AND PIROD.
5.2.1. Each of ROHN and PIROD shall give to the other and to its
counsel, accountants and other representatives full access, during
normal business hours throughout the period prior to the Closing Date,
to all of the properties, books, contracts, commitments and records of
its and its subsidiaries and shall furnish all such information
concerning their business and properties as the other reasonably may
request; provided, however, that neither ROHN nor PIROD shall be
required to disclose information that would otherwise jeopardize
protections offered under the attorney-client privilege or the work
product doctrine or that could reasonably be expected to violate any
confidentiality obligations of either ROHN or PIROD currently in
effect, and, provided, further, that any investigation of the other or
any of its subsidiaries either before or after the date hereof,
including any review of the ROHN or PIROD Schedule, shall not affect
any representations, warranties, covenants and agreements hereunder.
Section 9.11 shall apply to such information.
5.2.2. Each of ROHN and PIROD shall supply the other with
accurate information as shall be required for inclusion in any
documents required to be filed with the SEC by the other party.
5.2.3. Each of ROHN and PIROD shall use its commercially
reasonable best efforts to consummate the financing of the
transactions contemplated hereby on the terms set forth in
Exhibit A hereto.
5.2.4. ROHN shall use its commercially reasonable best efforts
to have the registration statement contemplated by Section 1.10.4
hereof declared effective by the SEC as soon as reasonably
practicable.
5.3. REASONABLE EFFORTS; NOTIFICATION.
5.3.1. Upon the terms and subject to the conditions hereof, each
of the parties hereto shall use its commercially reasonable best efforts
to take, or cause to be taken, all appropriate action, and to do or
cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement as soon as practicable,
including but not limited to (i) cooperation in the preparation and
filing of the Proxy Statement and any other documents to be filed with
the SEC, any required filings under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (the "HSR Act")
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or with the NASD or other foreign filings and any amendments or
supplements to any thereof and (ii) using its commercially reasonable
best efforts to promptly make all required regulatory filings and
applications including, without limitation, responding promptly to
requests for further information and to obtain all licenses, permits,
consents, approvals, authorizations, qualifications and orders of
Governmental Entities as are necessary for the consummation of the
transactions contemplated by this Agreement and to fulfill the
conditions to the Merger. In case at any time after the Effective Time
any further action is necessary or desirable to carry out the purposes
of this Agreement, the proper officers and directors of each party to
this Agreement shall use their commercially reasonable best efforts to
take all such necessary action.
5.3.2. ROHN and PIROD each shall keep the other apprised of the
status of matters relating to completion of the transactions
contemplated hereby, including promptly furnishing the other with
copies of notices or other communications received by them or any of
their subsidiaries, from any Governmental Entity with respect to the
Merger or any of the other transactions contemplated by this
Agreement. The parties hereto will consult and cooperate with one
another, and consider in good faith the views of one another in
connection with, and shall provide each other the opportunity to
review and comment upon, any analyses, appearances, presentations,
memoranda, briefs, arguments, opinions and proposals made or submitted
by or on behalf of any party hereto in connection with proceedings
under or relating to the HSR Act or any other antitrust law.
5.3.3. Without limiting the generality of the undertakings pursuant
to this Section 5.3: (i) ROHN and PIROD agree that, if necessary to
prevent any Governmental Entity from taking steps to obtain, or from
issuing, any order, injunction, decree, judgment or ruling or the
taking of any other action that would (x) restrain, enjoin or
otherwise prohibit the Merger or any of the other transactions
contemplated by this Agreement or (y) cause any condition to the
Merger not to be satisfied, such party shall (A) offer to accept an
order to divest (and to enter into a consent decree or other agreement
giving effect thereto) such of ROHN's or PIROD's assets and business,
and agree to hold separate such assets and business pending such
divestiture, and (B) enter into any supply, license, tolling, joint
venture or other agreement or take any other action, as may be
necessary to forestall such order, decree, ruling or action; provided,
however, that notwithstanding the foregoing provisions of this clause
(i), ROHN and PIROD shall not be required to take any such action that
would have a ROHN or PIROD Material Adverse Effect, or to waive any
material rights, and (ii) without limitation of clause (i) of this
Section 5.3.3, ROHN and PIROD each agree to contest and resist any
action seeking to have imposed any order, decree, judgment,
injunction, ruling or other order (whether temporary, preliminary or
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permanent) (an "Order") that (x) would delay, restrain, enjoin or
otherwise prohibit consummation of the Merger or any of the other
transactions contemplated by this Agreement or (y) cause any condition
to the Merger not to be satisfied and, in the event that any such
temporary or preliminary Order is entered in any proceeding, to take
the steps contemplated by clause (i) of this Section 5.3.3 and to use
its commercially reasonable best efforts to take promptly any and all
other steps (including, the appeal thereof and the posting of a bond)
necessary to vacate, modify or suspend such Order so as to permit such
consummation as promptly as practicable after the date hereof.
5.4 At any time from the date hereof until the Closing Date, in the event
that PIROD notifies ROHN that it has been informed by any of the PIROD
Shareholders or any holder of PIROD Warrants that such holder has a Regulatory
Problem (as defined below), ROHN shall take all such actions as are reasonably
requested by PIROD in order to (a) establish a class of nonvoting common stock
of ROHN, which nonvoting common stock shall be identical in all respects to the
ROHN Shares, except that such common stock shall be nonvoting and shall be
convertible into ROHN Shares on such terms as are requested by PIROD in light of
regulatory considerations then prevailing, and (b) amend this Agreement, the
Certificate of Incorporation and other related agreements to effectuate and
reflect the foregoing. For purposes of this Agreement, a "Regulatory Problem"
means any set of facts or circumstances wherein it has been asserted by any
governmental regulatory agency (or such holder of PIROD Shares or PIROD Warrants
believes that there is a substantial risk of such assertion) that such holder is
not entitled to hold, or exercise any significant right with respect to, the
ROHN Shares.
6. CONDITIONS PRECEDENT TO THE CLOSING.
6.1. CONDITIONS TO THE OBLIGATIONS OF BOTH PARTIES. The respective
obligations of ROHN and PIROD to consummate the Merger are subject to the
satisfaction, at or before the Effective Time, of each of the following
conditions:
(a) Stockholder Approvals. The stockholders of ROHN and PIROD
shall have duly approved the transactions contemplated by this
Agreement.
(b) Certain Actions. There shall not have been any action
threatened or taken, or any statute, rule, regulation, judgment, order
or injunction promulgated, enacted, entered or enforced, by any
Governmental Entity, that could reasonably be expected to (i) make the
consummation of the Merger illegal or otherwise prohibited, or
(ii) prohibit or impose any material limitation on the Surviving
Corporation's ownership or operation of any material portion of the
assets or businesses of ROHN or PIROD.
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(c) HSR Act. Any waiting period (and any extension thereof)
under the HSR Act applicable to the Merger shall have expired or been
terminated.
(d) Bankruptcy Court Approval. The sale pursuant to this
Agreement of the ROHN Shares beneficially owned by the Trust shall
have been approved by the Bankruptcy Court as provided in the Plan of
Reorganization.
(e) Financing. The financing contemplated by Exhibit A hereto
shall have been consummated, not later than the Closing Date.
(f) SEC Effectiveness. The SEC shall have declared the
registration statement contemplated by Section 1.10.4 hereof
effective. On the Closing Date and at the Effective Time, no stop
order or similar restraining order shall have been entered by the SEC.
6.2. CONDITIONS TO THE OBLIGATIONS OF ROHN. The obligation of ROHN to
effect the Merger is further subject to the following conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties of PIROD contained herein (without
giving effect to the materiality, PIROD Material Adverse Effect or
knowledge qualifications contained therein) shall be true and correct
when made and shall be true and correct as of the Closing Date as
though made on and as of the Closing Date (except to the extent that
any such representation and warranty had by its terms been made as of
a specific date, in which case such representation and warranty shall
have been true and correct as of such specific date), except, in all
instances, where the failure to be so true and correct shall not
result, individually or in the aggregate, in a PIROD Material Adverse
Effect; and ROHN shall have received a certificate signed on behalf of
PIROD by the chief executive officer and the chief financial officer
of PIROD to such effect.
(b) Performance of Obligations of PIROD. PIROD shall have
performed the obligations required to be performed by it under this
Agreement at or prior to the Closing Date, except for such failures to
perform as have not had or would not, individually or in the
aggregate, reasonably be expected to have a PIROD Material Adverse
Effect or materially adversely affect the ability of PIROD to
consummate the transactions contemplated hereby.
(c) PIROD Material Adverse Effect. There shall not have been a
PIROD Material Adverse Effect.
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(d) Fairness Opinions. Neither of the fairness opinions of
Donaldson, Lufkin & Jenrette Securities Corporation to ROHN and the
Trust dated the date of this Agreement shall have been withdrawn.
(e) ROHN Tax Opinion. ROHN shall have received from its counsel
an opinion to the effect that the Merger will be a reorganization
within the meaning of Section 368(a) of the Code and that no gain or
loss will be recognized to either ROHN or PIROD for federal income tax
purposes as a result of the Merger.
(f) Solvency Opinion. ROHN shall have received a solvency
opinion within ten business days after the date of this Agreement,
which opinion will be confirmed at the Closing.
(g) Termination of the Management and Advisory Agreement. The
Management and Advisory Agreement dated August 28, 1996 by and between
PIROD, Inc., a Delaware corporation and wholly-owned subsidiary of
PIROD, and Bain Capital Partners V, L.P., a Delaware limited
partnership, shall have been terminated by mutual written consent of
the parties.
(h) Acknowledgment of Holders of PIROD Class L Warrants. Each
holder of a PIROD Class L Warrant shall have acknowledged in writing
that the number of ROHN Shares, together with the applicable exercise
price per share thereof, issuable pursuant to each ROHN Exchange
Warrant that such holder shall be entitled to receive pursuant to the
conversion of such PIROD Class L Warrant into the ROHN Exchange
Warrant upon consummation of the Merger is as set forth on Exhibit
1.8.4.
(i) Additional Fairness Opinions. If the Available Cash at the
Effective Time is less than $105.0 million, ROHN and the Trust shall
each have received a fairness opinion as of the date of the Effective
Time from Donaldson, Lufkin and Jenrette Securities Corporation to the
effect that the consideration to be received and/or retained by the
holders of ROHN Shares (and, in the case of the Trust, the Trust)
pursuant to this Agreement is fair to such holders (and, if
applicable, the Trust) from a financial point of view.
6.3. CONDITIONS TO THE OBLIGATIONS OF PIROD. The obligation of PIROD to
effect the Merger is further subject to the following conditions.
(a) Accuracy of Representations and Warranties. The
representations and warranties of ROHN contained herein (without
giving effect to the materiality, ROHN Material Adverse Effect or
knowledge qualifications contained therein) shall be true and correct
when made and shall be true and correct as of the Closing Date as
though made on and as of the Closing Date (except to the extent that
any such representation and warranty had by its terms been made as of
a specific date, in which case
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such representation and warranty shall have been true and correct as of
such specific date), except, in all instances, where the failure to be
so true and correct shall not result, individually or in the aggregate,
in a ROHN Material Adverse Effect; and PIROD shall have received a
certificate signed on behalf of ROHN by the chief executive officer and
the chief financial officer of ROHN to such effect.
(b) Performance of Obligations of ROHN. ROHN shall have
performed its obligations required to be performed by it under this
Agreement at or prior to the Closing Date, except for such failures to
perform as have not had or would not, individually or in the
aggregate, reasonably be expected to have a ROHN Material Adverse
Effect on or materially adversely affect the ability of ROHN to
consummate the transactions contemplated hereby.
(c) ROHN Material Adverse Effect. There shall not have been a
ROHN Material Adverse Effect.
(d) PIROD Tax Opinion. PIROD shall have received from its
counsel an opinion to the effect that the Merger will be a
reorganization within the meaning of Section 368(a) of the Code and
that no gain or loss will be recognized to a PIROD Shareholder who
exchanges his PIROD Shares for ROHN Shares in the Merger, except to
the extent of any cash received with respect to fractional shares.
7. AMENDMENT OF AGREEMENT; WAIVERS.
7.1. AMENDMENT. At any time, whether before or after submission to or
approval by the shareholders of ROHN and PIROD as provided herein, this
Agreement may be amended in writing to any extent determined by the appropriate
officers of the parties hereto not to be materially adverse to the interests of
their respective stockholders.
7.2. WAIVER. Any party hereto may waive in writing compliance by the
others with any of the covenants and conditions contained in this Agreement
(except such as may be imposed by law) to the extent such party believes such
action may not be materially adverse to the interests of its stockholders; such
waiver shall be evidenced by a certificate to such effect signed, in the case of
ROHN, by any one of its President and Vice Presidents, and in the case of PIROD,
by any one of its President and Vice Presidents.
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8. TERMINATION.
8.1. TERMINATION. This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, whether before or after
approval by shareholders of ROHN and PIROD:
8.1.1. by mutual written consent of the boards of directors of
ROHN and PIROD;
8.1.2. by ROHN or PIROD if any court of competent jurisdiction,
or any governmental body, regulatory or administrative agency or
commission having appropriate jurisdiction shall have issued an order,
decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement
and such order, decree, ruling or other action shall have become final
and non-appealable.
8.1.3. by ROHN or PIROD:
(a) if prior to the Closing Date, the board of directors of
ROHN or PIROD determines that a Takeover Proposal constitutes a
Superior Proposal. For purposes of this Agreement, a "Superior
Proposal" means any Takeover Proposal having terms which the
board of directors of ROHN or PIROD determines in its good faith
judgment (based, with respect to the consideration payable, on
the opinion of a financial advisor of nationally recognized
reputation) (x) to be more favorable to its shareholders from a
financial point of view (taking into account, among other things,
the type and amount of consideration to be received and risks of
non-consummation) than the Merger and (y) to be reasonably
capable of being completed (and for which financing has been
committed on customary terms); provided, however, that no
termination pursuant to this Section 8.1.3(iii) shall be
effective unless concurrently with such termination a termination
fee of $5.5 million is paid in cash by ROHN to PIROD, in the case
of a ROHN termination, or a termination fee of $2.0 million is
paid in cash by PIROD to ROHN, in the case of a PIROD
termination.
(b) if the Merger shall not have been consummated on or
before the later of (i) May 15, 1999 or (ii) 45 days after the
SEC has completed its review of the Proxy Statement (but in no
event later than July 15, 1999), provided that the right to
terminate this Agreement pursuant to this Section 8.1.3(b) shall
not be available to any party whose failure to perform any of its
obligations under this Agreement results in the failure to be
consummated by such time.
8.2. NOTICE AND EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 8.1, written notice thereof
shall
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forthwith be given to the other party or parties specifying the provision
pursuant to which such termination is made, and this Agreement shall forthwith
become void and have no effect, without any liability on the part of any party
or its directors, officers or stockholders, except for the provisions of
Sections 3.15, 4.15, Section 8.1.3(b), this Section 8.2 and Section 9. Nothing
contained in this Section 8.2 shall relieve any party from liability for any
breach of this Agreement. This Section 8 shall survive any termination of this
Agreement.
9. MISCELLANEOUS.
9.1. PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. A
termination of this Agreement pursuant to Section 8.1, an amendment of this
Agreement pursuant to Section 7.1 or an extension or waiver pursuant to Section
7.2 shall, in order to be effective, require in the case of ROHN or PIROD,
action by its board of directors or the duly authorized designee of its board of
directors.
9.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
representations and warranties of ROHN and PIROD shall not be deemed waived or
otherwise affected by any investigation made by any party. Each representation
and warranty in this Agreement shall expire with, and be terminated and
extinguished by, the Merger. This Section 9.2 shall have no effect upon any
other obligation of the parties, whether to be performed before or after the
Merger.
9.3. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered personally or on the second
succeeding business day after being mailed, postage prepaid, by registered or
certified mail to the appropriate party at its address below (or at such other
address for such party as shall be specified by notice in fact delivered):
(a) If to PIROD, to it at:
PiRod Holdings, Inc.
1545 Pidco Drive
P.O. Box 128
Plymouth, Indiana 46563
Attention: Myron Noble
Chief Executive Officer
With copies to:
Bain Capital, Inc.
Two Copley Place
Boston, Massachusetts 02116
Attention: Paul Spinale
Principal
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Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: James L. Learner
(b) If to ROHN, to it at:
6718 West Plank Road
Peoria, Illinois 61604
Attention: General Counsel
With copies to:
Bell, Boyd & Lloyd
Three First National Plaza
70 West Madison Street
Chicago, Illinois 60602
Attention: Victor E. Grimm
John H. Laeri, Jr.
UNR Asbestos-Disease Claim Trust
100 North Lincoln Way
North Aurora, IL 60542
Hughes, Hubbard & Reed LLP
One Battery Park Plaza
New York, NY 10004
Attention: Ed Kaufmann
9.4. EXPENSES. All legal, accounting and other costs and expenses incurred
in connection herewith and the transactions contemplated hereby shall be paid by
the Surviving Corporation if the Merger is consummated. If the Merger is not
consummated, each party shall pay the costs and expenses incurred by it other
than the costs incurred by PIROD to secure the Financing Letter attached hereto
as Exhibit A, which shall be split as follows: ROHN - 76% and PIROD - 24%;
provided, however, ROHN's obligation hereunder to pay fees incurred by PIROD in
connection with the Financing Letter shall be limited to $100,000, and, provided
further, ROHN shall have no obligation to pay any portion of such fees in the
event that ROHN is obligated to pay a termination fee to PIROD under Section
8.1.3(a) hereof.
9.5. HEADINGS. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
9.6. GOVERNING LAW; JURISDICTION. The Agreement shall be construed, and
the rights of the parties hereto determined, in accordance with the internal
substantive laws of the State of Delaware without giving effect to principles of
conflicts, or choice of law of
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the State of Delaware or of any other jurisdiction. Each of the parties
hereto (i) submits 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, and consents to service of process by notice as provided in this
Agreement, (ii) 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 (iii) agrees that it will not bring any action 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. 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 federal court located in the State of Delaware or in
any Delaware state court, this being in addition to any other remedy to which
they are entitled at law or in equity.
9.7. ASSIGNMENT. This Agreement shall not be assignable by any party
hereto except with the written consent of the other parties. Except for Section
9.8 hereof, nothing in this Agreement, express or implied, is intended to confer
upon any person, other than the parties hereto and their successors and
permitted assigns, any rights or remedies under or by reason of this Agreement.
9.8. OFFICERS' AND DIRECTORS' INSURANCE; INDEMNIFICATION.
9.8.1. From and after the date hereof and for six years from the
Effective Time, the Surviving Corporation shall use its commercially
reasonable best efforts to cause to be maintained in effect ROHN's
current directors' and officers' insurance and indemnification policy
or an equivalent policy or policies.
9.8.2. From and after the Closing Date and for six years after
the Effective Time, the Surviving Corporation shall not take any
action that would change or amend the provisions of any existing
indemnification agreements or the Certificate of Incorporation or
By-Laws of the Surviving Corporation set forth in Exhibits A and B hereto
relating to indemnification, advancement of expenses or limitation of
liability in any manner that would adversely affect the rights
thereunder of individuals who at or prior to the Effective Time were
directors, officers, employees, agents or other representatives of
ROHN, PIROD or any of their subsidiaries.
9.8.3. If the Surviving Corporation or any of its successors or
assigns (i) reorganizes or consolidates with or merges into any other
person and is not the resulting, continuing or surviving corporation
or entity of such consolidation or merger, or (ii) liquidates,
dissolves or transfers all or substantially all of its properties and
assets to any person, then, and in each such case, proper provision
will be made so that the successors and assigns
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of the Surviving Corporation assume the obligations set forth in this
Section 9.8.
9.9. ROHN AND PIROD MATERIAL ADVERSE EFFECT. As used herein, "ROHN
Material Adverse Effect" means any change in or effect on the business of ROHN
or its subsidiaries that is materially adverse to the business, assets, results
of operations or financial condition of ROHN and its subsidiaries, taken as a
whole, or materially impairs the ability of ROHN to consummate the Merger or the
other transactions contemplated by this Agreement; provided, however, that "ROHN
Material Adverse Effect" shall be deemed to exclude the impact of (i) changes in
generally accepted accounting principles; (ii) the public announcement of the
Merger and compliance with the provisions of this Agreement; (iii) any changes
resulting from any restructuring or other similar charges or write-offs taken by
ROHN with the consent of PIROD; (iv) the termination or failure to be
consummated or completed of any acquisition, joint venture, development project
or other transaction, which was not consummated or completed prior to the
execution and delivery of this Agreement; and (v) any change in general economic
conditions, in interest rates or in conditions affecting the telecommunications
industry generally. As used herein, "PIROD Material Adverse Effect" means any
change in or effect on the business of PIROD or its subsidiaries that is
materially adverse to the business, assets, results of operations or financial
condition of PIROD and its subsidiaries, taken as a whole, or materially impairs
the ability of PIROD to consummate the Merger or the other transactions
contemplated by this Agreement; provided, however, that "PIROD Material Adverse
Effect" shall be deemed to exclude the impact of (i) changes in generally
accepted accounting principles; (ii) the public announcement of the Merger and
compliance with the provisions of this Agreement; (iii) any changes resulting
from any restructuring or other similar charges or write-offs taken by PIROD
with the consent of ROHN; (iv) the termination or failure to be consummated or
completed of any acquisition, joint venture, development project or other
transaction, which was not consummated or completed prior to the execution and
delivery of this Agreement; and (v) any change in general economic conditions,
in interest rates or in conditions affecting the telecommunications industry
generally.
9.10. ENTIRE AGREEMENT. This Agreement and the Exhibits and ROHN and
PIROD Schedules attached hereto contain the entire Agreement of the parties with
respect to the Merger and other transactions contemplated herein, and supersede
all prior understandings and agreements of the parties with respect to the
subject matter hereof. Any reference to this Agreement shall be deemed to
include the Exhibits and ROHN and PIROD Schedules attached hereto.
9.11. CONFIDENTIALITY.
9.11.1. Except as may be reasonably necessary to carry out this
Agreement and the transactions contemplated by this Agreement, each of
ROHN and PIROD shall, and each shall require its subsidiaries,
officers, directors, employees and authorized representatives to, hold
in confidence prior to the Effective Time and for two years from any
termination of this
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Agreement all data and information obtained by it from the other (unless
required to disclose such information by judicial or administrative
process, as otherwise required by law, or unless such information (i) is
or becomes generally available to the public other than as a result of
its disclosure, (ii) is independently acquired or developed by it or any
of their representatives without violating any confidentiality agreement
between it and the other, or (iii) is, or becomes, available to it from
a source other than the other party or its representatives, provided
that such source is not known by such disclosing party, any of its
subsidiaries of any of its representatives to be bound by a
confidentiality agreement with the other party or any of its
representatives or by any other legal, contractual or fiduciary duty not
to disclose such information) and shall not, and shall use commercially
reasonable best efforts to cause such subsidiaries, officers, directors,
employees and authorized representatives not to, disclose such
information to others without the prior written consent of the other
party.
9.11.2. If this Agreement is terminated, each of ROHN and PIROD
shall, if so requested by the other party, promptly return every
document furnished to its or its affiliates in connection with the
transactions contemplated by this Agreement and any copies of such
documents that may have been made and shall use its commercially
reasonable best efforts to cause the representatives to whom such
documents were furnished promptly to return such documents and any
copies of such documents, other than documents filed with the SEC or
otherwise publicly available.
9.12. KNOWLEDGE. "To the knowledge," "to the best knowledge," or any
similar phrase shall be deemed to refer to the knowledge of the chief
executive, financial, accounting and legal officers of a party (regardless of
title) and to exclude the assurance that such knowledge is based upon a
reasonable investigation, unless otherwise expressly provided.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first above written.
ROHN Industries, Inc.
By /s/ Brian B. Pemberton
-----------------------------
Its President
PiRod Holdings, Inc.
By /s/ Marc Wolpow
-----------------------------
Its President
44
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EXHIBIT 1.4.2
ELEVENTH AMENDED AND RESTATED
BY-LAWS
OF
ROHN INDUSTRIES, INC.
Effective as of December , 1998
ARTICLE I
OFFICES
SECTION 1. The registered office shall be established and
maintained at the office of The Prentice Hall Corporation System, Inc., in the
city of Dover, in the County of Kent, in the State of Delaware, and said
corporation shall be the registered agent of this corporation in charge thereof.
The corporation may have other offices, either within or without the State of
Delaware, at such place or places as the board of directors may from time to
time appoint or the business of the corporation may require.
ARTICLE II
MEETINGS OF HOLDERS OF THE CAPITAL STOCK AND WARRANTHOLDERS
SECTION 1. Except as expressly provided in these By-Laws, the
terms "Stockholder" or "Stockholders" shall collectively refer to the holder
or holders of (i) the corporation's capital stock (the "Holders of the
Capital Stock" or, when referring to the capital stock itself, the "Capital
Stock"), and (ii) the corporation's warrants (the "Warrantholders" or when
referring to the warrants themselves, the "Warrants") issued pursuant to the
Plan of Reorganization dated March 14, 1989 (the "Plan") as confirmed by
order of the United States Bankruptcy Court for the Northern District of
Illinois, Eastern Division. All meetings of the Stockholders for the
election of directors shall be held in Chicago, Illinois, at such place as
may be fixed from time to time by the board of directors, or at such place
either within or without the State of Delaware as shall be designated from
time to time by the board of directors and stated in the notice of the
meeting. Meetings of Stockholders for any other purpose may be held at such
time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. Annual meetings of Stockholders, commencing with the
year 1991, shall be held on the first Thursday after the third day in the month
of May if not a legal holiday, and if a legal holiday, then on the next business
day following, at 11:00 a.m., or at such other date and time as shall be
designated from time to time by the board of directors and stated in the notice
of the
<PAGE>
meeting, at which meeting the Stockholders shall elect by plurality vote a board
of directors, and transact such other business as may properly be brought before
the meeting.
SECTION 3. For business properly to be brought before any meeting
of Stockholders by a Stockholder, the Stockholder must have given timely notice
thereof in proper written form to the secretary of the corporation. To be
timely, a Stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the corporation not less than 30 days nor
more than 60 days prior to the date of the meeting; provided, however, that in
the event that less than 40 days notice or prior public disclosure of the date
of the meeting is given or made to Stockholders, for such notice by the
Stockholder to be timely, it must be so received prior to the date of the
meeting is given or made to Stockholders, for such notice by the Stockholder to
be timely, it must be so received prior to the date of the meeting and not later
than the close of business on the tenth day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
To be in proper written form, a Stockholder's notice to the secretary shall set
forth in writing as to each matter the Stockholder proposes to bring before the
meeting: (i) a brief description of the business desired to be brought before
the meeting and the reasons for conducting such business at the meeting; (ii)
the name and address, as they appear on the corporation's books, of the
Stockholder proposing such business; (iii) the class and number of shares of
capital stock of the corporation which are owned by the Stockholder as of the
record date for the meeting; and (iv) any material interest of the Stockholder
in such business. The chairman of the meeting shall have the sole authority to
determine whether business was properly brought before the meeting in accordance
with the provisions of this Section 3 and, if the chairman of the meeting should
determine that any such business was not so properly brought, he or she shall so
declare to the meeting, and any such business not properly brought before the
meeting shall not be transacted.
SECTION 4. Written notice of the annual or any special meeting of
Stockholders stating the place, date and hour of the meeting shall be given to
each Stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting.
SECTION 5. The officers or agents who have charge of the stock
ledger, register for the Warrants or transfer book of the corporation shall
prepare and make, at least ten days before every meeting of Stockholders, a
complete list of the Stockholders entitled to vote at the meeting, arranged in
alphabetical order, showing the address of each Stockholder and the number of
shares of Capital Stock and the number of shares purchasable upon the exercise
of the Warrants (collectively, the "Shares") registered in the name of each
Stockholder. Such list shall be open to the examination of any Stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any Stockholder
who is present.
SECTION 6. Special meetings of the Stockholders for any purpose or
purposes, unless otherwise prescribed by statute, by these By-Laws or by the
certificate of incorporation, may be called by the chairman of the board or by
the president and shall be called by the chairman of the board, president or
secretary at the request in writing of a majority of the board of directors, or
at the
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request in writing of Stockholders owning a majority of the Shares of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting. Business transacted at
any special meeting of Stockholders shall be limited to the purposes stated in
the notice.
SECTION 7. Written notice of a special meeting stating the place,
date and hour of the meeting, and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than forty days before the
date of the meeting to each Stockholder entitled to vote at such meeting.
SECTION 8. The holders of a majority of the Shares issued and
outstanding and entitled to vote thereat, present in person, or represented
by proxy, shall constitute a quorum at all meetings of the Stockholders for
the transaction of business except as otherwise provided by statute, by these
By-Laws or by the certificate of incorporation. Abstentions shall be counted
as present in person or represented by proxy for purposes of determining the
existence of a quorum for purposes of this Section 8. If, however, such
quorum shall not be present or represented at any meeting of the
Stockholders, the Stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might
have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each Stockholder of record entitled to vote at the
meeting.
SECTION 9. When a quorum is present at any meeting, a majority of
the votes cast shall decide any question (other than the election of directors,
which shall be determined by a plurality vote) brought before such meeting,
unless the question is one upon which by express provision of the statutes,
these By-Laws or of the certificate of incorporation, a different vote is
required in which case such express provision shall govern and control the
decision of such question. Abstentions shall not be included in calculating the
number of votes cast on, in favor of, or in opposition to any question.
SECTION 10. Unless otherwise specifically provided by statute,
these By-Laws or the certificate of incorporation, each Stockholder shall at
every meeting of the Stockholders be entitled to one vote for each Share held by
such Stockholder.
SECTION 11. Each Stockholder is entitled to vote at a meeting of
Stockholders or to express consent or dissent to corporate action in writing
without a meeting and may authorize another person or persons to act for him by
proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period.
SECTION 12. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of Stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such Stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting for the action so taken, shall be signed by the holders of outstanding
Shares having not less
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than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted and shall be delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of Stockholders are recorded. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those Stockholders who have not consented in writing.
SECTION 13. The board of directors, in advance of any Stockholders'
meeting, shall appoint one or more inspectors to act at the meeting or any
adjournment thereof and to make a written report thereof. In case any person
appointed fails to appear or act, the vacancy may be filled by appointment made
by the board of directors in advance of the meeting or at the meeting by the
persons presiding thereat. Each inspector, before entering upon the discharge
of his duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability.
The inspectors shall ascertain the number of Shares outstanding and
the voting power of each, determine the Shares represented at the meeting and
the validity of proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period of record of the disposition of any challenges
made to any determination by the inspectors, and certify their determination of
the number of Shares represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of the duties of the inspectors.
In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Section 212 (c)(2) of the Delaware General Corporation Law (the "DGCL"),
ballots and the regular books and records of the corporation, except that the
inspectors may consider other reliable information for the limited purpose of
reconciling proxies and ballots submitted by or on behalf of banks, brokers,
their nominees or similar persons which represent more votes than the holder of
a proxy is authorized by the record owner to cast or more votes than the
Stockholder holds of record. If the inspectors consider other reliable
information for the limited purpose permitted herein, the inspectors at the time
they make their certification pursuant to the paragraph above shall specify the
precise information considered by them, including the person or persons from
whom they obtained the information, when the information was obtained, the means
by which the information was obtained and the basis for the inspectors' belief
that such information is accurate and reliable.
The date and time of the opening and the closing of the polls for each
matter upon which the Stockholders will vote at a meeting shall be announced at
the meeting. No ballot, proxies or votes, nor any revocations thereof or
changes thereto, shall be accepted by the inspectors after the closing of the
polls unless the Court of Chancery of the State of Delaware, upon application by
a Stockholder, shall determine otherwise.
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ARTICLE III
DIRECTORS
SECTION 1. During the term of that certain Stockholders Agreement,
dated December 21, 1998 by and among the corporation and certain of its
Stockholders (the "Stockholders Agreement"), the authorized number of directors
shall be determined in accordance with the provisions of the Stockholders
Agreement. Following the termination of Article II of the Stockholders
Agreement, the authorized number of directors may be determined from time to
time by a vote of the majority of the then authorized number of directors;
provided, however, that such number shall not be less than three nor more than
11; and provided further, that such minimum and maximum may be increased or
decreased pursuant to resolution of the board adopted pursuant to the
certificate of incorporation. The directors shall be elected at annual meetings
of Stockholders and may be elected at any special meeting of Stockholders,
except as otherwise provided herein or in the Stockholders Agreement until the
termination of Article II thereof, and each director shall hold office until a
successor is elected and qualified or until that director's earlier resignation
or removal. Except as otherwise provided in the certificate of incorporation,
newly created directorships resulting from any increase in the number of
directors and any vacancies on the board of directors resulting from death,
resignation, disqualification, removal, or other cause shall be filled by the
affirmative vote of a majority of the remaining directors then in office, even
if less than a quorum of the board, or by a sole remaining director, provided,
however, that until the termination of Article II of the Stockholders Agreement,
such vacancies shall be filled in accordance with the Stockholders Agreement.
Any director elected in accordance with the preceding sentence shall hold office
until the next annual meeting of Stockholders. No person shall serve as a
director of this corporation after the annual Stockholders meeting next
following his or her 70th birthday. No decrease in the number of directors
constituting the board of directors shall shorten the term of any incumbent
director. Subject to the provisions of the Stockholders Agreement until the
termination of Article II thereof and Article XII hereof, if there are no
directors in office, then an election may be held in the manner provided by
statute.
SECTION 2. Except as otherwise provided in the Stockholders Agreement
until the termination of Article II thereof, nominations for any election of a
director may be made by the board of directors, a committee appointed by the
board of directors, or by any Stockholder entitled to vote generally in the
election of directors who complies with the procedures set forth in this Section
2 of Article III. All nominations by Stockholders must be made pursuant to
timely notice in proper written form to the secretary of the corporation. To be
timely, a Stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the corporation not less than 30 days nor
more than 60 days prior to the date of the meeting; provided, however that in
the event that less than 40 days notice or prior public disclosure of the date
of the meeting is given to Stockholders, for such notice by the Stockholder to
be timely, it must be so received prior to the date of the meeting and not later
than the close of business on the tenth day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
To be in proper written form, such Stockholder's notice shall set forth in
writing (a) as to each person whom the Stockholder proposes to nominate for
election or reelection as a director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or
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is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, including, without limitation, such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected; and (b) as to the Stockholder giving the
notice (i) the name and address, as they appear on the corporation's books, of
such Stockholder and (ii) the class and number of shares of the corporation
which are beneficially owned by such Stockholder. At the request of the board
of directors, any person nominated by the board of directors, or a committee
appointed by the board of directors, for election as a director shall furnish to
the secretary of the corporation the information required to be set forth in a
Stockholder's notice of nomination which pertains to the nominee. Subject to
the terms of the Stockholders Agreement, the chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures described by this Section 2 of
Article III or the Stockholders Agreement, if applicable, and the defective
nomination shall thereupon be disregarded.
SECTION 3. The business of the corporation shall be managed by its
board of directors which may exercise all such powers of the corporation and do
all such lawful acts and things as are not by statute or by the certificate of
incorporation or by these By-Laws directed or required to be exercised or done
only by the Stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware or the State of Illinois.
SECTION 5. The board of directors shall hold regular meetings at such
times and places as may be designated from time to time by the chairman of the
board or, in his absence, the president; provided that the board shall meet at
least four times during each calendar year.
SECTION 6. Special meetings of the board of directors may be called
by the chairman of the board or by the president on two days notice to each
director, either personally or by mail or by telegram. Special meetings shall
be called by the chairman of the board or the president or secretary in like
manner and on like notice on the written request of two directors. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the board of directors need be specified in the notice or waiver of notice of
such meeting except as provided in Article IV of these By-Laws.
SECTION 7. At all meetings of the board of directors, a majority of
the entire board shall constitute a quorum for the transaction of business and
the act of a majority of the directors present at any meeting at which there is
a quorum shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
SECTION 8. Unless otherwise restricted by the certificate of
incorporation or these By-Laws, any action required or permitted to be taken at
any meeting of the board of directors, or
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of any committee thereof, may be taken without a meeting, if all members of the
board or committee as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of the proceedings of the board
or committee.
STANDING COMMITTEES OF DIRECTORS
SECTION 9. The corporation shall have the following Standing
Committees:
(a) An Executive Committee which shall have and may exercise all the
powers and authority of the board of directors during the intervals between
meetings of the board of directors in the management of the business and affairs
of the corporation, and may authorize the seal of the corporation to be affixed
to all papers which may require it; provided that such executive committee shall
not have the power or authority to: (i) amend the certificate of incorporation;
(ii) adopt an agreement of merger or consolidation; (iii) recommend to the
Stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, or a dissolution of the corporation or a
revocation of a dissolution; (iv) amend the By-Laws of the corporation; or (v)
declare a dividend or to authorize the issuance of stock. The committee
chairman shall report to the board of directors at the next regularly held
meeting of the board the action taken by the committee at its meeting, which
action shall thereupon be confirmed and ratified by the board of directors. The
committee shall consist of as many members as the board of directors determines
from time to time appropriate, and shall include the chief executive officer and
the chairman of the board as members, and such other members as may be appointed
by the board of directors from time to time.
(b) A Compensation Committee which shall: (i) recommend annually to
the board of directors nominee for corporate officers and annual compensation
levels (salaries and bonuses) for corporate officers; (ii) recommend to the
board of directors changes in compensation plans such as bonuses, deferred
compensation, incentive compensation and stock option plans; (iii) recommend to
the board of directors changes in employee supplemental benefits (such as
pension plans, profit-sharing plans, health care and life insurance coverage);
(iv) recommend to the board of directors organizational changes in the board and
in corporate executive compensation; and (v) recommend to the board of directors
changes in corporate structure and organizational responsibilities. The
committee shall consist of not less than three members of the board of directors
who are not officers or employees of the corporation. The members of the
committee shall be selected by the board of directors from time to time.
(c) An Audit Committee which shall: (i) select and employ on behalf
of the corporation, subject to ratification of Stockholders, a firm of certified
public accountants whose duty shall be to audit the books and accounts of the
corporation and its subsidiaries and affiliated companies for the fiscal year in
which they are appointed; (ii) confer with the auditors regarding the scope of
the audit and other services and the cost thereof and report periodically to the
board of directors; and (iii) review with the auditors at the conclusion of the
audit and before publication of the audited financial statements, the findings
disclosed during the audit, including compliance with the corporation's conflict
of interest policies, the adequacy of internal controls, the effectiveness of
the internal auditing function, accounting policies and financial reporting, and
the contemplated form of the statements and opinion. The committee shall
consist of not less than three (3) members of the
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board of directors who are not officers or employees of the corporation. The
members of the committee shall be selected by the board of directors from time
to time.
(d) Appointing Additional Committees. The board of directors may
from time to time establish other standing committees or other committees and
appoint the members thereof.
SECTION 10. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors.
SECTION 11. Directors may be paid such compensation for their
services, and such reimbursement for expenses for attendance at regular, special
and committee meetings, as the board of directors may from time to time
determine. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
SECTION 12. The board of directors shall elect one of its members as
the chairman of the board. The chairman of the board, who shall not be
considered an officer of the corporation, shall preside at each meeting of the
board of directors or the Stockholders and shall perform such other duties as
may from time to time be assigned to him by the board of directors.
SECTION 13. A resignation of a director shall be effective upon
receipt by the chairman of the board of a signed written notice of such
resignation, or, should such notice contain a specified date of resignation, at
such specified date. No acceptance by the board of directors is required for
such resignation to be effective.
SECTION 14. The directors may only be removed from office by the
affirmative vote of the holders of at least a majority of the voting power of
all shares of the corporation entitled to vote generally in the election of
directors, voting together as a single class; provided, however, until the
termination of Article II of the Stockholders Agreement, the directors may only
be removed from office as set forth in the Stockholders Agreement.
ARTICLE IV
NOTICES
SECTION 1. Whenever, under the provisions of the statutes or of
the certificate of incorporation or of these By-Laws, notice is required to be
given to any director or Stockholder, such notice shall be in writing and shall
be given in person or by mail to such director or Stockholder. If mailed, such
notice shall be addressed to such director or Stockholder at his address as it
appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegram.
SECTION 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
By-Laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE V
OFFICERS
SECTION 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice president, a secretary and a
treasurer. The board of directors may also choose additional vice presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these By-Laws otherwise provide.
SECTION 2. The board of directors at its first meeting after each
annual meeting of Stockholders shall choose a president, one or more vice
presidents, a secretary and one or more assistant secretaries and a treasurer.
SECTION 3. The board of directors may appoint such other officers
and agents as it may deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
SECTION 4. The salaries of all officers of the corporation shall
be fixed by the board of directors.
SECTION 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the whole board of directors. Any vacancy occurring in any office
of the corporation shall be filled by the board of directors.
THE PRESIDENT
SECTION 6. The president shall be the chief executive officer and
the chief operating officer of the corporation, shall have the power to call
meetings of the board of directors and special meetings of Stockholders, shall
preside (in the absence of the chairman of the board or in the event of his
inability or refusal to act) at all meetings of the Stockholders and the board
of directors, and shall have general charge of the business of the corporation
and shall see to it that all orders and resolutions of the board of directors
are performed and carried into effect. All current reports and other day-to-day
activities in the ordinary course of the corporation's business shall be
channeled by other officers and divisional executives through or to the
president, except as otherwise provided by these By-Laws.
SECTION 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
president to some other officer or agent of the corporation. The president
shall vote all shares of capital stock of any other corporation standing in the
name of this corporation, except where the voting thereof shall be delegated by
the board of directors to some other officer or agent of the corporation, and he
shall employ required or appropriate executive, administrative or professional
personnel. In general, he shall perform all duties incident to the offices of
chief
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executive officer, chief operating officer and president, and such other duties
as may be prescribed from time to time by the board of directors.
VICE PRESIDENT
SECTION 8. In the absence of the president or in the event of his
inability or refusal to act, the vice president (or in the event there be more
than one vice president, the vice presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
The board of directors, at its discretion, may designate any vice
president as senior vice president, executive vice president, or any other
designation as it may choose.
THE SECRETARY AND ASSISTANT SECRETARY
SECTION 9. The secretary shall attend all meetings of the board of
directors and all meetings of Stockholders and record all the proceedings of the
meetings of the corporation and of the board of directors in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
Stockholders and special meetings of the board of directors, and shall perform
such other duties as may be prescribed by the board of directors or president,
under whose supervision he shall be. He shall have custody of the corporate
seal of the corporation and he, or an assistant secretary, shall have authority
to affix the same to any instrument requiring it and when so affixed, it may be
attested by his signature or by the signature of such assistant secretary. The
board of directors may give general authority to any other officer to affix the
seal of the corporation and to attest the affixing by his signature.
SECTION 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election), shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER
AND THE ASSISTANT TREASURERS
SECTION 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuables in the name and to the credit of the corporation in such
depositaries as may be designated by the board of directors.
SECTION 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements and shall render to the president and the board of directors when
the president or board of directors so requires, an account of all his
transactions as treasurer and of the financial condition of the corporation.
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SECTION 13. If required by the board of directors, the treasurer
shall give the corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the board of directors for the faithful performance
of the duties of his office and for the restoration to the corporation, in case
of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or
under his control belonging to the corporation.
SECTION 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
INTERESTED DIRECTORS AND OFFICERS
SECTION 1. No contract or transaction between the corporation and one
or more of its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
board of directors or a committee thereof which authorized the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
(a) The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the board of directors or committee,
which in good faith authorizes the contract or transaction by a vote sufficient
for such purpose without counting the vote of the interested director or
directors; or
(b) The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the Stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the Stockholders; or
(c) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified by the board of directors or the
Stockholders.
Interested directors may be counted in determining the presence of a quorum at a
meeting of the board of directors or of a committee which authorizes the
contract or transaction.
ARTICLE VII
INDEMNIFICATION
SECTION 1. Right to Indemnification. Each person who was or is a
party or is threatened to be made a party to or is involved in or called as a
witness in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and any appeal
therefrom (hereinafter collectively a "proceeding"), by reason of the fact that
he, or a
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person of whom he is the legal representative, is, was or had agreed to become a
director, officer, or Delegate (as defined hereinafter) of the corporation,
shall be indemnified and held harmless by the corporation, to the fullest extent
permitted under the DGCL as the same now exists or may hereafter be amended (but
in the case of any such amendment, only to the extent that such amendment
permits the corporation to provide broader indemnification rights than the DGCL
permitted the corporation to provide prior to such amendment), against all
expenses (including, but not limited to, attorneys' fees and expenses of
litigation) reasonably incurred, and all liabilities and losses (including, but
not limited, judgments, fines, excise taxes, ERISA penalties and amounts paid in
settlement) incurred by him in connection with such proceeding; provided that
except as explicitly provided herein, the corporation shall indemnify any such
person seeking indemnity in connection with a proceeding (or part thereof)
initiated by such person only if authorization for such proceeding (or part
thereof) initiated by such person was not denied by a majority of the board of
directors prior to the earlier of (i) 30 days after receipt of notice thereof
from such person or (ii) an Event, as defined hereinafter. For purposes of this
Article VII, a "Delegate" is any director or officer who is or was serving at
the request of the corporation or the board of directors as a director, officer,
trustee, fiduciary, partner, employee or agent of an entity or enterprise other
than the corporation (including, but not limited to, a partnership, joint
venture, trust, other corporation, or an employee benefit plan or trust); and an
"Event" shall be deemed to have occurred if (i) any "Person" (as that term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) is or becomes (except in a transaction approved in advance by the board
of directors) the beneficial owner (as defined in Rule 13d-3 under such Act),
directly or indirectly, of securities of the corporation representing 25% or
more of the combined voting power of the corporation's then outstanding
securities, provided that the UNR Asbestos-Disease Claims Trust (as defined in
the Plan) holding securities of the corporation pursuant to the Plan shall not
be deemed a Person for purposes of this Article VII, or (ii) during any period
of two consecutive years, individuals who at the beginning of such period
constitute the board of directors of the corporation cease for any reason to
constitute at least a majority thereof unless the election of each director who
was not a director at the beginning of the period was approved by either (x) a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period or (y) the UNR Asbestos-Disease Claims
Trust (as defined in the Plan).
SECTION 2. Expenses. Expenses, including attorneys' fees, incurred
by a person indemnified pursuant to Section 1 of this Article VII in defending
or otherwise being involved in a proceeding shall be paid by the corporation in
advance of the final disposition of such proceeding upon receipt of an
undertaking (the "Undertaking") by or on behalf of such person to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation; provided that in connection with a proceeding
(or part thereof) initiated by such person except as provided in Section 3 of
this Article VII for proceedings to enforce a person's right to the advancing of
expenses for either a proceeding not initiated by such person or a proceeding
initiated by such person for which authorization was not denied, the corporation
shall pay said expenses in advance of final disposition only if authorization
for such proceeding (or part thereof) was not denied by a majority of the board
of directors of the corporation. A person to whom expenses are advanced
pursuant hereto shall not be obligated to repay pursuant to the Undertaking
until the final determination of any pending proceeding in a court of competent
jurisdiction, including appeals
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therefrom, concerning the right of such person to be indemnified or the
obligations of such person to repay pursuant to the Undertaking.
SECTION 3. Protection of Rights. If a claim under Section 1 of this
Article VII is not promptly paid in full by the corporation after a written
claim has been received by the corporation or if expenses pursuant to Section 2
of this Article VII have not been promptly advanced after a written request for
such advancement accompanied by the Undertaking has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim or the advancement of
expenses. If successful, in whole or in part, in such suit such claimant shall
also be entitled to be paid the reasonable expense thereof. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required Undertaking has been tendered to the corporation)
that the claimant has not met the standards of conduct which make it permissible
under the DGCL for the corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the corporation. If
an Event has occurred, a claimant making a claim under Section 1 of this Article
VII or seeking to avoid repayment to the corporation pursuant to an Undertaking
shall have (i) the right, but not the obligation, to have a determination made
by independent legal counsel as to whether indemnification of the claimant is
proper because he has met the applicable standard of conduct required under the
DGCL, and (ii) the right to select as independent legal counsel for such
purposes any law firm designated for such purpose in a resolution adopted by a
majority of the board of directors prior to the Event and in full force and
effect immediately prior to the Event. If a determination has been made in
accordance with the preceding sentence, no determination inconsistent therewith
by other legal counsel, by the board of directors, or by Stockholders shall be
of any force or effect. Neither the failure of the corporation (including its
board of directors independent legal counsel, or its Stockholders) to have made
a determination, if required, prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he has
met the applicable standard of conduct required under the DGCL, nor an actual
determination by the corporation (including its board of directors, independent
legal counsel, or its Stockholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that claimant had not met the applicable standard of conduct.
SECTION 4. Miscellaneous.
(a) Non-Exclusivity of Rights. The rights conferred on any person by
this Article VII shall not be deemed exclusive of any other right which such
person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, By-Law, agreement, vote of Stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity at the request of the corporation while
holding such office, and shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person. The board of directors shall have the authority,
by resolution, to provide for such indemnification of employees or agents of the
corporation or others and for such other indemnification of directors, officers
or Delegates as it shall deem appropriate.
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(b) Insurance. The corporation shall have power to purchase and
maintain insurance, at its expense, to protect itself and any director, officer,
employee or agent of the corporation, or any person who is or was serving at the
request of the corporation in any other capacity with the corporation, another
corporation, a partnership, a joint venture, trust or other enterprise against
any expenses, liabilities or losses, asserted against him or incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such expenses,
liabilities or losses under the DGCL.
(c) Contractual Nature. The provisions of this Article VII shall be
applicable to all proceedings commenced after its adoption, whether such arise
out of events, acts or omissions which occurred prior or subsequent to such
adoption, and shall continue as to a person who has ceased to be a director,
officer or Delegate and shall inure to the benefit of the heirs, executors and
administrators of such person. This Article VII shall be deemed to be a
contract between the corporation and each person who, at any time that this
Article VII is in effect, serves or agrees to serve in any capacity which
entitles him to indemnification hereunder and any repeal or other modification
of this Article VII or any repeal or modification of the DGCL or any other
applicable law shall not limit any rights of indemnification existing or arising
out of events, acts or omissions occurring prior to such repeal or modification
to enforce this Article VII with regard to acts, omissions or events arising
prior to such repeal or modification.
(d) Severability. If this Article VII or any portion hereof shall be
invalidated or held to be unenforceable on any ground by any court of competent
jurisdiction, the decision of which shall not have been reversed on appeal, such
invalidity or unenforceability shall not affect the other provisions hereof, and
this Article VII shall be construed in all respects as if such invalid or
unenforceable provisions had been omitted therefrom.
ARTICLE VIII
CERTIFICATE OF CAPITAL STOCK
SECTION 1. Every holder of shares of Capital Stock in the corporation
shall be entitled to have a certificate, signed by, or in the name of the
corporation by, the chairman of the board or the president or a vice president,
and by the treasurer or an assistant treasurer, or the secretary or an assistant
secretary, of the corporation, certifying the number of shares owned by him in
the corporation.
SECTION 2. Any or all of the signatures on the certificate may be
facsimile. In case the chairman of the board, any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
LOST CERTIFICATE
SECTION 3. The board of directors may direct a new certificate or
certificates of Capital Stock to be issued in place of any certificate or
certificates theretofore issued by the corporation, alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that
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fact by the person claiming the certificate of Capital Stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate or certificates,
the board of directors may, in its discretion and as condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the corporation a bond, in
such sum as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
TRANSFER OF CAPITAL STOCK
SECTION 4. Upon surrender to the corporation or the transfer agent of
the corporation or a certificate for shares of Capital Stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books; provided, however, that such duty shall be subject
to Federal and state securities and other applicable laws, the certificate of
incorporation, and any legends and stop transfer instructions with respect to
such old certificate.
FIXING RECORD DATE
SECTION 5. In order that the corporation may determine the
Stockholders entitled to notice of or to vote at any meeting of Stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of Shares or for the purpose of
any other lawful action, the board of directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action. A
determination of Stockholders of record entitled to notice of or to vote at a
meeting of Stockholders shall apply to any adjournment of the meting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
SECTION 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of Shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of Shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
Share or Shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE IX
DIVISIONS
SECTION 1. The president may from time to time designate one or more
divisions of the corporation as the organizations through which the operations
of the corporation are to be
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conducted, and may also from time to time prescribe the area of operations for
each division so designated.
SECTION 2. The president shall from time to time appoint individuals
to manage the operations of these divisions and these individuals shall be
designated by such titles as may be appropriate. These titles shall include the
name of the division and may include the word president, vice-president or
manager. Such individuals, however, irrespective of such titles, shall not be,
nor shall they be deemed to be, officers of the corporation. Such division
personnel shall be authorized to have general and active management of the
activities of their respective divisions, all subject to the right of the
president to (a) delegate any specific management power, (b) fix their
compensation, and (c) remove such personnel at any time without further prior
authorization of the board of directors.
ARTICLE X
GENERAL PROVISIONS
DIVIDENDS
SECTION 1. Dividends upon the Capital Stock of the corporation,
subject to any additional requirements of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the Capital Stock, subject to the provisions of the certificate of
incorporation.
SECTION 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
board of directors from time to time, in its absolute discretion, shall think
proper as a reserve or reserves to meeting contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the board of directors shall think conducive to the
interest of the corporation, and the board of directors may modify or abolish
any such reserve in the manner in which it was created.
CHECKS
SECTION 3. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers, or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
SECTION 4. The fiscal year of the corporation shall end on December
31.
STOCKHOLDER RECORD
SECTION 5. The corporation shall keep at its principal place of
business in Illinois, or at the office of a transfer agent, an agent for the
Warrants (the "Warrant Agent") or a registrar in
16
<PAGE>
Illinois, records of the Stockholders in the corporation, giving the names and
addresses of all Stockholders and the number of Shares held by each.
SEAL
SECTION 6. The corporate seal shall have inscribed thereon the name
of the corporation and the words "CORPORATE SEAL, DELAWARE." The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE XI
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or repealed and new
By-Laws may be adopted by the board of directors at any meeting thereof, or by
the Stockholders; provided, however, the alteration, amendment or repeal of any
provision of these By-Laws during the term of the Stockholders Agreement that
would cause these By-Laws to be inconsistent with, or in violation of, the
Stockholders Agreement may only be done by the Stockholders of the corporation.
Notwithstanding the foregoing, no provision of these By-Laws regarding or
affecting the Warrants or the rights of the Warrantholders can be in any way
altered, amended or repealed, nor can any new By-Law be added which would have
such effect, unless such alteration, amendment, repeal or addition is contained
in a written instrument signed by the corporation, and upon the approval of the
holders of not less than 51% of the Warrants, by the Warrant Agent. On the date
when the Warrants expire or upon the secretary's certification that all Warrants
have been exercised and no Warrants remain outstanding, all provisions in these
By-Laws regarding the Warrants shall be deemed repealed and no longer shall have
any force and effect.
ARTICLE XII
MISCELLANEOUS
SECTION 1. Emergency Directors. The board of directors, by
resolution, may provide for Emergency Directors and appoint or designate the
manner in which Emergency Directors shall be determined. To the extent provided
in said resolution and as provided by Section 110 of the Delaware General
Corporation Law, such Emergency Directors, together with any remaining directors
able to perform their duties, shall have and may exercise the powers of the
board of directors in the management of the business and affairs of the
corporation, and shall thereby be deemed to constitute the board of directors of
the corporation, during any interval commencing when the board of directors
shall be unable to function by reason of vacancies occurring due to death,
incapacity, or catastrophe or other similar emergency conditions and continuing
until such vacancies shall have been filled pursuant to the terms of the
Stockholder Agreement until the termination of Article II thereof, as a result
of which a quorum of the board of directors or a standing committee thereof
cannot readily be convened for action. Such Emergency Directors, including any
remaining directors able to perform their duties, shall, during the term they
are authorized to function as provided herein, have the power to appoint such
temporary officers to fill existing vacancies as the circumstances may require,
to remove officers as the circumstances may require, to authorize the seal of
the corporation to be affixed to all papers which may require it, and to take
any and all other
17
<PAGE>
actions as may be required and permitted in conformity with the provisions of
Section 110 of the Delaware General Corporation Law. The Emergency Directors
shall consist of any available members of the board of directors and any other
persons in such order as named by the board of directors on any list as it may
compile from time to time for purposes of appointing such Emergency Directors.
If the board of directors shall have failed to compile any list for purposes of
appointing Emergency Directors, the Emergency Directors shall consist of (in the
order specified below) any available members of the board of directors, the
President, the Vice Presidents (in order of seniority), the Secretary, the
Treasurer, the Assistant Secretaries (in order of seniority), and the Assistant
Treasurers (in order of seniority) of the corporation. The chairman of the
Emergency Directors shall be the highest ranking available person on any list
compiled by the board of directors for purposes of appointing the Emergency
Directors, or, if the board of directors shall have failed to compile any such
list, the highest ranking available person of the following: the Chairman, the
Vice Chairman (or if there be more than one, in order of seniority), the most
senior member of the board of directors, the President, the most senior Vice
President, the Secretary, the Treasurer, the most senior Assistant Secretary,
and the most senior Assistant Treasurer.
SECTION 2. Meetings, Quorum and Vacancies. The Emergency Directors
shall meet as promptly as possible after the occurrence of the event herein
described which would activate their appointment and at such subsequent time or
times as it may designate until a board of directors has been duly elected by
the Stockholders and qualified. A meeting of the Emergency Directors may be
called by any Emergency Director, notice of which meeting need be given only to
such Emergency Directors as it is feasible to reach at the time. Such Emergency
Directors shall make their own rules of procedure except to the extent otherwise
provided by resolution of the board of directors. The Emergency Directors in
attendance at the meeting shall constitute a quorum.
SECTION 3. Powers of Chairman. During such times as the Emergency
Directors shall be required to function pursuant to the provisions hereof, the
chairman of said Emergency Directors shall function as, and have the powers of,
the chief executive officer of the corporation and shall preside at all meetings
of the Stockholders and the Emergency Directors. The chairman of the Emergency
Directors shall have and exercise, subject to the direction of the Emergency
Directors, general charge and supervision over the business and affairs of the
corporation.
SECTION 4. Other By-Law Provisions. To the extent not inconsistent
with the provisions of this Article XII or Section 110 of the Delaware General
Corporation law, all other provisions of these By-Laws shall remain in effect
during the interval in which the Emergency Directors shall be required to
function pursuant to the provisions hereof.
18
<PAGE>
EXHIBIT 1.6.1
<TABLE>
<CAPTION>
STOCKHOLDER NAME NUMBER OF ROHN SHARES
- ---------------- ---------------------
<S> <C>
PH, Inc. 3,441,637
Bain Capital Fund V, L.P. 934,297
Bain Capital Fund V-B, L.P. 2,456,129
BCIP Associates 429,878
BCIP Trust Associates, L.P. 203,212
Bain Capital V Mezzanine Fund, L.P. 105,955
BCM Capital Partners, L.P. 76,998
---------
TOTAL 7,648,106
---------
---------
</TABLE>
<PAGE>
EXHIBIT 1.8.4
<TABLE>
<CAPTION>
NUMBER OF WARRANTS FOR
WARRANTHOLDER NAME ROHN SHARES EXERCISE PRICE
- ------------------ ---------------------- ---------------
<S> <C> <C>
Jackson National Life 137,251 $100 in the aggregate
Insurance Company 74,668 $100 in the aggregate
BCIP Trust Associates, L.P. 2,515 $3.48 per share
Bain Capital V Mezzanine Fund, 147,116 $3.48 per share
L.P.
BCM Capital Partners, L.P. 106,913 $3.48 per share
PH, Inc. 209,913 $3.48 per share
-------
TOTAL 678,376
-------
-------
</TABLE>
<PAGE>
EXHIBIT 1.9
<TABLE>
<CAPTION>
OPTIONHOLDER NAME NUMBER OF ROHN OPTIONS EXERCISE PRICE
- ----------------- ---------------------- --------------
<S> <C> <C>
Patrick Baert 13,048 $0.54 per share
Hilary Asher 13,048 $0.54 per share
Daniel Satre 13,048 $0.54 per share
Don Rumpler 6,524 $0.54 per share
------
TOTAL 45,668 8,372,163
------
------
</TABLE>
<PAGE>
LIST OF OMITTED SCHEDULES TO THE MERGER AGREEMENT*
<TABLE>
<CAPTION>
<S> <C>
Section 3.1 Corporate Structure
Section 3.2 Authorized Shares, Options and Warrants
Section 3.3 Consents, Waivers & Approvals
Section 3.4 Material Contracts
Section 3.6 Liabilities and Obligations
Section 3.7 Absence of Certain Changes or Events
Section 3.8 Tax and Other Returns
Section 3.9 Employment Arrangements
Section 3.10 Property Encumbrances
Section 3.11 Patents, Trademarks, etc.
Section 3.13 Litigation & Threatened Claims
Section 3.15 Brokers' Fees
Section 3.16 Insurance
Section 3.17 Employee Benefit Plans
Section 3.18 Environmental Matters
Section 3.19 Labor Matters
Section 3.21 Licenses and Permits
Section 4.1 Corporate Structure
Section 4.2 Authorized Shares, Options and Warrants
Section 4.3 Consents, Waivers & Approvals
Section 4.4 Material Contracts
Section 4.6 Liabilities and Obligations
Section 4.7 Absence of Certain Changes or Events
Section 4.8 Tax and Other Returns
Section 4.9 Employment Arrangements
Section 4.10 Property Encumbrances
Section 4.11 Patents, Trademarks, etc.
Section 4.13 Litigation & Threatened Claims
Section 4.15 Brokers' Fees
Section 4.16 Insurance
Section 4.17 Employee Benefit Plans
Section 4.18 Environmental Matters
Section 4.19 Labor Matters
Section 4.21 Licenses and Permits
</TABLE>
- -----------------------------
* The Company supplementally will furnish copies of any omitted schedule to
the Commission upon its request.
<PAGE>
EXHIBIT 99.2
PIROD SHAREHOLDERS VOTING AGREEMENT
PIROD SHAREHOLDERS VOTING AGREEMENT (this "Agreement"), dated December
22, 1998 by and between ROHN Industries, Inc., a Delaware corporation
("ROHN"), and the stockholders of PiRod Holdings, Inc., a Delaware
corporation ("PIROD") listed on Schedule A hereto (the "Shareholders").
WHEREAS, capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement (as defined below);
WHEREAS, ROHN and PIROD propose to enter into an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement") pursuant to which PIROD
shall be merged with and into ROHN (the "Merger"), upon the terms and
conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, the Shareholders beneficially own PIROD
Shares (the "Owned Shares");
WHEREAS, the Boards of Directors of ROHN and PIROD have adopted
resolutions approving the Merger and recommending that ROHN's stockholders
and PIROD's stockholders, respectively, vote to approve the Merger;
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, ROHN has required that the Shareholders agree to vote all of the
Owned Shares, together with any PIROD Shares acquired after the date hereof,
whether upon the exercise of options or warrants, conversion of convertible
securities or otherwise (collectively, the "Shares"), on the terms and
subject to the conditions provided for in this Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by ROHN
and PIROD of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
VOTING AGREEMENT; PROXY
SECTION 1.1. VOTING. Each of the Shareholders hereby agrees that,
subject to the Voting Conditions set forth below, at any meeting of the
stockholders of PIROD, however called, and at every adjournment or
postponement thereof, and in any action by written consent of the
stockholders of PIROD, it shall (i) appear at the meeting or otherwise cause
its Shares to be counted as present thereat for purposes of establishing a
quorum, (ii) vote its Shares in favor of the Merger and approval and adoption
of the Merger Agreement, (iii) vote its Shares against any action or
agreement that would result in a breach in any material respect of any
representation, warranty or covenant of PIROD in the Merger Agreement, and
(iv) vote its Shares against any action or agreement (other than the Merger
Agreement or the transactions
<PAGE>
contemplated thereby) that would impede, interfere with, delay, postpone or
attempt to discourage the Merger, including any other extraordinary corporate
transaction, such as a merger, reorganization or liquidation involving PIROD
and a third party or any other proposal of a third party to acquire PIROD.
The obligation of the Shareholders to vote their Shares pursuant to the
preceding sentence is subject to satisfaction of each of the following
conditions (the "Voting Conditions"): (x) there shall have been no amendment
or modification of (including any waiver of any provision of) the Merger
Agreement that is in any manner adverse to the Shareholders or PIROD (unless
such amendment or modification has been agreed to in writing by the
Shareholders and PIROD) and (y) there shall not have been any action taken,
or any statute, rule, regulation, judgment, order or injunction promulgated,
enacted, entered or enforced, by any state, federal or foreign government or
governmental authority or by any court, domestic or foreign, that makes the
vote of the Shares by the Shareholders illegal or otherwise prohibited.
SECTION 1.2. IRREVOCABLE PROXY. As security for the Shareholders'
obligations under Section 1.1 hereof and subject to Section 2.1 hereof, each
Shareholder hereby irrevocably constitutes and appoints ROHN as its attorney
and proxy pursuant to the provisions of Section 212(c) of the GCL, with full
power of substitution and resubstitution, to vote the Shares at any meeting
of stockholders of PIROD, however called, or in connection with any action
by written consent by the stockholders of PIROD, in each case only as and to
the extent provided in clauses (ii), (iii) and (iv) of Section 1.1 hereof;
PROVIDED, HOWEVER, that ROHN shall not have the right to vote the Shares
unless each of the Voting Conditions shall have been satisfied as of the time
of such vote; and PROVIDED, FURTHER, HOWEVER, that in any such vote or other
action pursuant to such proxy, ROHN shall not in any event have the right
(and such proxy shall not confer the right) to vote against the Merger, to
vote to reduce the consideration to be received by the PIROD stockholders or
to otherwise amend or modify (or waive any provision of) the Merger
Agreement. The proxy granted pursuant to this Section 1.2 shall irrevocably
cease and shall be of no further force or effect upon (x) any violation by
ROHN of any of the terms of this Agreement or (y) the termination of the
Merger Agreement or this Agreement in accordance with its terms. THIS PROXY
AND POWER OF ATTORNEY IS IRREVOCABLE, SUBJECT TO THE FOREGOING AND SECTION
2.1 HEREOF, AND COUPLED WITH AN INTEREST. Each Shareholder hereby revokes all
other proxies and powers of attorney with respect to the Shares that it may
have heretofore appointed or granted and shall take all further actions as
may be necessary or desirable to evidence such revocation, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by such Shareholder with respect
thereto, other than as contemplated by Section 1.1 hereof.
ARTICLE II
TERMINATION
SECTION 2.1. TERMINATION. This Agreement shall terminate on the
earlier of (i) the consummation of the Merger or (ii) the termination of the
Merger Agreement in accordance with its terms; PROVIDED, HOWEVER, that if the
Merger Agreement is terminated by PIROD pursuant to Section 8.1.3(a) thereof
as a result of a Takeover Proposal, this Agreement shall not terminate until
the 60th day following the date on which notice of such Takeover Proposal was
first
2
<PAGE>
provided by PIROD to ROHN in accordance with Section 5.1.8 of the Merger
Agreement; PROVIDED, FURTHER, that notwithstanding anything to the contrary
in this Agreement, the Shareholders shall have the ability, after the
Shareholders determine in good faith, after consultation with their legal and
financial advisers, that a Takeover Proposal that has not been solicited,
initiated or encouraged after the date hereof in violation of clause 4.3(i)
herein may reasonably be expected to result in a Superior Proposal,
throughout such 60-day period, to confirm to the third party that has made
such Takeover Proposal orally or in writing that it intends (subject to such
qualifications as the Shareholders deem appropriate) to enter into a voting,
tender or other agreement with such Third Party with respect to the Shares
upon termination of this Agreement.
SECTION 2.2. EFFECT OF TERMINATION. In the event of a termination of
this Agreement as provided in Section 2.1 hereof, (i) this Agreement and all
obligations hereunder (including, without limitation, the obligations of the
Shareholders pursuant to Section 1.1 and Article IV hereof and the proxy
appointment under Section 1.2 hereof) shall forthwith become void and of no
further force or effect and (ii) there shall be no liability or obligation on
the part of ROHN or any of the Shareholders or their respective officers,
directors or partners hereunder thereafter; PROVIDED, HOWEVER, that nothing
herein shall relieve any party from liability for any breach hereof prior to
such termination.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF ROHN. ROHN hereby
represents and warrants to the Shareholders as follows:
(a) ORGANIZATION, DUE AUTHORIZATION. ROHN is a corporation duly
organized, validly existing and in good standing under the laws of Delaware.
ROHN has full corporate power and authority to execute and deliver this
Agreement. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly authorized
by the Board of Directors of ROHN, and no other corporate proceedings on the
part of ROHN are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by ROHN and constitutes a valid and binding agreement
of ROHN, enforceable against ROHN in accordance with its terms, subject to
the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium or similar law affecting creditors' rights generally and general
principles of equity.
(b) NO CONFLICTS. Other than in connection with or in compliance with
the provisions of the GCL with respect to the transactions contemplated
hereby, the federal securities laws, the securities laws of the various
states, the HSR Act and foreign laws, no authorization, consent or approval
of, or filing with, any court or any public body or authority is necessary
for the consummation by ROHN of the transactions contemplated by this
Agreement. The execution, delivery and performance of this Agreement by ROHN
will not constitute a breach, violation or default (or any event which, with
notice or lapse of time or both, would constitute a default)
3
<PAGE>
under, or result in the termination of, or accelerate the performance
required by, or result in a right of termination or acceleration under, or
result in the creation of any lien or encumbrance upon any of the properties
or assets of ROHN under, any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument to which ROHN is a party or by
which its properties or assets are bound, other than breaches, violations,
defaults, terminations, accelerations or creation of liens and encumbrances
which, in the aggregate, would not materially impair the ability of ROHN to
perform its obligations hereunder.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
Shareholder hereby represents and warrants to ROHN as follows:
(a) ORGANIZATION, DUE AUTHORIZATION. It has been duly formed and is
validly existing as a partnership under the laws of the state of Delaware and
has the power and authority to enter into this Agreement and consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by its general partner, and no other
partnership proceedings on its part are necessary to authorize this Agreement
or to consummate the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by it and constitutes a valid
and binding agreement of it, enforceable against it in accordance with its
terms, subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium or similar law affecting creditors' rights generally
and general principles of equity.
(b) TITLE; VOTING RIGHTS. It has good and valid title to the Owned
Shares and warrants to purchase PIROD Shares shown as owned by it on Schedule
A hereto, free and clear of any lien, charge, encumbrance or claim of
whatever nature. Except pursuant to this Agreement and the Stockholders
Agreement, such Shares are not subject to any voting trust agreement or other
contract, agreement, arrangement, commitment or understanding restricting or
otherwise relating to the voting, dividend rights or disposition of such
Shares.
(c) OWNERSHIP OF PIROD SHARES. On the date hereof, it owns, of record
or beneficially, the PIROD Shares shown as owned by it on Schedule A hereto.
It has sole voting power and sole power of disposition with respect to such
Shares, with no restrictions, subject to applicable federal securities laws,
on its rights of disposition pertaining thereto except as set forth in
Section 3.2(d) hereof and the Stockholders Agreement.
(d) NO CONFLICTS. Other than in connection with or in compliance with
the provisions of the GCL, the federal securities laws, the NASD, the
securities or takeover laws of the various states, the HSR Act and foreign
laws, no authorization, consent or approval of, or filing with, any court or
any public body or authority is necessary for the consummation by it of the
transactions contemplated by this Agreement. The execution, delivery and
performance of this Agreement by it will not constitute a breach, violation
or default (or any event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate
the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien or encumbrance upon
any of its properties or assets under, any note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument to which it is a
party or by which its properties or assets are bound, other than breaches,
violations, defaults,
4
<PAGE>
terminations, accelerations or creation of liens and encumbrances which, in
the aggregate, would not materially impair its ability of to perform its
obligations hereunder.
ARTICLE IV
COVENANTS OF EACH SHAREHOLDER
Each Shareholder hereby covenants and agrees as follows:
SECTION 4.1. RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE. It
hereby agrees, while this Agreement is in effect, and except as contemplated
hereby, not to (i) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of its Owned Shares or Shares (other
than to another Shareholder who is a party to this Agreement), (ii) grant any
proxies, powers of attorney or other authorization or consent, deposit any
shares of capital stock of PIROD into a voting trust or enter into a voting
agreement with respect to any such Shares or (iii) take any action that would
make any of its representations or warranties contained herein untrue or
incorrect or have the effect of preventing or disabling it from performing
its obligations under this Agreement.
SECTION 4.2. ADDITIONAL SHARES. It hereby agrees, while this Agreement
is in effect, to promptly notify ROHN in writing in accordance with Section
6.3 hereof of the number of new PIROD Shares acquired by it, if any, after
the date hereof and shall provide a certificate to ROHN which shall reaffirm
its representations and warranties set forth in Section 3.2 with respect to
such additional Shares.
SECTION 4.3. NO SOLICITATION. It shall, and shall direct officers,
partners, employees, representatives and agents to, immediately cease any
discussions or negotiations with any parties other than ROHN that may be
ongoing with respect to a Takeover Proposal. While this Agreement is in
effect, it shall not, and shall not authorize or permit any of its officers,
partners or employees or any investment banker, financial advisor, attorney,
accountant or other representative retained by it or any of them to, directly
or indirectly, (i) solicit, initiate or encourage any inquiries or the making
of any proposal that constitutes, or may reasonably be expected to lead to,
any Takeover Proposal, or (ii) participate in any discussions or negotiations
regarding any Takeover Proposal; PROVIDED, HOWEVER, that if, at any time
prior to the Effective Time, it determines in good faith, after consultation
with its financial and legal advisers, that a Takeover Proposal that has not
been solicited, initiated or encouraged after the date hereof in violation of
clause (i) above may reasonably be expected to result in a Superior Proposal,
it and PIROD may (x) furnish information with respect to PIROD and its
subsidiaries to the third party that has made such Takeover Proposal (and to
any investment banker, financial advisor, attorney, accountant or other
representative retained by such party) pursuant to a customary and reasonable
confidentiality agreement and (y) participate in negotiations regarding such
Takeover Proposal.
SECTION 4.4. NO APPRAISAL RIGHTS; OTHER STOCKHOLDERS. Each Shareholder
hereby agrees, while this Agreement is in effect, that it will not exercise any
appraisal rights to which it may be entitled under the GCL with respect to the
Merger. Each Shareholder agrees to use its
5
<PAGE>
commercially reasonable best efforts to cause each other stockholder of PIROD
not a party to this Agreement to vote in favor of the Merger and approval and
adoption of the Merger Agreement at any meeting of stockholders of PIROD or
in any action by written consent of the stockholders of PIROD.
ARTICLE V
OTHER AGREEMENTS
SECTION 5.1. FURTHER ASSURANCES. From time to time, at the request of
ROHN or any Shareholder, and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
action as may be necessary or desirable to consummate and make effective the
transactions contemplated by Article I of this Agreement.
SECTION 5.2. PUBLIC ANNOUNCEMENTS. Each of ROHN and the Shareholders
agrees that it will not issue any press release or otherwise make any public
statement with respect to this Agreement or the transactions contemplated
hereby without the prior consent of the other party, which consent shall not
be unreasonably withheld or delayed; PROVIDED, HOWEVER, that such disclosure
can be made without obtaining such prior consent if (i) the disclosure is
required by law or by obligations imposed pursuant to any agreement with the
NASD and (ii) the party making such disclosure has first used its
commercially reasonable best efforts to consult with the other party about
the form and substance of such disclosure.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. NON-SURVIVAL. The respective representations and
warranties made herein shall terminate upon the termination of this
Agreement.
SECTION 6.2. ENTIRE AGREEMENT; ASSIGNMENT. This Agreement constitutes
the entire agreement among the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter
hereof. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties. Except for the UNR
Asbestos-Disease Claims Trust, whom the parties agree is a third party
beneficiary of this Agreement, nothing in this Agreement, express or implied,
is intended to confer upon any person, other than the parties hereto and
their successors and permitted assigns, any rights or remedies under or by
reason of this Agreement.
SECTION 6.3. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed do have been duly received if so given) by hand delivery, telegram,
telex or telecopy, by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as
6
<PAGE>
Federal Express, providing proof of delivery. All communications hereunder
shall be delivered to the respective parties at the following addresses:
To the Shareholders as follows:
Bain Capital, Inc.
Two Copley Place
Boston, Massachusetts 02116
Attention: Paul Spinale
Principal
Copy to:
James L. Learner, Esq.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
To ROHN:
ROHN Industries, Inc.
6718 West Plank Road
Peoria, Illinois 61604
Attention: General Counsel
Copy to:
Bell, Boyd & Lloyd
Three First National Plaza
70 West Madison Street
Chicago, Illinois 60602
Attention: Victor E. Grimm
SECTION 6.4. GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by and construed in accordance with the internal laws of the State
of Delaware, without giving effect to principles of conflicts of laws of the
State of Delaware or any other jurisdiction that, in either case, would call
for the application of the substantive laws of any jurisdiction other than
Delaware. Each of the parties hereto (i) 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, and consents to
service of process by notice as provided in this Agreement, (ii) 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 (iii) agrees that it will not
bring any action 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. 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
7
<PAGE>
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
federal court located in the State of Delaware or in any Delaware state
court, this being in addition to any other remedy to which they are entitled
at law or in equity.
SECTION 6.5. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, all of which shall be shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
SECTION 6.6. DESCRIPTIVE HEADINGS. The descriptive headings used
hereby are inserted for convenience of reference only and are not intended to
be part of or to effect the meaning or interpretation of this Agreement.
SECTION 6.7. 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 under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and
this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
8
<PAGE>
IN WITNESS WHEREOF, ROHN and the Shareholders have caused this Agreement
to be duly executed as of the day and year first above written.
ROHN INDUSTRIES, INC.
By /s/ Brian B. Pemberton
-------------------------------------
Name: Brian B. Pemberton
Title: President
9
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number and Class of PIROD Number and Class of PIROD
Shares Beneficially Owned Shares Subject to Warrants
(excluding warrant shares) --------------------------
-------------------------
<S> <C> <C>
BAIN CAPITAL FUND V, L.P. 88,289 of Class A-1 Common None
9,810 of Class L Common
By Bain Capital Partners V, L.P.,
its general partner
By Bain Capital Investors V, Inc.
its general partner
By /s/ Paul Spinale
----------------------------------
Title: Managing Director
BAIN CAPITAL FUND V-B, L.P. 232,099 of Class A-2 Common None
25,789 of Class L Common
By Bain Capital Partners V, L.P.,
its general partner
By Bain Capital Investors V, Inc.,
its general partner
By /s/ Paul Spinale
----------------------------------
Title: Managing Director
BCIP ASSOCIATES 36,315 of Class A-3 Common None
4,774 of Class L Common
By /s/ Paul Spinale
----------------------------------
Title: a general partner
BCIP TRUST ASSOCIATES, L.P. 23,831 of Class A-3 Common 54 Shares of Class L Common
1,854 of Class L Common
By /s/ Paul Spinale
----------------------------------
Title: a general partner
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
BAIN CAPITAL V MEZZANINE FUND, L.P. 28,420 of Class A-4 Common 3,158 of Class L Common
By Bain Capital V Mezzanine Partners,
L.P.,
its general partner
By Bain Capital Investors V, Inc.
its general partner
By /s/ Paul Spinale
----------------------------------
Title: Managing Director
BCM CAPITAL PARTNERS, L.P. 20,653 of Class A-5 Common 2,295 of Class L Common
By Bain Capital V Mezzanine Partners,
L.P,
its general partner
Bain Capital Investors V, Inc.,
its general partner
By /s/ Paul Spinale
----------------------------------
Title: Managing Director
</TABLE>
<PAGE>
EXHIBIT 99.3
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of December 22, 1998
("STOCKHOLDERS AGREEMENT"), by and between ROHN Industries, Inc., a Delaware
corporation (the "COMPANY"), the UNR Asbestos-Disease Claims Trust (the
"TRUST"), each party listed on Exhibit A hereto (a "BAIN STOCKHOLDER" and,
collectively, the "BAIN STOCKHOLDERS") and each party listed on Exhibit B
hereto (an "OTHER PIROD STOCKHOLDER" and, together with the Bain
Stockholders, the "PIROD STOCKHOLDERS").
WHEREAS, as of the date hereof the Trust is the majority
stockholder of the Company and the PIROD Stockholders own all of the
outstanding shares of PiRod Holdings, Inc., a Delaware corporation ("PIROD");
WHEREAS, the Company and PIROD propose to enter into an
Agreement and Plan of Merger of even date herewith (the "MERGER AGREEMENT")
pursuant to which PIROD shall be merged with and into the Company (the
"MERGER"), upon the terms and conditions set forth in the Merger Agreement;
WHEREAS, upon consummation of the Merger, the Trust and the
PIROD Stockholders will each own shares of Common Stock (as hereinafter
defined);
WHEREAS, the Company, the Trust and the PIROD Stockholders
desire to establish in this Stockholders Agreement certain rights and
obligations concerning their relationship with each other from and after the
Merger;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS.
For purposes of this Stockholders Agreement, each of the
following underlined terms shall have the meaning specified with respect to
such term:
"ACTION" has the meaning specified in Section 4.7(c) hereof.
"ADDITIONAL SECURITIES" has the meaning specified in Section
4.1(a) hereof.
"AFFILIATE", with respect to any specified Person, means any
other Person that, directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, such specified Person. For purposes of this Stockholders Agreement,
the term "control" (including, with its correlative meanings, "controlled by"
and "under common
<PAGE>
control with") shall mean possession, directly or indirectly of power to
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise); PROVIDED, HOWEVER, that neither the Company nor any
Stockholder Party shall be deemed to be an Affiliate of the other.
"BAIN DIRECTOR" means any individual designated by the Bain
Stockholders to be nominated for election to the Board of Directors of the
Company in accordance with Section 2.2 hereof who is thereafter elected to
the Board of Directors.
"BAIN NOMINEE" has the meaning specified in Section 2.2(a)
hereof.
"BAIN STOCKHOLDER REPRESENTATIVE" means Bain Capital, Inc.;
PROVIDED, HOWEVER, that the Bain Stockholders may designate any Bain
Stockholder as the Bain Stockholder Representative, such designation to be
effective when (and only when) Bain Capital, Inc. delivers to the Company and
to the other Stockholder Parties a certificate, executed by its Chief
Executive Officer, to the effect that such new designation has been made; and
PROVIDED, FURTHER, that the Company and the other Stockholder Parties shall
be entitled to rely upon such certificate as the act of the Bain
Stockholders.
"BAIN STOCKHOLDER" and "BAIN STOCKHOLDERS" have the respective
meanings specified in the first paragraph of this Stockholders Agreement.
A Person shall be deemed to "BENEFICIALLY OWN" or be the
"BENEFICIAL OWNER" of all shares of Common Stock which such Person and any of
such Person's Affiliates beneficially own within the meaning of Rule 13d-3
under the Exchange Act (or any successor rule). Without limiting the
foregoing, (i) references in this Stockholders Agreement to the amount of
Common Stock beneficially owned by a "Stockholder Party" means, in the case
of the Bain Stockholders, the aggregate amount of Common Stock beneficially
owned by the Bain Stockholders and their respective Affiliates (including all
shares of Common Stock that can be acquired by the exercise of warrants to
acquire shares of Common Stock that are outstanding and exercisable as of the
Effective Time and (ii) in calculating the percentage of Common Stock
beneficially owned by any Stockholder Party for purposes of any provision of
this Stockholders Agreement which sets forth a specific percentage of Common
Stock, the only shares of Common Stock that shall be taken into account are
(x) shares of Common Stock which are beneficially owned by such Stockholder
Party (or, in the case of any Transferee pursuant to Section 4.11(a) hereof,
the Stockholder Party which Transferred such shares to the Transferee) as of
the Effective Time (giving effect to the conversion of shares pursuant to the
Merger Agreement and including all shares of Common Stock that can be
acquired by the exercise of warrants to acquire shares of Common Stock that
are outstanding and exercisable as of the Effective Time) and (y) any other
securities referred to clause (ii) or (iii) of the definition of Common Stock
which are thereafter issued in respect of such shares, and in each case which
continue to be beneficially owned by such Stockholder Party at the time as of
which the determination is made.
"BOARD OF DIRECTORS" means the board of directors of the
Company.
"BY-LAWS" means the by-laws of the Company, as amended from
time to time.
2
<PAGE>
"CERTIFICATE OF INCORPORATION" means the Certificate of
Incorporation of the Company, as amended from time to time.
"CHANGE OF CONTROL PROVISION" has the meaning specified in
Section 5.2 hereof.
"COMMON STOCK" means (i) the common stock, par value $.01 per
share, of the Company, (ii) any stock or other securities into which or for
which such common stock may hereafter be changed, converted or exchanged, and
(iii) any other securities issued to holders of such common stock (or such
securities into which or for which such common stock is so changed, converted
or exchanged) upon any reclassification, share combination, share
subdivision, share dividend, merger, consolidation or similar transaction(s)
or event(s).
"COMPANY" has the meaning specified in the first paragraph of
this Stockholders Agreement, and shall include its successors.
"COMPANY INDEMNIFIED PARTIES" has the meaning specified in
Section 4.7(a) hereof.
"COMPANY PIGGYBACK SECURITIES" has the meaning specified in
Section 4.1(a) hereof.
"COMPANY SECURITIES" has the meaning specified in Section
4.2(a) hereof.
"COMPANY STOCKHOLDERS MEETING" has the meaning specified in
Section 2.2(c) hereof.
"DEBT AGREEMENT" has the meaning specified in Section 5.2
hereof.
"DEMAND NOTICE" has the meaning specified in Section 4.1(a)
hereof.
"DEMAND REGISTRATION" has the meaning specified in Section
4.1(a) hereof.
"DISTRIBUTION EXPENSES" means all (i) underwriting discounts,
fees and commissions, and (ii) stock transfer taxes, if any related to or
arising from the distribution of securities pursuant to a Demand Registration
or a Piggyback Registration.
"EFFECTIVE TIME" has the meaning specified in the Merger
Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of
the SEC promulgated thereunder, as they each may from time to time be in
effect. References in this Stockholders Agreement to a particular section of,
or rule or regulation promulgated under, the Exchange Act means such section,
rule or regulation, as the case may be, as from time to time in effect, or
any successor provision to similar effect.
"EXEMPTED TRANSACTIONS" has the meaning specified in
Section 3.2 hereof.
3
<PAGE>
"FAMILY GROUP" has the meaning specified in Section 3.2 hereof.
"INDEMNIFIED PARTY" has the meaning specified in Section 4.7(c)
hereof.
"INDEMNIFYING PARTY" has the meaning specified in Section 4.7(c)
hereof.
"INDEPENDENT DIRECTOR" means any individual independent of and
otherwise unaffiliated with any party hereto (other than the Company), and who
shall not be an officer or an employee, trustee, consultant or advisor or
(financial, legal or other) of any party hereto (other than the Company) or any
Affiliate thereof, or any individual who shall have served in any such capacity,
or who is, or has been, an officer or employee of any such consultant or
advisor.
"INITIATING PARTY" has the meaning specified in Section 4.1(a)
hereof.
"LOSS" has the meaning specified in Section 4.7(a) hereof.
"MANAGEMENT REPRESENTATIVES" has the meaning specified in
Section 2.2(a) hereof.
"MAXIMUM AMOUNT" has the meaning specified in Section 3.1(b)
hereof.
"MERGER" has the meaning specified in the recitals of this
Stockholders Agreement.
"MERGER AGREEMENT" has the meaning specified in the recitals
of this Stockholders Agreement.
"NOMINEE" has the meaning specified in Section 2.2(a) hereof.
"OTHER PARTY" has the meaning specified in Section 3.1(a)
hereof.
"OTHER PIROD STOCKHOLDER" has the meaning specified in the
first paragraph of this Stockholders Agreement.
"OTHER SECURITIES" has the meaning specified in Section 4.2(b)
hereof.
"PARTICIPATING STOCKHOLDER PARTY" means each of (i) in the
case of a Demand Registration, the Initiating Party and each other
Stockholder Party, if such other Stockholder Party delivers the request
referred to in Section 4.1(a)(i)(C) hereof and (ii) in the case of a
Piggyback Registration, each Stockholder Party that delivers the request
referred to in Section 4.2(a) or 4.12(d)(i) hereof.
"PERSON" means any individual, partnership, corporation,
limited liability company, trust, unincorporated organization or other legal
entity, and a government or agency or political subdivision thereof.
"PIGGYBACK REGISTRATION" has the meaning specified in
Section 4.2(a) hereof.
4
<PAGE>
"PIGGYBACK REGISTRATION NOTICE" has the meaning specified in
Section 4.2(a) hereof.
"PIROD" has the meaning specified in the recitals of this
Stockholders Agreement.
"PIROD STOCKHOLDERS" has the meaning specified in the first
paragraph of this Stockholders Agreement.
"PIROD TRANSFEREE" has the meaning specified in Section 6.2
hereof.
"PRINCIPAL STOCKHOLDER PARTY" means either (i) the Trust or
(ii) the Bain Stockholders (which shall be considered a single Principal
Stockholder Party for purposes of this Stockholders Agreement); and
"PRINCIPAL STOCKHOLDER PARTIES" means both the Trust and the Bain
Stockholders.
"PROSPECTUS" means the prospectus contained in a Registration
Statement (including each preliminary prospectus and any summary prospectus)
and any other prospectus filed under Rule 424 under the Securities Act in
connection with the disposition of any Registrable Securities covered by such
Registration Statement, in each case as such prospectus may be amended or
supplemented from time to time. The term "Prospectus" shall also include all
documents incorporated by reference in any such prospectus.
"REGISTRABLE SECURITIES" means, with respect to any
Stockholder Party, the shares of Common Stock beneficially owned by such
Stockholder Party as of the Effective Time (giving effect to the conversion
of shares pursuant to the Merger Agreement) and any other securities referred
to clause (ii) or (iii) of the definition of Common Stock which are
thereafter issued in respect of such shares. As to any particular
Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a Registration Statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such Registration
Statement, (ii) such securities shall have been sold to the public pursuant
to Rule 144 under the Securities Act, or (iii) such securities shall have
ceased to be outstanding.
"REGISTRATION EXPENSES" has the meaning specified in Section
4.6(a) hereof.
"REGISTRATION RIGHTS" has the meaning specified in Section
4.12(a) hereof.
"REGISTRATION STATEMENT" means a registration statement of the
Company under the Securities Act of 1933, as it may be amended or
supplemented from time to time. The term "Registration Statement" shall also
include all exhibits, financial statements and schedules to any such
registration statement and all documents incorporated by reference in any
such registration statement.
"SEC" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or the
Exchange Act.
5
<PAGE>
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the SEC
promulgated thereunder, as they each may from time to time be in effect.
References herein to a particular section of, or rule or regulation
promulgated under, the Securities Act means such section, rule or regulation,
as the case may be, as from time to time in effect, or any successor
provision to similar effect.
"SELLING PARTY" has the meaning specified in Section 3.1(a)
hereof.
"SHELF REGISTRATION" has the meaning specified in Section
4.1(a) hereof.
"STOCKHOLDER INDEMNIFIED PARTIES" has the meaning specified in
Section 4.7(b) hereof.
"STOCKHOLDER PARTY" means either (i) the Trust, (ii) the Bain
Stockholders (which shall be considered a single Stockholder Party for
purposes of this Stockholders Agreement) or (iii) any Other PIROD
Stockholder; and "STOCKHOLDER PARTIES" means all of foregoing.
"STOCKHOLDER PIGGYBACK SECURITIES" has the meaning specified
in Section 4.1(a) hereof.
"STOCKHOLDER SECURITIES" has the meaning specified in Section
4.2(a) hereof.
"STOCKHOLDERS AGREEMENT" has the meaning specified in the
first paragraph of this agreement, as this agreement may from time to time be
modified, amended or supplemented in writing in accordance with the terms
hereof.
"TAG-ALONG NOTICE" has the meaning specified in Section 3.1(c)
hereof.
"TAG-ALONG RIGHTS" means the tag-along rights granted to the
Other Party pursuant to Section 3.1 hereof.
"THEN-OUTSTANDING SHARES OF COMMON STOCK" means all shares of
Common Stock outstanding at the time as of which the determination is made,
without regard to (i) any shares of Common Stock held in the treasury of the
Company or (ii) any shares of Common Stock issuable pursuant to any options,
warrants, convertible securities or other rights, agreements, commitments or
undertakings of any kind obligating the Company to issue or deliver any
shares of Common Stock (whether unissued or treasury).
"THIRD PARTY" has the meaning specified in Section 3.1(a)
hereof.
"THIRD PARTY TERMS" has the meaning specified in Section
3.1(b) hereof.
"TRANSFER" (when used as a noun or verb) means, with respect
to the Common Stock, any direct or indirect transfer, sale, assignment or
other disposition thereof. For purposes of this Stockholders Agreement, a
Transfer of Common Stock by any one or more of the Bain Stockholders shall be
deemed to be a Transfer by the Bain Stockholders as a Stockholder Party
hereunder.
6
<PAGE>
"TRANSFEREE" has the meaning specified in Section 4.11(a)
hereof.
"TRANSFERRED COMPANY SHARES" has the meaning specified in
Section 7.4(b) hereof.
"TRANSFERRED PIROD SHARES" has the meaning specified in
Section 6.2 hereof.
"TRUST" has the meaning specified in the first paragraph of
this Stockholders Agreement, and shall include its successors.
"TRUST DIRECTOR" means any individual designated by the Trust
to be nominated for election to the Board of Directors of the Company in
accordance with Section 2.2 hereof who is thereafter elected to the Board of
Directors.
"TRUST NOMINEE" has the meaning specified in Section 2.2(a)
hereof.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. NUMBER OF DIRECTORS. Until such time, if any,
as the provisions of this Article II terminate pursuant to Section 2.6
hereof, (i) the Board of Directors shall consist of ten directors and (ii) no
action shall be taken by the Stockholder Parties or the Company to classify
the Board of Directors.
Section 2.2. STOCKHOLDER NOMINEES.
(a) MERGER. As of the Effective Time, the Board of Directors
will be reconstituted as follows: the Trust shall have the right to
designate four individuals to serve on the Board of Directors (each, a "TRUST
NOMINEE") and the Bain Stockholders shall have the right to designate two
individuals to serve on the Board of Directors (each, a "BAIN NOMINEE") (any
individual so designated by the Trust or the Bain Stockholders, a "NOMINEE").
The remaining directors shall consist of Brian Pemberton, Myron Noble
(together with Mr. Pemberton, the "MANAGEMENT REPRESENTATIVES") and two
Independent Directors determined in accordance with Section 2.3 hereof;
PROVIDED, HOWEVER, that if, prior to the Effective Time Mr. Pemberton shall
become unable to serve as a director of the Company, then the Trust shall
designate an individual to replace Mr. Pemberton who shall be either Mr.
Pemberton's successor or a person designated by the Trust and reasonably
acceptable to the Bain Stockholders; and PROVIDED, FURTHER, that if, prior to
the Effective Time Mr. Noble shall become unable to serve as a director of
the Company, then the Bain Stockholders shall designate an individual to
replace Mr. Noble who shall be either Mr. Noble's successor or a person
designated by the Bain Stockholders and reasonably acceptable to the Trust.
Neither Management Representative (or their replacements) shall be deemed a
"Nominee", a "Trust Director" or a "Bain Director" for purposes of this
Stockholders Agreement.
7
<PAGE>
(b) COMPOSITION OF BOARD AFTER MERGER.
(i) Following the Effective Time, subject to Section 2.6
hereof, each of the Principal Stockholder Parties shall be
entitled to representation on the Board of Directors as follows:
(w) For so long as such Principal Stockholder Party
continues to beneficially own at least 20% of the then-
outstanding shares of Common Stock, four designees;
(x) For so long as such Principal Stockholder Party
continues to beneficially own less than 20%, but at least
15%, of the then-outstanding shares of Common Stock,
three designees;
(y) For so long as such Principal Stockholder Party
continues to beneficially own less than 15%, but at least
10%, of the then-outstanding shares of Common Stock, two
designees; and
(z) For so long as such Principal Stockholder Party
continues to beneficially own less than 10%, but at least
5%, of the then-outstanding shares of Common Stock, one
designee;
PROVIDED, THAT (i) only Shares of Common Stock owned beneficially
at the Effective Time shall be included in making the
calculations in paragraphs (w) - (z) above and (ii) the Trust
shall in no event be entitled to more than four designees, and
Bain shall in no event be entitled to more than two designees,
on the Board of Directors pursuant to this Section 2.2.
(ii) Following the Effective Time, subject to Section 2.6
hereof, each Management Representative shall be nominated for
election to the Board of Directors pursuant to Section 2.3(c)
hereof and the Stockholder Parties shall have the obligation to
vote for such individuals as directors pursuant to Section 2.4
hereof; PROVIDED, HOWEVER, that with respect to each Management
Representative, this Section 2.2(b)(ii) shall apply only for so
long as such Management Representative continues to hold the
executive position with the Company held by such Management
Representative immediately after the Effective Time.
(iii) Following the Effective Time, subject to Section 2.6
hereof, the balance of the directors (including any vacancies
arising as a result of a decrease in the number of designees to
which a Principal Stockholder Party is entitled pursuant to this
Section 2.2(b)) shall be Independent Directors determined in
accordance with Section 2.3 hereof.
(c) NOMINATION AND ELECTION. The Company shall cause the
Nominees, the Management Representatives (subject to the proviso set forth in
Section 2.2(b)(ii) hereof) and any Independent Directors determined in
accordance with Section 2.3 hereof, to be nominated for
8
<PAGE>
election to the Board of Directors (i) in the case of the reconstitution of
the Board of Directors contemplated by Section 2.2(a) hereof, at the meeting
of stockholders of the Company held to vote upon the Merger (the "COMPANY
STOCKHOLDERS MEETING") and (ii) thereafter, (x) at each annual meeting of
stockholders of the Company (or any special meeting of stockholders convened
for the purpose (which need not be the sole purpose) of electing directors)
or (y) in connection with any solicitation of written consents by the Company
undertaken for the purpose (which need not be the sole purpose) of electing
directors. The Company shall solicit proxies (or, if applicable, written
consents) for, and otherwise use its commercially reasonable best efforts to
secure, the election of such individuals to the Board of Directors.
(d) INFORMATION REGARDING NOMINEES. Within 20 days of the
receipt by it of written notice of any stockholders meeting or solicitation
of written consents relating to the election of directors (or, in the case of
the Company Stockholders Meeting, within 10 days after the date of this
Stockholders Agreement), each Principal Stockholder Party shall deliver to
the Company and to the other Principal Stockholder Party a written notice
setting forth (i) the names of its Nominee(s), (ii) such other information
regarding its Nominee(s) as would be required to be included in the Company's
proxy statement under the Exchange Act, and (iii) the consents of its
Nominee(s) to serve as director(s) of the Company if so elected.
(e) REPLACEMENT NOMINEES. If, prior to his or her election
to the Board of Directors, any Nominee shall become unable to serve as a
director of the Company, the Principal Stockholder Party who so designated
such Nominee shall be entitled to designate a replacement, who shall then be
a Nominee for purposes of Section 2.2(a) or 2.2(b), as the case may be.
(f) VACANCIES. Subject to Section 2.2(h) hereof, the Company
shall use its commercially reasonable best efforts to ensure that the
applicable Principal Stockholder Party shall have the exclusive right to
designate a Nominee to fill any vacancy created by the removal, death or
resignation of a Bain Director or Trust Director, as the case may be
(including, without limitation, nominating such individual for election to
the Board of Directors at a meeting of stockholders of the Company (or
written consent in lieu of such meeting) called for purpose of filling such
vacancy and, if the first sentence of Section 2.2(g) hereof is applicable,
removing the applicable director).
(g) REMOVAL. Each Principal Stockholder Party may at any
time notify the Company and the other Stockholder Parties in writing of its
desire to remove any of its designees from the Board of Directors, in which
case the Company shall take the actions specified in Sections 2.2(c) and
2.2(f) hereof and the other Stockholder Parties shall take the actions
specified in Section 2.4 hereof. No Stockholder Party shall seek to remove
any of another Stockholder Party's designees from the Board of Directors for
any reason.
(h) RECONSTITUTION OF BOARD. If at any time the amount of
Common Stock beneficially owned by any Principal Stockholder Party changes so
as to decrease the number of designees to which such Principal Stockholder
Party is entitled pursuant to Section 2.2(b) hereof, the Stockholder Parties
and the Company will promptly take all necessary action to reconstitute the
Board of Directors in accordance with Section 2.2(b) hereof.
9
<PAGE>
Section 2.3. INDEPENDENT DIRECTORS. The Principal
Stockholder Parties shall use their commercially reasonable best efforts to
agree on the nominees for election to the Board of Directors as Independent
Directors with respect to the Company Stockholders Meeting and, thereafter,
with respect to each annual meeting of stockholders of the Company or any
special meeting of stockholders of the Company (or written consent in lieu of
such meeting) called for the purpose of electing directors. If and to the
extent that the Principal Stockholder Parties are unable to so agree, the
Board of Directors shall determine the identity of the Independent Directors
whom the Company shall nominate for election to the Board of Directors. The
foregoing procedures shall also apply in the event of any vacancy on the
Board of Directors created by the removal, death or resignation of an
Independent Director. Any individual selected by the Principal Stockholder
Parties or by the Board of Directors as an Independent Director pursuant to
this Section 2.3 shall not be deemed a "Nominee", a "Trust Director" or a
"Bain Director" for purposes of this Stockholders Agreement.
Section 2.4. COVENANT TO VOTE. The Trust and each of the
PIROD Stockholders agrees that, at any annual meeting of stockholders of the
Company or any special meeting of stockholders of the Company (or written
consent in lieu of such meeting) called for the purpose of electing (or, if
applicable, removing) directors, all of the Common Stock (and all other
voting securities of the Company, if any) beneficially owned by it shall be
voted (i) for the election of the individuals nominated in accordance with
Sections 2.2 and 2.3 hereof (including, without limitation, any nomination
for the purpose of filling any vacancy) and (ii) if any Principal Stockholder
Party has given the notice referred to in the first sentence of Section
2.2(g) hereof, for the removal of the director or directors specified in such
notice.
Section 2.5. ACTION BY THE BOARD; QUORUM. A majority of the
entire Board of Directors shall constitute a quorum. All actions by the
Board of Directors shall be taken by a majority vote of such quorum.
Section 2.6. TERMINATION OF ARTICLE II. This Article II
shall terminate at such time, if any, as either Principal Stockholder Party
is the beneficial owner of less than 5% of the then-outstanding shares of
Common Stock.
ARTICLE III
TAG-ALONG RIGHTS
Section 3.1 TAG-ALONG RIGHTS.
(a) GENERAL. Each Stockholder Party (a "SELLING PARTY")
agrees that it shall not Transfer for value any shares of Common Stock
beneficially owned by it (other than in Exempted Transactions (as defined
below), to which the provisions of this Section 3.1 do not apply) if such
Transfer, together with all such Transfers of Common Stock by the Selling
Party and/or its Affiliates as part of the same transaction or series of
related transactions (excluding in each case Exempted Transactions), would
result in a Transfer of Common Stock in excess of an aggregate of 5% of the
then-outstanding shares of Common Stock, unless the terms and
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conditions of such Transfer shall include an offer to each of the other
Stockholder Parties (each of the foregoing, an "OTHER PARTY") to include in
the Transfer to the proposed transferee or transferees (the "THIRD PARTY"),
at such Other Party's option and on the same price and on the same terms and
conditions as apply to the Selling Party, an amount of Common Stock equaling
the least of (i) the number derived by multiplying (x) the number of shares
of Common Stock beneficially owned by such Other Party by (y) a fraction, the
numerator of which is the number of shares of Common Stock proposed to be
Transferred by the Selling Party, and the denominator of which is the total
number of shares of Common Stock beneficially owned by the Selling Party on
the date of the notice referred to in Section 3.1(b) hereof, (ii) if there is
a Maximum Amount (as defined in Section 3.1(b) hereof), the number derived by
multiplying (x) the Maximum Amount by (y) a fraction, the numerator of which
is the number of shares of Common Stock owned by such Other Party and the
denominator of which is the total number of shares of Common Stock
beneficially owned by the Selling Party and all Other Parties exercising
their Tag-Along Rights pursuant to Section 3.1(c) hereof or (iii) such lesser
number of shares as such Other Party shall designate in its Tag-Along Notice.
(b) NOTICE BY SELLING PARTY. The Selling Party shall notify
the Company and the Other Parties in writing of any proposed Transfer to
which the provisions of this Section 3.1 apply. Each such notice shall set
forth: (i) the name and address of the Third Party, (ii) the number of shares
of Common Stock proposed to be Transferred to the Third Party, (iii) the
number of shares of Common Stock beneficially owned by the Selling Party,
(iv) the proposed amount and form of consideration and terms and conditions
of payment offered by the Third Party, and any other material terms
pertaining to the Transfer (the "THIRD PARTY TERMS"), including without
limitation, whether the Third Party has limited the number of shares it
proposes to purchase from the Selling Party and the Other Parties pursuant to
this Section 3.1 to the number of shares set forth in clause (ii) above (the
"MAXIMUM AMOUNT"), and (v) that the Third Party has been informed of the
Tag-Along Rights of the Other Parties and has agreed to purchase shares of
Common Stock in accordance with the terms hereof.
(c) EXERCISE OF TAG-ALONG RIGHTS BY OTHER PARTIES.
(i) Each Other Party may exercise its Tag-Along Rights by
delivery of a written notice to the Company and the Selling Party (the
"TAG-ALONG NOTICE") within twenty (20) days following receipt of the
notice specified in Section 3.1(b) hereof. The Tag-Along Notice shall
state (x) the number of shares of Common Stock beneficially owned by
such Other Party and (y) the number of shares of Common Stock that
such Other Party wishes to include in such Transfer to the Third Party
(giving effect to the formula set forth in clauses (i) and (iii) of
Section 3.1(a) hereof, but subject to reduction, if applicable,
pursuant to clause (ii) of Section 3.1(a) hereof).
(ii) Each Other Party which delivers a Tag-Along Notice
shall, upon the giving of such notice, be entitled and obligated to
sell the number of shares of Common Stock set forth in such
Tag-Along Notice to the Third Party on the Third Party Terms.
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(iii) After expiration of the twenty-day period referred to in
subparagraph (i) above, if no Other Party has given a Tag-Along Notice
and the provisions of this Section 3.1 have been complied with in all
respects, the Selling Party shall have the right for a 120-day period
to Transfer the shares of Common Stock covered by the notice set forth
in Section 3.1(b) hereof to the Third Party on the Third Party Terms
(or on other terms no more favorable to the Selling Party) without
further notice to the Other Parties, but after such 120-day period no
such Transfer may be made without again giving notice to the Other
Parties of the proposed Transfer and complying with the requirements
of this Section 3.1.
(d) CLOSING. At the closing of the Transfer by the Selling Party
to any Third Party (of which the Selling Party shall give each Other Party
who has elected to exercise its Tag-Along Right at least five business days'
prior written notice), the Third Party shall remit to each Other Party as
applicable the consideration for the total sales price of the Common Stock
beneficially owned by such Other Party sold pursuant thereto, against
delivery by such Other Party of certificates for such Common Stock, duly
endorsed or with duly executed stock powers and the compliance by such Other
Party with any other conditions to closing included in the Third Party Terms.
(e) THIRD PARTY TERMS. Notwithstanding anything in this
Stockholders Agreement to the contrary, for purposes of determining the
consideration payable to each Other Party as applicable at the closing
referred to in Section 3.2(d) hereof, (x) if the Third Party Terms provide
that the Third Party shall assume any debt of the Selling Party, such
assumption shall be treated as a cash payment equal to the amount of debt so
assumed and (y) a Transfer (by merger or otherwise) of any equity or
beneficial interest in any Person which is the beneficial owner of Common
Stock (or any direct or indirect parent of such Person) shall be treated as
follows:
(i) such Transfer shall be deemed to be a Transfer of a
percentage of the total number of shares of Common Stock beneficially
owned by such Person equal to the percentage of the equity or
beneficial interest in such Person (or such Person's parent)
Transferred in such transaction; and
(ii) the consideration allocable to the Common Stock shall be
determined by an investment banking firm of national reputation
selected by the Selling Party and reasonably satisfactory to other
Principal Stockholder Party.
Section 3.2 EXEMPTED TRANSACTIONS. The following Transfers
shall constitute "EXEMPTED TRANSACTIONS" for purposes of Section 3.1 hereof:
(i) a Transfer of Common Stock by any Stockholder Party to an Affiliate of
such Stockholder Party, (ii) a Transfer of Common Stock by any Stockholder
Party to the public pursuant to an effective registration statement under the
Securities Act, provided such offering is an underwritten or anonymous
offering, (iii) a Transfer of Common Stock by any Stockholder Party pursuant
to Rule 144 promulgated under the Securities Act, (iv) a Transfer of Common
Stock by any Bain Stockholder to its limited partners, (v) a Transfer of
Common Stock by any PIROD Stockholder pursuant to applicable laws of descent
and distribution, (vi) a Transfer of Common Stock by PH, Inc. to its
stockholders or (vii)
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a Transfer of Common Stock by a PIROD Stockholder to a member of his Family
Group (as defined below), provided that the provisions contained in this
Agreement will continue to be applicable to such shares of Common Stock after
any such Transfer pursuant to clauses (i), (vi) and (vii) hereof and the
transferees of such shares of Common Stock shall agree in writing to be bound
by the provisions of this Agreement (in which case Exhibit A or B hereto, as
applicable, will be deemed amended to add each such transferee as a Bain
Stockholder or an Other PIROD Stockholder, as the case may be. "FAMILY
GROUP" means the spouse and descendants (whether natural or adopted) and any
trust solely for the benefit of a PIROD Stockholder and/or his spouse and/or
descendants.
ARTICLE IV
REGISTRATION RIGHTS
Section 4.1. DEMAND REGISTRATION, INCLUDING SHELF REGISTRATION.
(a) REQUEST FOR REGISTRATION.
(i) At any time and from time to time after the first
anniversary of the Effective Time (subject to Section 4.1(a)(ii)
hereof), upon the written request of any Principal Stockholder Party
(the "INITIATING PARTY") that the Company effect the registration
under the Securities Act of a number of Registrable Securities that is
not less than the lesser of (x) Registrable Securities having an
aggregate market value (based on the closing share price on the
business day immediately preceding the date of such request) of at
least $5 million or (y) at least 3% of the then-outstanding shares of
Common Stock (a "DEMAND NOTICE"), which request shall specify the
intended method or methods of disposition of such Registrable
Securities (it being understood that the method specified or intended
by the Initiating Party with respect to any registration may be an
offering on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act or otherwise (a "SHELF REGISTRATION")), the Company
will promptly give written notice of such requested registration to
the other Stockholder Parties, and thereupon the Company shall use its
commercially reasonable best efforts to effect as promptly as
practicable the registration under the Securities Act of:
(A) all of the Registrable Securities which the Company has been so
requested to register by the Initiating Party,
(B) all shares of Common Stock which the Company desires to include in such
registration for its own account, as specified in a written notice given to
the Initiating Party and the other Stockholder Parties within 10 days after
receipt by the Company of the Demand Notice, and
(C) all Registrable Securities which the Company has been requested to
include in such registration by each other Stockholder Party, as specified in
a written request given by such Stockholder Party to the Company and the
Initiating Party within 10 days after receipt of the
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aforesaid written notice from the Company (together with the securities
referred to in clause (B) above, the "ADDITIONAL SECURITIES"),
all to the extent requisite to permit the disposition of such
Registrable Securities in accordance with the intended method or
methods of disposition specified in the Demand Notice. A registration
pursuant to this Section 4.1(a)(i) is referred to herein as a "DEMAND
REGISTRATION."
(ii) Notwithstanding the foregoing subparagraph (i), if any
Principal Stockholder Party shall desire to request a Demand
Registration pursuant to Section 4.1(a)(i) hereof prior to the first
anniversary of the Effective Time, (x) it shall so notify the other
Principal Stockholder Party in writing, seeking the other Principal
Stockholder Party's consent to such Demand Registration and (y) the
Initiating Party may deliver its Demand Notice to the Company pursuant
to Section 4.1(a)(i) hereof only if the other Principal Stockholder
Party consents to such Demand Registration (which consent may be given
or withheld in its sole discretion).
(iii) Notwithstanding the foregoing subparagraph (i), (x) the
right of each Principal Stockholder Party to request a Demand
Registration as provided therein shall terminate at such time, if any,
as the Registrable Securities beneficially owned by such Principal
Stockholder Party constitute less than 3% of the then-outstanding
shares of Common Stock and (y) the right of any Stockholder Party to
participate in any Demand Registration pursuant to Section
4.1(a)(i)(C) hereof shall terminate at such time, if any, as the
Registrable Securities beneficially owned by such Stockholder Party
constitute less than 1% of the then-outstanding shares of Common
Stock.
(iv) Notwithstanding the foregoing subparagraph (i), if a
registration pursuant to this Section 4.1 involves an underwritten
offering, and the lead underwriter shall advise the Initiating Party
in writing (with a copy to the Company and each other Participating
Stockholder Party) that, in its opinion, the number of Additional
Securities proposed to be included in such Demand Registration exceeds
the number that can be reasonably sold in such offering without
materially and adversely affecting the offering price or otherwise
materially and adversely affecting such offering, the Company shall
include in such Demand Registration (but only to the extent of the
number of securities that the lead underwriter advises can reasonably
be sold in such offering), (x) first, the Registrable Securities to be
offered by the Initiating Party and each other Participating
Stockholder Party, according to the relative number of Registrable
Securities beneficially owned by the Initiating Party and the other
Participating Stockholder Parties at such time and (y) second, the
securities which the Company desires to include in such registration.
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(v) The Company and the other Participating Stockholder Parties
shall have withdrawal rights with respect to the Additional Securities
comparable to those set forth in Section 4.2(d) hereof.
(vi) Except as aforesaid, no other Person shall have any right
to include any securities in any registration initiated by a Principal
Stockholder Party as a Demand Registration.
(b) LIMITATIONS ON DEMAND REGISTRATIONS. Notwithstanding the
foregoing and subject to Section 4.3(a) hereof, the Company shall not be
required, within any six-month period, to effect more than one Demand
Registration for the account of any Principal Stockholder Party (including
for purposes of this calculation any Demand Registration in which a Principal
Stockholder Party participates pursuant to Section 4.1(a)(i)(C) hereof) .
For purposes of this Stockholders Agreement, a registration shall not be
deemed to have been effected (i) unless a Registration Statement with respect
thereto has become effective and maintained effective in accordance with
Section 4.5(a)(ii) hereof, (ii) if after it has become effective and during
the period in which such Registration Statement is required to be maintained
effective in accordance with Section 4.5(a)(ii) hereof, such Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court for any reason
not attributable to any Participating Stockholder Party (and/or any of its
Affiliates) and has not thereafter become effective, (iii) if the conditions
to closing specified in the purchase agreement or underwriting agreement, if
any, entered into in connection with such registration are not satisfied or
waived, other than by reason of a failure on the part of any Participating
Stockholder Party (and/or any of its Affiliates) or (iv) the Principal
Stockholder Party referred to in the preceding sentence has been unable to
sell at least 75% of the Registrable Securities included by it in the
offering.
(c) COMPANY'S RIGHT TO POSTPONE REGISTRATION. Notwithstanding the
foregoing, the Company shall be entitled to postpone for a reasonable period
of time (but not exceeding 60 continuous days) the filing (but not the
preparation) of a Registration Statement for a Demand Registration if the
Company submits to the Initiating Party and each other Participating
Stockholder Party a certificate signed by the Chief Executive Officer of the
Company stating that, in the good faith judgment of the Board of Directors,
such Demand Registration and offering (including, without limitation, any
disclosures required to be made in connection with such Demand Registration)
would materially interfere with any material financing, acquisition,
corporate reorganization or other material transaction involving the Company;
PROVIDED, HOWEVER, that (i) at all times during such period the Company is in
good faith using its commercially reasonable best efforts to cause such
Registration Statement to be filed as promptly as practicable and (ii) the
Company may not exercise the right to postpone registration pursuant to this
Section 4.1(c) more than once in any twelve month period.
(d) SELECTION OF UNDERWRITERS. If the Demand Registration involves
an underwritten offering, the Initiating Party (with the consent, not to be
unreasonably withheld, of the other Principal Stockholder Party, if the other
Principal Stockholder Party participates in the
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offering pursuant to Section 4.1(a)(i)(C) hereof) shall have the right to
select one or more underwriters to act as lead underwriters of such
underwritten offering.
(e) COMPANY REGISTRATION. Notwithstanding anything in this
Stockholders Agreement to the contrary, after receipt of a Demand Notice, the
Company shall not initiate a registration of any of its securities for its
own account (other than a registration on Form S-4 or Form S-8 or any like
successor forms), for the account of any other Stockholder Party (except a
Demand Registration in which such other Stockholder Party participates
pursuant to Section 4.1(a)(i)(C) hereof) and/or for the account of any other
Person pursuant to registration rights granted to such Person in compliance
with Section 4.9(a) hereof until 90 days after the effective date of the
Registration Statement for such Demand Registration.
(f) WITHDRAWAL OF REGISTRATION. At any time after the Company
files with the SEC the Registration Statement for a Demand Registration and
prior to such Registration Statement being declared effective by the SEC, the
Company, if requested in writing by the Initiating Party (with the consent,
not to be unreasonably withheld, of the other Principal Stockholder Party, if
the other Principal Stockholder Party participates in the offering pursuant
to Section 4.1(a)(i)(C) hereof), shall promptly withdraw such registration.
Section 4.2. PIGGYBACK REGISTRATION.
(a) REQUEST FOR REGISTRATION.
(i) If the Company at any time proposes to file a Registration
Statement under the Securities Act relating to an offering of shares
of Common Stock or other equity securities of the Company, or
securities convertible into or exchangeable or exercisable for shares
of Common Stock or such other securities (other than a Registration
Statement on Form S-4 or Form S-8 or any like successor forms), to be
offered for its own account (the "COMPANY SECURITIES") or for the
account of any other Person (other than a Demand Registration for the
account of one or more Stockholder Parties pursuant to Section 4.1
hereof), the Company shall (x) provide prompt written notice of the
proposed offering to each Stockholder Party, setting forth the number
and type of securities proposed to be offered and a description of the
intended method or methods of distribution (the "PIGGYBACK
REGISTRATION NOTICE"), and (y) use its commercially reasonable best
efforts to effect the registration under the Securities Act (a
"PIGGYBACK REGISTRATION") of such number of Registrable Securities as
shall be specified in a written request by such Stockholder Party
(collectively with any securities so specified by all other
Stockholder Parties, the "STOCKHOLDER SECURITIES") made within 15 days
after receipt of such Piggyback Registration Notice from the Company,
subject to Sections 4.2(a)(ii) and 4.2(b) hereof.
(ii) Notwithstanding the foregoing subparagraph (i), the right
of any Stockholder Party to request a Piggyback Registration as
provided therein shall terminate at such time, if any, as the
Registrable Securities beneficially owned by
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such Stockholder Party constitute less than 1% of the then-outstanding
shares of Common Stock.
(b) PRIORITY. If a registration pursuant to this Section 4.2
involves an underwritten offering, and the lead underwriter shall advise the
Company in writing (with a copy to each Participating Stockholder Party)
that, in its opinion, the number of Stockholder Securities proposed to be
included in such registration exceeds the number that can reasonably be sold
in such offering without materially and adversely affecting the offering
price or otherwise materially and adversely affecting such offering, the
Company shall include in such registration (but only to the extent of the
number of securities that the Company is so advised can reasonably be sold in
such offering), (i) first, the Company Securities, (ii) second, the
Stockholder Securities, determined on a pro rata basis according to the
relative number of Registrable Securities beneficially owned by the
Participating Stockholder Parties at that time, and (iii) third, if all
Company Securities and Stockholder Securities are included in such
registration, any shares of Common Stock or other equity securities of the
Company, or securities convertible into or exchangeable or exercisable for
shares of Common Stock or such other securities to be offered for the account
of any other Person pursuant to registration rights granted to such Person in
compliance with Section 4.9(a) hereof (the "OTHER SECURITIES").
(c) COMPANY DETERMINATION NOT TO REGISTER. Notwithstanding the
foregoing, if, at any time after giving a Piggyback Registration Notice to
the Stockholder Parties pursuant to Section 4.2(a) hereof and prior to the
effective date of the Registration Statement in respect of such Piggyback
Registration, the Company shall determine for any reason not to register the
securities proposed to be covered thereby, the Company may, at its election,
give written notice of such determination to each Participating Stockholder
Party and thereupon shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not from any
obligation of the Company to pay the Registration Expenses in connection
therewith, pursuant to Section 4.6(b) hereof), without prejudice, however, to
the rights of any Principal Stockholder Party to request that such
registration be effected as a Demand Registration (subject to Section 4.1(a)
hereof). No registration effected under this Section 4.2 shall relieve the
Company of its obligations pursuant to Section 4.1 hereof.
(d) WITHDRAWAL OF REGISTRABLE SECURITIES. Any Participating
Stockholder Party may withdraw all or any part of its Registrable Securities
from any Piggyback Registration upon written notice to the Company at any
time prior to the later of (i) the Registration Statement in respect of such
Piggyback Registration being declared effective by the SEC and (ii) the
execution of any underwriting agreement with respect to such Piggyback
Registration.
Section 4.3 UNDERWRITTEN OFFERINGS.
(a) DEMAND REGISTRATION. If requested by the underwriters for any
underwritten Demand Registration, the Company shall enter into an
underwriting agreement with such underwriters for such offering, such
agreement to be reasonably satisfactory in form and substance to the Company,
the Initiating Party, each other Participating Stockholder Party and the
underwriters and to contain such representation and warranties by the Company
and such
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other terms as are customarily contained in agreements of that type,
including, without limitation, covenants to keep the Registration Statement
current until all Registrable Securities to be sold in such offering have
been sold or disposed of, indemnities and contribution to the effect and to
the extent provided in Section 4.7 hereof and the provision of opinions of
counsel and accountants' letters to the effect and to the extent provided in
Section 4.5(a)(x) hereof. The Initiating Party and each other Participating
Stockholder Party shall cooperate with the Company in the negotiation of the
underwriting agreement and shall be a party to such underwriting agreement.
(b) PIGGYBACK REGISTRATION. In connection with each Piggyback
Registration, if the Company proposes to distribute any of its securities
through one or more underwriters, the Company shall, subject to Section
4.2(b) hereof, arrange for such underwriters to include all the Registrable
Securities proposed to be offered and sold by each Participating Stockholder
Party with the other securities of the Company to be distributed by such
underwriters. Each Participating Stockholder Party shall be a party to the
underwriting agreement between the Company and such underwriters.
(c) UNDERWRITING AGREEMENT. In each underwriting agreement
referred to in Section 4.3(a) or 4.3(b) hereof, each Participating
Stockholder Party, at its option, may require that any or all of the
representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made to
and for the benefit of such Participating Stockholder Party, and that any or
all of the conditions precedent to the obligations of such underwriters under
such underwriting agreement shall be conditions precedent to the obligations
of such Participating Stockholder Party. The Participating Stockholder
Parties shall not be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding the Participating Stockholder Parties and
information provided by the Participating Stockholder Parties to be included
in the applicable Registration Statement, the Registrable Securities and the
intended method or methods or distribution and any other representation
required by law, or to furnish any indemnity or contribution to any Person
which is broader than the indemnity and contribution furnished by the
Participating Stockholder Parties in Section 4.7 hereof.
Section 4.4. PREPARATION OF REGISTRATION STATEMENT.
(a) DEMAND REGISTRATION. Each Registration Statement in respect
of a Demand Registration shall be on any form selected by the Company for
which the Company then qualifies; PROVIDED, HOWEVER, that the Company shall
use commercially reasonable best efforts to continue to be qualified to
register secondary offerings of its securities under the Securities Act on
Form S-3 (or any like successor form).
(b) PIGGYBACK REGISTRATION. Each Registration Statement in
respect of a Piggyback Registration shall provide for the offering and sale
of Registrable Securities in a manner consistent with the offering and sale
of the other securities of the Company to which such Registration Statement
relates.
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(c) OPPORTUNITY TO PARTICIPATE. In connection with the
preparation of each Registration Statement in respect of a Demand
Registration or a Piggyback Registration, the Company shall give each
Participating Stockholder Party and its underwriters, if any, and their
respective counsel and accountants the opportunity to participate in the
preparation of such Registration Statement and the related Prospectus,
including each amendment thereof or supplement thereto, and any
correspondence to the SEC (including its staff) responding to comments on the
Registration Statement or Prospectus, and shall give each of them such access
to the financial and other records, corporate documents and properties of the
Company and its subsidiaries and such opportunities to discuss the business
of the Company with its officers and the independent public accountants who
have certified its financial statements as shall be necessary, in the opinion
of such Participating Stockholder Party, such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning
of the Securities Act. In the case of a Demand Registration, the Company
shall not file any such Registration Statement or Prospectus, including any
amendment thereof or supplement thereto, or response letter to which any
Participating Stockholder Party or any such counsel reasonably objects.
(d) PARTICIPATING STOCKHOLDER PARTY'S INFORMATION. In connection
with the preparation of each Registration Statement in respect of a Demand
Registration or a Piggyback Registration, the Company may require each
Participating Stockholder Party to furnish the Company such information
regarding such Participating Stockholder Party and the distribution of the
Registrable Securities to which such Registration Statement relates as the
Company may from time to time reasonably request in writing.
Section 4.5 REGISTRATION PROCEDURES.
(a) COMPANY OBLIGATIONS. If and whenever the Company is obligated
by the provisions of this Stockholders Agreement to use its commercially
reasonable best efforts to effect the registration of any Registrable
Securities under the Securities Act, the Company shall as promptly as
practicable:
(i) prepare, and as promptly as practicable, but in any event
within 60 days after the receipt of the Demand Notice (subject to
Section 4.2(d) hereof), file with the SEC a Registration Statement
with respect to the Registrable Securities and thereafter use
commercially reasonable best efforts to cause such Registration
Statement to become effective;
(ii) use commercially reasonable best efforts to cause the
Registration Statement to remain effective and to prepare and file
with the SEC any amendments and supplements to the Registration
Statement and to the related Prospectus as may be necessary to keep
the Prospectus current until the earlier of (x) such time at which all
Registrable Securities offered thereby have been sold or disposed of
in accordance with the intended method or methods of disposition by
the Participating Stockholder Parties (or are no longer Registrable
Securities) and in compliance with the provisions of the Securities
Act and (y) 60 days after the Registration Statement is first declared
effective;
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(iii) notify each Participating Stockholder Party (v) when a
Registration Statement becomes effective, (w) when the filing of a
post-effective amendment to a Registration Statement or supplement to
or amendment of the related Prospectus is required, when the same is
filed, and in the case of a post-effective amendment, when the same
becomes effective, (x) of any request by the SEC for any amendment of
or supplement to a Registration Statement or the related Prospectus or
for additional information, (y) of the entry of any stop order
suspending the effectiveness of such Registration Statement or of the
initiation of any proceedings for that purpose and (z) of the
suspension of the qualification of any Registrable Securities for
offering or sale in any jurisdiction or of the initiation of any
proceedings for that purpose;
(iv) make every reasonable effort (x) to prevent the entry of
any stop order affecting the Registration Statement and (y) to remove
any such stop order, if entered at the earliest possible moment;
(v) furnish to each Participating Stockholder Party and any
underwriters such number of conformed copies of the Registration
Statement as initially filed with the SEC and of each pre-effective
and post-effective amendment or supplement thereto (in each case
including at least one copy of all exhibits thereto and all documents
incorporated by reference therein), such number of copies of each
Prospectus, and such other documents, as such Participating
Stockholder Party or any underwriter reasonably may request to
facilitate the distribution of the Registrable Securities to which
such Registration Statement relates;
(vi) use commercially reasonable best efforts (x) to register or
qualify the Registrable Securities covered by a Registration Statement
under the securities or blue sky laws of such jurisdictions in the
United States as any Participating Stockholder Party reasonably
requests, (y) to keep each such registration or qualification in
effect until the earlier of (A) the time at which all Registrable
Securities covered by such Registration Statement have been sold or
disposed of in accordance with the intended method or methods of
disposition by the Participating Stockholder Parties (or are no longer
Registrable Securities) and in compliance with the provisions of such
securities or blue sky laws and (B) 60 days after the Registration
Statement is first declared effective, and (z) to do any and all other
acts and things which may be reasonably necessary or advisable to
enable each Participating Stockholder Party to consummate the sale or
disposal in such jurisdictions of such Registrable Securities in
accordance with the intended method or methods of disposition by such
Participating Stockholder Party; PROVIDED, HOWEVER, that the Company
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation wherein it would not but for the
requirements of this Section 4.5(a)(vi) be obligated to be so
qualified or to consent to general service of process in any such
jurisdiction;
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(vii) use commercially reasonable best efforts to cause the
Registrable Securities covered by a Registration Statement to be
listed on each national securities exchange on which the Company's
equity securities are then listed at the time of the sale of such
Registrable Securities pursuant to such Registration Statement (or if
no such equity securities are then listed, to qualify as a "national
market system security" with the NASDAQ National Market);
(viii) use its commercially reasonable best efforts to cause
its senior management to attend and make presentations regarding the
prospects of the Company at all meetings with prospective purchasers
of shares of Common Stock that are arranged by any underwriter (after
conferring with senior management regarding possible schedule
conflicts) in connection with any widely distributed, underwritten
offering of such shares of Common Stock;
(ix) notify each Participating Stockholder Party, at any time
when a Prospectus is required to be delivered under the Securities
Act, upon discovery that, or upon the happening of any event as a
result of which, the Prospectus (as then in effect) contains any
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and as
promptly as practicable prepare and furnish to each Participating
Stockholder Party such number of copies of a supplement to or an
amendment of such Prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus shall not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(x) furnish to each Participating Stockholder Party a signed
counterpart, addressed to such Participating Stockholder Party of
(x) an opinion of counsel for the Company experienced
in securities law matters, dated the effective date of the
Registration Statement (and, if such registration includes an
underwritten offering, dated the date of the closing under the
underwriting agreement), and
(y) one or more "comfort" letters, (1) dated the
effective date of the Registration Statement and, if different,
dated the date of the closing of any sale of Registrable
Securities thereunder, or (2) if such registration includes an
underwritten offering, dated the date of the underwriting
agreement and dated the date of the closing under the
underwriting agreement, in each such case signed by each of the
independent public accountants who have issued an audit report on
the financial statements included or incorporated by reference in
the Registration Statement,
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covering such matters as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities and
such other matters as such Participating Stockholder Party may
reasonably request;
(xi) otherwise use commercially reasonable best efforts to
comply with all applicable rules and regulations of the SEC, and make
available generally to its stockholders a consolidated earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act covering a period of twelve (12) months beginning within six
months after the effective date of each Registration Statement, which
statements shall cover said twelve (12)-month period; PROVIDED,
HOWEVER, that the Company shall be deemed to have complied with this
clause (xi) if it has complied with Rule 158 under the Securities Act;
(xii) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities registered pursuant to such
Registration Statement and a CUSIP number for all such Registrable
Securities, in each case from and after a date not later than the
effective date of such Registration Statement, and to instruct such
transfer agent (x) to release any stop transfer orders with respect to
the Registrable Securities being sold and (y) to furnish certificates
without restrictive transfer legends representing ownership of the
Registrable Securities being sold, in such denominations requested by
any Participating Stockholder Party or the lead underwriter; and
(xiii) enter into such agreements and take such other actions
as each Participating Stockholder Party or the lead underwriter
reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities, including, without limitation,
preparing for and participating in such number of "road shows" and all
such other customary selling efforts as the lead underwriter may
reasonably request in order to expedite or facilitate such
disposition.
(b) PARTICIPATING STOCKHOLDER PARTY'S OBLIGATIONS. Each
Participating Stockholder Party, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 4.5(a)(ix) hereof,
shall forthwith discontinue disposition of the Registrable Securities until such
Participating Stockholder Party's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4.5(a)(x) hereof or until it is
advised in writing by the Company that the use of the Prospectus may be resumed
and has received copies of any additional or supplemental filings which are
incorporated by reference in the Prospectus. If so directed by the Company,
each Participating Stockholder Party shall deliver to the Company or destroy all
copies, other than permanent file copies then in such Participating Stockholder
Party's possession, of the Prospectus required to be supplemented or amended.
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Section 4.6. EXPENSES OF REGISTRATION.
(a) DEMAND REGISTRATION. With respect to each Demand Registration
undertaken for the account of any Principal Stockholder Party up to (and
including) the second Demand Registration that becomes effective as set forth
in Section 4.1(b) hereof, and the distribution of the Registrable Securities
pursuant thereto, the Company shall bear all reasonable out-of-pocket fees,
costs and expenses incurred by the Company and each Participating Stockholder
Party, including, without limitation, (i) all SEC and stock exchange
registration and filing fees, (ii) stock exchange listing fees, (iii) fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iv) printing expenses
(including the expense of printing Prospectuses), (v) messenger and delivery
expenses, (vi) marketing expenses (including, without limitation, expenses in
connection with road shows), (vii) reasonable fees and disbursements of
counsel for the Company and each Principal Stockholder Party and their
independent public accountants, and (viii) all Distribution Expenses (all
such expenses being herein referred to herein as the "REGISTRATION
EXPENSES"). In the case of any Demand Registration undertaken thereafter,
the Participating Stockholder Parties shall bear all Registration Expenses
incurred by the Company and the Participating Stockholder Parties in
connection with such Demand Registration on a pro rata basis according to the
relative number of shares proposed to be included in such registration by the
Participating Stockholder Parties; PROVIDED, HOWEVER, that any Registration
Expenses attributable to any securities included in the Demand Registration
by the Company in accordance with Section 4.1(a)(i)(B) hereof shall be borne
by the Company on a pro rata basis according to the relative number of such
Registrable Securities proposed to be included by it in the registration; and
PROVIDED, FURTHER, that (x) the Company shall bear up to a maximum of $25,000
for each Participating Stockholder Party of the fees and disbursements of
counsel for such Participating Stockholder Party and (y) except to the extent
set forth in the foregoing clause (x), each Participating Stockholder Party
shall bear the fees and disbursements of its counsel, independent public
accountants and other advisors. Notwithstanding the foregoing, in the event
that the Bain Stockholders are issued shares of Common Stock in the Merger
that have not been registered under the Securities Act, the Bain Stockholders
shall be entitled to exercise an additional Demand Registration in which all
of the Registration Expenses shall be borne by the Company.
(b) PIGGYBACK REGISTRATION. Except as set forth in the following
sentence, the Company shall bear all Registration Expenses of the Company and
each Participating Stockholder Party in connection with any Piggyback
Registration and the distribution of the Registrable Securities pursuant
thereto. Notwithstanding the foregoing, (i) the Company shall bear the fees
and disbursements of counsel for each Participating Stockholder Party up to a
maximum of $25,000 for such Participating Stockholder Party and (ii) the
Company shall not be responsible for (x) except as set forth in the foregoing
clause (i), the fees and disbursements of any counsel, accountant or other
advisor retained by any Participating Stockholder Party in connection with
such Piggyback Registration, and (y) Distribution Expenses related to or
arising from the sale by such Participating Stockholder Party of any
Registrable Securities pursuant to such Piggyback Registration.
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Section 4.7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any
registration of any Registrable Securities pursuant to this Stockholders
Agreement, the Company shall indemnify and hold harmless (i) each
Participating Stockholder Party, (ii) the Affiliates of each Participating
Stockholder Party, (iii) the trustees, partners, directors, officers, agents
and advisors of each Participating Stockholder Party, (iv) each Person who
participates as an underwriter in the offering or sale of such Registrable
Securities and (v) each Person (if any) who controls a Participating
Stockholder Party or any such underwriter within the meaning of either the
Securities Act or the Exchange Act (collectively, the "COMPANY INDEMNIFIED
PARTIES") from and against any and all losses, claims, damages or liabilities
(collectively "LOSSES"), joint or several, to which the Company Indemnified
Parties or any of them may become subject, under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
(x) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus in respect of such
registration, including any amendment thereof or supplement thereto, or (y)
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; and, subject to
Section 4.7(c) hereof, the Company shall reimburse the Company Indemnified
Parties for any legal or other out-of-pocket expenses reasonably incurred by
them in connection with investigating or defending any such Loss, action or
proceeding; PROVIDED, HOWEVER, that the foregoing indemnity shall not apply
to the extent that such Loss (or action or proceeding in respect thereof) or
expense arises out of or is based on an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement
or Prospectus in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Participating Stockholder
Party expressly for use in the preparation of such Registration Statement or
Prospectus. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of any Company Indemnified Party.
(b) INDEMNIFICATION BY THE PARTICIPATING STOCKHOLDER PARTIES. In
the event of any registration of any Registrable Securities pursuant to this
Stockholders Agreement, each Participating Stockholder Party shall indemnify
and hold harmless (i) the Company, (ii) the Company's directors, officers,
agents and advisors, (iii) each Person who participates as an underwriter in
the offering or sale of Registrable Securities, (iv) each Person (if any)
other than such Participating Stockholder Party who controls the Company
within the meaning of either the Securities Act or the Exchange Act, and (v)
if any one or more other Stockholder Parties are Participating Stockholder
Parties, (w) each such other Stockholder Party, (x) the Affiliates of each
such other Stockholder Party, (y) the trustees, partners, directors,
officers, agents and advisors of each such other Stockholder Party, and (z)
each Person (if any) who controls each such other Stockholder Party within
the meaning of either the Securities Act or the Exchange Act (the
"STOCKHOLDER INDEMNIFIED PARTIES"), from and against any and all Losses,
joint or several, to which the Stockholder Indemnified Parties or any of them
may become subject, under the Securities Act or otherwise, insofar as such
Losses (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based on (x) any untrue
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statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus in respect of such registration,
including any amendment thereof or supplement thereto, or (y) any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, if in any such case
such statement or alleged statement or omission or alleged omission was made
in reliance on and in conformity with written information furnished to the
Company by or on behalf of such Participating Stockholder Party expressly for
use in the preparation of such Registration Statement or Prospectus; and,
subject to Section 4.7(c) hereof, such Participating Stockholder Party shall
reimburse the Stockholder Indemnified Parties for any legal or other
out-of-pocket expenses reasonably incurred by them in connection with
investigating or defending any such Loss, action or proceeding. In no event
shall the liability of any Participating Stockholder Party hereunder be
greater in amount than the dollar amount of the gross proceeds (net of
underwriting discounts and commissions) received by such Participating
Stockholder Party and/or any of its Affiliates upon the sale of the
Registrable Securities giving rise to such indemnification obligation. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any Stockholder Indemnified Party.
(c) INDEMNIFICATION PROCEDURES. The party seeking indemnification
pursuant to this Section 4.7 is referred to as the "INDEMNIFIED PARTY" and
the party from whom indemnification is sought under this Section 4.7 is
referred to as the "INDEMNIFYING PARTY." The Indemnified Party shall give
prompt written notice to the Indemnifying Party of the commencement of any
action or proceeding involving a matter referred to in Section 4.7(a) or
4.7(b) hereof (an "ACTION"), if an indemnification claim in respect thereof
is to be made against the Indemnifying Party; PROVIDED, HOWEVER, that the
failure to give such prompt notice shall not relieve the Indemnifying Party
of its indemnity obligations hereunder with respect to such Action, except to
the extent that the Indemnifying Party is materially prejudiced by such
failure. The Indemnifying Party shall be entitled to participate in and to
assume the defense of such Action, with counsel selected by the Indemnifying
Party and reasonably satisfactory to the Indemnified Party; PROVIDED,
HOWEVER, that (i) the Indemnifying Party, within a reasonable period of time
after the giving of notice of such indemnification claim by the Indemnified
Party, (x) notifies the Indemnified Party of its intention to assume such
defense and (y) appoints such counsel, and (ii) the Indemnifying Party may
not, without the consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such Action.
If the Indemnifying Party so assumes the defense of any such Action, (A) the
Indemnifying Party shall pay all costs associated with, any damages awarded
in, and all expenses arising from the defense or settlement of such Action,
and (B) the Indemnified Party shall have the right to employ separate counsel
and to participate in (but not control) the defense, compromise or settlement
of such Action, but the fees and expenses of such counsel shall be at the
expense of the Indemnified Party unless (x) the Indemnifying Party has agreed
to pay such fees and expenses, (y) the Indemnified Party has been advised by
its counsel that there are likely to be one or more defenses available to it
which are different from or additional to those available to the Indemnifying
Party, and in any such case that portion of the reasonable fees and expenses
of such separate counsel that are reasonably related to matters
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covered by the indemnity provided in this Section 4.7 shall be paid by the
Indemnifying Party or (z) such counsel has been selected by the Indemnified
Party solely due to a conflict of interest which exists between counsel
selected by the Indemnifying Party and the Indemnified Party. If the
Indemnifying Party does not so assume the defense of such Action, the
Indemnified Party shall be entitled to exercise control of the defense,
compromise or settlement of such Action. No Indemnified Party shall settle
or compromise any Action for which itis entitled to indemnification under
this Stockholders Agreement without the prior written consent of the
Indemnifying Party (which consent may not be unreasonably withheld or
delayed). The other party shall cooperate with the party assuming the
defense, compromise or settlement of any Action in accordance with this
Stockholders Agreement in any manner that such party reasonably may request
and the party assuming the defense, compromise or settlement of any Action
shall keep the other party fully informed in the defense of such Action.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 4.7 is unavailable or is insufficient to hold the Indemnified Party
harmless under Section 4.7(a) or 4.7(b) hereof with respect to any Losses
referred to therein for any reason other than as specified therein, then the
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and the Indemnified Party on the other hand with respect to the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, the untrue or alleged untrue statement or omission or alleged
omission relates to information supplied (or omitted to be supplied) by the
Indemnifying Party on the one hand or the Indemnified Party on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by an Indemnified Party as a result of the Losses referred to
above in this Section 4.7(d) shall be deemed to include any legal or other
out-of-pocket expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such Loss, action or
proceeding.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 4.7(d) were determined by pro rata
allocation, by reference to a Participating Stockholder Party's (and/or any
of its Affiliate's) stock ownership in the Company, or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. Notwithstanding the
provisions of this Section 4.7(d), a Participating Stockholder Party shall
not be required to contribute any amount in excess of the amount by which the
net proceeds received by such Participating Stockholder Party (and/or any of
its Affiliates) from the Registrable Securities that were offered to the
public exceed the amount of any damages which such Participating Stockholder
Party (and/or any of its Affiliates) has otherwise been required to pay by
reason of such untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
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If indemnification is available under this Section 4.7, the
Indemnifying Party shall indemnify the Indemnified Party to the full extent
provided in Section 4.7(a) or 4.7(b) hereof, as applicable, without regard to
the relative fault of the Indemnifying Party or Indemnified Party or any
other equitable consideration provided for in this Section 4.7(d).
(e) OTHER RIGHTS. The provisions of this Section 4.7 shall be in
addition to any other rights to indemnification or contribution which an
Indemnified Party may have pursuant to law, equity, contract or otherwise.
(f) PERIODIC PAYMENT. The indemnification and contribution
required by this Section 4.7 shall be made by periodic payment of the amount
thereof during the course of the investigation or defense, as and when bills
are received or Loss or expense is incurred.
Section 4.8. LOCK-UP AGREEMENTS.
(a) STOCKHOLDER PARTIES' LOCK-UP. If and whenever the Company
proposes to register any shares of Common Stock or other equity securities of
the Company, or any securities convertible into or exchangeable or
exercisable for shares of Common Stock or such other securities, under the
Securities Act for sale for its own account (other than on Form S-4 or S-8 or
any like successor forms) or is required to effect the registration of any
Registrable Securities under the Securities Act pursuant to Section 4 hereof,
and, in the case of an underwritten offering, if requested by the lead
underwriter, each Stockholder Party agrees, and will cause its executive
officers, directors, partners and trustees to agree, not to offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, or
announce the offering of, or register, cause to be registered or announce the
intended registration of, any Registrable Securities, including any sale
pursuant to a brokerage transaction under Rule 144 under the Securities Act,
within seven days prior to and 90 days (or such shorter period as may be
requested by the lead underwriter in the case of an underwritten offering)
after the effective date of the Registration Statement (or, in the case of an
underwritten offering, the date of the applicable underwriting agreement)
relating to such registration, except (i) if applicable, as part of such
registration or (ii) in the case of an underwritten offering, with the
consent of the lead underwriter; PROVIDED, HOWEVER, that (x) each Stockholder
Party, or its executive officers, directors, partners and trustees, may offer
and sell Registrable Securities during such period in one or more privately
negotiated transactions, provided that the buyer(s) of such Registrable
Securities agree to be bound by this Section 4.8(a), on the same terms as
such Stockholder Party, until the expiration of such period; (y) this Section
4.8(a) shall in no way limit or delay any Principal Stockholder Party's right
to submit a Demand Notice in accordance with Section 4.1 hereof, or the
Company's obligations with respect thereto prior to the filing with the SEC
of the Registration Statement in respect of such Demand Registration
(including, without limitation, the preparation of such Registration
Statement in accordance with Section 4.4 hereof); and (z) each Stockholder
Party, or its executive officers, directors, partners and trustees, may offer
and sell Registrable Securities during such period to the Company.
(b) COMPANY LOCK-UP. The Company agrees, and will cause its
executive officers and directors to agree, not to offer, sell, contract to sell,
pledge or otherwise dispose of,
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directly or indirectly, or announce the offering of, or register, cause to be
registered or announce the intended registration of any shares of Common
Stock or other equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for shares of Common Stock or
such other securities, within seven days prior to and 90 days (or such
shorter period as may be requested by the lead underwriter of an underwritten
offering) after the effective date of any Registration Statement with respect
to its Registrable Securities, except (i) as part of such registration or
pursuant to a registration on Form S-4 or Form S-8 (or any like successor
forms) or (ii) with the consent of such lead underwriter.
Section 4.9. CERTAIN LIMITATIONS.
(a) NO INCONSISTENT AGREEMENTS. The Company represents and
warrants to the Stockholder Parties that the Company has not entered, and the
Company agrees that on and after the date hereof the Company shall not enter,
into any agreement with respect to its securities that would in any way
interfere, or which is inconsistent, with the rights granted to the
Stockholder Parties in this Stockholders Agreement. Without limiting the
generality of the foregoing, (i) the Company has not granted to any Person(s)
other than the Stockholder Parties the right to have registered under the
Securities Act (including, without limitation, in a "piggyback" registration)
any shares of Common Stock or other equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for shares of
Common Stock or such other securities, and (ii) on and after the date hereof
the Company shall not grant to any Person(s) other than the Stockholder
Parties any such registration rights, if such registration rights, in the
reasonable judgment of any Stockholder Party, would interfere with, or have
priority over, any of the rights granted to such Stockholder Party in this
Stockholders Agreement.
(b) CHANGES IN COMMON STOCK. The Company shall not effect or
permit to occur any merger, combination, reclassification, recapitalization,
reorganization, restructuring or subdivision of its Common Stock which would
materially adversely affect the ability of the Stockholder Parties to include
Registrable Securities in any registration contemplated by this Stockholders
Agreement or the marketability of such Registrable Securities under any such
registration.
Section 4.10. RULE 144. The Company shall take all actions
reasonably necessary to enable the Stockholder Parties to sell Registrable
Securities without registration under the Securities Act within the
limitations of the exemptions provided by (i) Rule 144 and Rule 144A under
the Securities Act or (ii) any similar rule or regulation hereafter adopted
by the SEC, including, without limiting the generality of the foregoing,
filing on a timely basis all reports required to be filed by the Exchange
Act. Upon request of any Stockholder Party, the Company shall deliver to
such Stockholder Party a written statement as to whether it has complied with
such requirements.
Section 4.11. ASSIGNMENT OF REGISTRATION RIGHTS.
(a) GENERAL. Each Principal Stockholder Party may assign its
registration rights under this Article IV, in whole or in part, to any Person
to which such Stockholder Party Transfers any Registrable Securities (a
"TRANSFEREE"); PROVIDED, HOWEVER, that (i) the Registrable
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Securities so Transferred constitute at least 5% of the then-outstanding
shares of Common Stock, and (ii) such Transferee enters into a written
assumption agreement with respect to all such obligations so assumed.
(b) RETENTION OF RIGHTS BY STOCKHOLDER PARTY. If a Stockholder
Party beneficially owns any Registrable Securities following any assignment
hereunder to a Transferee that is not an Affiliate of such Stockholder Party,
such assignment shall not limit or otherwise affect such Stockholder Party's
rights, and the Company's obligations, under this Article IV with respect to
such remaining Registrable Securities, except to the extent rights hereunder
were assigned to the Transferee.
(c) RIGHTS OF TRANSFEREE. Except as otherwise provided in this
Section 4.11, the provisions of this Article IV which are for the benefit of
each Stockholder Party shall be for the benefit of and enforceable by any
Transferee(s) (and references in this Article IV to a Stockholder Party shall
be deemed also to refer to such Transferee(s) as appropriate). Without
limiting the generality of the foregoing, if, at the time the Company is
required to deliver a notice to the Stockholder Parties pursuant to Section
4.1(a) or 4.2(a) hereof, one or more Transferees that are not Affiliates of a
Stockholder Party also have rights with respect to such registration pursuant
to an assignment effected in accordance with Section 4.11(a) hereof, the
Company shall deliver a copy of such notice to each such Transferee, and
afford each such Transferee the opportunity to participate in such
registration, on the basis set forth in Section 4.1(a) hereof (subject to
Sections 4.1(a)(iii) and 4.1(a)(iv) hereof) or Section 4.2(a) hereof (subject
to Sections 4.2(a)(ii) and 4.2(b) hereof), as the case may be.
ARTICLE V
ADDITIONAL COVENANTS OF THE COMPANY
Section 5.1. DIMINUTION OF RIGHTS. So long any Principal
Stockholder Party is the beneficial owner of 10% or more of the
then-outstanding shares of Common Stock, the Company shall not, without the
prior written approval of such Principal Stockholder Party:
(a) amend the By-Laws in any manner which diminishes the rights of
any holder or holders of Common Stock, including, without limitation, any
amendment that would (i) limit or regulate the right of holders of Common
Stock to nominate directors or propose new business at a meeting of
stockholders, to call special meetings of stockholders, to act by written
consent (including any provision permitting the Board of Directors to fix a
record date for any actions by written consent initiated by a stockholder) or
to remove directors, (ii) increase the vote or quorum required for any
stockholder action, or (iii) restrict or adversely affect in any material way
the ability to buy, sell, transfer or hold shares of Common Stock; or
(b) adopt a Shareholder Rights Plan (or any plan or agreement of
similar effect).
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Section 5.2. CHANGE OF CONTROL PROVISIONS. So long any Principal
Stockholder Party is the beneficial owner of 10% or more of the
then-outstanding shares of Common Stock, without the prior written approval
of such Principal Stockholder Party, neither the Company nor any subsidiary
of the Company shall enter into or otherwise permit itself or any of its
properties to become bound by or subject to any material agreement,
instrument or other commitment (including, but not limited to joint venture
or partnership agreements, contracts with customers, suppliers or labor
unions, loan, indemnity or guaranty agreements, indentures, notes, leases or
licenses, mortgages and security agreements) (i) containing a Change of
Control Provision (as defined below) other than (x) an employment or employee
severance agreement or plan or (y) an indenture, loan guaranty, lease or note
agreement or other agreement relating to the incurrence or assumption of
indebtedness (a "DEBT AGREEMENT") that contains a Change of Control Provision
that is consistent in all material respects with the form of Change of
Control Provision that then prevailing market practice would require be
included in a Debt Agreement for a substantially comparable borrower covering
indebtedness substantially similar to that being incurred by the Company
pursuant to such Debt Agreement or (ii) granting to any party thereto or
holder thereof any right to vote for the election of directors of the
Company. The Company agrees that all material agreements, instruments or
other commitments that would contain a Change of Control Provision (whether
or not approved by or requiring the approval of any Stockholder Party and
without regard to the exception in the definition of Change of Control
Provision) shall be submitted to the Board of Directors for approval and
shall have been approved by the Board of Directors prior to the Company
entering into any such agreement. As used herein, a "CHANGE OF CONTROL
PROVISION" shall mean any provision which would give rise to any actual or
potential (A) event of default under a Debt Agreement or (B) restriction on,
requirement of (including, without limitation, any requirement relating to
any put right of securityholders), or other adverse effect on the Company or
any of its subsidiaries as the result of the happening of a "change of
control" of the Company however defined, but including without limitation any
provision relating to (i) beneficial ownership by any Person of more or less
than a specified percentage of outstanding Common Stock, (ii) a change in the
Board of Directors not approved by the previously incumbent directors or
(iii) a merger, sale of all or substantially all the Company's assets or
other business combinations involving the Company or any of its subsidiaries,
except that, in the case of any Stockholder Party referred to in the first
sentence of this Section 5.2, "Change of Control Provision" shall not include
a provision as to which such Stockholder Party notifies the Company in
writing before the Company enters into any agreement, instrument or other
commitment containing such provision that, in the reasonable judgment of such
Stockholder Party, such provision would not have a material adverse effect on
such Stockholder Party's ability to sell the shares of Common Stock then
beneficially owned by such Stockholder Party.
Section 5.3. NO CONFLICT. The Company shall use commercially
reasonable best efforts to ensure that the Certificate of Incorporation and
By-Laws do not and will not at any time conflict with the provisions of this
Stockholders Agreement as then in effect. In the event any such conflict
should nevertheless exist, the provisions of this Stockholders Agreement
shall control to the extent permitted by applicable law.
Section 5.4. ACCESS TO INFORMATION. The Company shall from time
to time furnish to each Stockholder Party information known or reasonably
available to the Company
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which is requested by such Stockholder Party for purposes of exercising its
rights under this Stockholders Agreement.
Section 5.5. STOCKHOLDER PARTY'S DISCRETION. The Company agrees
and acknowledges that any consent of any Stockholder Party contemplated by
any provision of this Stockholders Agreement (including, without limitation,
Sections 5.1 and 5.2 hereof) would be sought solely in such Stockholder
Party's capacity as a stockholder of the Company and that such Stockholder
Party has the right to give or withhold such consent for any reason in its
sole discretion, including, without limitation, its desire to retain the
level of its ownership percentage of the then-outstanding shares of Common
Stock and/or to preserve the marketability of the shares of Common Stock
beneficially owned by it.
ARTICLE VI
ADDITIONAL COVENANTS OF THE PIROD STOCKHOLDERS
Section 6.1. ACTION BY BAIN STOCKHOLDERS. The Bain Stockholders
agree and acknowledge that the Bain Stockholder Representative has the
exclusive authority to act on behalf of the Bain Stockholders, and that the
Bain Stockholders shall act through the Bain Stockholder Representative, for
purposes of exercising the rights of the Bain Stockholders as a Stockholder
Party under this Stockholders Agreement, including without limitation, the
giving of any notice pursuant to Article IV hereof and the giving of any
consent pursuant to Section 5.1 or 5.2 hereof. The other parties hereto
shall be entitled to rely upon any such action by the Bain Stockholder
Representative as the act of the Bain Stockholders.
Section 6.2. ADDITIONAL PIROD STOCKHOLDERS. Prior to the
Effective Time, no PIROD Stockholder may Transfer any or all of the shares of
capital stock of PIROD beneficially owned by such PIROD Stockholder, or any
options or warrants with respect to the capital stock of PIROD (the
"TRANSFERRED PIROD SHARES") to any other Person (the "PIROD TRANSFEREE")
unless such PIROD Stockholder shall cause the PIROD Transferee, concurrently
with such Transfer, to become a party to this Stockholders Agreement by
executing a counterpart hereof and shall promptly deliver the same to the
Company and to the Trust. Exhibit A or B hereto, as applicable, will
thereupon be deemed amended to include the name of the PIROD Transferee as a
Bain Stockholder or an Other PIROD Stockholder, as the case may be.
Section 6.3 RESTRICTIONS ON TRANSFER IN FIRST YEAR.
Notwithstanding any other provision contained herein, prior to the first
anniversary of the Effective Time, neither the Trust, any Bain Stockholder,
any Other PIROD Stockholder nor any Permitted Successor (as defined below)
shall Transfer any shares of Common Stock unless the Trust and the Bain
Stockholders have previously consented in writing to such Transfer; PROVIDED,
HOWEVER, that this Section 6.3 shall not apply to (i) a Transfer of Common
Stock by any Stockholder Party to an Affiliate of such Stockholder Party,
(ii) a Transfer of Common Stock by any Bain Stockholder to its limited
partners, (iii) a Transfer of Common Stock by PH, Inc. to its stockholders or
(iv) a Transfer of Common Stock by a PIROD Stockholder to a member of his
Family Group (the transferees of shares referred to in clauses (i) - (iv)
being deemed to be "PERMITTED SUCCESSORS"), if prior to such
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Transfer each transferee of such shares of Common Stock has agreed in writing
to be bound by the provisions of this Agreement, including this Section 6.3
(in which case Exhibit A or B hereto, as applicable, shall be deemed amended
to include each such transferee as a Bain Stockholder or an Other PIROD
Stockholder, as the case may be).
ARTICLE VII
MISCELLANEOUS
Section 7.1. EFFECTIVENESS. Except for Article II (but only
insofar as it relates to actions of the parties to be taken prior to the
Effective Time), Section 4.9, Article VI and this Article VII, which shall be
effective from and after the date hereof, this Stockholders Agreement shall
be effective from and after the Effective Time. In the event that prior to
the Effective Time the Merger Agreement terminates in accordance with the
terms thereof, this Stockholders Agreement shall also terminate and be of no
further force or effect.
Section 7.2. NOTICES. All notices, requests, consents, demands,
waivers, instructions and other communications hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally or by
overnight mail, or sent by telecopier, as follows;
(a) if to the Trust:
John H. Laeri, Jr.
Meadowcroft Associates
9 Burr Road
Westport, CT 06880
Telephone: (203) 222-8412
Facsimile: (203) 222-8421
with a copy to:
Ed Kaufmann, Esq.
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004
Telephone: (212) 837-6656
Facsimile: (212) 422-4726
(b) if to the Bain Stockholders:
Paul Spinale
Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Telephone: (617) 572-3000
Facsimile: (617) 572-3274
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with a copy to:
James L. Learner, Esq.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Telephone: (312) 861-2129
Facsimile: (312) 861-2000
(c) if to any Other PIROD Stockholder:
as set forth on Exhibit B hereto
(d) if to the Company:
ROHN Industries, Inc.
6718 West Plank Road
Peoria, Illinois 61604
Attention: General Counsel
Telephone: (309) 633-5608
Facsimile: (309) 633-2693
with a copy to:
Victor E. Grimm, Esq.
Bell, Boyd & Lloyd
Three First National Plaza
70 West Madison Street
Chicago, Illinois 60602
Telephone: (312) 807-4242
Facsimile: (312) 372-2098
or to such other Person or address as any party may specify by notice in
writing to the other parties. All notices and other communications given to
a party in accordance with the provisions of this Stockholders Agreement
shall be deemed to have been given on the date of actual receipt.
Notwithstanding the preceding sentence, notice of change of address shall be
effective only upon actual receipt thereof.
Section 7.3. AMENDMENTS. Any provision of this Stockholders
Agreement may be amended or modified in whole or in part at any time by an
agreement in writing between the Company and the Stockholder Parties,
executed in the same manner as this Stockholders Agreement. No consent,
waiver or similar act shall be effective unless in writing.
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Section 7.4. ASSIGNMENT; TRANSFERS TO AFFILIATES.
(a) ASSIGNMENT. This Stockholders Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns. Except as provided
herein, none of the parties hereto may assign this Stockholders Agreement or
any of its rights or obligations hereunder.
(b) ARTICLES II AND V. The rights of any Principal Stockholder
Party specified in Articles II and V hereof may be assigned, in whole or in
part, to any Person to which such Principal Stockholder Party Transfers any
shares of Common Stock (the "TRANSFERRED COMPANY SHARES"), but if and only if
(i) in the event that such Person is an Affiliate of such Principal
Stockholder Party, the requirements set forth in Section 7.4(c) are complied
with and (ii) in the event that such Person is not an Affiliate of such
Principal Stockholder Party, (x) the Transferred Company Shares constitute at
least 5% of the then-outstanding shares of Common Stock and (y) the other
Principal Stockholder Party consents in writing to such assignment (which
consent may be given or withheld in its sole discretion). If such consent is
given, then concurrently with such assignment, the Company, the Stockholder
Parties and the Person to which such shares of Common Stock are Transferred
shall execute an amendment to this Stockholders Agreement with respect to
such assignment.
(c) TRANSFERS TO AFFILIATES. No party hereto (other than the
Company) may Transfer any shares of Common Stock (any/or any rights of such
party hereunder) to any of its Affiliates unless such party shall cause such
Affiliate, concurrently with such Transfer, to become a party to this
Stockholders Agreement by executing a counterpart hereof and shall promptly
deliver the same to the Company and to the other Stockholder Parties.
Exhibit A or B hereto, as applicable, will thereupon be deemed amended to
include the name of such Affiliate as a Bain Stockholder or an Other PIROD
Stockholder, as the case may be.
Section 7.5. GOVERNING LAW. This Stockholders Agreement shall be
construed in accordance with and governed by the internal laws of the State
of Delaware, without giving effect to principles of conflicts of laws of the
State of Delaware or any other jurisdiction that, in either case, would call
for the application of the substantive laws of any jurisdiction other than
Delaware.
Section 7.6. COUNTERPARTS. This Stockholders Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument.
Section 7.7. SPECIFIC PERFORMANCE. The Company and each
Stockholder Party acknowledges and agrees that the parties' respective
remedies at law for a breach or threatened breach of any of the provisions of
this Stockholders Agreement would be inadequate and, in recognition of that
fact, agrees that, in the event of a breach or threatened breach by the
Company or a Stockholder Party of the provisions of this Stockholders
Agreement, in addition to any remedies at law, each of the Stockholder
Parties and the Company, without posting any bond, shall be entitled to
obtain equitable relief in the form of specific performance by the other
party,
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a temporary restraining order, a temporary or permanent in injunction or any
other equitable remedy which may then be available.
Section 7.8. SEVERABILITY. If any term, provision, covenant or
restriction of this Stockholders Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Stockholders Agreement
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, PROVIDED that the parties hereto shall negotiate in
good faith to attempt to place the parties in the same position as they would
have been in had such provision not been held to be invalid, void or
unenforceable.
Section 7.9. ENTIRE AGREEMENT. This Stockholders Agreement
contains the entire agreement between the Stockholder Parties and the
Company with respect to the transactions contemplated hereby, and supersede
all prior agreements among the parties with respect to these matters.
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IN WITNESS WHEREOF, the parties have caused this Stockholders
Agreement to be executed as of the date first referred to above.
ROHN INDUSTRIES, INC.
By: /s/ Brian B. Pemberton
------------------------------------
Name: Brian B. Pemberton
Title: President
UNR ASBESTOS-DISEASE CLAIMS TRUST
By: /s/ John H. Laeri, Jr.
------------------------------------
Name: John H. Laeri, Jr.
Title: Trustee
BAIN CAPITAL FUND V, L.P.
By: BAIN CAPITAL PARTNERS V, L.P.,
its general partner
By: BAIN CAPITAL INVESTORS V, L.P.,
its general partner
By: /s/ Paul Spinale
------------------------------------
Name: Paul Spinale
Title: Managing Director
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BAIN CAPITAL FUND V-B, L.P.
By: BAIN CAPITAL PARTNERS V, L.P.,
its general partner
By: BAIN CAPITAL INVESTORS V, L.P.,
its general partner
By: /s/ Paul Spinale
------------------------------------
Name: Paul Spinale
Title: Managing Director
BCIP TRUST ASSOCIATES, L.P.
By: /s/ Paul Spinale
------------------------------------
Name: Paul Spinale
Title: a general partner
BAIN CAPITAL V MEZZANINE FUND, L.P.
By: BAIN CAPITAL V MEZZANINE PARTNERS, L.P.,
its general partner
By: BAIN CAPITAL INVESTORS V, INC.,
its general partner
By: /s/ Paul Spinale
------------------------------------
Name: Paul Spinale
Title: Managing Director
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BCM CAPITAL PARTNERS, L.P.
By: BAIN CAPITAL V MEZZANINE PARTNERS, L.P.,
its general partner
By: BAIN CAPITAL INVESTORS V, INC.,
its general partner
By: /s/ Paul Spinale
------------------------------------
Name: Paul Spinale
Title: Managing Director
PH, INC.
By: /s/ Myron Noble
------------------------------------
Name: Myron Noble
Title: President
BCIP ASSOCIATES
By: /s/ Paul Spinale
------------------------------------
Name: Paul Spinale
Title: a general partner
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EXHIBIT A
BAIN STOCKHOLDERS
Bain Capital Fund V, L.P.
Bain Capital Fund V-B, L.P.
BCIP Trust Associates, L.P.
Bain Capital V Mezzanine Fund, L.P.
BCM Capital Partners, L.P.
BCIP Associates
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EXHIBIT B
OTHER PIROD STOCKHOLDERS
<TABLE>
<CAPTION>
Name Notice Information
---- ------------------
<S> <C>
PH, Inc.
</TABLE>
40
