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Exhibit C
SUPPORT AGREEMENT, dated as of July 16, 2000 among General Electric Company,
a New York corporation ("Parent"), and each other person set forth on the
signature pages hereof (the "Stockholders"). Capitalized terms used but not
separately defined herein shall have the meanings assigned to such terms in the
Merger Agreement (as defined below).
WHEREAS, the Boards of Directors of each of Acquisition and the Company have
approved an Agreement and Plan of Merger, dated as of the date hereof (the
"Merger Agreement"), providing for the merger of a wholly owned subsidiary of
Parent with the Company; and
WHEREAS, in order to induce Parent to execute and deliver the Merger
Agreement, Parent has required that the Stockholders, and each Stockholder has
agreed, to enter into this Agreement with respect to shares of common stock, par
value $0.25 per share, of the Company (the "Common Stock") that each Stockholder
beneficially owns and shares of Common Stock that each Stockholder may hereafter
acquire (collectively, the "Shares").
NOW, THEREFORE, in consideration of the premises herein contained, the
parties agree as follows:
Section 1. TENDER. Each Stockholder shall validly tender all of its
outstanding Shares into the Offer promptly after the commencement of the Offer
(and tender against such Shares from time to time in the event it withdraws such
Shares).
Section 2. VOTING AGREEMENT. (a) Each Stockholder hereby irrevocably and
unconditionally agrees to vote all Shares that each Stockholder is entitled to
vote, at the time of any vote to approve and adopt the Merger Agreement, the
Merger and all agreements related to the Merger and any actions related thereto
at any meeting of the stockholders of the Company, and at any adjournment
thereof, at which such Merger Agreement and other related agreements (or any
amended version thereof), or such other actions, are submitted for the
consideration and vote of the stockholders of the Company, in favor of the
approval and adoption of the Merger Agreement, the Merger and the transactions
contemplated by the Merger Agreement.
(b) Each Stockholder hereby agrees that it will not vote any Shares in
favor of the approval of any (i) Alternative Transaction, (ii)
reorganization, recapitalization, liquidation or winding up of the Company
or any other extraordinary transaction involving the Company, other than as
contemplated by the Merger Agreement, (iii) corporate action the
consummation of which would frustrate the purposes, or prevent or delay the
consummation, of the transactions contemplated by the Merger Agreement or
(iv) other matter relating to, or in connection with, any of the foregoing
matters.
(c) Each Stockholder hereby revokes any and all previous proxies
granted with respect to the Shares. By entering into this Agreement, each
Stockholder hereby grants a proxy appointing Parent and each of its
designees as the Stockholder's attorney-in-fact and proxy, with full power
of substitution, for and in the Stockholder's name, to vote, express,
consent or dissent, or otherwise to utilize such voting power in the manner
contemplated by Section 2(a)-(b) above as Parent or its proxy or substitute
shall, in Parent's sole discretion, deem proper with respect to the Shares.
The proxy granted by each Stockholder pursuant to this Section 2 is
irrevocable and is granted in consideration of Parent entering into this
Agreement and the Merger Agreement and incurring certain related fees and
expenses. The proxy granted by each Stockholder shall be revoked upon
termination of this Agreement in accordance with its terms.
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Section 3. STOCKHOLDER REPRESENTATIONS AND WARRANTIES. Each Stockholder
represents and warrants to Parent that:
(a) The execution, delivery and performance of this Agreement by
Stockholder and the consummation by it of the transactions contemplated
hereby are within the power and authority of Stockholder. This Agreement
constitutes the legal, valid and binding obligation of Stockholder,
enforceable against the Stockholder in accordance with its terms. If the
Stockholder is married and the Shares set forth on the signature page hereto
opposite such Stockholder's name constitute community property under
applicable laws, this Agreement has been duly authorized, executed and
delivered by, and constitutes the valid and binding agreement of, such
Stockholder's spouse.
(b) The execution and delivery of this Agreement by Stockholder do not
and the consummation by Stockholder of the transactions contemplated hereby
will not, (i) result (with the giving of notice or the lapse of time or
both) in any violation of judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to Stockholder, (ii) require any consent or
other action by any person under, constitute a default under, or give rise
to any right of termination, cancellation or acceleration or to a loss of
any benefit to which Stockholder is entitled under any provision of any
agreement or other instrument binding on Stockholder or (iii) result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any asset of Stockholder, other than, in respect of each of
clauses (i), (ii) and (iii), any such items as would not, individually or in
the aggregate, prevent or materially impair the ability of Stockholder to
consummate the transactions contemplated by this Agreement.
(c) Stockholder is the beneficial owner of the Shares, free and clear
of any Lien and any other limitation or restriction (including any
restriction on the right to vote or otherwise dispose of the Shares). None
of the Shares is subject to any voting trust or other agreement or
arrangement with respect to the voting of such Shares.
(d) Except for the Shares, Stockholder does not beneficially own any
(i) shares of capital stock or voting securities of the Company,
(ii) securities of the Company convertible into or exchangeable for shares
of capital stock or voting securities of the Company or (iii) options or
other rights to acquire from the Company any capital stock, voting
securities or securities convertible into or exchangeable for capital stock
or voting securities of the Company.
(e) No person is entitled to any brokerage or finder's, financial
advisor's or other similar fee or commission from Parent or the Company in
connection with the transactions contemplated by this Agreement and as a
result of any action taken by or on behalf of Stockholder.
Section 4. PARENT REPRESENTATIONS AND WARRANTIES. Parent represents and
warrants to each Stockholder:
(a) The execution, delivery and performance of this Agreement by Parent
and the consummation by it of the transactions contemplated hereby are
within the requisite corporate power and authority of Parent and have been
duly authorized by all necessary corporate and stockholder action on the
part of Parent. This Agreement has been duly executed by Parent and
constitutes the legal, valid and binding obligation of Parent, enforceable
against each of Parent in accordance with its terms.
Section 5. STOCKHOLDER COVENANTS. Each Stockholder hereby covenants and
agrees that:
(a) Except pursuant to the terms of this Agreement, Stockholder shall
not, without the prior written consent of Parent, directly or indirectly,
(i) grant any proxies or enter into any voting trust or other agreement or
arrangement with respect to the voting of any Shares or (ii) sell, assign,
transfer, encumber or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the direct or
indirect sale, assignment, transfer,
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encumbrance or other disposition of, any shares of Common Stock during the
term of this Agreement; PROVIDED, however, that Stockholder may sell such
number of Shares as may be necessary to satisfy tax liabilities of such
Stockholder. Stockholder shall not seek or solicit any such acquisition or
sale, assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or understanding and agrees to notify
Parent promptly, and to provide all details requested by Parent, if
Stockholder shall be approached or solicited, directly or indirectly, by any
person with respect to any of the foregoing.
(b) From the date hereof until the termination hereof, Stockholder, in
its capacity as a Stockholder, will not, and will authorize or knowingly
permit any investment bankers, attorneys, accountants, consultants and other
agents or advisors ("Representatives") of Stockholder not to, directly or
indirectly, (i) take any action to solicit, initiate or facilitate or
encourage the submission of any Acquisition Proposal, or (ii) engage in any
negotiations regarding, or furnish to any person any nonpublic information
with respect to, or take any other action knowingly to facilitate any
inquiries or the making of any proposal that constitutes, or may be
reasonably expected to lead to, any Acquisition Proposal; PROVIDED, that
notwithstanding any other provision of this Agreement, Stockholder may take
any action in its capacity as an officer or director of the Company that
would be permitted to be taken in accordance with the terms and conditions
of the Merger Agreement.
(c) Stockholder will notify Parent promptly (but in no event later than
24 hours) if any person shall make a proposal or inquiry, or contact the
Stockholder, relating to the acquisition of beneficial ownership of such
Stockholder's Shares. The notice shall state the identity of the person and
the material terms and conditions of such proposal, inquiry or contact.
Stockholder shall keep Parent reasonably apprised of any material
development with respect to such proposal. Stockholder shall, and shall
cause its Representatives to, cease immediately and cause to be terminated
all existing discussions or negotiations, if any, with any persons conducted
heretofore with respect to, or that could reasonably expected to lead to,
any Acquisition Proposal.
Section 6. MISCELLANEOUS.
(a) FURTHER ASSURANCES. Parent and each Stockholder will execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use their reasonable best efforts to take, or cause to be taken,
all actions 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.
(b) AMENDMENTS; TERMINATION. Any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this Agreement or in the
case of a waiver, by the party against whom the waiver is to be effective. This
Agreement shall terminate upon the termination of the Merger Agreement in
accordance with its terms.
(c) EXPENSES. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
(d) SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the other parties hereto, except that Parent may transfer or assign
its rights and obligations to any Affiliate of Parent.
(e) GOVERNING LAW. This Agreement shall construed in accordance with and
governed by the laws of the State of Delaware. Section 8.8 of the Merger
Agreement is hereby incorporated herein by reference.
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(f) COUNTERPARTS; EFFECTIVENESS. This 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. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
(g) SEVERABILITY. If any term, provision or covenant of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions and covenants of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
(h) SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement is not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof in addition to any other remedy to
which they are entitled at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
<TABLE>
<C> <S> <C>
GENERAL ELECTRIC COMPANY
By: /s/ JOHN KRENICKI, JR.
-----------------------------------------
Name: John Krenicki, Jr.
Title: President & CEO--GE Transportation
Systems
</TABLE>
<TABLE>
<CAPTION>
STOCKHOLDER NO. OF SHARES NO. OF OPTIONS
----------- ------------- --------------
<S> <C> <C>
/s/ ROBERT E. HARMON 426,628 10,500
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Name: Robert E. Harmon
/s/ BRUCE M. FLOHR 11,540 4,500
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Name: Bruce M. Flohr
/s/ EMANUEL CLEAVER, II -0- 1,500
-------------------------------------------------
Name: Emanuel Cleaver, II
/s/ RODNEY L. GRAY 21,040 7,500
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Name: Rodney L. Gray
/s/ HERBERT M. KOHN 33,190 7,500
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Name: Herbert M. Kohn
/s/ GERALD E. MYERS 44,216 7,500
-------------------------------------------------
Name: Gerald E. Myers
/s/ DOUGLASS WM. LIST 2,840 7,500
-------------------------------------------------
Name: Douglass Wm. List
/s/ JOHN A. SPRAGUE 540 4,500
-------------------------------------------------
Name: John A. Sprague
/s/ JUDITH C. WHITTAKER 3,540 7,500
-------------------------------------------------
Name: Judith C. Whittaker
/s/ BJORN E. OLSSON 77,454 26,250
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Name: Bjorn E. Olsson
/s/ RAYMOND A. ROSEWALL 30,000 21,000
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Name: Raymond A. Rosewall
/s/ LLOYD T. KAISER 30,322 26,250
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Name: Lloyd T. Kaiser
/s/ WILLIAM P. MARBERG 728 40,500
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Name: William P. Marberg
</TABLE>
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<TABLE>
<CAPTION>
STOCKHOLDER NO. OF SHARES NO. OF OPTIONS
----------- ------------- --------------
<S> <C> <C>
/s/ STEPHEN L. SCHMITZ 17,400 26,250
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Name: Stephen L. Schmitz
/s/ ROBERT F. ANDERSON 400 6,750
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Name: Robert F. Anderson
/s/ RONALD G. BRESHEARS 10,387 26,250
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Name: Ronald G. Breshears
/s/ ROBERT L. DANLEY 1,900 9,750
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Name: Robert L. Danley
/s/ ROBERT E. HEGGESTAD 26,685 26,250
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Name: Robert E. Heggestad
/s/ J. RANDALL JOHN 10,995 26,250
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Name: J. Randall John
/s/ JOHN W. JOHNSON 10,050 26,250
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Name: John W. Johnson
/s/ GERALD S. MCKENNA -0- 9,750
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Name: Gerald S. McKenna
/s/ WILLIAM J. SCHEERER 9,500 48,750
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Name: William J. Scheerer
/s/ RUSSELL E. TAYLOR -0- 9,750
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Name: Russell E. Taylor
/s/ JEFFREY J. UTTERBACK -0- 26,250
-------------------------------------------------
Name: Jeffrey J. Utterback
/s/ SILVANO BRANDI -0- 11,500
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Name: Silvano Brandi
/s/ DENNIS P. CROWLEY 172,096 -0-
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Name: Dennis P. Crowley
/s/ JOSEPH P. NOFFSINGER -0- 21,500
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Name: Joseph P. Noffsinger
/s/ KAREN A. ARNOLD -0- 7,500
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Name: Karen A. Arnold
/s/ ALICE DIANE MCCLURE 275,099 -0-
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Name: Alice Diane McClure
/s/ ROBERT C. HARMON 117,075 -0-
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Name: Robert C. Harmon
</TABLE>
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