<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
AMTROL Inc.
-----------
(Name of Issuer)
Common Stock, $.01 Par Value
----------------------------
(Title of class of securities)
03234A-10-9
-----------
(CUSIP Number)
Margaret D. Farrell, Esquire, Hinckley, Allen & Snyder, 1500 Fleet Center
Providence, RI 02903 (401)274-2000
--------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
August 28, 1996
-------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box ___ .
Check the following box if a fee is being paid with the statement ___.
CUSIP NO. 03234A-10-9
Page 1 of 32 Pages
<PAGE> 2
SCHEDULE 13D
(Amendment No. 1)
1) Name of Reporting Person. Heidi H. Kirk
-------------
- -------------------------------------------------------------------------------
2) Check the Appropriate box if a Member of a Group (See
Instructions)
(a)
-------------
(b) X
-------------
- -------------------------------------------------------------------------------
3) SEC Use Only ...................................................
- -------------------------------------------------------------------------------
4) Source of Funds (See Instructions). Not Applicable
--------------_
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e)
--------------------------------------------------------------
- -------------------------------------------------------------------------------
6) Citizenship or Place of Organization. United States
-------------
- -------------------------------------------------------------------------------
Number of (7) Sole Voting Power 0
Shares Bene- ----------------------
ficially Owned ---------------------------------------------------
By Each (8) Shared Voting Power 2,350,804
Reporting ----------------------
Person With ---------------------------------------------------
(9) Sole Dispositive Power 0
----------------------
---------------------------------------------------
(10) Shared Dispositive Power 2,350,804
---------------------
- -------------------------------------------------------------------------------
11) Aggregate Amount Beneficially Owned by Each Reporting
Person. 2,350,804
-----------------------------------------------------------------------
- -------------------------------------------------------------------------------
12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions).
----------------------------------------------------
- -------------------------------------------------------------------------------
13) Percent of Class Represented by Amount in Row 11. 31.04%
--------------
- -------------------------------------------------------------------------------
14) Type of Reporting Person (See Instructions). IN
--------------------
- -------------------------------------------------------------------------------
CUSIP NO. 03234A-10-9
Page 2 of 33 Pages
<PAGE> 3
SCHEDULE 13D
(Amendment No. 1)
1) Name of Reporting Person. HANNS H. WINKHAUS
- -------------------------------------------------------------------------------
2) Check the appropriate box if a Member of a Group (See
Instructions)
(a)
-------------
(b) X
-------------
- -------------------------------------------------------------------------------
3) SEC Use Only ...................................................
- -------------------------------------------------------------------------------
4) Source of Funds (See Instructions). NOT APPLICABLE
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e)
--------------------------------------------------------------
- -------------------------------------------------------------------------------
6) Citizenship or Place of Organization. FEDERAL REPUBLIC OF
GERMANY
- -------------------------------------------------------------------------------
Number of (7) Sole Voting Power 102,972
Shares Bene- ----------------------
ficially Owned
By Each (8) Shared Voting Power 2,220,804
Reporting ----------------------
Person With
(9) Sole Dispositive Power 102,972
----------------------
(10) Shared Dispositive Power 2,220,804
---------------------
- -------------------------------------------------------------------------------
11) Aggregate Amount Beneficially Owned by Each Reporting
Person. 2,323,776
-----------------------------------------------------------------------
- -------------------------------------------------------------------------------
12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions).
-----------------------------------------------------
- -------------------------------------------------------------------------------
13) Percent of Class Represented by Amount in Row 11. 31.20%
--------------
- -------------------------------------------------------------------------------
14) Type of Reporting Person (See Instructions). IN
--------------------
- -------------------------------------------------------------------------------
CUSIP NO. 03234A-10-9
Page 3 of 33 Pages
<PAGE> 4
SCHEDULE 13D
(Amendment No. 1)
1) Name of Reporting Person. The Chester H. Kirk 1984
-------------------------------------
Trust by its Trustees, Heidi H. Kirk and Hanns H. Winkhaus
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
2) Check the Appropriate box if a Member of a Group (See
Instructions)
(a)
-------------
(b) X
-------------
- -------------------------------------------------------------------------------
3) SEC Use Only ...................................................
- -------------------------------------------------------------------------------
4) Source of Funds (See Instructions). Not Applicable
--------------------------
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e)
--------------------------------------------------------------
- -------------------------------------------------------------------------------
6) Citizenship or Place of Organization. United States
------------------------
- -------------------------------------------------------------------------------
Number of (7) Sole Voting Power 2,220,804
Shares Bene- ----------------------
ficially Owned ---------------------------------------------------
By Each (8) Shared Voting Power 0
Reporting ----------------------
Person With ---------------------------------------------------
(9) Sole Dispositive Power 2,220,804
----------------------
---------------------------------------------------
(10) Shared Dispositive Power 0
---------------------
- -------------------------------------------------------------------------------
11) Aggregate Amount Beneficially Owned by Each Reporting
Person. 2,220,804
-----------------------------------------------------------------------
- -------------------------------------------------------------------------------
12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions).
-----------------------------------------------------
- -------------------------------------------------------------------------------
13) Percent of Class Represented by Amount in Row 11. 29.83%
--------------
- -------------------------------------------------------------------------------
14) Type of Reporting Person (See Instructions). 00
--------------------
- -------------------------------------------------------------------------------
CUSIP NO. 03234A-10-9
Page 4 of 33 Pages
<PAGE> 5
SCHEDULE 13D
(Amendment No. 1)
This statement is filed by the persons listed in Item 2 (the "Filing
Persons"), who may be deemed to have formed a group for purposes of Section
13(d) under the Securities Exchange Act of 1934 (the "Act"), to the very limited
extent described in Item 6. The Filing Persons do not, by reason of the filing
of this Schedule 13D thereby admit that they have formed a "group" within the
meaning of Section 13(d).
Item 1. Security and Issuer.
--------------------
The statement relates to the shares of common stock, $.01 par value per
share (the "Common Stock") of AMTROL Inc., a Rhode Island corporation (the
"Issuer"). The principal executive offices of the Issuer are located at 1400
Division Road, West Warwick, RI 02893.
Item 2. Identity and Background.
------------------------
(a), (b). This statement is being filed by Heidi H. Kirk, an individual
with a residence address of 275 Stoney Lane, North Kingstown, Rhode Island
02852, Hanns H. Winkhaus, an individual with a residence address of 248 Sybel
Strasse, Dusseldorf, Germany 40479, and by The Chester H. Kirk 1984 Trust U/A
dated 12/21/84 (the "Trust"), of which Ms. Kirk and Dr. Winkhaus are trustees.
The address of the Trust is c/o Margaret D. Farrell, Esq., Hinckley, Allen &
Snyder, 1500 Fleet Center, Providence, RI 02903.
CUSIP NO. 03234A-10-9
Page 5 of 33 Pages
<PAGE> 6
SCHEDULE 13D
(Amendment No. 1)
(c), (f). Ms. Kirk is not employed at the present time. Dr. Winkhaus, a
director of the Issuer since 1972, has been the Senior Partner with the law firm
of Bruckhaus Westrick Stegemann in Dusseldorf, Germany since prior to 1988. Ms.
Kirk is a citizen of the United States of America and Dr. Winkhaus is a citizen
of the Federal Republic of Germany.
(d), (e). During the last five years, none of the Filing Persons has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors). During the last five years, none of the Filing Persons was a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Considerations.
---------------------------------------------------
The Filing Persons acquired beneficial ownership of more
than 5% of the Issuer's Common Stock, for purposes of Section 13(d) of the Act,
on or after February 21, 1996 as a result of
CUSIP NO. 03234A-10-9
Page 6 of 33 Pages
<PAGE> 7
SCHEDULE 13D
(Amendment No. 1)
accepting appointments as trustees to the Trust following the sudden death of
the Trust's settlor/beneficiary. Accordingly, no funds were expended by the
Filing Persons in connection with acquiring beneficial ownership of the Issuer's
Common Stock held by the Trust.
Item 4. Purpose of Transaction.
-----------------------
On February 22, 1996, Heidi H. Kirk accepted an appointment as trustee of
the Trust, and on February 21, 1996 Hanns H. Winkhaus accepted an appointment as
trustee of the Trust. As trustees of the Trust with voting power over the
2,220,804 shares of the Issuer's Common Stock held by the Trust, Ms. Kirk and
Dr. Winkhaus are deemed to be the beneficial owners of such shares under Section
13(d) of the Act and Rule 13d-3 thereunder, and as a result filed this statement
on Schedule 13D on behalf of the Trust and in their individual capacities on
March 1, 1996.
Ms. Kirk's and Dr. Winkhaus' appointments as trustees of the Trust followed
the sudden death of the Trust's settlor and beneficiary, Chester H. Kirk, on
February 15, 1996. Prior to that date, Chester H. Kirk filed reports on Schedule
13G in connection with the Trust's beneficial ownership of the Issuer's Common
Stock.
CUSIP NO. 03234A-10-9
Page 7 of 33 Pages
<PAGE> 8
SCHEDULE 13D
(Amendment No. 1)
On April 18, 1996, Ms. Kirk was appointed as Co-Executrix of the Estate of
Chester H. Kirk (the "Estate") and in that capacity is deemed to beneficially
own 130,000 shares of Common Stock issuable upon presently exercisable options
granted to Mr. Kirk.
Other than acquisition of shares of Common Stock pursuant to stock options
held by the Estate or granted to or to be granted to Dr. Winkhaus, the Filing
Persons have no present plan or proposal to make additional purchases of Common
Stock or other securities of the Issuer either in the open market or in private
transactions. Subject to restrictions imposed by applicable securities laws and
regulations, the Filing Persons may (but have no present plan or proposal to)
dispose of all or part of their individual investment, if any, in securities of
the Issuer or in the holdings of the Trust, except as described below.
Other than as may be described herein, the Filing Persons have no plans or
proposals which relate to or would result in:
(1) any extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its
subsidiaries;
(2) any sale or transfer of a material amount of assets of the Issuer
or any of its subsidiaries;
(3) any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
CUSIP NO. 03234A-10-9
Page 8 of 33 Pages
<PAGE> 9
SCHEDULE 13D
(Amendment No. 1)
(4) any material change in the present capitalization or dividend
policy of the Issuer;
(5) any other material change in the Issuer's business or corporate
structure;
(6) any change in the Issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Issuer by any person;
(7) causing the Common Stock of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in
an inter-dealer quotation system of a registered national securities
association;
(8) causing a class of equity securities of the Issuer to become
eligible for termination of registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934; or
(9) any action similar to any of those enumerated above.
On August 28, 1996, the Trust, Dr. Winkhaus, and two executive officers of
the Issuer (each a "Stockholder"), entered into a Voting Agreement (the "Voting
Agreement") with the Issuer. The Voting Agreement provides that the obligations
of each Stockholder thereunder are several and not joint and that, while, for
the sake of convenience, the Voting Agreement was entered into by more than one
Stockholder, the Voting Agreement shall be treated for all purposes as a
separate agreement between each Stockholder and the Issuer and not as an
agreement among the Stockholders, and that no Stockholder shall have any right
under the Voting Agreement to cause any other Stockholder to take any action
required thereunder.
CUSIP NO. 03234A-10-9
Page 9 of 33 Pages
<PAGE> 10
SCHEDULE 13D
(Amendment No. 1)
Under the Voting Agreement, each Stockholder agreed to vote all of the
shares of the Issuer's Common Stock which the Stockholder has the power to vote
as recommended by the Board of Directors (the "Board") of the Issuer in regard
to (i) a definitive merger agreement (the "Merger Agreement"), which the Issuer
expected to enter into with one of several bidders with whom the Issuer was
engaged in discussions (the "Bidder") determined by the Board to have made a
proposal for the acquisition of the Issuer that the Board determined to be in
the best interest of the Issuer and its stockholders; and (ii) any competing
transaction or other action which is intended or could reasonably be expected to
have a material effect on the transactions contemplated by any such Merger
Agreement; provided that no Stockholder is obligated under the Voting Agreement
to vote in favor of any proposal that would modify the provisions of Section D
of Article 6 of the Issuer's Articles of Incorporation except to the extent
necessary to make such provisions inapplicable to the approval by the Issuer's
stockholders of such Merger Agreement.
In addition, each Stockholder agreed not to solicit or respond to any
inquiry or proposal with respect to the Issuer that constitutes or could
reasonably be expected to lead to a competing transaction to the transactions
contemplated by Merger Agreement.
CUSIP NO. 03234A-10-9
Page 10 of 33 Pages
<PAGE> 11
SCHEDULE 13D
(Amendment No. 1)
Each Stockholder also agreed not to offer for sale, sell, transfer, pledge
or otherwise dispose of any shares of the Issuer's Common Stock except pursuant
to a transfer in which the transferred shares continue to be bound by the
provisions of the Voting Agreement. In addition, each Stockholder agreed not to
grant any proxies, except for any proxies solicited by the Board, or to enter
into any other form of voting agreement with respect to any shares of the
Issuer's Common Stock held by such Stockholder. The Trust, however, is permitted
under the Agreement to pledge its shares as collateral for any loan which the
Trustees of the Trust may deem necessary or desirable in connection with payment
of any and all state and federal estate taxes occasioned by the death of Chester
H. Kirk, pecuniary legacies under the Last Will and Testament of Chester H. Kirk
or pecuniary distributions under the Chester H. Kirk 1984 Trust Agreement, so
long as the amount of such loan does not exceed $10 million prior to January 31,
1997 or $20 million thereafter, and that the terms of such loan provide that the
Trust may continue to vote all pledged shares so long as the Trust is not in
default under the loan documents.
The Voting Agreement provides that each Stockholder is
CUSIP NO. 03234A-10-9
Page 11 of 33 Pages
<PAGE> 12
SCHEDULE 13D
(Amendment No. 1)
entering into the Voting Agreement for the benefit of any Bidder with whom the
Issuer may reach a Merger Agreement and that any such Bidder shall be a third
party beneficiary for purposes of monetary damages with respect to any breach of
the Voting Agreement by such Stockholder.
The obligations of each Stockholder under the Agreement were conditioned on
such Stockholder's approval, prior to the execution or delivery by the Issuer,
of the final form of such Merger Agreement.
On August 28, 1996, the Issuer entered into a definitive Merger Agreement
with A.I. Holdings, Inc. and A.I. Acquisition, Inc. Immediately prior thereto,
each of the Stockholders approved the form of Merger Agreement, as required by
the Voting Agreement.
The Voting Agreement terminates on the earlier to occur of the effective
time of the merger contemplated by the Merger Agreement or February 28, 1997.
Item 5. Interest in Securities of the Issuer.
-------------------------------------
(a) As of the date of execution of this statement: (i) the Trust
beneficially owns 2,220,804 shares or 29.83% of a total of
CUSIP NO. 03234A-10-9
Page 12 of 33 Pages
<PAGE> 13
SCHEDULE 13D
(Amendment No. 1)
7,444,220(a) shares of the Issuer's Common Stock outstanding on such date; (ii)
Heidi H. Kirk beneficially owns 2,350,804 shares or 31.04% of a total of
7,574,220(a) shares of the Issuer Common Stock outstanding on such date; and
(iii) Hanns H. Winkhaus beneficially owns 2,323,776 shares or 31.20% of a total
of 7,447,242(a) shares of the Issuer's Common Stock outstanding on such date.
(b) With respect to the 2,220,804 shares of the Issuer's Common Stock
beneficially owned by the Trust, Ms. Kirk, Dr. Winkhaus and a third trustee (a
bank which is exempt from filing Schedule 13D pursuant to Rule 13d-1(b)(1)(ii)
under the Act) have shared power to vote or to direct the vote of such shares
and to dispose or to direct the disposition of such shares.
With respect to the 2,350,804 shares beneficially owned by Heidi H. Kirk,
Ms. Kirk, along with Dr. Winkhaus and the third
--------
(a) As of August 28, 1996, the Issuer had 7,444,220 shares of Common Stock
outstanding.
(b) Includes 7,444,220 shares outstanding on August 28, 1996, plus 130,000
shares of Common Stock issuable upon exercise of presently exercisable
options granted to Mr. Kirk, which are held by Ms. Kirk in her capacity as
Co-Executrix of the Estate of Chester M. Kirk.
(c) Includes 7,444,220 shares outstanding on August 28, 1996, plus 3,022 shares
of Common Stock issuable upon exercise of option exercisable by Dr.
Winkhaus within 60 days of the date of the execution of this statement.
CUSIP NO. 03234A-10-9
Page 13 of 33 Pages
<PAGE> 14
SCHEDULE 13D
(Amendment No. 1)
trustee of the Trust, have shared power to vote or to direct the vote and to
dispose or to direct the disposition of 2,220,804 of such shares and Ms. Kirk
and the co-executor of the Estate have shared power to vote or direct the vote
of and to dispose or to direct the disposition of 130,000 of such shares.
With respect to the 2,323,776 shares beneficially owned by Hanns H.
Winkhaus, Dr. Winkhaus has sole power to vote or to direct the vote and to
dispose or to direct the disposition of 102,972 of such shares, and Dr.
Winkhaus, along with Ms. Kirk and the third Trustee of the Trust, have shared
power to vote or to direct the vote and to dispose or to direct the disposition
of 2,220,804 of such shares.
(c) None of the Filing Persons have engaged in any transactions in Common
Stock of the Issuer during the past 60 days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
---------------------------------------------------------------------
to Securities of The Issuer.
- ----------------------------
CUSIP NO. 03234A-10-9
Page 14 of 33 Pages
<PAGE> 15
SCHEDULE 13D
(Amendment No. 1)
Ms. Kirk and Dr. Winkhaus are both trustees of the Trust, but neither has
entered into any agreement with each other or with any other trustee or person
regarding the shares of common stock beneficially owned by each of them or by
the Trust except as reported herein (including, without limitation, the Voting
Agreement described in response to Item 4 above).
Dr. Winkhaus, as a director of the Issuer, participates in the Issuer's
Non-Employee Director Compensation Plan which is designed to comply with Rule
16b-3 under the Act, and receives formula grants of stock options in accordance
with such Plan from time to time.
Ms. Kirk is the widow of Chester H. Kirk, the settlor of the Trust who was
a founder of the Issuer and its former Chairman and Chief Executive Officer .
Item 7. Material to be Filed as Exhibits.
---------------------------------
A. Joint Filing Agreement.
B. Power of Attorney.
C. Voting Agreement.
CUSIP NO. 03234A-10-9
Page 15 of 33 Pages
<PAGE> 16
SCHEDULE 13D
(Amendment No. 1)
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment No. 1 is true, complete
and correct.
Date: September 6, 1996 /s/ Heidi H. Kirk
------------ --------------------------------
Heidi H. Kirk
*
--------------------------------
Hanns H. Winkhaus
THE CHESTER H. KIRK 1984 TRUST
By: /s/ Heidi H. Kirk
-----------------------------
Heidi H. Kirk, Trustee
By: *
-----------------------------
Hanns H. Winkhaus, Trustee
*Heidi H. Kirk,
Attorney-in-Fact
/s/Heidi H. Kirk
--------------------------------
Heidi H. Kirk
CUSIP NO. 03234A-10-9
Page 16 of 33 Pages
<PAGE> 1
SCHEDULE 13D
(Amendment No. 1)
EXHIBIT A
---------
JOINT FILING AGREEMENT
----------------------
The undersigned hereby agree that the foregoing statement on Schedule 13D,
Amendment No. 1 thereto, and any further amendments thereto may be filed on
behalf of each of them.
THE CHESTER H. KIRK 1984 TRUST
By: /s/Heidi H. Kirk
--------------------------------
Heidi H. Kirk, Trustee
By: *
--------------------------------
Hanns H. Winkhaus, Trustee
/s/Heidi H. Kirk
-----------------------------------
Heidi H. Kirk
*
-----------------------------------
Hanns H. Winkhaus
*Heidi H. Kirk,
Attorney-in-Fact
/s/Heidi H. Kirk
-----------------------------------
Heidi H. Kirk
CUSIP NO. 03234A-10-9
Page 17 of 33 Pages
<PAGE> 1
SCHEDULE 13D
(Amendment No. 1)
EXHIBIT B
---------
POWER OF ATTORNEY
-----------------
The undersigned hereby appoints Heidi Kirk as his true and lawful agent to
act in his name, place or stead to execute and file with the Securities and
Exchange Commission a Schedule 13D or Schedule 13G under the Securities Exchange
Act of 1934 (including any and all amendments thereto) reporting his interest in
shares of common stock of AMTROL Inc. together with the other information
required thereby and a Joint Filing Agreement in connection therewith.
THIS POWER OF ATTORNEY SHALL NOT BE AFFECTED BY SUBSEQUENT
DISABILITY OR INCOMPETENCE.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
this 26th day of FEBRUARY, 1996.
/s/ Hanns Winkhaus
--------------------------------
Hanns Winkhaus
CUSIP NO. 03234A-10-9
Page 18 of 33 Pages
<PAGE> 1
SCHEDULE 13D
(Amendment No. 1)
EXHIBIT C
---------
VOTING AGREEMENT
----------------
This Agreement dated as of August 28, 1996 is by and between Amtrol Inc.
(the "Company"), a Rhode Island corporation, and the other parties signatory
hereto (each a "Stockholder").
RECITALS
The Company's Board of Directors (the "Board") determined in 1995 that it
was in the best interest of the Company and its stockholders to explore
strategic options, including a possible sale of the Company.
To assist in this process, the Company retained investment bankers and
other advisors and conducted an extensive and lengthy process of soliciting and
evaluating proposals from numerous parties. This process has now resulted in the
Company obtaining from a small number of qualified bidders (the "Bidders")
specific proposals to acquire the Company, copies of which have been provided by
the Company to the Stockholders.
Following further negotiations, the Company expects to enter into a
definitive agreement (the "Merger Agreement") with the Bidder determined by the
Board, in the exercise of the fiduciary duty of the Board to the Company's
stockholders, following consultation with the Board's financial and other
advisors, to have made the proposal which is in the best interest of the Company
and its stockholders.
In response to requests from Bidders, the Company has requested the
Stockholders to enter into this Agreement. The Company has informed the
Stockholders that, without this Agreement, one or more of such Bidders will
refuse to enter into a Merger Agreement. In this regard, the Company believes
that the existence of this Agreement will increase the consideration which all
stockholders of the Company will receive under the Merger Agreement.
The Stockholders have considered the Company's request in light of the
process engaged in by the Company to date in seeking such proposals, the
Company's belief that by entering into this Agreement the Stockholders may
increase both the willingness of the Bidders to proceed and the amount of
consideration ultimately to be paid, and, in particular, where applicable, such
Stockholder's own fiduciary obligations, and are willing to agree with the
Company as follows. Each Stockholder acknowledges that
CUSIP NO. 03234A-10-9
Page 19 of 33 Pages
<PAGE> 2
SCHEDULE 13D
(Amendment No. 1)
such Stockholder is entering into this Agreement in part for the benefit of the
Bidder with whom the Company reaches a Merger Agreement.
AGREEMENT
The parties therefore agree as follows:
1. STOCKHOLDER REPRESENTATIONS. Each Stockholder (severally and not
jointly) represents and warrants to the Company as follows:
a. Stockholder is the record holder of the number of shares of the
Company's Common Stock set forth opposite Stockholder's name on
Exhibit A attached hereto (the "Existing Shares," and together with
any shares of the Company's Common Stock acquired by Stockholder after
the date hereof and prior to the termination hereof, whether upon
exercise of options, conversion of convertible securities, purchase,
exchange or otherwise, the "Shares").
b. On the date hereof, the Existing Shares constitute all of the shares
of the Company's Common Stock owned of record by Stockholder.
c. Stockholder has sole voting power with respect to the matters set
forth in Section 2 hereof with respect to all of such Stockholder's
Existing Shares and sole power to dispose of all such Existing Shares.
d. Stockholder has the legal capacity, power and authority to enter into
and perform all of Stockholder's obligations under this Agreement. The
execution, delivery and performance of this Agreement by Stockholder
will not violate any other agreement to which Stockholder is a party
or by which Stockholder is bound. In the case of any Stockholder which
is a trust, there is no beneficiary of such trust and no holder of any
voting trust certificate or similar instrument in such trust whose
consent is required for the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby.
2. AGREEMENT TO VOTE. Each Stockholder agrees to vote all of such
Stockholder's Existing Shares and any other Shares which Stockholder has the
power to vote in regard to any and all of the following matters as recommended
by the Board:
CUSIP NO. 03234A-10-9
Page 20 of 33 Pages
<PAGE> 3
SCHEDULE 13D
(Amendment No. 1)
a. The Merger Agreement itself and all transactions contemplated thereby;
and
b. Any Competing Transaction (as such term is defined in the form of
Merger Agreement) or other action which is intended to or could
reasonably be expected to have a material effect on the transactions
contemplated by the Merger Agreement;
PROVIDED, HOWEVER, that no Stockholder shall be obligated to vote in favor of
any proposal that would modify the provisions of Section D of Article Sixth of
the Company's Articles of Incorporation except to the extent necessary to make
such provisions inapplicable to the approval by the Company's stockholders of
the Merger Agreement (as approved by such Stockholder pursuant to Section 6
hereof) and the Merger as defined therein. No Stockholder shall enter into any
agreement or understanding with any person or entity to vote or give
instructions in any manner inconsistent with the provisions of this section.
3. NO SOLICITATION. No Stockholder shall, directly or indirectly (including
through advisors or other intermediaries), solicit (including by way of
furnishing information) or respond to any inquiry or proposal by any person or
entity with respect to the Company that constitutes or could reasonably be
expected to lead to a Competing Transaction. If any Stockholder receives any
such inquiry or proposal, then such Stockholder shall promptly inform the
Company of the terms and conditions, if any, of such inquiry or proposal and the
identity of the person making it. Each Stockholder will immediately cease and
cause to be terminated all existing activities, discussions or negotiations (if
any) with any party conducted heretofore with respect to any of the foregoing.
4. RESTRICTION ON TRANSFER. No Stockholder shall, directly or indirectly:
a. Except pursuant to the terms of this Agreement, offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of,
enforce or permit the execution of the provisions of any redemption
agreement with the Company or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer
for sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of such Stockholder's Shares or any
CUSIP NO. 03234A-10-9
Page 21 of 33 Pages
<PAGE> 4
SCHEDULE 13D
(Amendment No. 1)
interest therein, except pursuant to any such transfer in which the
transferee becomes a signatory to this Agreement and any Shares
transferred to such transferee continue to be bound by the provisions
hereof (without limiting the generality of the foregoing, no
Stockholder shall (i) exercise any right which such Stockholder may
have to demand or request that the Company file a Registration
Statement under the Securities Act of 1933 covering the sale of any
Shares or (ii) if such Stockholder is a trust, take any action to
terminate, close or liquidate such trust unless all Shares affected by
such action remain subject in all respects to the terms of this
Agreement) ;
b. Grant any proxies (except for any proxy solicited by the Board) or
powers of attorney, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or
c. Take any action which would make any representation or warranty of
such Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling such Stockholder from performing
such Stockholder's obligations under this Agreement.
Notwithstanding any other provision of this section, the Trustees of The Chester
H. Kirk 1984 Trust Agreement shall be permitted to pledge its Shares as
collateral for any loan from a bona fide financial institution which such
Trustees may deem necessary or desirable in connection with the payment of (i)
any and all state or federal estate taxes occasioned by the death of Chester H.
Kirk, (ii) pecuniary legacies under the Last Will and Testament of Chester H.
Kirk or (iii) pecuniary distributions under the Chester H. Kirk 1984 Trust
Agreement, the amount of such loan not to exceed $10 million prior to January
31, 1997 or $20 million thereafter, and the terms of such loan to provide that
the Trust may continue to vote all pledged Shares so long as the Trust is not in
default under the loan documents.
5. TERMINATION. This Agreement shall terminate on the earliest to occur of
the following:
a. The failure by the Company to reach a definitive Merger Agreement with
one of the Bidders on or before September 15, 1996;
b. The Effective Time of any such Merger Agreement (as defined therein);
or
CUSIP NO. 03234A-10-9
Page 22 of 33 Pages
<PAGE> 5
SCHEDULE 13D
(Amendment No. 1)
c. February 28, 1997.
6. CONDITION TO STOCKHOLDERS' OBLIGATIONS. The obligations of each
Stockholder hereunder are conditioned on such Stockholder's written approval,
prior to execution and delivery by the Company, of the final form of Merger
Agreement and the consideration payable thereunder, it being understood and
agreed that, among other provisions, such Agreement will contain appropriate
"fiduciary-out" provisions in favor of the Board.
7. Miscellaneous.
--------------
a. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all other
prior agreements and understandings (if any), both written and oral,
between the parties with respect to the subject matter hereof, and
shall not be assigned by operation of law or otherwise.
b. This Agreement may not be modified, amended, altered or supplemented,
except upon the execution and delivery of a written agreement executed
by the parties hereto, provided that the Company may add to the list
of Stockholders any stockholder of the Company who agrees to be bound
by the terms of this Agreement without the agreement of any other
party hereto, and thereafter such added stockholder shall be treated
as a "Stockholder" for all purposes of this Agreement.
c. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed
to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified, postage
pre-paid, return receipt requested) or by any courier service, such as
Federal Express providing proof of delivery. All communications
hereunder shall be delivered to the respective parties at the
following addresses:
AMTROL, INC.
1400 Division Road
West Warwick, Rhode Island 02893
with a copy to:
CUSIP NO. 03234A-10-9
Page 23 of 33 Pages
<PAGE> 6
SCHEDULE 13D
(Amendment No. 1)
HINCKLEY, ALLEN & SNYDER
c/o Margaret Farrell, Esq.
1500 Fleet Center
Providence, Rhode Island 02903
THE CHESTER H. KIRK 1984 TRUST AGREEMENT
c/o Heidi Kirk
275 Stony Lane
North Kingstown, Rhode Island 02852
with copies to:
FLEET NATIONAL BANK
c/o Terence J. Breiding, Senior Vice President
Manager Estate and Trust Services
Mail Stop RI MO 124
100 Westminster Street
Providence, Rhode Island 02903-2305
and
ROPES & GRAY
c/o Martin Hall, Esq.
One International Place
Boston, Massachusetts 02110
DAVID BERETTA
11 Walcot Avenue
Jamestown, Rhode Island 02835
KENNETH L. KIRK
1400 Division Road
West Warwick, Rhode Island 02893
DR. HANNS H. WINKHAUS
Sybelstrasse 24B
40239 Dusseldorf
Germany
or to such other address as the person to whom notice is given may
have previously furnished to the others in writing in the manner set
forth above.
d. This Agreement shall be governed by and construed in accordance with
the laws of the State of Rhode Island, regardless of the laws which
might otherwise govern under the applicable conflicts of laws
principles thereof.
CUSIP NO. 03234A-10-9
Page 24 of 33 Pages
<PAGE> 7
SCHEDULE 13D
(Amendment No. 1)
e. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall
constitute one and the same Agreement.
f. The descriptive headings used herein are inserted for convenience of
reference only and are not intended to be part of or to affect the
meaning or interpretation of this Agreement.
g. In the event of a stock dividend or distribution, or any change in the
Company's Common Stock by reason of a stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions in any Shares or
for which any or all of the Shares may be changed or exchanged.
h. The obligations of each Stockholder hereunder are several and not
joint and no Stockholder shall have any liability hereunder to the
Company for the failure of any other Stockholder to perform his or its
obligations hereunder. While, for the sake of convenience, this
Agreement has been entered into by more than one Stockholder, this
Agreement shall be treated for all purposes as a separate agreement
between each Stockholder and the Company and not as an agreement among
the Stockholders, and no Stockholder shall have any rights hereunder
to cause any other Stockholder to take any action required hereunder.
i. Each Stockholder acknowledges that each Stockholder is entering into
this Agreement for the benefit of the Bidder with whom the Company
reaches a Merger Agreement and that such Bidder shall be a third party
beneficiary for purposes of monetary damages with respect to any
breach hereof by such Stockholder.
CUSIP NO. 03234A-10-9
Page 25 of 33 Pages
<PAGE> 8
SCHEDULE 13D
(Amendment No. 1)
IN WITNESS WHEREOF, the Company and each Stockholder have caused this
Agreement to be duly executed as of the day and year first set forth above.
AMTROL INC.
By: /S/ Kenneth L. Kirk
--------------------------------------
Name: Kenneth L. Kirk
Title: Chairman
THE CHESTER H. KIRK 1984 TRUST
AGREEMENT
By: /s/ Heidi H. Kirk
--------------------------------------
Name: Heidi H. Kirk
Title: Co-Trustee
By: /s/ Hanns H. Winkhaus
--------------------------------------
Name: Hanns H. Winkhaus
Title: Co-Trustee
By: Fleet National Bank
Title: Co-Trustee
By: /s/ Terence J. Breiding
---------------------------------------
Name: Terence J. Breiding
Title: Senior Vice President
/s/ Kenneth L. Kirk
--------------------------------------
Kenneth L. Kirk
/s/ David L. Beretta
--------------------------------------
David L. Beretta
/s/ Hanns H. Winkhaus
--------------------------------------
Hanns H. Winkhaus
CUSIP NO. 03234A-10-9
Page 26 of 33 Pages
<PAGE> 9
SCHEDULE 13D
(Amendment No. 1)
Exhibit A
STOCKHOLDERS
------------
Number of Shares of Which the
Name Stockholder is the Record Holder
- ---- --------------------------------
The Chester H. Kirk 1984
Trust Agreement 2,220,804
Kenneth L. Kirk 424,075
David Beretta 68,046
Hanns H. Winkhaus 99,950
CUSIP NO. 03234A-10-9
Page 27 of 33 Pages
