Attached files
| file | filename |
|---|---|
| 8-K - TODD SHIPYARDS CORP | v206373_8k.htm |
| EX-2.1 - TODD SHIPYARDS CORP | v206373_ex2-1.htm |
| EX-10.6 - TODD SHIPYARDS CORP | v206373_ex10-6.htm |
| EX-99.2 - TODD SHIPYARDS CORP | v206373_ex99-2.htm |
| EX-99.3 - TODD SHIPYARDS CORP | v206373_ex99-3.htm |
| EX-99.4 - TODD SHIPYARDS CORP | v206373_ex99-4.htm |
| EX-10.5 - TODD SHIPYARDS CORP | v206373_ex10-5.htm |
| EX-99.1 - TODD SHIPYARDS CORP | v206373_ex99-1.htm |
| EX-99.5 - TODD SHIPYARDS CORP | v206373_ex99-5.htm |
Exhibit
10.4
TENDER
AND SUPPORT AGREEMENT
This TENDER AND SUPPORT AGREEMENT (this
“Agreement”), dated as
of December 22, 2010 is by and among Vigor Industrial LLC, an Oregon limited
liability company (“Parent”), Nautical Miles,
Inc., a Delaware corporation and an indirect, wholly-owned subsidiary of Parent
(“Merger Sub”), and the
stockholders of Todd Shipyards Corporation, a Delaware corporation (the “Company”), listed on the
signature pages hereto (each a “Stockholder”). Each
of Parent, Merger Sub and each Stockholder is referred to herein individually as
a “Party” and
collectively as the “Parties.”
WHEREAS, each Stockholder is, as of the
date hereof, the record and/or beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which meaning
will apply for all purposes of this Agreement) of the number of shares of the
Company’s common stock, par value $0.01 per share (the “Company Common Stock”), set
forth opposite the name of such Stockholder on Schedule I;
WHEREAS, concurrently with the
execution and delivery of this Agreement, Parent, Merger Sub and the Company are
entering into an Agreement and Plan of Merger (the “Merger Agreement”) that
provides, among other things, for Merger Sub to commence a cash tender offer for
all of the issued and outstanding shares of Company Common Stock (the “Offer”) and, regardless of
whether the Offer is consummated, the merger of Merger Sub with and into the
Company (the “Merger”)
upon the terms and subject to the conditions set forth in the Merger Agreement;
and
WHEREAS, as a condition to the
willingness of the Parent and Merger Sub to enter into the Merger Agreement and
as an inducement and in consideration therefor, each Stockholder has agreed to
enter into this Agreement.
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants and agreements set forth in this Agreement
and in the Merger Agreement, and intending to be legally bound hereby, the
Parties agree as follows:
1. Defined
Terms. Capitalized terms used but not defined in this
Agreement shall have the respective meanings specified in the Merger
Agreement.
2. Representations and
Warranties of Stockholder. Each Stockholder hereby represents and
warrants to Parent and Merger Sub as follows:
(a) Such
Stockholder is the sole record and/or beneficial owner of, and has good title
to, the shares of Company Common Stock set forth opposite such Stockholder’s
name on Schedule I
(together with any shares of Company Common Stock that are hereafter issued to
or otherwise acquired or owned (beneficially or otherwise) by Stockholder prior
to the termination of this Agreement, the “Shares”), free and clear of
any Liens (including any restriction on the right to vote, sell or otherwise
dispose thereof, other than any applicable restrictions on transfer under the
Securities Act). For the avoidance of doubt, the term “Shares” shall
include Company Restricted Stock. Such Stockholder holds exclusive
power to vote and dispose of the Shares and to issue instructions with respect
to the matters set forth in this Agreement, in each case with no limitations,
qualifications or restrictions on such rights, and has not granted a proxy to
any other Person to vote or dispose of the Shares, subject to the limitations
set forth in this Agreement.
1
(b) Other
than the Shares, Company SARs and Company RSUs set forth on Schedule I, neither
such Stockholder nor any of its affiliates or associates (as such terms are
defined in Rule 12b-2 under the Exchange Act, which definition will apply to all
uses of such terms in this Agreement) holds or has any beneficial ownership
interest in (i) any other shares of capital stock of the Company or (ii) any
restricted stock units, options, stock-settled appreciation rights or warrants
to acquire capital stock of the Company or other right or security convertible
into or exercisable or exchangeable for capital stock of the Company, or any
other securities (as defined in Section 3(10) of the Exchange Act, which
definition will apply to all uses of such term in this Agreement) of the
Company.
(c) Such
Stockholder has the legal capacity to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
(d) This
Agreement has been validly executed and delivered by such
Stockholder. This Agreement constitutes the valid and binding
obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other laws of
general application affecting enforcement of creditors’ rights generally, and
(ii) that the availability of the remedy of specific performance or
injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought.
(e) The
execution, delivery and performance of this Agreement by such Stockholder does
not and will not (i) violate any provision of any judgment, order or decree
applicable to such Stockholder or (ii) to the extent such Stockholder is an
entity, breach or violate, or cause a default under, the organizational
documents of such Stockholder.
(f) No
consent, approval, order, authorization or permit of, or declaration,
registration, filing with, or notification to, any Governmental Entity or any
third party is required to be made or obtained by such Stockholder in connection
with the execution, delivery and performance of this Agreement.
(g) Such
Stockholder has received and reviewed a copy of the Merger Agreement and
understands and acknowledges that Parent and Merger Sub are entering into the
Merger Agreement in reliance upon such Stockholder’s execution, delivery and
performance of this Agreement.
(h) No
broker, investment bank, financial advisor or other Person is entitled to any
broker’s, finder’s, financial adviser’s or similar fee or commission in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of such Stockholder for which the Company, Parent or Merger
Sub could become liable (except for fees payable by the Company as disclosed in
the Merger Agreement).
(i) There
is no suit, claim, action, investigation or proceeding pending or, to the
knowledge of such Stockholder, threatened, against such Stockholder at law or in
equity before or by any Governmental Entity that could reasonably be expected to
impair the ability of such Stockholder to perform its obligations
hereunder.
3. Representations and
Warranties of Parent and Merger Sub. Parent and Merger Sub represent and
warrant to each Stockholder as follows:
(a) Parent
is a limited liability company duly formed, validly existing and in good
standing under the laws of the State of Oregon. Merger Sub is a
corporation duly organized, validly existing and in good standing under laws of
the State of Delaware. Each of Parent and Merger Sub has all
requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement.
2
(b) This
Agreement has been duly authorized, executed and delivered by each of Parent and
Merger Sub, and constitutes the valid and binding obligations of each of Parent
and Merger Sub, enforceable against each of them in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally and (ii) the
availability of the remedy of specific performance or injunctive or other forms
of equitable relief may be subject to equitable defenses and would be subject to
the discretion of the court before which any proceeding therefor may be
brought.
(c) The
execution, delivery and performance of this Agreement by Parent and Merger Sub
does not and will not (i) violate any provision of any judgment, order or
decree applicable to Parent or Merger Sub or (ii) breach or violate, or cause a
default under, the Certificate of Formation, Certificate of Incorporation,
bylaws or operating agreement (in each case, as applicable) of Parent or Merger
Sub.
(d) No
consent, approval, order, authorization or permit of, or declaration,
registration, filing with, or notification to, any Governmental Entity or any
third party is required to be made or obtained by either Parent or Merger Sub in
connection with the execution, delivery and performance of this Agreement,
except for (i) any applicable requirements of (A) the Exchange Act,
(B) the DGCL and (C) the NYSE, (ii) as required by Competition
Laws, (iii) as contemplated by the Merger Agreement (including the
schedules thereto), and (iv) where the failure to obtain such consents or
approvals or to make such notifications, would not, individually or in the
aggregate, prevent or materially delay the performance by Parent or Merger Sub
of any of their obligations under this Agreement.
4. Tender of the
Shares.
(a) Prior
to the termination of this Agreement, each Stockholder shall (1) validly tender
into the Offer (and not withdraw) and sell, pursuant to and in accordance with
the terms of the Offer and the Offer Documents, all Shares held of record by
such Stockholder and (2) to the extent applicable, instruct the record owner of
all other beneficially owned Shares (including the Stockholder’s broker) to
validly tender into the Offer (and not withdraw) and sell, pursuant to and in
accordance with the terms of the Offer and the Offer Documents, the Shares, in
each case not later than the tenth Business Day after commencement of the Offer,
or with respect to any Shares acquired after such date, prior to the expiration
of the Offer. In furtherance and without limiting the generality of
the foregoing, no later than the tenth Business Day after the commencement of
the Offer, each Stockholder shall (i) deliver or instruct to be delivered by the
record owner of all beneficially owned Shares to the depositary designated in
the Offer Documents (A) a letter of transmittal with respect to his or its
Shares in the form included in the Offer Documents and otherwise complying with
the terms of the Offer, (B) any certificates representing his or its Shares and
(C) any and all other documents or instruments required to be delivered pursuant
to the terms of the Offer or the Offer Documents, and (ii) take any and all
other actions reasonably necessary to accomplish the provisions of this Section
4(a). If, notwithstanding the foregoing, any Shares are for
any reason not purchased pursuant to the Offer, such Shares will remain subject
to the terms of this Agreement. Each Stockholder acknowledges that
Merger Sub’s obligation to accept for payment and pay for the Shares in the
Offer is subject to all the terms and conditions of the Offer.
(b) Each
Stockholder (i) waives, and agrees not to exercise, on its own behalf on behalf
of any recordholder of any of the Shares, any rights of appraisal or rights to
dissent from the Merger that Stockholder or any such recordholder may have under
the DGCL, (ii) agrees not to assert any such rights of appraisal or dissent, and
(iii) agrees not to commence or join in, and agrees to take all actions
necessary to opt out of, any class in any class action, in each case with
respect to any claim, suit, action or proceeding, derivative or otherwise,
against Parent, Merger Sub, the Company or any of their respective successors
relating to the negotiation, execution or delivery of this Agreement or the
Merger Agreement or the consummation of the Offer or the Merger, including any
claim, suit, action or proceeding (A) challenging the validity of, or seeking to
enjoin the operation of, any provision of this Agreement or the Merger Agreement
or (B) alleging a breach of any fiduciary duty of any person in connection with
the Merger Agreement or the transactions contemplated thereby.
3
5. No Ownership
Interest. Nothing contained in this Agreement shall be deemed
to vest in Parent or Merger Sub any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership and
economic benefits of and relating to the Shares shall remain vested in and
belong to Stockholder, and, except as otherwise specifically provided herein,
Parent and Merger Sub shall have no authority to exercise any power or authority
to direct Stockholder in the voting of any of the Shares or in the performance
of Stockholder’s duties or responsibilities as a stockholder of the
Company.
6. Transfer of the Shares;
Other Actions.
(a) Prior
to the termination of this Agreement, except as otherwise provided herein, each
Stockholder shall not, directly or indirectly: (i) transfer, assign, sell,
gift-over, hedge, pledge or otherwise dispose (whether by sale, liquidation,
dissolution, dividend or distribution) of, enter into any derivative arrangement
with respect to, create or suffer to exist any Liens (other than pursuant to
applicable restrictions on transfer under the Securities Act) on or consent to
any of the foregoing (“Transfer”), any or all of the
Shares or any right or interest therein; (ii) enter into any contract,
option or other agreement, arrangement or understanding with respect to any
Transfer; (iii) grant any proxy, power-of-attorney or other authorization
or consent with respect to any of the Shares; (iv) deposit any of the
Shares into a voting trust, or enter into a voting agreement or arrangement with
respect to any of the Shares; or (v) take or cause the taking of any other
action that would make any representation or warranty of such Stockholder
contained herein untrue or incorrect in any material respect or restrict, limit
or interfere with the performance of such Stockholder’s obligations hereunder or
the transactions contemplated hereby; provided, however, that any Transfer shall
be permitted in the event such action is (A) required to comply with the terms
of this Agreement, or (B) the result of any donative transfer to any immediate
family member of such Stockholder, any charity to which the Stockholder wishes
to contribute and/or any entity controlled by such family member or charity, or
a trust, including a charitable remainder trust, for the exclusive benefit of
such Stockholder, any immediate family member of such Stockholder, any charity
to which such Stockholder wishes to contribute and/or any entity controlled by
such trusts, in each case prior to the ten-Business Day deadline specified in
Section 4(a);
provided, further that prior to
any such permitted Transfer, the transferee shall agree in a valid, binding and
enforceable instrument to be bound by the terms hereof (a copy of which shall
promptly be provided to Parent) and such transfer shall not relieve such
Stockholder of any of its obligations hereunder. Any attempted sale, transfer,
pledge, assignment or other disposition of any Shares or any interest therein in
violation of this Section 6 shall be
null and void ab
initio.
(b) Each
Stockholder agrees that it shall not become a member of a “group” (as that term
is used in Section 13(d) of the Exchange Act) with respect to any shares of
Company Common Stock, Company Restricted Stock, or any other voting securities
of the Company for the purpose of opposing or competing with or taking any
actions inconsistent with the transactions contemplated by the Merger
Agreement.
(c) Upon
receipt of payment in full for all of its Shares pursuant to the Merger
Agreement, each Stockholder agrees that any and all rights incident to its
ownership of Shares (including any rights to recover amounts, if any, that may
be determined to be due to any stockholder or former stockholders of the
Company), including rights arising out of such Stockholder’s ownership of Shares
prior to the transfer of such Shares to Merger Sub or Parent pursuant to the
Offer or the Merger Agreement, shall be transferred to Merger Sub and Parent
upon the transfer to Merger Sub or Parent of such Stockholder’s
Shares.
4
7. Irrevocable Proxy;
Voting. Prior to the termination of this Agreement, each
Stockholder hereby (1) constitutes and appoints Parent and Merger Sub, or any
nominee thereof, with full power of substitution, during and for the term of
this Agreement, as such Stockholder’s true and lawful attorney and proxy for and
in such Stockholder’s name, place and stead, to vote all the Shares that such
Stockholder holds of record at the time of such vote, at any annual, special,
postponed or adjourned meeting of the stockholders of the Company or to grant a
consent or approval in respect of the Shares in any written consent in lieu of
such a meeting (and to appear at each such meeting or otherwise cause all of the
Shares to be counted as present thereat for purposes of calculating a quorum)
and (2) agrees to vote or cause to be voted all other Shares beneficially owned
by such Stockholder at any annual, special, postponed or adjourned meeting of
the stockholders of the Company, and to grant or cause to be granted a consent
or approval in respect of such Shares in any written consent in lieu of such a
meeting (and to appear at each such meeting or otherwise cause all of such
Shares to be counted as present thereat for purposes of calculating a quorum),
in each case (a) in favor of approval and adoption of the Merger Agreement
(including, for purposes of this proxy, as it may be modified or amended from
time to time), the approval of the Merger and the other transactions
contemplated by the Merger Agreement, the other transactions contemplated
thereby and any other matter that must be approved by the stockholders of the
Company for the transactions contemplated by the Merger Agreement to be
consummated, (b) in favor of any adjournment or postponement recommended by the
Company with respect to any stockholder meeting with respect to the Merger
Agreement and the Merger and (c) against (i) any Takeover Proposal or any
proposal relating to any Takeover Proposal, (ii) any merger (other than the
Merger), consolidation or other business combination involving any Company
Entities or a reorganization, recapitalization, dissolution or liquidation of
any Company Entities, (iii) to the extent submitted to a stockholder vote, any
change in the business, management or the Company Board (other than as directed
by Parent or Merger Sub) or (iv) any other action, proposal or agreement that
could (A) reasonably be expected, to impede, interfere with, materially delay or
postpone the Merger or the other transactions contemplated by the Merger
Agreement, (B) result in a breach in any respect of any covenant, representation
or warranty, or any other obligation or agreement of the Company under the
Merger Agreement, (C) result in any of the conditions set forth in Article VII
or Exhibit A of the Merger Agreement not being fulfilled or satisfied or (D)
change in any manner the dividend policy or capitalization of, including the
voting rights of any class of equity interests in, the Company. No
Stockholder shall commit or agree to take any action inconsistent with the
foregoing. The proxy and power of attorney in Section 7(a) the
(“Proxy”) is a proxy and
power coupled with an interest, and each Stockholder declares that it is
irrevocable during and for the term of this Agreement and that the Proxy shall
be revoked automatically, without any notice or other action by any Person, upon
termination of this Agreement in accordance with its terms. Each
Stockholder hereby represents to Parent and Merger Sub that any proxies
heretofore given in respect of the Shares are not irrevocable and hereby revokes
all and any other proxies with respect to the Shares that the Stockholder may
have heretofore made or granted. Each Stockholder hereby ratifies and confirms
all that this Proxy may lawfully do or cause to be done by virtue hereof.
Without limiting the generality of the foregoing, this Proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 212 of
the DGCL. For the avoidance of doubt, if for any reason the Proxy is not
irrevocable, each Stockholder shall vote its Shares in accordance with Section
7.2(2).
8. Directors and
Officers. This Agreement applies to each Stockholder solely in such
Stockholder’s capacity as a holder of Company Common Stock, and not to any
Stockholder or any Representative of a Stockholder serving as a director or
officer of the Company in such capacity.
5
9. 401(k) Blackout
Period. The Parties acknowledge that, effective January 1,
2011, the Company is changing the third-party administrator responsible for
administration of the Company’s 401(k) Savings Investment Plan from Principal
Financial Group to Milliman, Inc. (“Milliman”) and, in connection therewith,
Milliman has imposed a blackout period beginning December 21, 2010 and
concluding the week of January 10, 2011 (the “Blackout
Period”). During the Blackout Period, the participants of the
Company’s 401(k) plan will be temporarily unable to direct the investment of
their respective 401(k) plans. If, during such Blackout Period, any
Stockholder is unable to take any action otherwise required pursuant to this
Agreement with respect to any Shares that such Stockholder holds through such
401(k) plans, such Stockholder shall take any and all such actions with respect
to such Shares promptly following the conclusion of the Blackout Period;
provided that nothing in this Section 9 shall
cancel, delay or in any way modify any of such Stockholder’s obligations under
this Agreement with respect to any other Shares held of record or beneficially
by such Stockholder.
10. Further Assurances.
Subject to the terms and conditions of this Agreement, each Party shall use
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 to consummate and make effective the transactions contemplated
hereby. At the other Party’s reasonable request and without any
further consideration, each Party shall execute and deliver any additional
documents and take such further actions as may be necessary or desirable to
consummate and make effective the transactions contemplated by this
Agreement.
11. Termination.
(a) This
Agreement shall terminate automatically and immediately upon the earliest to
occur of the following: (i) the termination of the Merger Agreement in
accordance with its terms, (ii) the Effective Time, (iii) the mutual written
consent of Parent and such Stockholder, or (iv) the purchase of all of the
Shares of such Stockholder by Merger Sub pursuant to the Offer.
(b) Each
Stockholder shall have the right to terminate this Agreement upon written notice
to Parent following (i) any decrease in the Offer Price, (ii) any change in the
form of consideration payable pursuant to the Merger Agreement or (iii) any
extension of the Outside Date.
(c) Notwithstanding
the termination of this Agreement, no Party shall be relieved from liability for
any breach of this Agreement and Sections 11, 12, 13 and 15 shall survive any
termination of this Agreement.
12. Expenses. All fees
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the Party incurring such fees or expenses,
whether or not the Offer or the Merger is consummated.
13. Public Announcements.
Each Stockholder (in its capacity as a stockholder of the Company and/or
signatory to this Agreement) shall not, nor shall it permit any of its
Representatives to, make any public announcement regarding the business or
affairs of the Company, Parent or Merger Sub, including with respect to this
Agreement and the transactions contemplated hereby, except (a) with the
prior written consent of Parent and (b) as required for a Stockholder to
comply with its obligations under applicable Law. Each Stockholder
(i) consents to and authorizes the publication and disclosure by the
Company, Parent or Merger Sub and their its Affiliates of its identity and
holding of the Shares and the nature of its commitments and obligations under
this Agreement in any announcement or disclosure required by the SEC or other
Governmental Entity in connection with the Offer, or in any other disclosure
document in connection with the Offer, the Merger or in any of the other
transactions contemplated by the Merger Agreement or this Agreement, and
(ii) agrees promptly to give to the Company, Parent or Merger Sub any
information it may reasonably require for the preparation of any such disclosure
documents. Each Stockholder agrees to promptly notify the Company,
Parent and Merger Sub of any required corrections with respect to any written
information supplied by it specifically for use in any such disclosure document,
if and to the extent that any shall have become false or misleading in any
material respect.
6
14. Adjustments. In the
event of (a) any stock dividend, stock split, merger, recapitalization,
reclassification, combination, exchange of shares or the like of the capital
stock of the Company on, of or affecting the Shares or (b) that any
Stockholder shall become the beneficial owner of any additional shares of
Company Common Stock, then the terms of this Agreement shall apply to the shares
of Company Common Stock held by such Stockholder immediately following the
effectiveness of the events described in clause (a) or such Stockholder
becoming the beneficial owner thereof as described in clause (b), as though, in
either case, they were Shares hereunder. Each Stockholder agrees to
promptly notify Parent of the number of any new Shares acquired by such
Stockholder after the date hereof.
15. Miscellaneous.
(a) Interpretation. The
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement. Any
capitalized terms used in Schedule I but not
otherwise defined therein shall have the meaning as defined in this
Agreement. When a reference is made in this Agreement to a Section or
Schedule, such reference shall be to a Section of, or Schedule to, this
Agreement unless otherwise indicated. For all purposes hereof, the
terms “include”, “includes” and “including” shall be deemed followed by the
words “without limitation”. The words “hereof”, “hereto”, “hereby”,
“herein” and “hereunder” and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement. The term “or” is not exclusive. The word
“extent” in the phrase “to the extent” means the degree to which a subject or
other thing extends, and such phrase shall not mean simply “if”. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms. Any agreement or instrument
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement or instrument as from time to time amended,
modified or supplemented. References to a Person are also to its
permitted successors and assigns.
(b) Stop Transfer;
Legends. Each Stockholder hereby authorizes and instructs the
Company (including through the Company’s transfer agent) to enter a stop
transfer order at and upon the direction of Parent or Merger Sub with respect to
all of its Shares and to legend the certificates evidencing the
Shares. Each Stockholder agrees that, to the extent requested by
Parent, it shall authorize and instruct the Company as promptly as practicable
following such request (i) to make a notation on its records and give
instructions to the transfer agent for any Shares not to permit, during the term
of this Agreement, the transfer of such Shares and (ii) to place (or cause the
transfer agent for such Shares to place) on any certificates evidencing such
Shares a legend stating that such Shares are subject to this
Agreement.
(c)
Notices. All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be (i) be delivered by hand, (ii) sent by
facsimile or (iii) sent, postage prepaid, by registered, certified or express
mail or reputable overnight courier service to the Parties at the following
addresses (or at such other address for a Party as shall be specified by like
notice):
If to
Stockholder, to the address set forth on the signature pages
hereto.
If to
Parent or Merger Sub, to:
Vigor
Industrial LLC
5555 N.
Channel Ave.
Portland,
OR 97217
Facsimile:
(503) 247-1620
Attention:
Frank Foti
7
with a
copy (which shall not constitute notice) to:
K&L
Gates LLP
222 SW
Columbia Street, Ste 1400
Portland,
OR 97201
Facsimile:
(503) 553-6210
Attention:
Brendan R. McDonnell
(d) Counterparts. This
Agreement may be executed in one or more counterparts (including by facsimile),
all of which shall be considered one and the same agreement and shall become
effective when one or more such counterparts have been signed by each of the
Parties and delivered to the other Parties.
(e) Entire Agreement;
Third-Party Beneficiaries. This Agreement (i) constitutes the entire
agreement, and supersedes all prior agreements and understandings, both written
and oral, among the Parties with respect to the subject matter of this Agreement
and (ii) is not intended to confer, nor shall it confer, upon any Person
other than the Parties any rights or remedies or benefits of any nature
whatsoever, except that the Company is intended to be a third party beneficiary
of Sections 13
and 15(b).
(f) Governing Law. This
Agreement shall be governed by, and construed in accordance with, the Laws of
the State of Delaware, regardless of the Laws that might otherwise govern under
applicable principles of conflicts of Laws thereof or that would cause the Laws
of any jurisdiction other than the State of Delaware to apply.
(g) Consent to Jurisdiction;
Service of Process; Venue. Each of the Parties irrevocably and
unconditionally submits to the exclusive jurisdiction of the Delaware Court of
Chancery (and if jurisdiction in the Delaware Court of Chancery shall be
unavailable, the Federal court of the United States of America sitting in the
State of Delaware) for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated by this Agreement
(and agrees that no such action, suit or proceeding relating to this Agreement
shall be brought by it except in such courts). To the fullest extent
permitted by applicable Law, service of any process, summons, notice or document
by U.S. registered mail to such Person’s respective address set forth above
shall be effective service of process for any action, suit or proceeding in the
State of Delaware with respect to any matters to which it has submitted to
jurisdiction as set forth above in the immediately preceding
sentence. Each of the Parties irrevocably and unconditionally waives
(and agrees not to plead or claim) any objection to the laying of venue of any
action, suit or proceeding arising out of this Agreement in the Delaware Court
of Chancery (and if the Delaware Court of Chancery shall be unavailable, in any
Delaware State court or the Federal court of the United States of America
sitting in the State of Delaware) or that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient
forum.
(h) WAIVER OF JURY
TRIAL. EACH PARTY EXPRESSLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR
OTHER PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT. EACH PARTY (I) CERTIFIES THAT NO
REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION
15(h).
8
(i) Assignment. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned, in whole or in part, by operation of Law or otherwise by any of the
Parties without the prior written consent of the other Parties, Merger Sub may
assign, in its sole discretion, any of or all its rights, interests and
obligations under this Agreement to Parent or to any direct or indirect
wholly-owned Subsidiary of Parent, but no such assignment shall relieve Merger
Sub of any of its obligations hereunder. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the Parties and their respective successors and
assigns.
(j) Severability. If
any provision of this Agreement or the application of any such provision to any
Person or circumstance shall be held invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof.
(k) Specific Performance.
The Parties agree that irreparable damage would occur and that the Parties would
not have any adequate remedy at law 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 Delaware state court, this
being in addition to any other remedy to which they are entitled at law or in
equity. Each Party agrees that it will not oppose the granting of an
injunction, specific performance or other equitable relief on the basis that the
Party seeking such injunction, specific performance or other equitable relief
has an adequate remedy at law or that any award of specific performance is not
an appropriate remedy for any reason at law or equity. If any Party
seeks an injunction or injunctions to prevent breaches of this Agreement or to
enforce specifically the terms and provisions of this Agreement, such Party
shall not be required to provide any bond or other security in connection with
any such injunction or other Judgment.
(l) Remedies
Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity will
be cumulative and not alternative, and the exercise of any thereof by any Party
will not preclude the simultaneous or later exercise of any other such right,
power or remedy by such Party.
(m) Amendment. No
amendment or modification of this Agreement shall be effective unless it shall
be in writing and signed by each of the Parties, and no waiver or consent
hereunder shall be effective against any Party unless it shall be in writing and
signed by such Party. The failure or delay by any Party to assert any
of its rights under this Agreement or otherwise shall not constitute a waiver of
such rights nor shall any single or partial exercise by any Party of any of its
rights under this Agreement preclude any other or further exercise of such
rights or any other rights under this Agreement.
[Remainder
of page intentionally left blank]
9
IN WITNESS WHEREOF, each of the Parties
has caused this Agreement to be duly executed and delivered as of the date first
written above.
|
VIGOR
INDUSTRIAL LLC
|
|
|
By:
|
/s/ Frank J. Foti
|
|
Name: Frank
J. Foti
|
|
|
Title:
President
|
|
|
NAUTICAL
MILES, INC.
|
|
|
By:
|
/s/ Frank J. Foti
|
|
Name: Frank
J. Foti
|
|
|
Title:
President
|
|
[Signature
Page to Tender and Support Agreement]
STOCKHOLDERS
|
/s/
Brent D. Baird
|
/s/
Steven A. Clifford
|
|||
|
Brent
D. Baird
|
Steven
A. Clifford
|
|||
|
Address:
|
Trubee
Collins & Co.
|
Address:
|
438
39th Ave. East
|
|
|
1350
One M&T Plaza
|
Seattle,
WA 98112
|
|||
|
Buffalo,
NY 14203
|
||||
|
/s/
Berger A. Dodge
|
/s/
Patrick W. E. Hodgson
|
|||
|
Berger
A. Dodge
|
Patrick
W. E. Hodgson
|
|||
|
Address:
|
Todd
Pacific Shipyards Corp
|
Address:
|
30
St. Clair Ave West, Suite 901
|
|
|
1801
16th
Ave SW
|
Toronto,
Ontario M4V 3A1
|
|||
|
Seattle,
WA 98134
|
Canada
|
|||
|
/s/
Joseph D. Lehrer
|
/s/
William L. Lewis
|
|||
|
Joseph
D. Lehrer
|
William
L. Lewis
|
|||
|
Address:
|
Greensfelder
Hemker & Gale
|
Address:
|
Lease
Crutcher Lewis
|
|
|
10
South Broadway
|
107
Spring Street
|
|||
|
Suite
2000
|
Seattle
WA 98104
|
|||
|
St.
Louis, MO 63102-1774
|
||||
|
/s/
Michael G. Marsh
|
/s/
J. Paul Reason
|
|||
|
Michael
G. Marsh
|
J.
Paul Reason
|
|||
|
Address:
|
Todd
Pacific Shipyards Corp
|
Address:
|
700
New Hampshire Ave NW #402
|
|
|
1801
16th
Ave SW
|
Washington,
DC 20037
|
|||
|
Seattle,
WA 98134
|
||||
|
WOODBOURNE
PARTNERS, L.P.
|
|||||
|
/s/
Stephen G. Welch
|
By:
|
Clayton
Management Company, its general
|
|||
|
Stephen
G. Welch
|
partner
|
||||
|
Address:
|
Todd
Pacific Shipyards Corp
|
||||
|
1801
16th
Ave SW
|
|
By:
|
/s/
John D. Weil
|
||
|
Seattle,
WA 98134
|
John
D. Weil, President
|
||||
| Address: |
200
North Broadway
|
||||
|
Suite
825
|
|||||
|
St.
Louis, MO
63102-2573
|
|||||
[Signature
Page to Tender and Support Agreement]
SCHEDULE
I
|
SHAREHOLDER
|
COMMON
STOCK*
|
UNVESTED
RESTRICTED
STOCK*
|
UNVESTED
RSUs
|
SSARs
|
||||||||||||
|
Brent
D. Baird
|
37,287.50 | 1,312.50 | 0.00 | 4,000.00 | ||||||||||||
|
Steven
A. Clifford
|
16,087.50 | 1,312.50 | 0.00 | 4,000.00 | ||||||||||||
|
Berger
A. Dodge
|
8,380.00 | 0.00 | 6,520.00 | 12,000.00 | ||||||||||||
|
Patrick
W. E. Hodgson
|
76,587.50 | 1,312.50 | 0.00 | 4,000.00 | ||||||||||||
|
Joseph
D. Lehrer
|
3,687.50 | 1,312.50 | 0.00 | 4,000.00 | ||||||||||||
|
William
L. Lewis
|
15,290.50 | 1,312.50 | 0.00 | 4,000.00 | ||||||||||||
|
Michael
G. Marsh
|
31,980.00 | 0.00 | 4,920.00 | 12,000.00 | ||||||||||||
|
J.
Paul Reason
|
2,437.50 | 1,312.50 | 0.00 | 4,000.00 | ||||||||||||
|
Stephen
G. Welch
|
149,592.00 | 0.00 | 16,400.00 | 40,000.00 | ||||||||||||
|
Woodbourne
Partners, L.P.
|
499,773.00 | 0.00 | 0.00 | 0.00 | ||||||||||||
*
Although the Company does not issue fractional shares, the monthly vesting of
Company Restricted Stock through December 15, 2010 would result in fractional
shares for the Company’s directors. For purposes of accurately
reflecting the distinction between vested and unvested Company Restricted Stock,
such fractional shares have been included in this table.