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EXHIBIT 10
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT, dated as of June 6, 1999, among Yellow
Corporation, a Delaware corporation ("Parent"), JPF Acquisition Corp., a New
Jersey corporation and a wholly owned subsidiary of Parent (the "Purchaser"),
and Harry J. Muhlschlegel, Karen B. Muhlschlegel, the Harry J. Muhlschlegel
Grantor Retained Annuity Trust dated 3/27/99, the Karen B. Muhlschlegel Grantor
Retained Annuity Trust dated 3/7/99, the Vicki L. Whithall 1996 Trust, the
Jeffrey Muhlschlegel 1996 Trust and the Jennifer B. Muhlschlegel 1996 Trust
(each, a "Stockholder" and, together, the "Stockholders").
WITNESSETH
WHEREAS, each Stockholder is the owner of that number of shares of Class A
Common Stock, no par value ("Class A Common Shares"), of Jevic Transportation,
Inc. (the "Company") set forth opposite the name of such Stockholder on Annex A
attached hereto (such Stockholder's "Subject Shares");
WHEREAS, Parent, the Purchaser and the Company have entered into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "Merger Agreement"), which provides, among other things, that
upon the terms and subject to the conditions therein, the Purchaser will (i)
make a cash tender offer (the "Offer") for all of the outstanding Class A Common
Shares and all of the outstanding shares of Common Stock, no par value ("Common
Shares" and, together with the Class A Common Shares, the "Shares"), of the
Company and (ii) after expiration of the Offer, merge with and into the Company
(the "Merger");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and the Purchaser have required that the Stockholders and the
Company agree, and the Stockholders and the Company have agreed, to enter into
this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Representations and Warranties of the Stockholders. Each
Stockholder represents and warrants to Parent and the Purchaser as follows:
(a) Such Stockholder is the sole record and beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) of such Stockholder's Subject Shares and,
there exist no liens, claims, security interests, options, proxies,
voting agreements, charges, obligations, understandings, arrangements or
other encumbrances of any nature whatsoever, except for restrictions
applicable thereto under federal and state securities laws ("Liens"),
affecting such Subject Shares.
(b) Such Stockholder's Subject Shares and the certificates
representing such Subject Shares are now and at all times until the
Termination Date (as defined herein) will be held by such Stockholder
free and clear of all Liens, except for the Liens arising hereunder.
(c) This Agreement has been duly and validly executed and delivered
by such Stockholder and, assuming due authorization, execution and
delivery by Parent and the Purchaser, constitutes a valid and binding
agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms, except to the extent that enforceability may
be limited by applicable bankruptcy or other laws affecting the
enforcement of creditors' rights generally and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(d) The execution and delivery of this Agreement by such
Stockholder does not, and the performance by such Stockholder of its
obligations hereunder will not, constitute a violation of, conflict
with, result in a default (or an event which, with notice or lapse of
time or both, would result in a default) under, or result in the
creation of any Lien on any of such Stockholder's Subject Shares
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under, (i) any contract, commitment, agreement, partnership agreement,
understanding, arrangement or restriction of any kind to which such
Stockholder is a party or by which such Stockholder is bound, (ii) any
judgment, writ, decree, order or ruling applicable to such Stockholder
or (iii) any law applicable to such Stockholder.
(e) To such Stockholder's knowledge, neither the execution and
delivery of this Agreement nor the performance of Stockholder's
obligations hereunder will require any consent, authorization or
approval of, filing with or notice to, any court, administrative agency
or other governmental body or authority other than any required notices
or filings pursuant to the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and the rules and regulations promulgated
thereunder (the "HSR Act"), state antitrust laws or the federal
securities laws.
(f) Except for such Stockholder's Subject Shares, such Stockholder
does not, directly or indirectly, own beneficially or of record any
Shares or any option, warrant or other right to acquire Shares nor is
such Stockholder subject to any contract, commitment, arrangement,
understanding or relationship that allows or obligates it to vote or
acquire any security of the Company.
2. Representation and Warranties of Parent and the Purchaser. Parent
and the Purchaser jointly and severally represent and warrant to each
Stockholder as follows:
(a) Each of Parent and the Purchaser is duly organized and validly
existing and in good standing under the laws of its jurisdiction of
incorporation, has the requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement.
This Agreement has been duly and validly executed and delivered by each
of Parent and the Purchaser and constitutes the legal, valid and binding
obligation of each of Parent and the Purchaser enforceable against each
of Parent and Purchaser in accordance with its terms, except to the
extent that enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting the
enforcement of creditors' rights generally and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(b) The execution and delivery of this Agreement by each of Parent
and the Purchaser does not, and the performance by each of Parent and
the Purchaser of its obligations hereunder will not, constitute a
violation of, conflict with, or result in a default (or an event which,
with notice or lapse of time or both, would result in a default) under,
its charter or bylaws or any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which Parent or
the Purchaser is a party or by which Parent or the Purchaser is bound or
any judgment, writ, decree, order or ruling applicable to Parent or the
Purchaser.
(c) Neither the execution and delivery of this Agreement nor the
performance by each of Parent and the Purchaser of its obligations
hereunder will violate any order, writ, injunction, judgment, law,
decree, statute, rule or regulation applicable to Parent or the
Purchaser or require any consent, authorization or approval of, filing
with, or notice to, any court, administrative agency or other
governmental body or authority other than any required notices or
filings pursuant to the HSR Act, state antitrust laws or the federal
securities laws.
3. Tender of Shares.
(a) Parent and the Purchaser jointly and severally agree:
(i) subject to the conditions of the Offer set forth in Annex A
to the Merger Agreement and the other terms and conditions of the
Merger Agreement, that the Purchaser will purchase all Shares
tendered pursuant to the Offer as promptly as practicable following
commencement of the Offer and that the Purchaser will consummate the
Merger in accordance with the terms of the Merger Agreement;
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(ii) not to decrease the price per share to be paid to the
Company's shareholders in the Offer below $14.00 per share; and
(iii) the provisions of Sections 3(a)(i) and 3(a)(ii) shall
survive the termination of this Agreement.
(b) Each Stockholder will (i) tender such Stockholder's Subject
Shares (other than such Stockholder's Excluded Shares (as defined
below), if applicable) into the Offer promptly, and in any event no
later than the fifth business day following the commencement of the
Offer, or, if such Stockholder has not received the Offer Documents (as
defined in the Merger Agreement) by such time, within two business days
following receipt of such documents, and (ii) not withdraw any Subject
Shares so tendered. Each of Harry J. Muhlschlegel and Karen B.
Muhlschlegel shall be permitted to not tender into the Offer 18,875 of
their Subject Shares (for a total of 37,750 Subject Shares, collectively
herein referred to as the "Excluded Shares"); provided that, so long as
the Purchaser notifies Mr. and Mrs. Muhlschlegel at least eight hours
prior to the purchase of Shares by the Purchaser pursuant to the Offer,
Mr. and Mrs. Muhlschlegel shall be obligated to contribute their
respective Excluded Shares to the capital of the Company prior to the
purchase of Shares by the Purchaser pursuant to the Offer. Upon the
purchase of all such Stockholder's Subject Shares pursuant to the Offer
in accordance with this Section 3, this Agreement will terminate. Each
Stockholder will receive the same price per Share received by other
stockholders of the Company in the Offer with respect to Subject Shares
tendered by it in the Offer. In the event that, notwithstanding the
provisions of the first sentence of this Section 3(b), any Subject
Shares are for any reason withdrawn from the Offer or are not purchased
pursuant to the Offer, such Subject Shares will remain subject to the
terms of this Agreement. Each Stockholder acknowledges that the
Purchaser's obligation to accept for payment and pay for the Subject
Shares in the Offer is subject to all the terms and conditions of the
Offer. On the date the Subject Shares are accepted for payment and
purchased by the Purchaser pursuant to the Offer, the Purchaser shall
make payment by wire transfer or other method (as agreed by the
Purchaser and such Stockholder) of the purchase price for such Subject
Shares to an account designated by such Stockholder.
(c) Each Stockholder hereby agrees to permit Parent and the
Purchaser to publish and disclose in the Offer Documents and, if
approval of the shareholders of the Company is required under applicable
law, the Statement (as defined in the Merger Agreement), its identity
and ownership of Shares and the nature of its commitments, arrangements
and understandings under this Agreement.
(d) The obligations of the parties under this Section 3 shall
terminate on the Termination Date.
4. Termination Date. As used in this Agreement, "Termination Date"
means the date the Merger Agreement is terminated in accordance with its
terms.
5. Transfer of Subject Shares. Until the Termination Date, each
Stockholder will not, except as required pursuant to the terms of this
Agreement, (i) sell, offer to sell, pledge or otherwise dispose of any of
such Stockholder's Subject Shares; (ii) enter into any contract, option or
other agreement or understanding with respect to any transfer of any or all
of such Subject Shares or any interest therein; (iii) grant any proxy,
power-of-attorney or other authorization or consent in or with respect to
such Subject Shares; (iv) deposit such Subject Shares into a voting trust
or enter into a voting agreement or assignment with respect to the Subject
Shares; or (v) take any other action with respect to such Subject Shares
that would in any way restrict, limit or interfere with the performance of
such Stockholder's obligations hereunder.
6. No Solicitation.
(a) Each Stockholder represents and warrants to, and covenants and
agrees with, Parent and the Purchaser that such Stockholder does not have
any agreement, arrangement or understanding with any potential acquiror of
the Company that, directly or indirectly, would be violated, or require any
payments, by reason of the execution, delivery and/or consummation of this
Agreement.
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(b) Each Stockholder shall, and shall cause its agents and
representatives to, immediately cease any existing discussions or
negotiations with any Third Party (as defined in the Merger Agreement)
heretofore conducted with respect to any Acquisition Transaction (as
defined in the Merger Agreement). Until the Termination Date, each
Stockholder shall not, and shall cause its agents and representatives not
to, directly or indirectly, (x) solicit, initiate, continue, facilitate or
encourage (including by way of furnishing or disclosing non-public
information) any inquiries, proposals or offers from any Third Party with
respect to, or that could reasonably be expected to lead to, any
Acquisition Transaction or (y) negotiate, explore or otherwise communicate
in any way with any Third Party with respect to any Acquisition
Transaction. If the Board of Directors of the Company determines that a
Third Party proposal for an Acquisition Transaction constitutes a Superior
Proposal (as defined in the Merger Agreement) in accordance with the
provisions of Section 6.06 of the Merger Agreement, then, notwithstanding
the provisions of this Section 6(b), the Stockholders shall be permitted to
negotiate, discuss or otherwise communicate with such Third Party with
respect to a tender and voting agreement with terms no less favorable in
the aggregate to each Stockholder than those contained in this Agreement;
provided that no Stockholder shall enter into any such tender and voting
agreement (i) prior to the Termination Date or (ii) with any Third Party
with whom negotiations for an Acquisition Transaction had taken place prior
to the Termination Date if such tender and voting agreement contains
provisions less favorable in the aggregate to such Stockholder than those
contained in this Agreement. In addition, the provisions of this Section
6(b) shall not be deemed to prohibit any Stockholder who is an officer or
director of the Company from taking actions permitted to be taken by an
officer or director, as the case may be, in such Stockholder's capacity as
an officer and/or director, as the case may be, of the Company.
(c) Until the Termination Date, each Stockholder shall promptly (but
in any event within one day of such Stockholder becoming aware of same) (i)
advise Parent of the receipt by such Stockholder or any of its agents or
representatives of any inquiries or proposals relating to an Acquisition
Transaction, (ii) provide Parent with a copy of any such inquiry or
proposal in writing and a written statement with respect to any such
inquiries or proposals not in writing, which statement shall include the
identity of the parties making such inquiries or proposal and the material
terms thereof and (iii) inform Parent of the status and content of and
developments with respect to any discussions regarding any Acquisition
Transaction with a Third Party.
7. Voting of Subject Shares.
(a) Voting of Subject Shares. Until the Termination Date, each
Stockholder shall, at any meeting of the stockholders of the Company,
however called, or in connection with any written consent of the
stockholders of the Company, vote (or cause to be voted) all Shares
beneficially owned by such Stockholder (i) in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the
approval of the terms thereof and each of the other actions contemplated by
the Merger Agreement and this Agreement and any actions required in
furtherance thereof and hereof; (ii) against any other Acquisition
Transaction and against any action or agreement that would impede,
frustrate, prevent or nullify the Merger Agreement or this Agreement or the
transactions contemplated hereby and thereby, or 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 or which would
result in any of the conditions to the Merger in the Merger Agreement not
being fulfilled; and (iii) if requested by Parent, in favor of a
stockholder resolution proposed by Parent in accordance with the New Jersey
Act, the purpose of which is to cause the Offer and the Merger to be
consummated and which does not relate to election of directors.
(b) Best Efforts. Subject to the terms and conditions of this
Agreement, until the Termination Date, each Stockholder agrees to use all
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 and the Merger Agreement. Until
the Termination Date, each Stockholder shall properly consult with Parent
and the Purchaser and provide any necessary information and material with
respect to all filings with any
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Governmental Entity in connection with this Agreement and the Merger
Agreement and the transactions contemplated hereby and thereby.
8. Miscellaneous.
(a) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter hereof.
(b) Binding Agreement. This Agreement and the obligations hereunder
shall attach to the Subject Shares and shall be binding upon any person or
entity to which record or beneficial ownership of the Subject Shares shall
pass, whether by operation of law or otherwise, including, without
limitation, any Stockholder's administrators or successors. Notwithstanding
any transfer of Subject Shares, the transferor shall remain liable for the
performance of all obligations of the transferor under this Agreement.
(c) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other parties
hereto, provided that Parent or the Purchaser may assign, in its sole
discretion, its rights and obligations hereunder to any direct or indirect
wholly owned subsidiary of Parent, but no such assignment shall relieve
Parent or the Purchaser of its obligations hereunder if such assignee does
not perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except
upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by hand
delivery or telecopy (with a confirmation copy sent for next day delivery
via courier service, such as Federal Express), 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:
If to a Stockholder:
At the address of such Stockholder set forth on Annex A, with copies as
set forth on such Annex A.
If to Parent
or the Purchaser:
Yellow Corporation
10990 Roe Avenue
Overland Park, KS 66207
Attention: William F. Martin, General Counsel
Telephone No.: (913) 696-6106
Telecopy No.: (913) 696-6116
Copy to: Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: W. Leslie Duffy
Telephone No.: (212) 701-3000
Telecopy No.: (212) 269-5420
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.
(f) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
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affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause each of the other parties to sustain damages
for which it would not have an adequate remedy at law for money damages,
and therefore in the event of any such breach the aggrieved party shall be
entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or
entity who or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New Jersey, without giving effect
to the principles of conflicts of law thereof.
(l) Waiver of Jury Trial. Each party hereto hereby waives any right
to a trial by jury in connection with any action, suit or proceeding
brought in connection with this Agreement.
(m) Descriptive Headings. 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.
(n) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, Parent, the Purchaser, the Stockholders and the Company
have caused this Agreement to be duly executed as of the day and year first
above written.
YELLOW CORPORATION
By: /s/ A. MAURICE MYERS
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Name: A. Maurice Myers
Title: President and Chief Executive
Officer
JPF ACQUISITION CORP.
By: /s/ WILLIAM F. MARTIN, JR.
------------------------------------
Name: William F. Martin, Jr.
Title: Vice President
/s/ HARRY J. MUHLSCHLEGEL
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Harry J. Muhlschlegel
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/s/ KAREN B. MUHLSCHLEGEL
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Karen B. Muhlschlegel
HARRY J. MUHLSCHLEGEL GRANTOR RETAINED
ANNUITY TRUST DATED 3/27/99
By: /s/ HARRY J. MUHLSCHLEGEL
------------------------------------
Name: Harry J. Muhlschlegel
Title: Trustee
KAREN B. MUHLSCHLEGEL GRANTOR RETAINED
ANNUITY TRUST DATED 3/27/99
By: /s/ KAREN B. MUHLSCHLEGEL
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Name: Karen B. Muhlschlegel
Title: Trustee
VICKI L. WHITTALL 1996 TRUST
By: /s/ BRUCE D. BURDICK
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Name: Bruce D. Burdick
Title: Trustee
By: /s/ GEORGE K. REYNOLDS, III
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Name: George K. Reynolds, III
Title: Trustee
JEFFREY MUHLSCHLEGEL 1996 TRUST
By: /s/ BRUCE D. BURDICK
------------------------------------
Name: Bruce D. Burdick
Title: Trustee
By: /s/ GEORGE K. REYNOLDS, III
------------------------------------
Name: George K. Reynolds, III
Title: Trustee
JENNIFER B. MUHLSCHLEGEL 1996 TRUST
By: /s/ BRUCE D. BURDICK
------------------------------------
Name: Bruce D. Burdick
Title: Trustee
By: /s/ GEORGE K. REYNOLDS, III
------------------------------------
Name: George K. Reynolds, III
Title: Trustee