Stockholders' Agreement
In order to induce Burnham Corporation, a New York
corporation ("Buyer"), to execute and deliver the Agreement and
Plan of Merger dated as of the date hereof (as the same may
hereafter be amended, the "Merger Agreement") among Buyer,
Burnham Acquisition Corporation, a New Mexico corporation
("Merger Sub") and Bryan Steam Corporation, a New Mexico
corporation (the "Company"), each undersigned stockholder of the
Company hereby (i) covenants as set forth in the remainder of
this Agreement (the "Agreement"), and (ii) irrevocably appoints
Burnham Corporation, as the exclusive attorney-in-fact and proxy
of such stockholder, with full power of substitution:
(a) to attend any and every meeting (whether annual or
special or both) of the stockholders of the Company,
including any adjournment or postponement thereof, on
behalf of such stockholder, and at each such meeting, with
respect to all shares of common stock of the Company owned
by such stockholder on the date hereof or acquired
hereafter that are entitled to vote at each such meeting or
over which such stockholder has voting power (and any and
all other shares of common or preferred stock of the
Company or other securities issued on or after the date
hereof in respect of any such shares), including, without
limitation, the shares indicated opposite such
stockholder's signature at the end of this Agreement:
(i) to vote in favor of the Merger (as such term
is defined in the Merger Agreement) and to vote in
favor of the adjournment of any meeting, which Buyer
believes may facilitate the obtaining the approval of
the Merger; and otherwise to act with respect to such
shares as said attorney-in-fact and proxy (or his
substitute) shall deem necessary or appropriate to
cause the approval of the Merger by the necessary
majority required under applicable law;
(ii) to vote and otherwise act with respect to
such shares in such a manner as said attorney-in-fact
and proxy (or his substitute) shall deem proper, with
respect to (x) proposals or offers (other than the
Merger) relating to (1) any proposed sale, lease or
other disposition of all or a substantial amount of
the assets of the Company or any of its subsidiaries,
(2) any proposed merger, consolidation or other
combination of the Company or any of its subsidiaries
with any other entity, (3) any sale, issuance,
disposition or granting of rights in respect of the
shares of the Company or of any subsidiary of the
Company or (4) any other proposed action of the
Company or any of its subsidiaries requiring
stockholder approval that would conflict with or
violate the Company's representations, covenants or
obligations under the Merger Agreement, adversely
affect the Company's ability to consummate the Merger
or the other transactions contemplated by the Merger
Agreement or otherwise impede, interfere with or
discourage the Merger (each of the actions described
in (1) - (4) above, an "Acquisition Proposal"), and
(y) any procedural matters presented at any such
meeting at which any action is scheduled to be taken
with respect to the Merger or any Acquisition
Proposal;
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(b) if no meeting of stockholders is scheduled in
accordance with the Merger Agreement or if any such meeting
is canceled, postponed or adjourned other than with Buyer's
approval, to call a special stockholders meeting of the
Company for the purpose of (i) approving the Merger or any
action with respect thereto, or (ii) taking action with
respect to any Acquisition Proposal; and
(c) to waive, for the duration of this proxy and
option, any and all rights such stockholder may have to
exercise any rights as dissenting shareholder under
Sections 53- 15-3 and 53-15-4 of the New Mexico Business
Corporation Act, subject to the right to receive the
consideration as specifically provided in the Merger
Agreement.
Each undersigned stockholder agrees (a) not to deposit
any of such stockholder's shares of common stock of the Company
into a voting trust or enter into a voting agreement with respect
to such shares; (b) not to sell, transfer or otherwise dispose of
or pledge or otherwise encumber, any shares of common stock of
the Company, or options or warrants to purchase such shares,
unless the purchaser or transferee of such shares or rights
agrees in writing (a copy of which shall be delivered by such
stockholder to Buyer and Merger Sub) prior to such sale, transfer
or disposition to be bound by and subject to the provisions
contained in this Agreement; and (c) not, in his or her capacity
as stockholder, to solicit, initiate, encourage, endorse, support
(including, by providing information) or participate in any
discussions regarding, any Acquisition Proposal other than the
Merger.
Each undersigned stockholder affirms that this proxy
is issued in connection with the Merger Agreement to facilitate
the transactions contemplated thereunder and in consideration of
Buyer and Merger Sub entering into the Merger Agreement and as
such is coupled with an interest and is irrevocable. This proxy
will terminate upon the earlier to occur of (a) the Effective
Time as defined in the Merger Agreement and (b) the termination
of the Merger Agreement in accordance with its terms. For
purposes of this proxy, any notice of any stockholders' meeting
shall be deemed delivered to the attorney-in-fact and proxy and
his substitutes when delivered to Buyer in accordance with the
Merger Agreement.
By execution and delivery of this Agreement, each
undersigned stockholder confirms that such stockholder has
received a copy of a substantially final form of the Merger
Agreement, and that all other information deemed necessary by
such stockholder concerning the Merger, the Merger Agreement and
the transactions contemplated thereunder or any other matters
considered by such stockholder to be relevant to the
stockholder's decision to execute this Agreement has been made
available to such stockholder.
All authority herein conferred or agreed to be
conferred shall survive the death, insolvency, or incapacity of
any undersigned stockholder and any obligation of any undersigned
stockholder hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of such undersigned
stockholder.
This proxy revokes any and all other proxies
heretofore granted by each and every undersigned stockholder to
vote or otherwise to act with respect to any of the shares to
which this proxy relates. No undersigned stockholder will give
any subsequent proxy or grant any option
2
with respect to such shares (and such proxy or option if given
will be deemed not to be effective) with respect to such shares
that purports to grant authority within the scope of the
authority hereby conferred.
In order further to induce Merger Sub and Buyer to
enter into the Merger Agreement, each undersigned stockholder
hereby further agrees validly to tender (or cause the record
owner of such shares validly to tender), and not to withdraw,
pursuant to and in accordance with the terms of the Offer, not
later than the tenth business day after commencement of the Offer
pursuant to Section A-1.01 of the Merger Agreement and Rule 14d-2
under the Exchange Act, the number of shares of Bryan Common
Stock set forth opposite such stockholder's name below (the
"Existing Securities" and, together with any shares of Bryan
Common Stock acquired by such stockholder (whether beneficially
or of record) after the date hereof and prior to the termination
of this Agreement by means of purchase, dividend, distribution,
transfer, issuance, or exercise of options or other rights to
acquire Bryan Common Stock (the "Securities")). If any
undersigned stockholder acquires Securities after the date
hereof, such stockholder shall tender (or cause the record holder
to tender) such Securities on or before such tenth business day
or, if later, on or before the second business day after such
acquisition. Each undersigned stockholder hereby acknowledges and
agrees that Merger Sub's obligation to accept for payment,
purchase and pay for the Securities in the Offer, including the
Securities beneficially owned by such stockholder, is subject to
the terms and conditions of the Offer.
Each undersigned stockholder hereby permits Merger Sub
and Buyer to disclose in the Offer documents (and in the proxy
statement, if any, applicable to the Merger) such stockholder's
identity and ownership of the Securities and the content of this
Agreement.
Each undersigned stockholder acknowledges that money
damages would be both incalculable and an insufficient remedy for
any breach of this Agreement by it, and that any such breach
would cause Buyer and Merger Sub irreparable harm. Accordingly,
each undersigned stockholder agrees that in the event of any
breach or threatened breach of this Agreement, Buyer and Merger
Sub, in addition to any other remedies at law or in equity they
may have, shall be entitled, without the requirement of posting a
bond or other security, to equitable relief, including injunctive
relief and specific performance.
The invalidity or unenforceability of any provision of
this Agreement in any jurisdiction shall not affect the validity
or enforceability of any other provision of this Agreement in
such jurisdiction, or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.
Each undersigned stockholder represents and warrants
that, as of the date hereof, such stockholder (a) owns personally
and directly the number of shares of Bryan Common Stock (as
defined in the Merger Agreement) set forth following such
stockholder's name below, (b) owns such stock free and clear of
all liens, security interests, encumbrances, options and other
adverse interests of every kind whatsoever, and (c) may execute
and deliver this Agreement, and perform its obligations
hereunder, without the consent or agreement of any other person
or entity.
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Each of the undersigned stockholders hereby
irrevocably waives and releases any and all claims such
stockholder may have as a holder of shares of the Company against
any employee, officer or director of Bryan or any of its
subsidiaries in respect of the conduct of such employee, officer
or director in his or her capacity as such prior to consummation
of the Merger.
For the convenience of the parties, this Agreement may
be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement will only become effective upon the
execution and delivery of the Merger Agreement by Buyer, Merger
Sub and the Company. Capitalized terms used and not defined
herein will have the respective meanings set forth in the Merger
Agreement.
This Agreement shall be governed by the laws of the
State of Indiana except that the provisions hereof with respect
to the granting of proxies, the exercise of the rights granted in
respect of such proxies and the associated appointment of
attorneys-in-fact will be governed by the laws of the
jurisdiction of incorporation of the Company.
Dated: as of September __, 1998
[signature pages follow]
4
STOCKHOLDERS OF BRYAN STEAM CORPORATION
/s/ Robert L. Miller
---------------------------
Robert Miller
R.R. #2, Box 26
Peru, Indiana 46970
12,198 Shares of Bryan Common
----------
Stock Owned
/s/ Ina Mae Miller
---------------------------
Ina Mae Miller
R.R. #2, Box 26
Peru, Indiana 46970
12,199 Shares of Bryan Common
----------
Stock Owned
/s/ Beverly Bryan
---------------------------
Beverly Bryan
6299 Valley View Drive
Fishers, Indiana 46038
11,591 Shares of Bryan Common
----------
Stock Owned
Georgeanna Williams Revokable Living Trust
by:/s/ Georgeanna Williams
---------------------------
Georgeanna Williams, Trustee
R.R., #3, Box 326A
Peru, Indiana 46970
5,491 Shares of Bryan Common
----------
Stock Owned
/s/ Lisa Lockhart
---------------------------
Lisa Lockhart
10778 Pine Valley Court
Fishers, Indiana 46038
3,060 Shares of Bryan Common
----------
Stock Owned
11,591 Shares of Bryan Common Stock Owned
Jointly with Beverly Bryan and Kenneth
Starkey
5
/s/ Charles J. Miller
---------------------------
Charles Miller
516B Chinworth Court
Warsaw, Indiana 46580
5,492 Shares of Bryan Common
----------
Stock Owned
/s/ Kenneth Starkey
---------------------------
Kenneth Starkey
10356 Leeward Boulevard
Indianapolis, Indiana 46256
3,059 Shares of Bryan Common
----------
Stock Owned
11,591 Shares of Bryan Common Stock Owned
Jointly with Beverly Bryan and Kenneth
Starkey
/s/ Bryan Herd - Sharon Lee Herd
---------------------------
Bryan Herd and Sharon Herd
1208 Glenwick Drive
Logansport, Indiana 46947
17,706 Shares of Bryan Common
----------
Stock Owned Jointly
/s/ Marilyn Malott and
Paul J. Malott
---------------------------
Marilyn Malott and Paul J. Malott
1500 Liberty Street
Logansport, Indiana 46947
17,829 Shares of Bryan Common
----------
Stock Owned Jointly
/s/ Victor L. Herd and
Kristine G. Herd
---------------------------
Victor Herd and Kristine G. Herd
4083 S.E. Honey Hill Lane
Stuart, Florida 34997
17,690 Shares of Bryan Common
----------
Stock Owned Jointly
6
STATE OF INDIANA )
)SS:
COUNTY OF )
Before me, a Notary Public, in and for said County and
State, personally appeared Robert Miller, and acknowledged the
execution of the foregoing instrument, this 22nd day of
September, 1998.
Witness my hand and Notarial Seal this 22nd day of
September, 1998.
/s/ Debra A. Eiler
---------------------------
Debra A. Eiler Notary Public
residing in Miami County,
Indiana
My Commission Expires:
Aug 11, 2001
- -------------------------
SEAL
STATE OF INDIANA )
)SS:
COUNTY OF )
Before me, a Notary Public, in and for said County and
State, personally appeared Ina Mae Miller, and acknowledged the
execution of the foregoing instrument, this 22nd day of
September, 1998.
Witness my hand and Notarial Seal this 22nd day of
September, 1998.
/s/ Debra A. Eiler
---------------------------
Debra A. Eiler Notary Public
residing in Miami County,
Indiana
My Commission Expires:
Aug 11, 2001
- -------------------------
7
STATE OF INDIANA )
)SS:
COUNTY OF MIAMI )
Before me, a Notary Public, in and for said County and
State, personally appeared Beverly Bryan, and acknowledged the
execution of the foregoing instrument, this 21st day of
September, 1998.
Witness my hand and Notarial Seal this 21st day of
September, 1998.
/s/ Laura L. Fulton
---------------------------
Notary Public
residing in Miami County,
Indiana
My Commission Expires:
Aug 25, 2000
- -------------------------
8
STATE OF INDIANA )
)SS:
COUNTY OF MIAMI )
Before me, a Notary Public, in and for said County and
State, personally appeared Georgeanna Williams, the Trustee of
the Georgeanna Willliams Revocable Trust, who acknowledged the
execution of the foregoing instrument, this 23rd day of
September, 1998.
Witness my hand and Notarial Seal this 23rd day of
September, 1998.
/s/ Laura L. Fulton
---------------------------
Notary Public
residing in Miami County,
Indiana
My Commission Expires:
August 25, 2000
- -------------------------
9
STATE OF INDIANA )
)SS:
COUNTY OF )
Before me, a Notary Public, in and for said County and
State, personally appeared Lisa Lockhart, and acknowledged the
execution of the foregoing instrument, this 22nd day of
September, 1998.
Witness my hand and Notarial Seal this 22nd day of
September, 1998.
/s/ Denise A. Weaver
---------------------------
Notary Public
residing in Hamilton County,
Indiana
My Commission Expires:
9-20-02
- -------------------------
STATE OF INDIANA )
)SS:
COUNTY OF MIAMI )
Before me, a Notary Public, in and for said County and
State, personally appeared Charles Miller, and acknowledged the
execution of the foregoing instrument, this 21st day of
September, 1998.
Witness my hand and Notarial Seal this 21st day of
September, 1998.
/s/ Laura L. Fulton
---------------------------
Notary Public
residing in Miami County,
Indiana
My Commission Expires:
August 25, 2000
- -------------------------
10
STATE OF INDIANA )
)SS:
COUNTY OF MIAMI )
Before me, a Notary Public, in and for said County and
State, personally appeared Kenneth Starkey, and acknowledged the
execution of the foregoing instrument, this 22nd day of
September, 1998.
Witness my hand and Notarial Seal this 22nd day of
September, 1998.
/s/ Laura L. Fulton
---------------------------
Notary Public
residing in Miami County,
Indiana
My Commission Expires:
August 25, 2000
- -------------------------
STATE OF INDIANA )
)SS:
COUNTY OF MIAMI )
Before me, a Notary Public, in and for said County and
State, personally appeared Bryan Herd, and acknowledged the
execution of the foregoing instrument, this 21st day of
September, 1998.
Witness my hand and Notarial Seal this 21st day of
September, 1998.
/s/ Laura L. Fulton
---------------------------
Notary Public
residing in Miami County,
Indiana
My Commission Expires:
August 25, 2000
- -------------------------
11
STATE OF INDIANA )
)SS:
COUNTY OF MIAMI )
Before me, a Notary Public, in and for said County and
State, personally appeared Marilyn Malott, and acknowledged the
execution of the foregoing instrument, this 21st day of
September, 1998.
Witness my hand and Notarial Seal this 21st day of
September, 1998.
/s/ Laura L. Fulton
---------------------------
Notary Public
residing in Miami County,
Indiana
My Commission Expires:
August 25, 2000
- -------------------------
STATE OF INDIANA )
)SS: Victor L. Herd
COUNTY OF Martin)
Before me, a Notary Public, in and for said County and
State, personally appeared Victor Herd, and acknowledged the
execution of the foregoing instrument, this 19 day of
September, 1998. /s/ Victor L. Herd
------------------
Witness my hand and Notarial Seal this 19th day of
September, 1998.
/s/ Maynard L. Long
---------------------------
Notary Public
residing in Palm Beach County,
Florida
My Commission Expires: SEAL Maynard L. Long
5-23, 2000 Comm. No. CC 557144
- ------------------------- My Comm. Exp. May 23, 2000
Bonded thru Pichard Ins. Agcy.
12
STATE OF INDIANA )
)SS:
COUNTY OF MIAMI )
Before me, a Notary Public, in and for said County and
State, personally appeared Paul Malott, and acknowledged the
execution of the foregoing instrument, this 21st day of
September, 1998.
Witness my hand and Notarial Seal this 21st day of
September, 1998.
/s/ Laura L. Fulton
---------------------------
Notary Public
residing in Miami County,
Indiana
SEAL
My Commission Expires:
August 25, 2000
- -------------------------
STATE OF INDIANA )
)SS:
COUNTY OF MIAMI )
Before me, a Notary Public, in and for said County and
State, personally appeared Sharon Herd, and acknowledged the
execution of the foregoing instrument, this 21st day of
September, 1998.
Witness my hand and Notarial Seal this 21st day of
September, 1998.
/s/ Laura L. Fulton
---------------------------
Notary Public
residing in Miami County,
Indiana
SEAL
My Commission Expires:
August 25, 2000
- -------------------------
13
STATE OF FLORIDA )
)SS: STUART
COUNTY OF MARTIN )
Before me, a Notary Public, in and for said County and
State, personally appeared Kristine G. Herd and acknowledged the
execution of the foregoing instrument, this 23rd day of
September, 1998. /s/ Kristine G. Herd
--------------------
Witness my hand and Notarial Seal this 23 day of
September, 1998.
/s/ Deloris Vance
---------------------------
Notary Public
residing in Martin County,
Florida
My Commission Expires:
9/2001
- ------------------------- SEAL DELORIS VANCE
Comm. No. CC 678543
My Comm. Exp. Sept 8, 2001
Bonded thru Pichard Ins. Agcy.
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