EXHIBIT 99.2
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT, dated as of January
19, 2000 (this "Agreement"), between Elyo S.A., a societe
anonyme organized under the laws of France ("Parent"),
T Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("Purchaser") and each of the
persons listed on Schedule A hereto (each a "Stockholder"
and, collectively, the "Stockholders").
RECITALS
WHEREAS, Parent, Purchaser and Trigen Energy
Corporation, a Delaware corporation (the "Company") propose
to enter into an Agreement and Plan of Merger dated as of
the date hereof (as the same may be amended or supplemented,
the "Merger Agreement") providing for, among other things,
the making of the Offer by Purchaser for all of the issued
and outstanding shares of common stock, par value $0.01 per
share, of the Company (referred to herein as either the
"Shares" or "Common Stock") and the merger of Purchaser with
and into the Company on the terms and conditions set forth
in the Merger Agreement (the "Merger");
WHEREAS, each Stockholder is the beneficial owner
of the Shares and Options set forth opposite such
Stockholder's name on Schedule A hereto (collectively
referred to herein as the "Shares" of such Stockholder);
such Shares, as such Shares may be adjusted by stock
dividend, stock split, recapitalization, combination or
exchange of shares, merger, consolidation, reorganization or
other change or transaction of or by the Company, together
with Shares issuable upon the exercise of Options; and
WHEREAS, as a condition to their willingness to
enter into the Merger Agreement, Parent and Purchaser have
requested that the Stockholders enter into this Agreement;
NOW, THEREFORE, to induce Parent and Purchaser to
enter into, and in consideration of their entering into, the
Merger Agreement, and in consideration of the premises and
the representations, warranties and agreements contained
herein, the parties agree as follows:
Section 1. Certain Definitions. Capitalized terms
used but not otherwise defined herein have the meanings
ascribed to such terms in the Merger Agreement.
Section 2. Representations and Warranties of the
Stockholders. Each Stockholder, severally and not jointly,
represents and warrants to Parent and Purchaser, as of the
date hereof, as follows:
(a) The Shares (including the Options) constitute
all of the securities (as defined in Section 3(a)(10) of the
Exchange Act), of the Company beneficially owned, directly
or indirectly, by the Stockholder.
(b) Except for the Shares (including the
Options), such Stockholder does not, directly or indirectly,
beneficially own or have any option, warrant or other right
to acquire any securities of the Company that are or may by
their terms become entitled to vote or any securities that
are convertible or exchangeable into or exercisable for any
securities of the Company that are or may by their terms
become entitled to vote, nor is such Stockholder subject to
any contract, commitment, arrangement, understanding,
restriction or relationship (whether or not legally
enforceable), other than this Agreement, that provides for
such Stockholder to vote or acquire any securities of the
Company. Such Stockholder holds exclusive power to vote the
Shares and has not granted a proxy to any other Person to
vote the Shares (including those issuable upon exercise of
the Options), subject to the limitations set forth in this
Agreement.
(c) This Agreement has been duly executed and
delivered by such Stockholder and, assuming due
authorization, execution and delivery of this Agreement by
Parent and Purchaser, is a valid and binding obligation of
the Stockholder enforceable against such Stockholder in
accordance with its terms, except as such enforceability may
be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally; and
(ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity
or at law).
(d) No investment banker, broker, finder or other
intermediary is, or will be, entitled to a fee or commission
from Purchaser, Parent or the Company in respect of this
Agreement based on any arrangement or agreement made by or
on behalf of such Stockholder in his or her capacity as a
stockholder of the Company.
(e) Such Stockholder understands and acknowledges
that Parent is entering into, and causing Purchaser to enter
into, the Merger Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement.
Section 3. Representations and Warranties of Parent
and Purchaser. Parent and Purchaser represent and warrant
to the Stockholders as of the date hereof:
(a) Each of Parent and Purchaser is a company
duly organized, validly existing and in good standing under
the laws of their respective jurisdictions of incorporation,
has the requisite company power and authority to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary company
action to authorize the execution, delivery and performance
of this Agreement.
(b) This Agreement has been duly executed and
delivered by Parent and Purchaser and, assuming the due
authorization, execution and delivery of this Agreement by
the Company and the Stockholders, is a valid and binding
obligation of each of Parent and Purchaser, enforceable
against each of them in accordance with its terms, except as
such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally; and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding
in equity or at law).
Section 4. Transfer of the Shares. During the term of
this Agreement, except as otherwise expressly provided
herein, each Stockholder agrees that such Stockholder will
not (a) tender into any tender or exchange offer or
otherwise sell, transfer, pledge, assign, hypothecate or
otherwise dispose of, or encumber with any Lien, any of the
Shares, (b) acquire any shares of Common Stock or other
securities of the Company (otherwise than in connection with
a transaction of the type described in Section 5 or by
exercising any of the Options), (c) deposit the Shares into
a voting trust, enter into a voting agreement or arrangement
with respect to the Shares or grant any proxy or power of
attorney with respect to the Shares, (d) enter into any
contract, option or other arrangement (including any profit
sharing arrangement) or undertaking with respect to the
direct or indirect acquisition or sale, transfer, pledge,
assignment, hypothecation or other disposition of any
interest in or the voting of any Shares or any other
securities of the Company, (e) exercise any rights
(including, without limitation, under Section 262 of the
Delaware General Corporation Law) to demand appraisal of any
Shares which may arise with respect to the Merger, or (f)
take any other action that would in any way restrict, limit
or interfere with the performance of such Stockholder's
obligations hereunder or the transactions contemplated
hereby or which would otherwise diminish the benefits of
this Agreement to Parent or Purchaser.
Section 5. Adjustments. (a) In the event (i) of any
stock dividend, stock split, recapitalization,
reclassification, combination or exchange of shares of
capital stock or other securities of the Company on, of or
affecting the Shares or the like or any other action that
would have the effect of changing a Stockholder's ownership
of the Company's capital stock or other securities or (ii) a
Stockholder becomes the beneficial owner of any additional
Shares of or other securities of the Company, then the terms
of this Agreement will apply to the shares of capital stock
held by such Stockholder immediately following the
effectiveness of the events described in clause (i) or such
Stockholder becoming the beneficial owner thereof, as
described in clause (ii), as though they were Shares
hereunder.
(b) Each Stockholder hereby agrees, while this
Agreement is in effect, to promptly notify Parent and
Purchaser of the number of any new Shares acquired by such
Stockholder, if any, after the date hereof.
Section 6. Tender of Shares. Each Stockholder hereby
agrees that such Stockholder will validly tender (or cause
the record owner of such shares to validly tender) and sell
(and not withdraw) pursuant to and in accordance with the
terms of the Offer not later than the fifth business day
after commencement of the Offer (or if the Stockholder
acquires Shares after the date hereof, the earlier of the
expiration date of the Offer and the fifth business day
after such Shares are acquired by such Stockholder), or, if
the Stockholder has not received the Offer Documents by such
time, within two business days following receipt of such
documents, all of the then outstanding shares of Common
Stock beneficially owned by such Stockholder (including the
shares of Common Stock outstanding as of the date hereof and
shares issued upon exercise (if any) of the Options, in each
case as set forth on Schedule A hereto opposite such
Stockholder's name). Upon the purchase by Parent of all of
such then outstanding shares of Common Stock beneficially
owned by such Stockholder pursuant to the Offer in
accordance with this Section 6, this Agreement will
terminate as it relates to such Stockholder. In the event,
notwithstanding the provisions of the first sentence of this
Section 6, any Shares beneficially owned by a Stockholder
are for any reason withdrawn from the Offer or are not
purchased pursuant to the Offer, such Shares will remain
subject to the terms of this Agreement. Each Stockholder
acknowledges that Parent's obligation to accept for payment
and pay for the shares of Common Stock tendered in the Offer
is subject to all the terms and conditions of the Offer.
Section 7. Voting Agreement. Each Stockholder, by
this Agreement, does hereby (a) agree to appear (or not
appear, if requested by Parent or Purchaser) at any annual,
special, postponed or adjourned meeting of the stockholders
of the Company or otherwise cause the Shares such
Stockholder beneficially owns to be counted as present (or
absent, if requested by Parent or Purchaser) thereat for
purposes of establishing a quorum and to vote or consent,
and (b) constitute and appoint Parent and Purchaser, or any
nominee thereof, with full power of substitution, during and
for the term of this Agreement, as his true and lawful
attorney and proxy for and in his name, place and stead, to
vote all the Shares such Stockholder beneficially owns at
the time of such vote, at any annual, special, postponed or
adjourned meeting of the stockholders of the Company (and
this appointment will include the right to sign his or its
name (as stockholder) to any consent, certificate or other
document relating to the Company that laws of the State of
Delaware may require or permit), in the case of both (a) and
(b) above, (x) in favor of approval and adoption of the
Merger Agreement and approval and adoption of the Merger and
the other transactions contemplated thereby. This proxy and
power of attorney is a proxy and power coupled with an
interest, and each Stockholder declares that it is
irrevocable until this Agreement shall terminate in
accordance with its terms. Each Stockholder hereby revokes
all and any other proxies with respect to the Shares that
such Stockholder may have heretofore made or granted. For
Shares as to which a Stockholder is the beneficial but not
the record owner, such Stockholder shall use his or its best
efforts to cause any record owner of such Shares to grant to
Parent a proxy to the same effect as that contained herein.
Each Stockholder hereby agrees to permit Parent and
Purchaser to publish and disclose in the Offer Documents and
the Proxy Statement and related filings under the securities
laws such Stockholder's identity and ownership of Shares and
the nature of his or its commitments, arrangements and
understandings under this Agreement.
Section 8. Termination. This Agreement will terminate
(a) as to any Stockholder upon the purchase of all the
Shares beneficially owned by such Stockholder pursuant to
the Offer in accordance with Section 6, or (b) on the
earlier to occur of (i) the Effective Time or (ii) the date
the Merger Agreement is terminated in accordance with its
terms.
Section 9. Fees and Expenses. Except as otherwise
expressly provided herein or in the Merger Agreement,
whether of not the Merger is consummated, all costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
Section 10. Further Assurances. Each party hereto
will execute and deliver all such further documents and
instruments and take all such further action as may be
reasonably necessary in order to consummate the transactions
contemplated hereby.
Section 11. Publicity. A Stockholder shall not issue
any press release or otherwise make any public statements
with respect to this Agreement or the Merger Agreement or
the other transactions contemplated hereby or thereby
without the consent of Parent and Purchaser, except as may
be required by Law or applicable stock exchange rules.
Section 12. Stockholder Capacity. No person executing
this Agreement makes any agreement or understanding herein
in such Stockholder's capacity as a director or officer of
the Company or any subsidiary of the Company. Each
Stockholder signs solely in such Stockholder's capacity as
the beneficial owner of such Stockholder's Shares and
nothing herein shall limit or affect any actions taken by a
Stockholder in such Stockholder's capacity as an officer or
director of the Company or any subsidiary of the Company to
the extent specifically permitted by the Merger Agreement.
Section 13. Enforcement. The parties hereto agree that
irreparable damage may occur in the event that any of the
provisions of this Agreement were not performed in
accordance with its specific terms or was 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 hereof in any New York Court, this
being in addition to any other remedy to which they are
entitled at law or in equity for damages or otherwise.
Section 14. Miscellaneous.
(a) All representations and warranties contained
herein will survive for twelve months after the termination
hereof. The covenants and agreements made herein will
survive in accordance with their respective terms.
(b) Any provision of this Agreement may be waived
at any time by the party that is entitled to the benefits
thereof. No such waiver, amendment or supplement will be
effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party
of a breach of any provision of this Agreement will not
operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement
or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term
of this Agreement.
(c) This Agreement constitutes the entire
agreement among the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements
among the parties with respect to such matters. This
Agreement may not be amended, changed, supplemented, waived
or otherwise modified, except upon the delivery of a written
agreement executed by the parties hereto.
(d) This Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware without regard to its rules of conflict of laws.
Each of the Stockholders, Parent and Purchaser hereby
irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the United States District Court
for the State of Delaware or any court of the State of
Delaware (the "Delaware Courts") for any litigation arising
out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any
litigation relating thereto except in such courts), waives
any objection to the laying of venue of any such litigation
in the Delaware Courts and agrees not to plead or claim in
any Delaware Court that such litigation brought therein has
been brought in an inconvenient forum. Parent hereby
appoints The Corporation Trust Company as agent for service
of process. The address of such agent for service of
process is Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801.
(e) The descriptive headings contained herein are
for convenience and reference only and will not affect in
any way the meaning or interpretation of this Agreement. In
this Agreement, unless the context otherwise requires, words
describing the singular number shall include the plural and
vice versa, and words denoting any gender shall include all
genders and words denoting natural persons shall include
corporations and partnerships and vice versa. Whenever the
words "include," "includes" or "including" are used in
this Agreement, they shall be understood to be followed by
the words "without limitation."
(f) All notices and other communications
hereunder will be in writing and will be given (and will be
deemed to have been duly given upon receipt) by delivery in
person, by telecopy, or by registered or certified mail,
postage prepaid, return receipt requested, addressed as
follows:
If to Parent or Purchaser to:
Elyo S.A.
235 Avenue Georges Clemenceau BP 4601
92746 Nanterre Cedex
France
Attention: Michel Caillard
Fax: (01 41 20 10 10)
with copies to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Jeffrey Bagner, Esq.
Telecopy: (212) 859-4000
If to a Stockholder, at the address set forth on
Schedule A hereto or to such other address as any party may
have furnished to the other parties in writing in accordance
herewith.
(g) This Agreement may be executed by the parties
hereto in separate counterparts, each of which, when so
executed and delivered, shall be an original. All such
counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.
(h) This Agreement is binding upon and is solely
for the benefit of the parties hereto and their respective
successors, legal representatives and assigns. Neither this
Agreement nor any of the rights, interests or obligations
under this Agreement will be assigned by any of the parties
hereto without the prior written consent of the other
parties, except that Parent and Purchaser will have the
right to assign to any direct or indirect wholly owned
subsidiary of Parent or Purchaser any and all rights and
obligations of Parent or Parent under this Agreement,
provided that any such assignment will not relieve either
Parent or Purchaser from any of its obligations hereunder.
(i) Any term or provision of this Agreement that
is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any
of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
(j) 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 either party
will not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
IN WITNESS WHEREOF, each of the Parent and
Purchaser has caused this Agreement to be signed by its
officer or director thereunto duly authorized and each
Stockholder has signed this Agreement, all as of the date
first written above.
ELYO S.A.
By: /s/ Olivier Degos
Name: Olivier Degos
Title: Corporate Vice President
T ACQUISITION CORP.
By: /s/ Olivier Degos
Name: Olivier Degos
Title: Secretary
STOCKHOLDERS:
/s/ George F. Keane
GEORGE F. KEANE
/s/ Charles E. Bayless
CHARLES E. BAYLESS
/s/ Charles E. Bayless, Trustee
BAYLESS FAMILY TRUST
SCHEDULE A
Stockholder Address Number of Shares Number of Options
George F. Keane 237 Mayfield
Trumbull, CT 06611 27,200 30,000
Charles E. Bayless 7300 North Sunset
Canyon Drive
Tucson, AR 85718 2,348.346* 10,000
Bayless Family Trust 7300 North Sunset
Canyon Drive
Tucson, AR 85718 9,149
With copies to:
W. Brinkley Dickerson, Jr. Troutman Sanders LLP
600 Peachtree Street N.E.
Suite 5200
Atlanta, GE 30308
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* Through October 13, 1999, plus additional deferred shares and
reinvestments granted to date.