EXHIBIT (C)(2)
STOCKHOLDER AGREEMENT dated as of June 24, 1997 among THREE RIVERS HOLDING
CORP., a Delaware corporation, ("Parent"), THREE RIVERS ACQUISITION CORP. a
Delaware corporation and a wholly owned subsidiary of Parent ("Sub") and the
individuals listed on Schedule A attached hereto (each, a "Stockholder" and,
collectively, the "Stockholders").
WHEREAS, Parent, Sub, and SMT Health Services Inc. (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 (i) the making of a cash tender offer (as such offer may be
amended from time to time as permitted under the Merger Agreement, the "Offer")
by Sub for all the outstanding shares of common stock, par value $.01 per share,
of the Company ("Company Common Stock") and (ii) for the merger of Sub with and
into the Company (the "Merger"), upon the terms and subject to the conditions
set forth in the Merger Agreement; and
WHEREAS, each Stockholder owns the number of shares of Company Common
Stock set forth opposite his or its name on Schedule A attached hereto (such
shares of Company Common Stock, together with any other shares of capital stock
of the Company acquired by such Stockholders after the date hereof and during
the term of this Agreement (including, without limitation, through the exercise
of any stock options, warrants or similar instruments), being collectively
referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that each Stockholder enter into this Agreement;
NOW, THEREFORE, to induce Parent to enter into, and in consideration
of its entering into, the Merger Agreement, and in consideration of the premises
and the representations, warranties and agreements contained herein, the parties
agree as follows (capitalized terms used herein but not defined herein have the
meanings set forth in the Merger Agreement):
1. Representations and Warranties of each Stockholder.
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Each Stockholder hereby represents and warrants, severally and not
jointly, to Parent as of the date hereof in respect of himself or itself as
follows:
(a) Authority. The Stockholder has all requisite power and
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authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
by the Stockholder, and the consummation of the transactions contemplated
hereby, have been duly authorized by all necessary action on the part of the
Stockholder. This Agreement has been duly executed and delivered by the
Stockholder and constitutes a valid and binding
obligation of the Stockholder enforceable against the Stockholder in accordance
with its terms. Except for the expiration or termination of the waiting periods
under the HSR Act, informational filings with the SEC, the execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not, (i) conflict
with, or result in any violation of, or default (with or without notice or lapse
of time or both) under any provision of, any certificate or articles of
incorporation, bylaws, certificate or articles of limited partnership, limited
partnership agreement, trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law, ordinance,
rule or regulation applicable to the Stockholder or to the Stockholder's
property or assets, including the Subject Shares, (ii) require any filing with,
or permit, authorization, consent or approval of, or notice to, any federal,
state or local government or any court, tribunal, administrative agency or
commission or other governmental or regulatory authority or agency, domestic,
foreign or supranational, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Stockholder or any of the
Stockholder's properties or assets, including the Subject Shares. If the
Stockholder is a natural person and is married, and the Stockholder's Subject
Shares constitute community property or otherwise need spousal or other approval
for this Agreement to be legal, valid and binding, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Stockholder's spouse, enforceable against such spouse in
accordance with its terms. No trust of which such Stockholder is a trustee
requires the consent of any beneficiary to the execution and delivery of this
Agreement or to the consummation of the transactions contemplated hereby.
(b) The Subject Shares. The Stockholder is the record and
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beneficial owner of, and has good and marketable title to, the Subject Shares
set forth opposite his or its name on Schedule A attached hereto, free and clear
of any Liens. The Stockholder does not own, of record or beneficially, any
shares of capital stock of the Company or any Subsidiary other than the Subject
Shares set forth opposite his or its name on Schedule A attached hereto. The
Stockholder has the sole right to vote such Subject Shares, and none of such
Subject Shares is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of such Subject Shares, except as
contemplated by this Agreement.
(c) Brokers. No broker, finder, investment banker or other
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person is entitled to any brokerage, finder's or other fee or commission in
connection with the execution of this Agreement by such Stockholder or the
performance by such
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Stockholder of its obligations hereunder (it being understood that Smith Barney
Inc. may be entitled to certain fees and expenses in connection with the
transactions contemplated by the Merger Agreement, which fees and expenses shall
be paid by the Company as set forth in the Merger Agreement).
2. Purchase and Sale of Shares.
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Each Stockholder hereby severally agrees to sell to Sub, and Sub
hereby agrees, subject to the terms and conditions set forth herein, to
purchase, all Subject Shares set forth opposite such Stockholder's name on
Schedule A hereto (together with the associated Rights (as defined in the Rights
Agreement)), at a price per Share equal to the Offer Price (with no additional
consideration being paid in respect of the Rights). Such Stockholder may tender
such Subject Shares (and the associated Rights) into the Offer and Sub may
direct that such Stockholder tender such Subject Shares (and the associated
Rights) and, subject to applicable Federal securities law, not withdraw any
Subject Shares (or the associated Rights) so tendered. Any Subject Shares (and
the associated Rights) not purchased in the Offer will be sold and purchased
immediately after payment is made under the Offer.
3. Conditions.
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Parent's and Sub's obligations to purchase and each Stockholders'
obligations to sell the Subject Shares (and the associated Rights) pursuant to
Section 2 of this Agreement shall be subject to the prior satisfaction or waiver
of the following conditions:
(a) Sub shall have accepted the Shares for payment under the terms
of the Offer;
(b) the Minimum Condition shall have been satisfied;
(c) all waiting periods under the HSR Act applicable to the
exercise of the purchase of the Subject Shares shall have expired or terminated;
(d) all regulatory approvals required by any applicable law, rule,
or regulation, including any applicable local, state, federal or foreign
regulation, shall have been obtained, and each such approval shall be final; and
(e) there exist no preliminary or permanent injunction, or any
other order by any court of competent jurisdiction, restricting, preventing or
prohibiting either the purchase, or the delivery, of the Subject Shares.
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4. Representation and Warranty of Parent and Sub.
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(a) Authority. Parent and Sub have all requisite power and
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authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
by Parent and Sub, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary action on the part of the Parent and
Sub. This Agreement has been duly executed and delivered by the Parent and Sub
and constitutes a valid and binding obligation of the Parent and Sub enforceable
against the Parent and Sub in accordance with its terms. Except for the
expiration or termination of the waiting periods under the HSR Act,
informational filings with the SEC, the execution and delivery of this Agreement
do not, and the consummation of the transactions contemplated hereby and
compliance with the terms hereof will not, (i) conflict with, or result in any
violation of, or default (with or without notice or lapse of time or both) under
any provision of, any certificate or articles of incorporation, bylaws,
certificate or articles of limited partnership, limited partnership agreement,
trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or regulation
applicable to the Parent or Sub or to the Parent's or Sub's property or assets,
(ii) require any filing with, or permit, authorization, consent or approval of,
or notice to, any federal, state or local government or any court, tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency, domestic, foreign or supranational, or (iii) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to the
Parent or Sub or any of the Parent's or Sub's properties or assets.
(b) Brokers. No broker, finder, investment banker or other
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person is entitled to any brokerage, finder's or other fee or commission for
which any Stockholder will be liable in connection with the execution of this
Agreement by Parent and Sub or the performance by Parent and Sub of their
obligations hereunder.
(c) Financing. Parent has sufficient funds available, directly
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or through finance commitments, to purchase, or to cause Sub to purchase, all
the Subject Shares pursuant to this Agreement and to pay all fees and expenses
payable by Parent or Sub related to the transactions contemplated by this
Agreement.
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5. Covenants of Each Stockholder.
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Until the termination of this Agreement in accordance with
Section 10, each Stockholder, severally and not jointly, agrees as follows:
(a) In connection with the closing of the purchase and sale
contemplated under Section 2 of this Agreement (other than pursuant to the
Offer), each Stockholder agrees to deliver, either to Sub or as directed by
Parent, all certificates evidencing the Subject Shares held by such Stockholder,
duly endorsed in blank for transfer, or accompanied by stock powers and such
other documents as may be necessary in Parent's judgment to transfer record
ownership of the Subject Shares to Sub or as directed by Parent.
(b) At any meeting of stockholders of the Company called to vote
upon the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought,
the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of
the Merger, the adoption by the Company of the Merger Agreement and the approval
of the terms thereof and each of the other transactions contemplated by the
Merger Agreement.
(c) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought, the Stockholder shall vote (or cause
to be voted) the Subject Shares (and each class thereof) against (i) any
Alternative Transaction as such term is defined in Section 6.2 of the Merger
Agreement, (ii) any amendment of the Company's certificate of incorporation or
by-laws or other proposal or transaction involving the Company, which amendment
or other proposal or transaction would be reasonably likely to impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of the
other transactions contemplated by the Merger Agreement or change in any manner
the voting rights of any class of Company Common Stock, or (iii) any action that
would cause the Company to breach any representation, warranty or covenant
contained in the Merger Agreement. Subject to Section 12, the Stockholder
further agrees not to enter into any agreement or take any action inconsistent
with the foregoing.
(d) The Stockholder shall not, prior to the earliest of (i) the
Effective Time and (ii) the termination of the Merger Agreement in accordance
with its terms, (A) sell, transfer, give, pledge, assign or otherwise dispose of
(including by gift) (collectively, "Transfer"), or consent to any Transfer of,
any or all of such Subject Shares or any interest therein or enter
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into any contract, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, the Subject Shares to any person
other than pursuant to the terms of the Offer or the Merger or (B) enter into
any voting arrangement, directly or indirectly, whether by proxy, voting
agreement or otherwise, in respect of the Subject Shares, and the Stockholder
agrees not to commit or agree to take any of the foregoing actions.
(e) Subject to the terms of Section 12, during the term of this
Agreement, the Stockholder shall not, nor shall it permit any investment banker,
financial advisor, attorney, accountant or other representative retained by it,
to, directly or indirectly, (i) solicit, initiate or encourage (including by way
of furnishing information), or take any other action to facilitate, any
inquiries or the making of any proposal that may lead to an Alternative
Transaction or (ii) participate in any discussions or negotiations regarding any
proposed Alternative Transaction. Without limiting the foregoing, it is
understood that any violation of the restrictions set forth in the preceding
sentence by any investment banker, financial advisor, attorney, accountant or
other representative of such Stockholder, whether or not such person is
purporting to act on behalf of such Stockholder, shall be deemed to be a
violation of this Section 5(e) by such Stockholder.
(f) Until the Effective Time, the Stockholder shall use all
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other parties in doing,
all things necessary, proper or advisable to consummate the Offer and make
effective, in the most expeditious manner practicable, the Merger and the other
transactions contemplated by the Merger Agreement.
(g) Such Stockholder, and any beneficiary of a revocable trust for
which such Stockholder serves as trustee, shall not take any action to revoke or
terminate such trust or take any other action which would restrict, limit or
frustrate in any way the transactions contemplated by this Agreement. Each such
beneficiary hereby acknowledges and agrees to be bound by the terms of this
Agreement applicable to it.
(h) (i) In the event that the Merger Agreement shall have been
terminated under circumstances where Parent is or may become entitled to receive
the Termination Fee, as defined in Section 7.7 of the Merger Agreement, each
Stockholder shall pay to Parent on demand an amount equal to all profit
determined in accordance with Section 5(h)(ii) of such Stockholder resulting
from the consummation of any transaction which gives rise to the Company's
obligation to pay the Termination Fee pursuant to the Merger Agreement.
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(ii) For purposes of this Section 5(h), the profit of any
Stockholder from any Alternative Transaction shall equal (A) the aggregate
consideration that would have been received by such Stockholder pursuant to
such Alternative Transaction if such Stockholder held the same number of
Subject Shares at the consummation of such Alternative Transaction as he
held at the time the Merger Agreement was terminated (including any
consideration that would have been received in respect of any unexercised
stock options or warrants or similar instruments held at the time the
Merger Agreement was terminated), valuing any noncash consideration
(including any residual interest in the Company) at its fair market value
on the date of such consummation less (B) the per share cash consideration
or the per share fair market value of the aggregate consideration that
would have been issuable or payable to such Stockholder (assuming all stock
options, warrants or similar instruments held by such Stockholder were
exercised) if he had received the Merger Consideration pursuant to the
Merger Agreement as originally executed (without giving effect to any
increase in such Merger Consideration).
(iii) In the event that (x) prior to the Effective Time, an
Alternative Transaction shall have been proposed and (y) the Effective Time
of the Merger shall have occurred and Parent for any reason shall have
increased the amount of Merger Consideration payable over that set forth in
the Merger Agreement in effect on the date hereof (the "Merger
Consideration"), each Stockholder shall pay to Parent on demand an amount
in cash equal to the product of (i) the number of Subject Shares held by
such Stockholder (assuming all stock options, warrants or similar
instruments held by such Stockholder were exercised) and (ii) 100% of the
excess, if any, of (A) the per share cash consideration or the per share
fair market value of any noncash consideration, as the case may be,
received by the Stockholder as a result of the Merger, as amended,
determined as of the Effective Time of the Merger, over (B) the amount of
the Original Merger Consideration determined as of the time of the first
increase in the amount of the Original Merger Consideration.
(iv) For purposes of this Section 5(h), the fair market value
of any noncash consideration consisting of:
(A) securities listed on a national securities exchange
or traded on the NASDAQ/NMS shall be equal to the average closing price per
share of such
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security as reported on such exchange or NASDAQ/NMS for the twenty trading
days prior to the date of determination; and
(B) consideration which is other than cash or
securities of the form specified in clause (A) of this Section 5(h)(iv)
shall be determined by a nationally recognized independent investment
banking firm mutually agreed upon by the parties within 10 business days of
the event requiring selection of such banking firm; provided, however, that
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if the parties are unable to agree within two business days after the date
of such event as to the investment banking firm, then the parties shall
each select one firm, and those firms shall select a third investment
banking firm, which third firm shall make such determination; provided
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further, that the fees and expenses of such investment banking firm shall
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be borne by Parent. The determination of the investment banking firm shall
be final and binding upon the parties.
(v) Any payment of profit under this Section 5(h) shall
(x) if paid in cash, be paid by wire transfer of same day funds to an
account designated by Parent and (y) if paid through a transfer of
securities (with the method and timing of such transfer to be mutually
agreed), be paid as soon as practicable through delivery of such
securities, suitably endorsed for transfer; provided that the Stockholder
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shall be required to pay cash under this Section 5(h) only to the extent
the fair market value of the securities transferred pursuant to clause (y)
is less than such Stockholders' profit.
(i) If (i) immediately prior to the expiration of the Offer,
Sub determines that the exercise of options, warrants or other instruments
held by the Stockholders and the sale or tender into the Offer of Subject
Shares acquired thereby either would cause the Minimum Condition to be
satisfied or would cause Sub to own more than 90% of the outstanding Shares
and (ii) Sub exercises its right to extend the Offer in accordance with the
terms and conditions set forth in the Merger Agreement, then upon the
request of Parent or Sub and the Exercise Loan (as defined below), each
Stockholder shall promptly exercise all options, warrants and other
instruments held by such Stockholder and sell the Subject Shares acquired
thereby to Sub or tender such Subject Shares into the Offer (at such
Stockholder's discretion, unless Sub directs that such Stockholder tender
such Subject Shares). Upon delivery of such request, Parent shall lend to
each Stockholder the amount necessary for such Stockholder to pay the
aggregate exercise price in respect of all options,
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warrants and other instruments (each, an "Exercise Loan"). Each Exercise
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Loan shall be evidenced by a promissory note, shall bear interest at the
applicable Federal rate (as defined in Section 7872 of the Internal Revenue
Code of 1986, as amended) and shall be repaid together with accrued but
unpaid interest upon the earlier of (i) the payment of the purchase price
for the Subject Shares (whether pursuant to the Offer or otherwise) and
(ii) the termination of this Agreement pursuant to Section 10.
6. Grant of Irrevocable Proxy; Appointment of Proxy.
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(a) Each Stockholder hereby irrevocably grants to, and
appoints, Parent and Josh Harris, in his capacity as an officer of Parent, and
any individual who shall hereafter succeed to any such office of Parent, such
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Stockholder, to vote such Stockholder's
Subject Shares, or grant a consent or approval in respect of such Subject Shares
against (i) any Alternative Transaction as such term is defined in Section 6.2
of the Merger Agreement, (ii) any amendment of the Company's certificate of
incorporation or by-laws or other proposal or transaction involving the Company,
which amendment or other proposal or transaction would be reasonably likely to
impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement or change in any
manner the voting rights of any class of Company Common Stock, or (iii) any
action that would cause the Company to breach any representation, warranty or
covenant contained in the Merger Agreement. The proxy granted pursuant to this
Section shall terminate upon the termination of this Agreement pursuant to
Section 10.
(b) Such Stockholder represents that there are no proxies
heretofore given in respect of such Stockholder's Subject Shares.
(c) Such Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 6 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Such
Stockholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. Such Stockholder hereby
ratifies and confirms all that the holder of such irrevocable proxy may lawfully
do or cause to be done by virtue hereof. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 212(e)
of the Delaware General Corporation Law (the "DGCL").
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7. Further Assurances.
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Each Stockholder will, at Parent's expense, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as Parent may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
8. Certain Events.
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(a) Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder's Subject Shares (and the
associated Rights) and shall be binding upon any person or entity to which legal
or beneficial ownership of such Subject Shares shall pass, whether by operation
of law or otherwise, including without limitation such Stockholder's heirs,
guardians, administrators or successors. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Company Common Stock, or the
acquisition of additional shares of Company Common Stock or other voting
securities of the Company by any Stockholder, the number of Subject Shares
listed in Schedule A beside the name of such Stockholder shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Company Common Stock or other voting securities of the
Company issued to or acquired by such Stockholder.
(b) Each Stockholder agrees that such Stockholder will tender
to the Company, immediately after the execution hereof (or, in the event Subject
Shares are acquired subsequent to the date hereof, immediately after such
acquisition), any and all certificates representing such Stockholder's Subject
Shares in order that the Company may inscribe upon such certificates the legend
in accordance with Section 7.9 of the Merger Agreement.
9. Assignment.
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Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the prior
written consent of the other parties, except that (i) Sub may assign, in its
sole discretion, any or all of its rights, interests and obligations hereunder
to any subsidiary of Parent that may be substituted for Sub as contemplated by
Section 10.8 of the Merger Agreement, and (ii) Parent may assign, in its sole
discretion, any and all of its rights, interests and obligations hereunder to
any direct or indirect wholly owned subsidiary of Parent, provided that Parent
will continue to remain primarily liable for its obligations hereunder in the
event of any assignment pursuant to this clause
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(ii). Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and permitted assigns.
10. Termination.
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This Agreement, and all rights and obligations of the parties
hereunder, shall terminate upon the date upon which the Merger Agreement is
terminated in accordance with its terms, provided that a Termination Fee has not
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become, and could not at any time in the future become, payable under the Merger
Agreement, in which case Sections 5(h), 6, 7 (as it relates to the other
sections of this Agreement that survive such termination), 8, 9, 10, 11, 13, and
14 shall survive until such Termination Fee is paid.
11. General provisions.
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(a) Amendments. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be
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in writing and shall be deemed given when delivered by facsimile (with
confirmation of delivery) or personally or sent by overnight courier (providing
proof of delivery) to Parent in accordance with Section 10.2 of the Merger
Agreement and to the Stockholders at their respective addresses and facsimile
numbers set forth on Schedule A attached hereto (or at such other address and
facsimile number for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to an
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Article or a Section, such reference shall be deemed made to an Article or a
Section of this Agreement, unless otherwise indicated. The headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Unless the context otherwise
requires, words importing the singular shall include the plural, and vice versa.
Wherever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
(d) Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
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(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
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(including the documents and instruments referred to herein) (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 hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of Delaware regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
(g) Voidability. If prior to the execution hereof, the Board of
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Directors of the Company shall not have duly and validly authorized and approved
by all necessary corporate action, this Agreement, the Merger Agreement and the
transactions contemplated hereby and thereby, so that by the execution and
delivery hereof Parent or Sub would become, or could reasonably be expected to
become an "interested stockholder" with whom the Company would be prevented for
any period pursuant to Section 203 of the DGCL from engaging in any "business
combination" (as such terms are defined in Section 203 of the DGCL), then this
Agreement shall be void and unenforceable until such time as such authorization
and approval shall have been duly and validly obtained.
(h) Expenses. Except as otherwise provided herein, all costs and
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expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such expenses.
12. Stockholder Capacity.
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No person executing this Agreement who is or becomes during the term
hereof a director or officer of the Company makes any agreement or understanding
herein in his capacity as such director or officer. Each Stockholder signs
solely in his capacity as the record holder and beneficial owner of, or the
trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Subject Shares and nothing herein (including, without limitation,
the provisions of Section 5(e)) shall limit or affect any actions taken by a
Stockholder in his capacity as an officer or director of the Company.
13. Enforcement.
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The parties agree that irreparable damage would occur 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
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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 court of the United States located in the State of Delaware or
in a Delaware state court, this being in addition to any other remedy to which
they are entitled at law or in equity. In addition, each of the parties hereto
(i) consents to submit such party to the personal jurisdiction of any Federal
court located in the State of Delaware or any Delaware state court in the event
any dispute arises out of this Agreement or any of the transactions contemplated
hereby, (ii) agrees that such party will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(iii) agrees that such party will not bring any action relating to this
Agreement or the transactions contemplated hereby in any court other than a
Federal court sitting in the state of Delaware or a Delaware state court and
(iv) waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any of the transactions
contemplated hereby.
14. Public Announcements.
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No Stockholder shall issue any press release or make any public
statement without the prior written consent of Parent, except as may be required
by applicable law, court process or by obligations pursuant to any listing
agreement with any national securities exchange.
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IN WITNESS WHEREOF, Parent, Sub and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
THREE RIVERS HOLDING CORP.
By: /s/ JOSHUA HARRIS
---------------------------------
Name: Joshua Harris
Title:
THREE RIVERS ACQUISITION CORP.
By: /s/ JOSHUA HARRIS
---------------------------------
Name: Joshua Harris
Title:
/s/ JEFF D. BERGMAN
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Jeff D. Bergman, as Stockholder
/s/ DANIEL DICKMAN
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Daniel Dickman, as Stockholder
/s/ DAVID SPINDLER
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David Spindler, as Stockholder
/s/ DAVID ZYNN
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David Zynn, as Stockholder
SCHEDULE A
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Number of
Name and Address Shares of Company
of Stockholder Common Stock Owned
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Jeff D. Bergman 450,791
335 Golfside Drive
Wexford, PA 15090
Daniel Dickman 501,689
603 Golden Oaks Lane
Pittsburgh, PA 15237
David Spindler 46,277
103 Lee Court
McKeesport, PA 15135
David Zynn 24,745
5011 Karrington Drive
Gibsonia, PA 15044