EXHIBIT 10.2
STOCK TENDER AGREEMENT
STOCK TENDER AGREEMENT (this "Agreement"), dated June 12, 1998, by and
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among Armstrong World Industries, Inc., a Pennsylvania corporation ("Parent"),
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Sapling Acquisition, Inc., a Delaware corporation ("Purchaser") and a wholly-
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owned subsidiary of Parent, and each of the parties listed on the signature
pages hereto (each a "Stockholder", and collectively, the "Stockholders").
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WHEREAS, each of the Stockholders is, as of the date hereof, the record and
beneficial owner of the shares of common stock, par value $.01 per share (the
"Common Stock"), of Triangle Pacific Corp., a Delaware corporation (the
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"Company"), set forth opposite its name on Annex I hereto;
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WHEREAS, Parent, Purchaser and the Company concurrently herewith are
entering into an Agreement and Plan of Merger, dated as of the date hereof (the
"Merger Agreement"), which provides, among other things, for the acquisition of
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the Company by Parent by means of a cash tender offer (the "Offer") by Purchaser
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for all of the outstanding shares of Common Stock and for the subsequent merger
(the "Merger") of Purchaser with and into the Company upon the terms and subject
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to the conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and Purchaser to enter
into the Merger Agreement, and in order to induce Parent and Purchaser to enter
into the Merger Agreement, the Stockholders have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by Parent
and Purchaser of the Merger Agreement and the mutual representations,
warranties, covenants and agreements set forth herein and therein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Stockholder. Each of the
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Stockholders hereby represents and warrants to Parent and Purchaser, severally
and not jointly, as follows:
(a) Such Stockholder is the beneficial owner of the shares of Common Stock
(as may be adjusted from time to time pursuant to Section 6 hereof, the
"Shares") set forth opposite its name on Annex I to this Agreement. Such Shares
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are held of record, in each case, by the custodian of such Stockholder. On the
date hereof, the Shares opposite such Stockholder's name constitute all of the
Shares owned by such Stockholder. Such Stockholder has the exclusive right to
vote or dispose of (or exercise the voting or disposition of) such Shares.
(b) Such Stockholder is a corporation, general partnership, limited
partnership, collective investment trust or separate account, as the case may
be, duly organized, validly existing and in good standing under the laws of its
respective jurisdiction of organization, and such Stockholder has all requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all corporate, partnership or
other action necessary to authorize the execution, delivery and performance of
this Agreement.
(c) This Agreement has been duly authorized, validly executed and delivered
by such Stockholder and constitutes the legal, valid and binding obligation of
such Stockholder, enforceable against such Stockholder in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting enforcement of creditors' rights generally
and by general equitable principles (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 do
not, and the performance by such Stockholder of its obligations hereunder will
not, (i) conflict with, result in a violation or breach of, constitute (with or
without notice or lapse of time or both) a default under, result in or give to
any person any right of termination, cancellation, modification or acceleration
of, or result in the creation or imposition of any Lien upon any of the assets
or properties of such Stockholder under, any of the terms, conditions or
provisions of (A) the certificates of articles of incorporation or by laws (or
other comparable charter documents) of such Stockholder or (B) (x) any Law or
Order of any Governmental or Regulatory Authority applicable to such Stockholder
or any of its respective assets or properties, or (y) any Contract to which such
Stockholder is a party or by which such Stockholder or any of its respective
assets or properties is bound, excluding from the foregoing clauses (x) and (y)
conflicts, violations, breaches, defaults, terminations, modifications,
accelerations and creations and impositions of Liens which, individually or in
the aggregate, could not be reasonably expected to have a material adverse
effect on the ability of such Stockholder to consummate the transactions
contemplated by this Agreement, or (ii) require any filing by such Stockholder
with, or any permit, authorization, consent or approval of, any Governmental or
Regulatory Authority or any third party other than an amendment to Schedule 13D
and Form 4 and/or Form 5. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Stockholder is a
trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by such Stockholder of the transactions
contemplated hereby.
(e) The Shares and the certificates representing the Shares owned by such
Stockholder are now and at all times during the term hereof will be held by such
Stockholder, or by a nominee or custodian for the benefit of such Stockholder,
free and clear of all Liens, proxies, voting trusts or agreements or
understandings or arrangements whatsoever, except for any such liens or proxies
arising hereunder, and not subject to any preemptive rights.
SECTION 2. Representations and Warranties of Parent and Purchaser. Each
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of Parent and Purchaser hereby represents and warrants to the Stockholders as
follows:
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(a) Parent and Purchaser are corporations duly organized, validly existing
and in good standing under the laws of their respective jurisdictions of
incorporation, and each of Parent and Purchaser has full corporate power and
authority to enter into 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.
(b) This Agreement has been duly authorized, executed and delivered by each
of Parent and Purchaser and constitutes the legal, valid and binding obligation
of each of Parent and Purchaser, enforceable against each of them in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(c) The execution and delivery of this Agreement by Parent and Purchaser do
not, and the performance by Parent and Purchaser of their obligations hereunder
and the consummation of the transactions contemplated hereby will not, (i)
conflict with, result in a violation or breach of, constitute (with or without
notice or lapse of time or both) a default under, result in or give to any
person any right of termination, cancellation, modification or acceleration of,
or result in the creation or imposition of any Lien upon any of the assets or
properties of Parent or Purchaser under, any of the terms, conditions or
provisions of (A) the certificates or articles of incorporation or bylaws of
Parent or Purchaser or (B) (x) any Law or Order of any Governmental or
Regulatory Authority applicable to Parent or Purchaser or any of their
respective assets or properties, or (y) any Contract to which Parent or
Purchaser is a party or by which Parent or Purchaser or any of their respective
assets or properties is bound, excluding from the foregoing clauses (x) and (y)
conflicts, violations, breaches, defaults, terminations, modifications,
accelerations and creations and impositions of Liens which, individually or in
the aggregate, could not be reasonably expected to have a material adverse
effect on the ability of Parent and Purchaser to consummate the transactions
contemplated by this Agreement, or (ii) require any filing by Parent or
Purchaser with, or any permit, authorization, consent or approval of, any
Governmental or Regulatory Authority.
SECTION 3. Purchase and Sale of the Shares. Each of the Stockholders
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hereby agrees to tender the Shares set forth opposite its name on Annex I to
this Agreement into the Offer promptly, and in any event no later than the fifth
business day following the commencement of the Offer pursuant to Section 1.1 of
the Merger Agreement and not to withdraw any Shares so tendered unless the Offer
is terminated or has expired; provided that if such Stockholder shall thereafter
acquire shares of Common Stock, then any such Shares shall be tendered on the
next succeeding business day after such acquisition. Purchaser hereby agrees to
purchase all the Shares so tendered at a price per Share equal to $55.50 per
Share or any higher price that may be paid in the Offer; provided, however, that
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Purchaser's obligation to accept for payment and pay for the Shares in the Offer
is subject to all the terms and conditions of the Offer set forth in the Merger
Agreement and Annex A thereto.
SECTION 4. Transfer of the Shares; Proxies and Non-Interference. Prior to
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the termination of this Agreement, except as otherwise provided herein, none of
the Stockholders
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shall, directly or indirectly, (i) offer for sale, sell, transfer, tender,
pledge, encumber, assign, or otherwise dispose of, any or all of the Shares;
(ii) enter into any Contract, option or understanding with respect to any
transfer of any or all of the Shares or any interest therein; (iii) except as
provided herein, grant any proxy, power-of-attorney or other authorization or
consent in or with respect to the Shares; (iv) deposit the Shares into a voting
trust or enter into a voting agreement or arrangement with respect to the
Shares; or (v) 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.
SECTION 5. Stockholder Capacity. No person executing this Agreement who
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is or becomes during the term hereof a director of the Company makes any
agreement or understanding herein in his or her capacity as such director. Each
Shareholder signs solely in his or her capacity as the owner of, or the trustee
of a trust whose beneficiaries are the owners of, such Shareholder Shares.
SECTION 6. Certain Events. In the event of any stock split, stock
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dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by any Stockholder, the number of Shares shall be adjusted
appropriately, and this Agreement and the rights and obligations hereunder shall
attach to any additional shares of Common Stock or other securities or rights of
the Company issued to or acquired by any such Stockholder.
SECTION 7. Certain Other Agreements. From the date of this Agreement
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until the earlier of the termination of this Agreement or the Effective Time,
none of the Stockholders shall, and none of the Stockholders shall permit or
authorize any advisor or representative retained by or acting for or on behalf
of any such Stockholder to, directly or indirectly, (i) take any action to
initiate, solicit, continue, encourage or facilitate (including by way of
furnishing or disclosing non-public information) any inquiries or the making of
any offer or proposal with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company or any of its subsidiaries or any
proposal or offer to acquire in any manner, directly or indirectly, 15% or more
of the shares of any class of voting securities of the Company or any of its
subsidiaries or a substantial portion of the assets of the Company or any of its
subsidiaries, other than the transactions contemplated by the Merger Agreement
or by this Agreement (any of the foregoing being referred to as an "Acquisition
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Proposal"), or (ii) engage in negotiations, discussions or communications
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regarding or disclose any information relating to the Company or any of its
subsidiaries or afford access to the properties, books or records of the Company
or any of its subsidiaries to any person, corporation, partnership or other
entity or group (a "Potential Acquiror") that may be considering making, or has
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made, an Acquisition Proposal or knowingly facilitate any effort or attempt to
make or implement an Acquisition Proposal or accept an Acquisition Proposal.
Each of the Stockholders shall (i) notify Parent promptly (and in any event
within one business day) after receipt of any Acquisition Proposal (or any
indication that any person is considering making an Acquisition Proposal) or any
request for non-public information relating to the Company or any of its
subsidiaries or for access to the properties,
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books or records of the Company or any of its subsidiaries by any person that
may be considering making, or has made, an Acquisition Proposal, (ii) notify
Parent promptly of any material change to any such Acquisition Proposal,
indication or request and (iii) upon reasonable request by Parent, provide
Parent with all material information about any such Acquisition Proposal,
indication or request.
SECTION 8. Further Assurances. Each of the Stockholders shall, upon
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request of Parent or Purchaser, take such further actions as may reasonably be
necessary or desirable to carry out the provisions hereof, provided that the
Stockholders shall not be required to incur any additional costs or expenses or
receive less-than the agreed price without their consent.
SECTION 9. Termination. Except as otherwise provided in this Agreement,
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this Agreement, and all rights and obligations of the parties hereunder, shall
terminate immediately upon the earlier of (i) the acquisition by Parent, through
Purchaser or otherwise, of all the Shares, (ii) the termination of the Merger
Agreement in accordance with its terms or (iii) the Effective Time; provided,
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however, that Sections 8 and 10 shall survive any termination of this Agreement.
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SECTION 10. Expenses. All fees and expenses incurred by any one party
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hereto shall be borne by the party incurring such fees and expenses.
SECTION 11. Public Announcements. Each of the Stockholders, Parent and
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Purchaser agrees that it will not issue any press release or otherwise make any
public statement with respect to this Agreement or the transactions contemplated
hereby without the prior consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that such disclosure can be
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made without obtaining such prior consent if (i) the disclosure is required by
law, and (ii) the party making such disclosure has first used its best efforts
to consult with the other party about the form and substance of such disclosure.
SECTION 12. Definitions. As used in this Agreement, the following terms
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shall
have the meanings indicated below:
"Contract" means any agreement, lease, evidence of indebtedness, mortgage,
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indenture, security agreement or other contract (whether written or oral).
"Law" means any law, statute, rule, regulation, ordinance and other
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pronouncement having the effect of law of the United States, any foreign country
or any domestic or foreign state, county, city or other political subdivision or
of any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security interest, lease,
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lien, adverse claim, levy, charge or other encumbrance of any kind, or any
conditional sale Contract, title retention Contract or other Contract to give
any of the foregoing.
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"Governmental or Regulatory Authority" means any court, tribunal,
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arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision.
"Order" means any writ, judgment, decree, injunction or similar order of
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any Governmental or Regulatory Authority (in each such case whether preliminary
or final).
SECTION 13. Miscellaneous.
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(a) All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or mailed (first class postage prepaid) to the
parties at the following addresses or facsimile numbers:
(A) if to any or all the Stockholders, to:
Oaktree Capital Management LLC
550 South Hope Street, 22nd Floor
Los Angeles, California 90071
Telephone: (213) 694-1522
Facsimile: (213) 533-5022
Attention: Kenneth Liang
with copies to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
Telephone: (212) 351-3850
Facsimile: (212) 351-5247
Attention: Conor D. Reilly
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and
(B) if to Parent or Purchaser, to:
Armstrong World Industries, Inc.
313 West Liberty Street
P.O. Box 3001
Lancaster, Pennsylvania
17604-3001
Telephone: (717) 396-0611
Facsimile: (717) 396-2983
Attention: Deborah K. Owen
Senior Vice President,
Secretary and General Counsel
with a copy to:
Rogers & Wells LLP
200 Park Avenue
New York, New York 10166
Telephone: (212) 878-8000
Facsimile: (212) 878-8375
Attention: Robert E. King, Jr., Esq.
Bonnie A. Barsamian, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice is to be delivered pursuant to this Section). Any party
from time to time may change its address, facsimile number or other information
for the purpose of notices to that party by giving notice specifying such change
to the other parties hereto.
(b) 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.
(c) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall be considered one and
the same agreement.
(d) This Agreement constitutes the entire agreement, and supersedes all
prior agreements and understandings, whether written and oral, among the parties
hereto with respect to the subject matter hereof.
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(e) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware without giving effect to the principles of
conflicts of laws thereof.
(f) Each party hereby irrevocably submits to the exclusive jurisdiction of
the Court of Chancery in the State of Delaware or the United States District
Court for the Southern District of New York or any court of the State of New
York located in the City of New York in any action, suit or proceeding arising
in connection with this Agreement, and agrees that any such action, suit or
proceeding shall be brought only in such court (and waives any objection based
on forum non conveniens or any other objection to venue therein); provided,
however, that such consent to jurisdiction is solely for the purpose referred to
in this paragraph (f) and shall not be deemed to be a general submission to the
jurisdiction of said Courts or in the States of Delaware or New York other than
for such purposes. Each party hereto hereby waives any right to a trial by jury
in connection with any such action, suit or proceeding.
(g) Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation
of law or otherwise) without the prior written consent of the other parties, and
any such purported assignment shall be null and void; provided, however,
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Purchaser or Parent may, without the prior written consent of any Stockholder
assign its rights and obligations to any of its direct or indirect wholly owned
subsidiaries. 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 assigns, and the provisions of this Agreement are not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
(h) If any term, provision, covenant or restriction herein is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable or against its regulatory policy, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
(i) Each of the parties hereto acknowledge and agrees that in the event of
any breach of this Agreement, each non-breaching party would be irreparably and
immediately harmed and could not be made whole by monetary damages. It is
accordingly agreed that the parties hereto (i) will waive, in any action for
specific performance, the defense of adequacy of a remedy at law and (ii) shall
be entitled, in addition to any other remedy to which they may be entitled at
law or in equity, to compel specific performance of this Agreement.
(j) No amendment, modification or waiver in respect to this Agreement shall
be effective unless it shall be in writing and signed by each party hereto;
provided that Annex I hereto may be supplemented by Parent by adding the name
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and other relevant information concerning any stockholder of the Company who
agrees to be bound by the terms of this Agreement without the agreement of any
other party hereto, and thereafter such added stockholder shall be treated as a
"Stockholder" for all purposes of this Agreement.
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IN WITNESS WHEREOF, each of Parent, the Purchaser and the Stockholders have
caused this Agreement to be duly executed and delivered as of the date first
written above.
ARMSTRONG WORLD INDUSTRIES, INC.
By: /s/ George A. Lorch
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Name: George A. Lorch
Title: Chairman of the Board, President
and Chief Executive Officer
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SAPLING ACQUISITION, INC.
By: /s/ George A. Lorch
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Name: George A. Lorch
Title: President and Chairman of
the Board
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TCW SPECIAL CREDITS FUND IIIb
By: TCW SPECIAL CREDITS, its general partner
By: TCW ASSET MANAGEMENT COMPANY, its
Managing General Partner
By:/s/ Matthew S. Barrett
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Name: Matthew S. Barrett
Title:
By:/s/ Kenneth Liang
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Name: Kenneth Liang
Title:
TCW SPECIAL CREDITS TRUST
By: TRUST COMPANY OF THE WEST, as Trustee
By:/s/ Matthew S. Barrett
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Name: Mathew S. Barrett
Title: Authorized Signatory
By:/s/ Kenneth Liang
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Name: Kenneth Liang
Title: Authorized Signatory
TCW SPECIAL CREDITS TRUST IIIb
By: TRUST COMPANY OF THE WEST, as Trustee
By:/s/ Matthew S. Barrett
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Name: Matthew S. Barrett
Title: Authorized Signatory
By:/s/ Kenneth Liang
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Name: Kenneth Liang
Title: Authorized Signatory
WEYERHAEUSER COMPANY MASTER RETIREMENT TRUST
By: TCW SPECIAL CREDITS, its investment manager
By: TCW ASSET MANAGEMENT COMPANY, its
Managing General Partner
By:/s/ Matthew S. Barrett
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Name: Matthew S. Barrett
Title: Authorized Signatory
By:/s/ Kenneth Liang
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Name: Kenneth Liang
Title: Authorized Signatory
THE COMMON FUND FOR BOND INVESTMENTS
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By: TCW SPECIAL CREDITS, as investment manager
By: TCW ASSET MANAGEMENT COMPANY, its
Managing General Partner
By:/s/ Matthew S. Barrett
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Name: Matthew S. Barrett
Title: Authorized Signatory
By:/s/ Kenneth Liang
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Name: Kenneth Liang
Title: Authorized Signatory
TCW SPECIAL CREDITS FUND V - THE PRINCIPAL FUND
By: TCW ASSET MANAGEMENT COMPANY, its General
Partner
By:/s/ Stephen A. Kaplan
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Name: Stephen A. Kaplan
Title: Authorized Signatory
By:/s/ Kenneth Liang
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Name: Kenneth Liang
Title: Authorized Signatory
TCW ASSET MANAGEMENT COMPANY
By: /s/ Marc I. Stern
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Name: Marc I. Stern
Title: Vice Chairman
By: /s/ Michael Cahill
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Name: Michael Cahill
Title: Managing Director
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ANNEX I
Ownership of Company Common Stock
Number of Shares
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TCW Special Credits Fund IIIb........................ 339,709
TCW Special Credits Trust............................ 337,717
TCW Special Credits Trust IIIb....................... 144,815
TCW Special Credits Fund V........................... 4,250,085
TCW Asset Management Company......................... 339,053
Weyerhaeuser Company Master
Retirement Trust (separate account).................. 198,801
Common Fund For Bond Investments (separate account).. 299,004
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