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Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of September 26, 1999 (this
"Agreement"), between Westinghouse Air Brake Company, a Delaware corporation
("WABCO"), and the undersigned stockholder (the "Stockholder") of MotivePower
Industries, Inc., a Pennsylvania corporation (the "Company").
W I T N E S S E T H:
WHEREAS, WABCO and the Company are entering into the Amended
and Restated Agreement and Plan of Merger, dated as of even date herewith (as
the same may be amended and supplemented, the "Merger Agreement"), whereby, upon
the terms and subject to the conditions set forth in the Merger Agreement, each
issued and outstanding share of Common Stock, par value $.01 per share, of the
Company ("Company Common Stock"), not owned directly or indirectly by WABCO, the
Company or their respective wholly-owned subsidiaries, will be converted into
the Exchange Ratio of shares of Common Stock, par value $.01 per share, of WABCO
("WABCO Common Stock");
WHEREAS, the Stockholder owns or has voting control with
respect to certain shares of Company Common Stock (together with any shares of
Company Common Stock acquired by the Stockholder after the date hereof and
during the term of this Agreement, being collectively referred to herein as the
"Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, WABCO has required that the Stockholder agrees, and in order
to induce WABCO to enter into the Merger Agreement, the Stockholder has agreed
to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements set forth herein, the Stockholder agrees as
follows:
Section 1. Covenants of Stockholder. Until the termination of
this Agreement in accordance with Section 4, the Stockholder agrees as follows:
(a) At any meeting of the stockholders of the Company called
to vote upon the Merger or the Merger Agreement or at any adjournment
thereof or in any other circumstances upon which a vote, consent or
other approval with respect to the Merger or the Merger Agreement is
sought, the Stockholder shall vote (or cause to be voted) the Subject
Shares in favor of the Merger, the adoption of the Merger Agreement and
the approval of the terms thereof and each of the other transactions
contemplated by the Merger Agreement.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's
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vote, consent or other approval is sought, the Stockholder shall vote
(or cause to be voted) the Subject Shares against (i) any merger
agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the
Company or any other Takeover Proposal (as defined in the Merger
Agreement), (ii) any amendment of the Company's Articles of
Incorporation, or By-Laws, which amendment would in any manner 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 capital stock of
the Company, or (iii) any action or agreement which would result in a
breach of any representation, warranty, covenant or agreement of the
Company set forth in the Merger Agreement. The Stockholder further
agrees not to commit or agree to take any action inconsistent with the
foregoing.
(c) The Stockholder agrees not to (i) sell, transfer,
exchange, redeem, pledge, encumber, assign or otherwise dispose of
(including by gift) (collectively, "Transfer"), or enter into any
contract, option or other arrangement (including any profit-sharing
arrangement) with respect to the Transfer of the Subject Shares to any
person or (ii) enter into any voting arrangement (other than this
Agreement), whether by proxy, voting agreement or otherwise, in
relation to the Subject Shares, and agrees not to commit or agree to
take any of the foregoing actions.
(d) The Stockholder, as stockholder of the Company, shall not,
nor shall the Stockholder, as stockholder of the Company, permit any
officer, director or employee or any investment banker, attorney,
accountant, agent or other advisor or representative of the Stockholder
to, (i) solicit, initiate or knowingly encourage the submission of any
Takeover Proposal, (ii) enter into any agreement with respect to a
Takeover Proposal or (iii) participate in any discussions or
negotiations regarding, or furnish to any Person (as defined in the
Merger Agreement) any information with respect to, or take any other
action to facilitate any inquiries or the making of any proposal that
constitutes any Takeover Proposal.
(e) The Stockholder shall notify WABCO promptly (but in no
event later than 24 hours) after receipt by the Stockholder, as
stockholder of the Company, or the Stockholder, as stockholder of the
Company, becoming aware, of any Takeover Proposal or any request for
nonpublic information in connection with a Takeover Proposal or for
access to the properties, books or records of such party by any Person
or entity that informs such party that it is considering making, or has
made, a Takeover Proposal.
Section 2. Representations and Warranties. The Stockholder
hereby represents and warrants to WABCO as follows:
(a) The Stockholder has good and marketable title to the
Subject Shares, free
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and clear of any claims, liens, encumbrances, pledges and security
interests whatsoever. The Stockholder owns no shares of capital stock
of the Company other than the Subject Shares. The Stockholder has the
sole right to vote, and the sole power of disposition with respect to,
the Subject Shares. No proxies or powers of attorney have been granted
with respect to the Subject Shares that will remain in effect after the
execution of this Agreement. Except for this Agreement and as
contemplated by Section 1(f), no voting arrangement (including voting
agreements or voting trusts) affecting the Subject Shares shall remain
in effect after the execution of this Agreement.
(b) The Stockholder has all requisite power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by
the Stockholder, and the consummation of the transactions contemplated
hereby, has 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 in accordance with its terms. The execution and
delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof
will not, 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
trust agreement, partnership 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 any of the property or assets of the Stockholder. No
consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality,
domestic, foreign or supranational, is required by or with respect to
the Stockholder in connection with the execution and delivery of this
Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.
Section 3. Affiliate Letter. The Stockholder agrees to execute
and deliver on a timely basis an Affiliate Letter in the form of Exhibit 5.10(b)
to the Merger Agreement, when and if requested by WABCO.
Section 4. Termination. This Agreement shall terminate,
without further liability or obligation of the parties hereto, including
liability for damages, upon the earlier of (i) the termination of the Merger
Agreement in accordance with its terms, (ii) consummation of the Merger and
(iii) WABCO becoming entitled to terminate the Merger Agreement pursuant to
Section 7.1(e) of the Merger Agreement. Notwithstanding the foregoing, no
termination pursuant to this Section 4 shall relieve the undersigned from
liability for breach of this Agreement.
Section 5. Further Assurances. The Stockholder will, from time
to time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as WABCO may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
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Section 6. Assignment. 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 attempted assignment thereof
without such consent shall be null and void. 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.
Section 7. Specific Performance. The 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 WABCO
irreparable harm. Accordingly, the Stockholder agrees that in the event of any
breach or threatened breach of this Agreement by the Stockholder, in addition to
any other remedies at law or in equity it may have, shall be entitled, without
the requirement of posting a bond or other security, to equitable relief,
including injunctive relief and specific performance.
Section 8. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given when delivered
personally, one day after being delivered to a nationally recognized overnight
courier or when telecopied (with a confirmatory copy sent by such overnight
courier) to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
(a) if to WABCO, to:
1001 Air Brake Avenue
Wilmerding, PA 15148
Attention: Chief Executive Officer
Facsimile No.: (412) 825-1156
with copies to:
Reed Smith Shaw McClay
435 Sixth Avenue
Pittsburgh, PA 15219
Attention: David DeNinno
Facsimile No.: (412) 288-3218
and
Kirkland & Ellis
655 15th Street, N.W.
Washington, D.C. 20005
Attention: Jack Feder
Facsimile No.: (202) 879-5200
(b) if to the Stockholder, to:
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810 South Ridge Road
Lake Forest, IL 60045
Attention: John C. Pope
Facsimile: (847) 735-0114
with copies to:
Doepken Keevican & Weiss
58th Floor, USX Tower
600 Grant Street
Pittsburgh, PA 15219-2703
Attention: Leo A. Keevican, Jr.
Facsimile: (412) 355-2609
and
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Sidley & Austin
Bank One Plaza
10 South Dearborn Street
Chicago, IL 60603
Attention: Frederick C. Lowinger
Facsimile: (312) 853-7036
Section 9. Interpretation. When a reference is made in this
Agreement to a section, such reference shall be to 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. Whenever the words "include," "includes" or
"including" are used in this Agreement they shall be deemed to be followed by
the words "without limitation."
Section 10. Capitalized Terms. Capitalized terms used in this
Agreement that are not defined herein shall have such meanings as set forth in
the Merger Agreement.
Section 11. Entire Agreement; No Third-Party Beneficiaries.
This Agreement (including the documents and the instruments referred to herein)
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 is not intended to confer upon any Person other than
the parties hereto any rights or remedies hereunder.
Section 12. Amendment. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
Section 13. Extension; Waiver. At any time prior to the
Effective Time, the parties hereto may, to the extent legally allowed, (i)
extend the time for the performance of any of the obligations or other acts of
the other parties hereto contained herein, (ii) waive any inaccuracies in the
representations and warranties of the other parties hereto contained herein or
in any document delivered pursuant hereto and (iii) waive compliance with any of
the agreements or conditions of the other parties hereto contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in a written instrument signed on behalf of such party.
Section 14. Severability. 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. If in the opinion of WABCO's or the
Company's independent accountants, any provision hereof would cause the Merger
to be ineligible for "pooling of interest" accounting treatment, it shall be
deemed to be ineffective and inapplicable.
Section 15. Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expense.
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Section 16. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Pennsylvania,
regardless of the laws that might otherwise govern under the applicable
principles of conflicts of laws thereof.
Section 17. Counterparts. This Agreement may be executed in
two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
Section 18. No Limitation on Actions of the Stockholder as
Director or Officer. Notwithstanding anything to the contrary in this Agreement,
nothing in this Agreement is intended or shall be construed to require the
Stockholder or any officer, employee, advisor, consultant or representative
thereof or thereto to take or in any way limit any action that the Stockholder
may take to discharge the fiduciary duties of the Stockholder as a director or
officer of the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
WESTINGHOUSE AIR BRAKE COMPANY
By: /s/ William E. Kassling
Name: William E. Kassling
Title: Chief Executive Officer
/s/ John C. Pope
John C. Pope