1
Exhibit 10.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of September 26, 1999 (this
"Agreement"), among MotivePower Industries, Inc., a Pennsylvania corporation
("MotivePower"), and the undersigned stockholders (collectively, the
"Stockholders" and individually, a "Stockholder") of Westinghouse Air Brake
Company, a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, MotivePower 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 MotivePower ("MotivePower Common Stock"), not owned directly or
indirectly by MotivePower, 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 the Company ("Company Common Stock");
WHEREAS, the Stockholders independently own or have voting
control with respect to certain shares of Company Common Stock (together with
any shares of Company Common Stock acquired by the Stockholders after the date
hereof and during the term of this Agreement, being collectively referred to
herein as the "Subject Shares");
WHEREAS, certain of the Stockholders are parties to the Second
Amended WABCO Voting Trust/Disposition Agreement, dated as of December 13, 1995
(the "Voting Trust Agreement"), by and among the management investors named
therein, the Company and the trustees named therein;
WHEREAS, certain of the Stockholders are parties to the
Amended and Restated Stockholders Agreement, dated as of March 5, 1997 and
amended on March 28, 1997 (the "Stockholders Agreement"), by and among the
voting trust created under the Voting Trust Agreement, Vestar Equity Partners,
L.P., a Delaware limited partnership, Harvard Private Capital Holdings, Inc., a
Massachusetts corporation, American Industrial Partners Capital Fund II, L.P., a
Delaware limited partnership, and the Company; and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, MotivePower has required that the Stockholders agree, and in
order to induce MotivePower to enter into the Merger Agreement, each of the
Stockholders has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements set forth herein, each of the Stockholders
agrees as follows:
Section 1. Covenants of Stockholders. Until the termination of
this
2
Agreement in accordance with Section 4, each of the Stockholders independently
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 Stockholders shall vote (or cause to be voted) the Subject
Shares, with respect to which such Stockholder has voting authority, 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
Stockholders' vote, consent or other approval is sought, the
Stockholders shall vote (or cause to be voted) the Subject Shares, with
respect to which such Stockholder has voting authority, 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 Certificate
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. Each Stockholder further
agrees not to commit or agree to take any action inconsistent with the
foregoing.
(c) Each 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 any of its 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, with respect to which such Stockholder
has voting authority, and agrees not to commit or agree to take any of
the foregoing actions.
(d) The Stockholders, as stockholders of the Company, shall
not, nor shall the Stockholders, as stockholders of the Company, permit
any officer, director or employee or any investment banker, attorney,
accountant, agent or other advisor or representative of any of the
Stockholders 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
3
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) Each Stockholder shall notify MotivePower promptly (but in
no event later than 24 hours) after receipt by such Stockholder, as a
stockholder of the Company, or such Stockholder, as a 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.
(f) The Stockholders agree to take all action necessary to
suspend all covenants, agreements and arrangements of the Stockholders
contained in the Voting Trust Agreement and the Stockholders Agreement
and to terminate the Voting Trust Agreement and Stockholders Agreement
immediately prior to the Effective time (as defined in the Merger
Agreement), unless the accountants for MotivePower and the Company
mutually agree that such action is not necessary to preserve the
treatment of the Merger as "pooling of interests" for accounting
purposes.
Section 2. Representations and Warranties. Each of the
Stockholders hereby severally and not jointly represents and warrants to
MotivePower as follows:
(a) Such Stockholder has good and marketable title to the
Subject Shares held by such Stockholder, free and clear of any claims,
liens, encumbrances, pledges and security interests whatsoever. Such
Stockholder owns no shares of capital stock of the Company other than
the Subject Shares. Such Stockholder has the sole right to vote, and
the sole power of disposition with respect to, the Subject Shares held
by such Stockholder. No proxies or powers of attorney have been granted
with respect to such 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 such Subject Shares shall remain
in effect after the execution of this Agreement.
(b) Such 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
such Stockholder, and the consummation of the transactions contemplated
hereby, has been duly authorized by all necessary action on the part of
such Stockholder. This Agreement has been duly executed and delivered
by such Stockholder and constitutes a valid and binding obligation of
such 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,
4
decree, statute, law, ordinance, rule or regulation applicable to such
Stockholder or to any of the property or assets of any of such
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 such Stockholder in connection with the execution and
delivery of this Agreement or the consummation by such Stockholder of
the transactions contemplated hereby.
Section 3. Affiliate Letter. Each Stockholder agrees to
execute and deliver on a timely basis an Affiliate Letter in the form of Exhibit
5.10(a) to the Merger Agreement, when and if requested by MotivePower.
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) MotivePower becoming entitled to terminate the Merger Agreement pursuant
to Section 7.1(i) 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 Stockholders 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 MotivePower
may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
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. Each 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 MotivePower
irreparable harm. Accordingly, each Stockholder agrees that in the event of any
breach or threatened breach of this Agreement by such 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):
5
(a) if to MotivePower, to:
Two Gateway Center
14th Floor
Pittsburgh, PA 15222
Attention: Chief Executive Officer
Facsimile: (412) 201-1116
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
Sidley & Austin
Bank One Plaza
10 South Dearborn Street
Chicago, IL 60603
Attention: Frederick C. Lowinger
Facsimile: (312) 853-7036
(b) if to Harvard Private Capital Holding, Inc., to:
CharlesBank Capital Partners, L.L.C.
1330 Avenue of the Americas, 31st Floor
New York, NY 10019
Attention: Kim David
Facsimile: (212) 582-1250
(c) if to Vestar Equity Partners, L.P., to:
Vestar Capital Partners, Inc.
Seventeenth Street Plaza
1225 17th Street, Suite 1600
Denver, CO 80202
Attention: James P. Kelley
Facsimile: (303) 292-6639
with a copy to:
6
Vestar Capital Partners, Inc.
245 Park Avenue, 41st Floor
New York, NY 10067
Attention: Todd N. Khoury
Facsimile: (212) 808-4922
(d) if to William E. Kassling, to:
Westinghouse Air Brake Company
1001 Air Brake Avenue
Wilmerding, PA 15148
Attention: William E. Kassling
Facsimile: (412) 825-1156
(e) if to Robert J. Brooks, to:
Westinghouse Air Brake Company
1001 Air Brake Avenue
Wilmerding, PA 15148
Attention: Robert J. Brooks
Facsimile: (412) 825-1156
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
7
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 MotivePower'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.
Section 16. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware,
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 any Stockholder as
Director or Officer. In the event the Stockholder or an officer, employee,
advisor, consultant or representative thereof or thereto is a director or
officer of the Company, notwithstanding anything to the contrary in this
Agreement, nothing in this Agreement is intended or shall be construed to
require the Stockholder or such officer, employee, advisor, consultant or
representative to take or in any way limit any action that the Stockholder or
such officer, employee, advisor, consultant or representative may take to
discharge the fiduciary duties of the Stockholder or such officer, employee,
advisor, consultant or representative as a director or officer of the Company.
* * * *
8
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
MOTIVEPOWER INDUSTRIES, INC.
By: /s/ John C. Pope
Name: John C. Pope
Title: Chairman of the Board
/s/ William E. Kassling
William E. Kassling
/s/ Robert J. Brooks
Robert J. Brooks
HARVARD PRIVATE CAPITAL HOLDINGS, INC.
By: /s/ Kim Davis
Name: Kim Davis
Title: Managing Director
VESTAR EQUITY PARTNERS, L.P.
By: /s/ Todd N. Khoury
Name: Todd N. Khoury
Title: Vice President