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Voting and Tender Agreement
Voting and Tender Agreement (26K)
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VOTING AND TENDER AGREEMENT
This VOTING AND TENDER AGREEMENT (this "AGREEMENT"), dated as of
December 22, 2000, is entered into by and between MILPI ACQUISITION CORP., a
Delaware corporation ("BUYER"), PLM INTERNATIONAL, INC., a Delaware corporation
("COMPANY"), and the other parties who have signed this Agreement (each, a
"STOCKHOLDER" and, collectively, the "STOCKHOLDERS").
WHEREAS, each Stockholder is the beneficial owner of the number of
shares of common stock of Company, par value $.01 per share, set forth on the
signature page to this Agreement (such shares, together with any other shares of
capital stock of Company acquired by such Stockholder after the date hereof
(including through the exercise of stock options, warrants or similar rights or
the conversion or exchange of securities) being collectively referred to herein
as the "SHARES" of such Stockholder);
WHEREAS, the respective Boards of Directors of Buyer and Company have
approved the execution of an Agreement and Plan of Merger, dated as of the date
hereof (as the same may be amended, supplemented or otherwise modified in
accordance with its terms, the "MERGER AGREEMENT"), pursuant to which Buyer has,
among other things, agreed to commence a cash tender offer to purchase shares of
Company Common Stock as described in the Merger Agreement, which is to be
followed by the merger of Buyer with and into Company on the terms and
conditions set forth in the Merger Agreement;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Buyer and Company have entered into the Merger Agreement, setting
forth certain representations, warranties, covenants and agreements of the
parties thereto in connection with the Offer and the Merger; and
WHEREAS, as an inducement and an essential condition to Buyer entering
into the Merger Agreement, Company and each Stockholder have agreed to enter
into this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties and agreements contained herein and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. VOTING AGREEMENT. Each Stockholder, severally and not jointly,
covenants and agrees with Buyer that, at any meeting of Company's stockholders,
however called, and any postponement or adjournment thereof, or in connection
with any written consent of Company's stockholders (collectively, the "COMPANY
STOCKHOLDERS MEETING"), such Stockholder shall vote all Shares of such
Stockholder (or, if applicable and requested by Buyer, grant proxies with
respect to such Shares), and shall cause each Affiliate of such Stockholder to
vote all of such Affiliate's Shares (or, if applicable and requested by Buyer,
grant proxies with respect to such Shares), (a) in favor of the adoption and
approval of the Merger Agreement and the transactions contemplated thereby
(including the Merger), and (b) against (i) any proposal made in opposition to
or in competition with the Offer, the Merger or the transactions contemplated by
the Merger Agreement, (ii) any merger, reorganization, consolidation, share
exchange, business
{PAGE}
combination, sale of assets or similar transaction with or involving Company
and any party other than Buyer, and (iii) any other action the consummation
of which would reasonably be expected to prevent or delay the consummation of
the Offer, the Merger or the transactions contemplated by the Merger
Agreement.
2. TENDER OF SHARES.
(a) TENDER OF SHARES. Each Stockholder covenants and agrees with
Buyer that it shall tender (or cause to be tendered), and shall cause each
Affiliate of such Stockholder to tender (or cause to be tendered), pursuant
to and in accordance with the terms of the Offer, all of its Shares to Buyer
at the Offer Price. Subject to applicable Law and SEC regulations, each
Stockholder covenants and agrees that it shall not, and shall cause each of
its Affiliates not to, withdraw any Shares tendered by it pursuant to the
Offer.
(b) GRANT OF OPTION. Each Stockholder hereby grants (and shall use
its best efforts to cause each of its Affiliates to grant) to Buyer an
irrevocable option (the "OPTION") to purchase its Shares not validly tendered
pursuant to the Offer, and its Shares validly tendered but withdrawn pursuant
to the Offer, at a price in cash per Share (the "OPTION PRICE") equal to the
Offer Price or any higher price paid by Buyer for any share of Company Common
Stock pursuant to the Offer or the Merger (but excluding any price paid to
any shareholder who exercises dissenter's, appraisal or similar rights in
connection with the Merger).
(c) EXERCISE OF OPTION. The Option shall (i) become exercisable, in
whole but not in part, for all Shares (less any Shares that Buyer has
accepted for payment or paid for pursuant to the Offer) immediately after the
Offer Conditions Satisfaction Date; if, but only if, Buyer has accepted for
payment all shares of Company Common Stock tendered and not withdrawn by the
Offer Conditions Satisfaction Date, and (ii) shall remain exercisable for a
period of 30 days after the first such date on which the Option becomes
exercisable. If the Option does not become exercisable due to (x) the
withdrawal of the Offer prior to the Offer Conditions Satisfaction Date, or
(y) the failure of Buyer to accept for payment all shares of Company Common
Stock tendered and not withdrawn by such date, the Option shall be deemed to
have expired. In the event Buyer wishes to exercise the Option, Buyer shall,
prior to the expiration of the Option, send a written notice to each
Stockholder identifying the time and place for the closing of such purchase
at least three Business Days prior to such closing, which notice may be given
prior to the Option becoming exercisable, and which notice shall be
considered irrevocable.
256448
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Cash Tender Agreement [Amended and Restated]
Cash Tender Agreement [Amended and Restated] (72K)
Doc #258323: Click preview link for longer preview.
TAUBMAN CENTERS, INC.
AMENDED AND RESTATED CASH TENDER AGREEMENT
THIS AMENDED AND RESTATED CASH TENDER AGREEMENT (this "Agreement") is
entered into as of the 16th day of May, 2000, by and among Taubman Centers,
Inc., a Michigan corporation (the "Company"), The Taubman Realty Group Limited
Partnership, a Delaware limited partnership ("TRG"), and A. Alfred Taubman, A.
Alfred Taubman, acting not individually but as Trustee of the A. Alfred Taubman
Restated Revocable Trust, as amended and restated in its entirety by Instrument
dated January 10, 1989 and subsequently by Instrument dated June 25, 1997, as
the same may hereafter be amended from time to time, and TRA Partners, a
Michigan partnership, based upon the following:
A. The parties or their predecessors in interest entered into that
certain Cash Tender Agreement as of November 30, 1992 (the "Original
Agreement").
B. On September 23, 1998, TRG formed two limited liability companies
(the "Companies") pursuant to the Delaware Limited Liability Company Act and, in
exchange for all of the membership interests in each of the Companies,
contributed to the Companies all of its right, title, and interest in and to
certain of its assets, subject to certain liabilities.
C. On September 30, 1998, TRG distributed TRG's entire interest in the
Companies to GMPTS Limited Partnership ("GMPTS"), a Delaware limited
partnership, in redemption of GMPTS's entire interest in TRG.
D. The parties now wish to amend and restate in its entirety the
Original Agreement, to reflect the redemption of GMPTS's entire interest in TRG
and certain related changes made to the Partnership Agreement (defined below).
NOW, THEREFORE, in consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
Article 1
Purpose
1.1 Purpose. The Company has agreed to purchase Units of Partnership
Interest (defined below) from the Holders (defined below) upon the tender of
those Units of Partnership Interest to the Company. The purpose of this
Agreement is to set forth the terms and conditions of the agreement among the
Holders, TRG, and the Company in respect of the Company's agreement to purchase
from the Holders Units of Partnership Interest.
Article 2
Definitions
In this Agreement, whenever the context so indicates, the
singular or plural number and the masculine, feminine, or neuter gender shall
each be deemed to include the other and the following terms shall have the
indicated meanings:
{PAGE}
2.1 "AAT" means A. Alfred Taubman and A. Alfred Taubman, acting not
individually but as Trustee of the A. Alfred Taubman Restated Revocable Trust,
as amended and restated in its entirety by Instrument dated January 10, 1989 and
subsequently by Instrument dated June 25, 1997, as the same may hereafter be
amended from time to time.
2.2 "Actually" means, with respect to holding or owning Units of
Partnership Interest, those Units of Partnership Interest with respect to which
the referenced Person is (i) set forth on the books and records of TRG as the
owner (the "Record Partner") or (ii) a designee of a Record Partner as provided
in Section 5.2(c) of the Partnership Agreement, in either case without regard to
Beneficial Ownership or Constructive Ownership.
2.3 "Active Tender" is defined in Section 3.3 of this Agreement.
2.4 "Applicable Rate" means that rate of interest announced publicly
from time to time by The Chase Manhattan Bank, a New York State bank, as such
Bank's prime commercial lending rate, plus 1%, such interest to be computed and
compounded on a daily basis using a year of 360 Days and, in such computation,
effect shall be given to any change in the interest rate resulting from a change
in said prime commercial lending rate on the Day of such change.
2.5 "Beneficial Ownership" means ownership of shares of Capital Stock
(or, for purposes of the definitions of "Actually" and "Eligible Holder,"
Partnership Interests), (i) by a Person who owns such shares of Capital Stock
(or Partnership Interests) in his own name or would be treated as an owner of
such shares of Capital Stock (or Partnership Interests) constructively through
the application of Section 544 of the Code, as modified by Section 856(h)(1)(B)
of the Code; or (ii) by a person who falls within the definition of "Beneficial
Owner" under Section 776(4) of the Michigan Business Corporation Act. The terms
"Beneficial Owner", "Beneficially Owns" and "Beneficially Owned" shall have the
correlative meanings.
2.6 "Board of Directors" means the Board of Directors of the Company
and any Committee of the Board of Directors established pursuant to the By-laws
of the Company with specific authority in respect of this Agreement given to
such Committee.
2.7 "Business Day" means any Day on which the New York Stock Exchange
is open for trading.
2.8 "Capital Stock" means the Common Stock and the Preferred Stock,
including shares of Common Stock and Preferred Stock that have become Excess
Stock.
2.9 "Cash Option" means the Company's option to purchase the Tendered
Interests for cash without engaging in a public offering of the Common Stock, as
provided in Section 3.1(d) of this Agreement.
2.10 "Cash Tender Rights" is defined in Section 5.1 of this Agreement.
2.11 "Code" means the Internal Revenue Code of 1986, as the same shall
be in effect at the relevant time.
2.12 "Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
2.13 "Common Stock" means the Common Stock of the Company, par value
$.01 per share.
2.14 "Common Stock Price" means the closing price of the Common Stock
as reported on the New York Stock Exchange on the Valuation Date.
258323
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Taubman
As referenced in this Cash Tender Agreement [Amended and Restated]:
TAUBMAN CENTERS, INC – {DOCUMENT}
{TYPE}EX-10.(A)
{SEQUENCE}5
{FILENAME}0005.txt
{DESCRIPTION}CASH TENDER AGREEMENT
{TEXT}
TAUBMAN CENTERS, INC .
AMENDED AND RESTATED CASH TENDER AGREEMENT
THIS AMENDED AND RESTATED CASH TENDER AGREEMENT (this "Agreement") is
entered into as of the 16th
_____________
Taubman Centers,
Inc – THIS AMENDED AND RESTATED CASH TENDER AGREEMENT (this "Agreement") is
entered into as of the 16th day of May, 2000, by and among Taubman Centers,
Inc ., a Michigan corporation (the "Company"), The Taubman Realty Group Limited
Partnership, a Delaware limited partnership ("TRG"), and A. Alfred Taubman, A.
Alfred
_____________
Taubman Centers, Inc – price of the Common Stock
as reported on the New York Stock Exchange on the Valuation Date.
2
{PAGE}
2.15 "Company" means Taubman Centers, Inc ., a Michigan corporation.
2.16 "Conditional Transfer Determination" is defined in Section 3.7 of
this Agreement.
2.17 "Constructive Ownership" means
_____________
Taubman Centers, Inc – 55 "Registration and Selling Expenses" means the sum of the
Registration Expenses and the Selling Expenses.
2.56 "Registration Rights Agreement" means the Taubman Centers, Inc .
Registration Rights Agreement dated November 30, 1992, by and among the Company
and the General Motors Hourly Rate Employees Pension Trust, the
_____________
TAUBMAN CENTERS, INC – or alter the meaning of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
TAUBMAN CENTERS, INC .
By: /s/ Lisa A. Payne
---------------------------
Its: Executive Vice President and Chief
Financial Officer
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
By: Taubman Centers,
_____________
dt 322573
;
Taubman Realty
As referenced in this Cash Tender Agreement [Amended and Restated]:
Taubman Realty Group – is
entered into as of the 16th day of May, 2000, by and among Taubman Centers,
Inc., a Michigan corporation (the "Company"), The Taubman Realty Group Limited
Partnership, a Delaware limited partnership ("TRG"), and A. Alfred Taubman, A.
Alfred Taubman, acting not individually but as Trustee of the A.
_____________
Taubman Realty Group – the Company at the relevant
time.
2.42 "Partnership Agreement" means The Second Amendment and Restatement
of Agreement of Limited Partnership of The Taubman Realty Group Limited
Partnership, dated as of September 30, 1998, as amended through the date hereof
and as further amended from time to time.
_____________
Taubman Realty Group – TRA Partners, a Michigan partnership.
2.68 "Transfer Determination" has the meaning set forth in the
Partnership Agreement.
2.69 "TRG" means The Taubman Realty Group Limited Partnership, a
Delaware limited partnership.
2.70 "Units of Partnership Interest" means the units into which
Partnership Interests are divided.
2.
_____________
TAUBMAN REALTY GROUP – of
the date first written above.
TAUBMAN CENTERS, INC.
By: /s/ Lisa A. Payne
---------------------------
Its: Executive Vice President and Chief
Financial Officer
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
By: Taubman Centers, Inc., Managing
General Partner
By: /s/ Lisa A. Payne
---------------------------
Its: Executive Vice President and Chief
Financial Officer
/s/
_____________
dt 126353
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 Chase Manhattan
As referenced in this Cash Tender Agreement [Amended and Restated]:
Chase Manhattan Bank, – Section 3.3 of this Agreement.
2.4 "Applicable Rate" means that rate of interest announced publicly
from time to time by The Chase Manhattan Bank, a New York State bank, as such
Bank's prime commercial lending rate, plus 1%, such interest to be computed and
compounded
_____________
dt 129448
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