Exhibit 99.1
VOTING AGREEMENT
by and among
J-M MANUFACTURING COMPANY,
INC.
and
PIRATE CAPITAL LLC
dated as of January 15,
2007
VOTING AGREEMENT
This Voting Agreement (this
“Agreement” ) is entered into as of
January 15, 2007, among J-M Manufacturing Company, Inc., a
Delaware corporation ( “Parent” ), and Pirate
Capital LLC, a Delaware limited liability company (the
“Shareholder” ). Capitalized terms used but not
defined herein shall have the meanings ascribed to them in the
Agreement and Plan of Merger dated as of the date hereof (the
“Merger Agreement” ), among PW Eagle, Inc., a
Minnesota corporation ( “Target” ), Parent, and
Pipe Dream Acquisition, Inc., a Minnesota corporation and a wholly
owned subsidiary of Parent ( “Merger Sub” ).
Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Merger Agreement.
WITNESSETH:
WHEREAS, as of the date of this Agreement, the
Shareholder “beneficially owns” (as defined
herein) 3,059,648 shares of common stock, par value $.0.01 per
share, of Target ( “Common Stock” );
WHEREAS, simultaneously herewith, Target, Parent, and
Merger Sub are entering into the Merger Agreement, pursuant to
which, subject to the terms and conditions contained therein,
Merger Sub will be merged with and into the Target (the
“Merger” ), with the Target being the Surviving
Company following the Merger; and
WHEREAS, as a condition to the willingness of Parent and
Merger Sub to enter into the Merger Agreement, and as an inducement
and in consideration therefor, the Shareholder is executing this
Agreement;
NOW, THEREFORE,
in consideration of the foregoing
and the mutual premises, representations, warranties, covenants and
agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
ARTICLE I
CERTAIN
DEFINITIONS
Section 1.1 Certain
Definitions. For purposes
of this Agreement, the following terms shall have the following
meanings:
(a) “beneficially
own” with respect to any securities shall have the
meaning ascribed to such term in Rule 13d-3 promulgated under
the Exchange Act) (including, but not limited to, the entitlement
to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) such securities). Without duplicative
counting of the same securities by the same holder, securities
beneficially owned by a Person shall include securities
beneficially owned by all Affiliates of such Person and all other
Persons with whom such Person would constitute a
“Group” within the meaning of Section 13(d)(3) of
the Exchange Act and the rules promulgated thereunder. For purposes
of this Agreement, the terms “beneficially owns” and
“beneficially owned” shall have correlative
meanings.
(b) “Chosen
Courts” shall have the meaning ascribed to such term in
Section 7.10(b) of this Agreement.
(c) “Common
Stock” shall have the meaning ascribed to such term in
the recitals to this Agreement.
(d) “Merger”
shall have the meaning ascribed to such term in the recitals to
this Agreement.
(e) “Merger Sub”
shall have the meaning ascribed to such term in the caption to this
Agreement.
(f) “Merger
Agreement” shall have the meaning ascribed to such term
in the caption to this Agreement.
(g) “Parent”
shall have the meaning ascribed to such term in the caption to this
Agreement.
(h) “Record
Owner” shall have the meaning ascribed to such term in
Section 4.2(a) of this Agreement.
(i)
“Representative” means, with respect to any
particular Person, any director, officer, employee, investment
banker, attorney or other advisor or representative of such
Person.
(j) “Shareholder”
shall have the meaning ascribed to such term in the caption to this
Agreement.
(k) “Subject
Shares” means, with respect to any particular Person, the
shares of Common Stock beneficially owned by such Person as of the
date of this Agreement, together with any other shares of Common
Stock the voting power over which is directly or indirectly
acquired by such Person at any one or more times prior to the
termination of this Agreement pursuant to the terms
hereof.
(l) “Target”
shall have the meaning ascribed to such term in the recitals to
this Agreement.
(m) “Transfer”
shall have the meaning ascribed to such term in Section 3.1(a)
of this Agreement.
ARTICLE II
VOTING AGREEMENT AND IRREVOCABLE
PROXY
Section 2.1 Agreement to Vote the
Subject Shares.
(a) From and after the date hereof,
at any meeting of the Target’s Shareholders (or any
adjournment or postponement thereof), however called, or in
connection
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with any action by written consent
or other action of the Target’s Shareholders, the Shareholder
shall vote (or cause to be voted) all of the
Shareholder’s Subject Shares to the extent that the Subject
Shares are not so voted by Parent (or its designee) pursuant to
Section 2.2:
(i) in favor of the adoption and
approval of the terms of the Merger Agreement, the Merger and the
other transactions contemplated by the Merger Agreement (and any
actions required in furtherance thereof);
(ii) against any action, proposal,
transaction or agreement that would directly or indirectly result
in a breach of any covenant, representation, warranty or other
obligation or agreement of Target set forth in the Merger Agreement
or of the Shareholder set forth in this Agreement; and
(iii) except with the prior written
consent of Parent, against the following actions or proposals
(other than the transactions contemplated by the Merger Agreement):
(A) any Acquisition Proposal; (B) any change in the
persons who constitute the board of directors of Target;
(C) any material change in the present capitalization of
Target or any amendment of Target’s certificate of
incorporation or bylaws; (D) any other material change in
Target’s corporate structure or business; or (E) any
other action or proposal involving Target or any of its
Subsidiaries that is intended, or would reasonably be expected, to
prevent, impede, interfere with, delay, postpone or adversely
affect the transactions contemplated by the Merger
Agreement.
(b) Any such vote shall be cast or
consent shall be given in accordance with such procedures relating
thereto so as to ensure that it is duly counted for purposes of
determining that a quorum is present and for purposes of recording
the results of such vote or consent. The Shareholder agrees not to
enter into any agreement or commitment with any Person the effect
of which would violate or be inconsistent with the provisions and
agreements set forth in this Article II.
(c) Notwithstanding the foregoing,
at no time and in no event shall the shares of Common Stock subject
to this Article II exceed nineteen and nine-tenths percent
(19.9%) of the outstanding capital stock of the Company (the
“ Maximum Restricted Amount ”), and if the
Subject Shares exceed the Maximum Restricted Amount, then only such
number of shares as equals the Maximum Restricted Amount shall be
subject to this Article II.
Section 2.2 Grant of
Proxy. The Shareholder
hereby appoints Parent and any designee of Parent, and each of them
individually, as the Shareholder’s proxy and
attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent with respect the
Subject Shares of the Shareholder in accordance with
Section 2.1. The foregoing proxy of the Shareholder is given
by the Shareholder to secure the performance of the duties of the
Shareholder under this Agreement. The Shareholder shall promptly
cause a copy of this Agreement to be deposited with Target at its
principal place of business. The Shareholder shall take such
further action or execute such other instruments as may be
necessary under applicable law to effectuate the intent of the
Shareholder’s proxy given pursuant to this
Agreement.
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Section 2.3
Irrevocability of Proxy. The
proxy and power of attorney granted by the Shareholder pursuant to
this Article II shall be irrevocable during the term of this
Agreement, shall be deemed to be coupled with an interest
sufficient in law to support an irrevocable proxy and shall revoke
any and all prior proxies granted with respect to the Subject
Shares of the Shareholder. The power of attorney granted by the
Shareholder pursuant to this Agreement is a durable power of
attorney and shall survive the dissolution, bankruptcy or
incapacity of the Shareholder. The proxy and power of attorney
granted by the Shareholder pursuant to this Agreement shall
terminate upon the termination of this Agreement.
ARTICLE III
STANDSTILL; OTHER ACQUISITION
PROPOSALS
Section 3.1
Standstill. The
Shareholder hereby agrees that, from and after the date hereof, the
Shareholder and its Affiliates shall not, directly or indirectly,
(i) except with the prior written consent of Parent or
(ii) unless expressly contemplated by the terms of this
Agreement or the Merger Agreement:
(a) sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of (collectively, a
“Transfer” ), or enter into any contract, option
or other agreement with respect to, or consent to, a Transfer of,
any or all of the Subject Shares of the Shareholder or any of its
Affiliates;
(b) acquire, offer to acquire, or
agree to acquire, directly or indirectly, by purchase or otherwise,
any securities or direct or indirect rights to acquire Common Stock
or any other securities of Target, or any assets of Target or any
Subsidiary or division thereof, except pursuant to the 10b5-1 Plan,
dated August 22, 2006, prior to February 22,
2007;
(c) make, or in any way participate
in, directly or indirectly, any “solicitation” of
“proxies” (as such terms are used in the rules of the
Securities and Exchange Commission (the “ SEC
”)) to vote (including by consent), or seek to advise or
influence any Person with respect to the voting of, any voting
securities of Target (including, without limitation, by making
publicly known the position of the Shareholder or any of its
Affiliates on any matter presented to shareholders of Target),
other than to recommend that shareholders of Target vote in favor
of the Merger and the Merger Agreement;
(d) submit to Target any shareholder
proposal under Rule 14a-8 under the Exchange Act;
(e) make any public announcement
with respect to, or submit a proposal for, or offer of (with or
without conditions) any extraordinary transaction involving Target
or its securities or assets;
(f) form, join or in any way
participate in a “group” (as defined in
Section 13(d)(3) under the Exchange Act) in connection with
any of the foregoing;
(g) seek in any way, directly or
indirectly, to have any provision of this Section 3.1 amended,
modified or waived; or
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(h) otherwise take, directly or
indirectly, any actions with the purpose or effect of avoiding or
circumventing any provision of this Section 3.1 or which could
reasonably be expected to have the effect of preventing, impeding,
interfering with or adversely affecting the consummation of the
transactions contemplated by the Merger Agreement or its ability to
perform its obligations under this Agreement;
provided; however, that at no time
and in no event shall the shares of Common Stock subject to
Section 3.1(a) above exceed the Maximum Restricted Amount, and
if the Subject Shares exceed the Maximum Restricted Amount, then
only such number of shares as equals the Maximum Restricted Amount
shall be subject to Section 3.1(a).
Section 3.2 Dividends,
Distributions, Etc. In
the event of a stock dividend or distribution, or any change in the
Common Stock by reason of any stock dividend or distribution,
split-up, recapitalization, combination, exchange of shares or the
like, the term “Subject Shares” shall be deemed to
refer to and include the Subject Shares as well as all such stock
dividends and distributions and any securities into which or for
which any or all of the Subject Shares may be changed or exchanged
or which are received in such transaction.
Section 3.3 Acquisition
Proposals.
(a) The Shareholder shall not, and
shall use its reasonable best efforts to cause its and its
Affiliates’ Representatives not to, (i) solicit,
initiate or knowingly encourage the submission of any Acquisition
Proposal or (ii) approve or recommend, or propose to approve
or recommend, or execute or enter into, any letter of intent,
agreement in principle, or any other agreement, arrangement or
understanding, relating in any respect to any Acquisition Proposal,
or (iii) participate in any substantive discussions or
negotiations regarding, or furnish to any Person or provide any
Person with access to, any material non-public information with
respect to, or knowingly take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, an Ac
