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Exhibit
10.1
THIS VOTING AGREEMENT
, dated as of July 12, 2007 (this “ Agreement
”) by and among Hexion Specialty Chemicals, Inc., a New
Jersey corporation (“ Parent ”), the Jon and
Karen Huntsman Foundation, a Utah nonprofit corporation (the
“ Foundation ”), Fidelity Charitable Gift Fund
(“ CGF ” and together with the Foundation, the
“ Stockholders ” collectively, and each a
“ Stockholder ” individually), and Jon M.
Huntsman (the “ Voting Agent ”).
WHEREAS , the
Stockholders are the holders of record and the “beneficial
owners” (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”)) of certain shares of common stock of
Huntsman Corporation, a Delaware corporation (the “
Company ”);
WHEREAS , concurrently
with the execution and delivery of this Agreement, Parent, Nimbus
Merger Sub Inc., a newly-formed Delaware corporation and
wholly-owned subsidiary of Parent (“ Merger Sub
”), and the Company are entering into an Agreement and Plan
of Merger (the “ Merger Agreement ”) which
provides (subject to the conditions set forth therein) for, among
other things, the merger of Merger Sub with and into the Company
(the “ Merger ”), and MatlinPatterson Global
Opportunities Partners L.P., MatlinPatterson Global Opportunities
Partners (Bermuda) L.P., MatlinPatterson Global Opportunities
Partners B, L.P. (collectively “ MP ”) and
Parent are entering into a Voting Agreement (the “ MP
Voting Agreement ”) pursuant to which MP agrees, subject
to the terms of the MP Voting Agreement, to cause to be voted in
favor of the Merger certain shares beneficially owned by
it;
WHEREAS , the
execution and delivery of this Agreement by the Stockholders
, and the Voting Agent, and the form and substance of this
Agreement, have been approved by the board of directors of the
Company;
WHEREAS , in
connection with the Merger, the outstanding shares of common stock
of the Company are to be converted into the right to receive the
Merger Consideration; and
WHEREAS , Parent has
required, as a condition to its entering into the Merger Agreement,
that the Stockholders and the Voting Agent enter into this
Agreement;
NOW, THEREFORE , in
consideration of the mutual promises and covenants contained
herein, the parties agree as set forth below:
ARTICLE I
DEFINITIONS; RULES OF
CONSTRUCTION
1.1 Definitions .
Capitalized terms used herein and not defined have the meanings
given to such terms in the Merger Agreement. For purposes of this
Agreement:
“ Judgment
” means any judgment, order or decree.
“ Law ”
means any federal, state or foreign constitutional provision,
statute, law (including common law), ordinance, rule, regulation or
interpretation of any Governmental Entity.
A Person is deemed to “
Own ” or to have acquired “ Ownership
” of a security if such Person (i) is the record owner
of such security or (ii) is the “beneficial owner”
(within the meaning of Rule 13d-3 under the Exchange Act) of such
security.
“ Person ”
means any individual (including any beneficiary of the
Stockholders), firm, corporation, partnership, company, limited
liability company, trust, joint venture, association, Governmental
Entity or other entity.
“ Subject
Securities ” means: (i) all securities of the
Company (including all shares of Company Common Stock, Company
Preferred Stock and all options, warrants and other rights to
acquire shares of Company Common Stock but excluding the Trust
Shares) Owned by a Stockholder as of the date of this Agreement;
(ii) all additional securities of the Company (including all
additional shares of Company Common Stock, Company Preferred Stock
and all additional options, warrants and other rights to acquire
shares of Company Common Stock but excluding the Trust Shares) with
respect to which a Stockholder acquires Ownership after the date of
this Agreement; and (iii) all shares of Company Common Stock
held by the HMP Equity Trust, a Delaware trust (the “HMP
Trust”) or with respect to which the Stockholders or the
Voting Agent have the ability to control the voting thereof
considering the particular matter to be voted upon as set forth in
the HMP Trust Amended and Restated Trust Agreement dated as of
February 10, 2005, as amended on July 12, 2007 (the
“ Trust Agreement ”) (such shares of the Company
Common Stock as described in this clause (iii) being the
“ Trust Shares ”).
A Person is deemed to have
effected a “ Transfer ” of a security if such
Person directly or indirectly (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such
security or any interest in such security to any Person (other than
Parent or any subsidiary of Parent), (ii) enters into an
agreement or commitment contemplating the possible sale of, pledge
of, encumbrance of, grant of an option with respect to, transfer of
or disposition of such security or any interest therein to any
Person (other than Parent or any subsidiary of Parent), or
(iii) reduces such Person’s beneficial ownership of, or
interest in, such security.
“ Voting Covenant
Expiration Date ” means the earliest to occur of
(i) the date upon which the Merger Agreement is validly
terminated pursuant to the terms of Section 7.1
thereof, (ii) the Effective Time of the Merger, (iii) the
date after the stockholders meeting, including any adjournment or
postponement thereof, in which a vote is held concerning the
approval of the Merger, and (iv) the date that any material
change or amendment (a “material” change or amendment
for purposes of this definition shall mean any reduction in the
consideration payable pursuant to the Merger Agreement and any
other change that would materially delay the consummation of the
Merger) shall be made to the Merger Agreement without the written
consent of the Voting Agent.
1.2 Rules of
Construction .
(a) Unless otherwise
indicated, the words “hereof,” “herein” and
“hereunder” and words of similar import when used in
this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement, and any reference in this
Agreement to any Caption, Recital, Article, Section or clause shall
be to the Captions, Recitals, Articles, Sections and clauses of
this Agreement.
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(b) The words
“include,” “includes” and
“including” are deemed to be followed by the phrase
“without limitation.” Any reference to the masculine,
feminine or neuter gender shall include each other gender and any
reference to the singular or plural shall include the other, in
each case unless the context otherwise requires.
(c) Notwithstanding any other
provision of this Agreement but subject to the introductory
language in Section 3.1, this Agreement will not require the
Voting Agent to take any action with respect to the Trust Shares
which is not permitted by the Trust Agreement.
ARTICLE II
TRANSFER OF SUBJECT
SECURITIES; VOTING RIGHTS
2.1 Restriction on
Transfer of Subject Securities . Except as expressly
contemplated by Section 2.3 hereof, during the period
from the date of this Agreement through the Voting Covenant
Expiration Date, each Stockholder shall not, and the Voting Agent
shall cause the HMP Trust, with respect to Subject Securities that
are Class B Assets as defined in the Trust Agreement and subject
further to the terms and conditions set forth in the Trust
Agreement, not to, directly or indirectly, (a) cause any
Transfer of any of such Subject Securities directly or indirectly
owned by such Stockholder or the HMP Trust to be effected or
(b) permit any Transfer of any of such Subject Securities to
be effected, except in connection with the Merger.
2.2 Restriction on
Transfer of Voting Rights . During the period from the date of
this Agreement through the Voting Covenant Expiration Date, except
as otherwise expressly contemplated by Section 2.3
hereof, the Stockholders shall not, and the Voting Agent shall
cause the HMP Trust, respect to Subject Securities that are Class B
Assets as defined in the Trust Agreement and subject further to the
terms and conditions set forth in the Trust Agreement, not to,
directly or indirectly, (a) deposit any of such Subject
Securities into a voting trust or (b) except for this
Agreement, grant a proxy (revocable or irrevocable) or power of
attorney or enter into any voting agreement or similar agreement
that could restrict or otherwise affect its legal power, authority
and right to vote any of such Subject Securities.
2.3 Permitted
Transfers . Notwithstanding Sections 2.1 or 2.2 ,
prior to such time, if it occurs, as MatlinPatterson Global
Opportunities Partners L.P., MatlinPatterson Global Opportunities
Partners (Bermuda) L.P. and MatlinPatterson Global Opportunities
Partners B.L.P. (collectively “ MP ”) shall
enter into this Agreement as Stockholders and as a holder of
beneficial interests in the HMP Trust and through the Voting
Covenant Expiration Date, the Stockholders and the Voting Agent may
transfer any Subject Securities if (i) the proposed transferee
thereof enters into this Agreement as a Stockholder (which shall be
a valid and binding obligation of and enforceable against such
transferee) as if an original signatory hereto agreeing to be bound
by the joint covenant and grant of proxy herein with respect to the
Subject Securities so Transferred (for the avoidance of doubt, the
transferee will not be required to comply with this Agreement with
respect to any Company Common Stock other than such Subject
Securities), (ii) the proposed Transfer shall not result in or
constitute (A) an assignment of Huntsman Corporation’s
rights and obligations under Section 12.4 of the Purchase and
Sales Agreement, dated March 23, 1994, by and among Texaco,
Inc., Texaco Limited, Texaco Overseas Holdings Inc., Texaco
Chemical Company and Huntsman Corporation or (B) an assignment
of Huntsman Specialty Chemical Corporation’s rights and
obligations under Section 10.4(b) of the Purchase
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and Sale Agreement, dated March 21,
1997, by and among Texaco Inc., Texaco Chemical Inc. and Huntsman
Specialty Chemicals Corporation, and (iii) each such Transfer
shall be effected in a manner that complies with Section 202
of the General Corporation Law of the State of Delaware (the
“ DGCL ”). From and after such time as MP
executes a voting agreement pursuant to which MP, among other
things, agrees to vote shares of stock of the Company beneficially
owned by it and its Affiliates in favor of the Merger and the
transactions contemplated by the Merger Agreement and until the
Voting Covenant Expiration Date, (x) the Stockholders may
transfer Subject Securities without limitation or restriction on
the transferee (each such transferee is referred to as an “
Unrestricted Transferee ” and the securities so
Transferred are referred to as “ Unrestricted Shares
”) provided that after each such Transfer, the Stockholders
and the HMP Trust collectively beneficially own at least the
majority of the total issued and outstanding shares of Company
Common Stock on a fully diluted basis (as determined at the time of
such Transfer) entitled to vote at the meeting of the stockholders
of the Company in respect of the Merger, the Merger Agreement and
the transactions contemplated thereby (provided that, for purposes
of this clause (x), any shares of stock of the Company that are
currently beneficially owned by the HMP Trust are the subject of a
demand registration notice served on the Company by a stockholder
of the Company or are otherwise registered by the Company shall no
longer be deemed to be beneficially owned by the HMP Trust on the
earlier of (1) the date on which any such demand or similar
notice is served upon the Company (until such time, if any, as such
demand is withdrawn) and (2) the date on which any such
registration statement becomes effective), and (y) the
Stockholders (and any transferee of Subject Securities that is not
an Unrestricted Transferee) may Transfer shares of Company Common
Stock beneficially owned by the Stockholders (or such transferee)
that are subject to the terms of this Agreement on the date hereof;
provided , however , that (i) after giving
effect to each such proposed Transfer, the number of Subject
Securities which remain subject to the terms of this Agreement
(including Transferred securities as to which the transferee has
complied with (ii) below) shall represent not less than a
majority of the total issued and outstanding shares of Company
Common Stock on a fully diluted basis (as determined at the time of
such Transfer) entitled to vote at the meeting of the stockholders
of the Company in respect of the Merger, the Merger Agreement and
the transactions contemplated thereby, (ii) the proposed
transferee thereof enters into this Agreement as a Stockholder
(which shall be a valid and binding obligation of and enforceable
against such transferee) as if an original signatory hereto
agreeing to be bound by the voting covenant and grant of proxy
herein with respect to such Transferred Company Common Stock (for
the avoidance of doubt, the transferee will not be required to
comply with this Agreement with respect to any Company Common Stock
other than such Transferred Company Common Stock), (iii) the
proposed Transfer shall not result in or constitute (A) an
assignment of Huntsman Corporation’s rights and obligations
under Section 12.4 of the Purchase and Sale Agreement, dated
March 23, 1994, by and among Texaco, Inc., Texaco Limited,
Texaco Overseas Holdings Inc., Texaco Chemical Company and Huntsman
Corporation or (B) an assignment of Huntsman Specialty
Chemical Corporation’s rights and obligations under
Section 10.4(b) of the Purchase and Sale Agreement, dated
March 21, 1997, by and among Texaco Inc., Texaco Chemical Inc.
and Huntsman Specialty Chemicals Corporation and (iv) each
such Transfer shall be effected in a manner that complies with
Section 202 of the DGCL. Any proposed Transfer made in
violation of the terms and conditions of this Voting Agreement
shall be null and void and shall be of no force or
effect.
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ARTICLE III
VOTING OF
SHARES
3.1 Voting Covenant .
Subject to the terms and conditions set forth in the Trust
Agreement, each of the Stockholders and the Voting Agent hereby
agrees that, during the period commencing on the date hereof and
continuing until the Voting Covenant Expiration Date, at any
meeting of the stockholders of the Company, however called, or any
adjournment or postponement thereof, and in connection with any
written action by consent of stockholders of the Company (if then
permitted), unless otherwise directed in writing by Parent, it
shall cause the Subject Securities (other than the Trust Shares) to
be voted to the extent any of the Subject Securities (other than
the Trust Shares) may be lawfully voted and shall cause the HMP
Trust to vote the Trust Shares to be voted to the extent permitted
under the Trust Agreement (provided that notwithstanding the terms
of the Trust Agreement, the Voting Agent shall use reasonable
efforts (it being understood that “reasonable efforts”
in this parenthetical shall not include any requirement to
(1) pay monies, (2) suffer a loss of economic value or
(3) commence any litigation or other proceeding) to cause the
Trust Shares beneficially owned by the Voting Agent to be voted as
follows):
(a) in favor of approval of
the Merger, and the adoption and approval of the Merger Agreement
and the terms thereof, in favor of each of the other actions
contemplated by the Merger Agreement, and in favor of any action in
furtherance of any of the foregoing; and
(b) against any Competing
Proposal and against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of
the Company in the Merger Agreement or impair the ability of the
Company to consummate the Merger or that would otherwise be
inconsistent with, prevent, impede or delay the consummation of the
Transactions.
3.2 Proxy .
(a) By way of execution and
delivery of this Agreement, each of the Stockholders and the Voting
Agent appoint and constitute Parent as its attorney and proxy with
full power of substitution and resubstitution, to the full extent
of the Stockholders’ and the Voting Agent’s voting
rights with respect to the Subject Securities (subject to the terms
of the Trust Agreement). Upon the execution of this Agreement, all
prior proxies given by the Stockholders and the Voting Agent with
respect to any of the Subject Securities shall be deemed revoked,
and each of the Stockholders and the Voting
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