EXHIBIT 99.1
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of May 30, 2001, by and among
DEERE & COMPANY, a Delaware corporation ("Parent"), GREEN MERGERSUB, INC., a
Delaware corporation and a newly-formed, wholly-owned subsidiary of Parent
("Acquisition Sub"), and the stockholders listed on Schedule I hereto (each, a
"Stockholder").
W I T N E S S E T H:
WHEREAS, prior to the execution and delivery of this Agreement, an Agreement
and Plan of Merger (as such agreement may be amended from time to time, the
"Merger Agreement") has been entered into by and among Parent, Acquisition Sub
and Roof, a Delaware corporation (the "Company"), pursuant to which the Company
has agreed to merge with and into Acquisition Sub, with Acquisition Sub
continuing as the surviving corporation (the "Merger"); and
WHEREAS, as a condition to, and in consideration for, Parent's and
Acquisition Sub's willingness to enter into the Merger Agreement and to
consummate the transactions contemplated thereby, Parent and Acquisition Sub
have required that the Stockholder enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Definitions. For purposes of this Agreement:
"Company Securities" means the Company's common stock, par value $0.10
per share.
"Stockholder Shares" means (i) the Existing Securities (as defined in
Section 5(a)(i) hereof) set forth on Schedule I hereto, (ii) any shares of
Company Securities distributed prior to the termination of this Agreement
in respect of the Stockholder's Shares by reason of a stock dividend,
split-up, recapitalization, reclassification, combination, merger, exchange
of shares or otherwise and (iii) any other shares of the Company Securities
of which the Stockholder acquires ownership, either directly or indirectly,
after the date hereof and prior to the Effective Time.
Capitalized terms used herein but not otherwise defined herein shall have
the meanings ascribed to them in the Merger Agreement.
Section 2. Agreement to Vote Shares. Until the termination of this Agreement
in accordance with the terms hereof, the Stockholder shall, at any meeting of
the holders of any class of Company Securities, however such meeting is called
and regardless of whether such meeting is a special or annual meeting of the
stockholders of the Company, or at any adjournment thereof, or in connection
with any written consent of the stockholders of the Company, vote, or cause to
be voted, the Stockholder Shares, (a) in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement and the approval of the terms
thereof and each of the other actions contemplated by the Merger Agreement and
this Agreement and any actions required in furtherance thereof and hereof and
(b) against the following actions (other than the Merger and the transactions
contemplated by the Merger Agreement): (i) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company; (ii) any sale, lease or transfer of a material amount of
assets of the Company or any reorganization, recapitalization, dissolution or
liquidation of the Company or (iii) (W) any change in the majority of the board
of directors of the Company; (X) any material change in the present
capitalization of the Company or any amendment of the certificate of
incorporation or similar governing document of the Company; (Y) any other
material change in the corporate structure or business of the Company; or (Z)
any other action, which, in the case of each of the matters referred to in
clauses (W), (X) and (Y) above, is intended, or could reasonably be expected,
to impede, interfere with, delay, postpone, discourage or materially adversely
affect the contemplated economic benefits to Parent or Acquisition Sub of the
Merger or the transactions contemplated hereby or by the Merger Agreement.
Section 3. Revocation of Proxies; Reliance.
(a) The Stockholder hereby represents that any proxies heretofore given in
respect of the Stockholder Shares are not irrevocable, and that any such
proxies are hereby revoked.
(b) The Stockholder understands and acknowledges that Parent and Acquisition
Sub have entered into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement. The Stockholder hereby affirms that
this Agreement is given in connection with the execution of the Merger
Agreement and agrees to the duties of the Stockholder under this Agreement.
Section 4. Covenants of the Stockholder. The Stockholder hereby agrees and
covenants that:
(a) Restriction on Transfers. Except as may otherwise be agreed to by
Parent in writing, the Stockholder shall not (i) transfer (which term shall
include, without limitation, any sale, gift, pledge, hypothecation or other
disposition), or consent to any transfer of, any or all of the Stockholder
Shares, or any interest therein if such transfer would result in the
Stockholder no longer having the power to vote, or cause to be voted, the
Stockholder Shares or (ii) enter into any contract, option or other
agreement or understanding with respect to any such transfer of any or all
of the Stockholder Shares, or any interest therein.
(b) Restrictions on Proxies and Voting Arrangements. Except as otherwise
provided herein, the Stockholder shall not (i) grant any proxy, power-of-
attorney or other authorization in or with respect to the Stockholder
Shares or (ii) deposit any of the Stockholder Shares into a voting trust or
enter into a voting agreement or arrangement with respect to any of the
Stockholder Shares.
(c) Stop Transfer. The Stockholder shall not request that the Company
register any transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Stockholder's Existing
Securities (as defined in Section 5(a)(i) hereof), unless such transfer is
made in compliance with this Agreement.
(d) Waiver of Appraisal Rights. The Stockholder hereby irrevocably and
unconditionally waives, and agrees to prevent the exercise of, any rights
of appraisal or rights to dissent in connection with the Merger that the
Stockholder may directly or indirectly have.
(e) No Inconsistent Arrangements. The Stockholder shall not take any
other action that would in any way restrict, limit or interfere with the
performance of any of the Stockholder's obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement.
Section 5. Representations and Warranties.
(a) The Stockholder hereby represents and warrants to Parent and Acquisition
Sub as follows:
(i) Ownership of Securities. On the date hereof, the Stockholder owns,
directly or indirectly, or has the power to direct the voting of, the
Company Securities set forth next to the Stockholder's name on Schedule I
hereto (the "Existing Securities"), and the Existing Securities are owned
of record by the Stockholder or certain of the Stockholder's subsidiaries
or nominees (collectively, the "Record Holders"). On the date hereof, the
Existing Securities constitute all of the shares of voting capital stock of
the Company owned of record or otherwise by the Stockholder or as to which
the Stockholder has the power to direct the voting of the shares (except
for the Stockholder's power as trustee to direct voting of the shares held
by the Franc X. Xxxxxxxxx Residuary Trust, which shares are not part of or
subject to this Agreement). Each Record Holder has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Section 2 hereof, sole power of disposition, sole power of conversion, sole
power (if any) to demand appraisal rights and sole power to agree to all of
each of the matters set forth in this Agreement, in each case with respect
to all of each such Record Holder's Existing Securities with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement. In the event of
any dividend or distribution, or any change in the capital structure of the
Company by reason of any non-cash dividend, split-up, recapitalization,
combination, exchange of
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securities or the like, the term "Existing Securities" shall refer to and
include the Existing Securities as well as all such dividends and
distributions of securities and any securities into which or for which any
or all of the Existing Securities may be changed, exchanged or converted.
(ii) Power; Binding Agreement. The Stockholder has the power (or, if
applicable, corporate power) and authority to enter into and perform all of
the Stockholder's obligations hereunder. The execution, delivery and
performance of this Agreement by the Stockholder will not violate any other
agreement to which the Stockholder is a party including, without
limitation, any voting agreement, proxy arrangement, pledge agreement,
stockholders agreement, voting trust or trust agreement. This Agreement has
been duly and validly executed and delivered by the Stockholder and
constitutes a valid and binding agreement of the Stockholder, enforceable
against the Stockholder in accordance with its terms, except that (A) such
enforcement may be subject to applicable bankruptcy, insolvency,
moratorium, or other similar laws, now or hereafter in effect, affecting
creditors' rights generally and (B) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought. There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which the Stockholder
is a trustee whose consent is required for the execution and delivery of
this Agreement or the compliance by the Stockholder with the terms hereof.
(iii) No Conflicts. The Stockholder will comply with applicable
provisions of the Exchange Act and the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended. None of the execution and delivery of
this Agreement by the Stockholder, the consummation by the Stockholder of
the transactions contemplated hereby or compliance by the Stockholder with
any of the provisions hereof shall (A) conflict with, or result in any
breach of, any organizational documents applicable to the Stockholder, (B)
result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of
any kind to which the Stockholder is a party or by which the Stockholder or
any of the Stockholder's properties or assets may be bound, or (C) violate
any order, writ, injunction, decree, judgment, order, statute, arbitration
award, rule or regulation applicable to the Stockholder or any of the
Stockholder's properties or assets.
(iv) No Liens. Except as established hereby, the Existing Securities are
now and, at all times during the term hereof, will be held by the
Stockholder, or by a nominee or custodian for the benefit of the
Stockholder, free and clear of all Liens, proxies, voting trusts or
agreements, understandings or arrangements whatsoever.
(v) No Solicitation. Subject to the terms of this Agreement, the
Stockholder hereby agrees, in the Stockholder's capacity as a stockholder
of the Company, that neither the Stockholder nor any of the Stockholder's
subsidiaries, if applicable, shall (and the Stockholder shall use its best
efforts to cause the Stockholder's officers, directors, employees,
investment bankers, consultants, attorneys, accountants, agents, advisors
or representatives not to), directly or indirectly, take any action to
solicit, initiate, encourage, facilitate, participate in or initiate
discussions or negotiations with, or provide any information to, any Person
(other than Parent, Acquisition Sub or any of their affiliates or
representatives) concerning any Acquisition Proposal. Notwithstanding the
foregoing, the parties hereto acknowledge and agree that: (A) the Company's
Board of Directors has appointed an independent special committee (the
"Special Committee") to consider the Merger Agreement and any unsolicited
Acquisition Proposal made subsequent to the date hereof to the Company; (B)
the Stockholder is not a member of the Special Committee; (C) the
Stockholder may, as an officer, director and employee of the Company, be
obliged to answer questions and provide information about the Company and
its operations to unsolicited parties making an Acquisition Proposal, (D)
nothing contained in this Section 5(a)(v) shall restrict any officer,
director or employee of the Company or the Company's subsidiaries, if
applicable, from taking any action in his or her capacity as a director,
officer or employee of the Company which is permitted to be taken
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pursuant to Section 7.1 of the Merger Agreement, and (E) this Agreement
including, but not limited to, all obligations arising hereunder, will
terminate immediately if (1) the Special Committee determines that another
Acquisition Proposal is a Superior Proposal pursuant to Section 7.1 of the
Merger Agreement, (2) the Company provides notice of a Subsequent
Determination to Parent under Section 7.1(c) of the Merger Agreement, (3)
Parent does not amend its offer such that the Special Committee does not
proceed with the Subsequent Determination and (4) in fact, the Special
Committee recommends acceptance of the Superior Proposal to the Company's
stockholders pursuant to the provisions of Section 7.1(c) of the Merger
Agreement.
(b) Parent and Acquisition Sub jointly and severally hereby represent and
warrant to the Stockholder as follows:
(i) Power; Binding Agreement. Each of Parent and Acquisition Sub has the
corporate power and authority to enter into and perform all of its
obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by each of Parent and Acquisition Sub and
constitutes a valid and binding agreement of each of Parent and Acquisition
Sub, enforceable against each of them in accordance with its terms, except
as the enforceability thereof may be limited by (a) applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect that
affect the enforcement of creditors rights generally or (b) general
principles of equity, whether considered in a proceeding at law or in
equity.
Section 6. Termination. This Agreement and the covenants, representations,
warranties, and agreements contained herein shall terminate upon the earliest
to occur of (i) the termination of the Merger Agreement in accordance with the
terms thereof, (ii) termination pursuant to Section 5(a)(v)(E) of this
Agreement, or (iii) the consummation of the transactions contemplated by the
Merger Agreement. Upon any termination of this Agreement, this Agreement shall
thereupon become void and of no further force and effect, and there shall be no
liability in respect of this Agreement or of any transactions contemplated
hereby or by the Merger Agreement on the part of any party hereto or any of its
directors, officers, partners, stockholders, employees, agents, advisors,
representatives or affiliates; provided, however, that nothing herein shall
relieve any party from any liability for such party's willful breach of this
Agreement prior to termination.
Section 7. Miscellaneous.
(a) Non-Survival of Representations and Warranties. The representations,
warranties, covenants and agreements contained herein and in any certificate
delivered pursuant hereto by any Person shall terminate at the Effective Time
or upon the termination of the Merger Agreement pursuant to Section 9.1
thereof, as the case may be, except that this Section 7(a) shall not limit any
covenant or agreement of the parties which by its terms contemplates
performance after the Effective Time or after termination of this Agreement,
including those contained in Section 7(k).
(b) Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed
to have been duly given or made upon receipt) by delivery in person, by
facsimile (with a confirmatory copy sent by overnight courier), by overnight
courier service or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 7(b)):
if to Parent or Acquisition Sub:
Deere & Company
Xxx Xxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
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with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
if to the Stockholder, to Stockholder and counsel as stated on Schedule II
hereto.
(c) Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of Law, or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the Merger is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that
the Merger be consummated as originally contemplated to the fullest extent
possible.
(d) Entire Agreement. This Agreement, the Merger Agreement, and the
Confidentiality Agreement constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior agreements
and undertakings, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof.
(e) Assignment. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, provided that, except as provided herein, no party may assign,
delegate or otherwise transfer any of its rights or obligations hereunder, in
whole or in part, by operation of law or otherwise by any of the parties,
without the consent of the other parties hereto.
(f) Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing herein, express or
implied, is intended to or shall confer upon any other Person any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
(g) Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at
law or equity.
(h) 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 applicable principles of conflicts of law) as to
all matters, including but not limited to matters of validity, construction,
effect, performance and remedies.
(i) Consent to Jurisdiction.
(A) Each of the parties hereto hereby irrevocably submits to the exclusive
jurisdiction of the courts of the State of Delaware and the United States
District Court for the State of Delaware, for the purpose of any action or
proceeding arising out of or relating to this Agreement and each of the parties
hereto hereby irrevocably agrees that all claims in respect to such action or
proceeding may be heard and determined exclusively in any Delaware state or
federal court. Each of the parties hereto hereby agrees that a final judgment
in any action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(B) Each of the parties hereto hereby irrevocably consents to the service of
the summons and complaint and any other process in any other action or
proceeding relating to the transactions contemplated hereby, on behalf of
itself or its property, by personal delivery of copies of such process to such
party. Nothing in this Section 7(i) shall affect the right of any party to
serve legal process in any other manner permitted by law.
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(j) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF PARENT OR THE COMPANY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
(k) Further Assurances. From time to time, at the request of Parent or
Acquisition Sub, the Stockholder shall execute and deliver to Parent and
Acquisition Sub or cause other Record Holders to execute and deliver to Parent
and Acquisition Sub such additional letters or instruments to comply with
applicable laws and stock exchange rules as Parent or Acquisition Sub may
reasonably request in connection with the Stockholder's obligations under this
Agreement.
(l) Descriptive Headings; Interpretation. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(m) Amendment, Modification and Waiver. This Agreement may not be amended,
modified or waived except by an instrument or instruments in writing signed and
delivered on behalf of the party hereto against whom such amendment,
modification or waiver is sought to be entered.
(n) Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, Acquisition Sub and the Stockholder have caused
this Agreement to be duly executed as of the day and year first above written.
Deere & Company
/s/ Xxxx X. Xxxxxxx
By: _________________________________
Name:Xxxx X. Xxxxxxx
Title: President, Commercial and
Consumer Equipment
Division
Green Mergersub, Inc.
/s/ Xxxx X. Xxxxxxx
By: _________________________________
Name:Xxxx X. Xxxxxxx
Title:President
Xxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx
-------------------------------------
FRS Capital Company, LLC
/s/ Xxxx X. Xxxxxxxx
By: _________________________________
Name:Xxxx X. Xxxxxxxx
Title:Manager
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Schedule I
List of Existing Securities
Stockholders' Holdings of Company Securities
Number of
Registered Holder Shares Held
----------------- -----------
Xxxx X. Xxxxxxxx............................................. 195,000
FRS Capital Company, LLC..................................... 1,239,274
---------
Total:..................................................... 1,434,274
=========
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Schedule II
Notices
Registered Holder Notice to: With a Copy to:
----------------- ---------- ---------------
Xxxx X. Xxxxxxxx.... Richton International Corporation Xxxxx Xxxxxx Xxxxx
000 Xxxxx Xxxxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx & Xxxxx
Telecopier No.: (000) 000-0000 Xxx Xxxxxxxxxx Xxxxx
Attention: Xxxx X. Xxxxxxxx Xxxxxx, Xxx Xxxxxx
00000-0000 Telecopier
No.: (000) 000-0000
Attention: Xxxxxx X.
Xxxxxxxx
FRS Capital Company,
LLC................ Richton International Corporation Xxxxx Cummis Radin
000 Xxxxx Xxxxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx & Xxxxx
Telecopier No.: (000) 000-0000 Xxx Xxxxxxxxxx Xxxxx
Attention: Xxxx X. Xxxxxxxx Xxxxxx, Xxx Xxxxxx
00000-0000 Telecopier
No.: (000) 000-0000
Attention: Xxxxxx X.
Xxxxxxxx
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