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, Acquisi
tion 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 consum
mate the transactions contemplated thereby, Parent and Acquisition Sub have re
quired 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 owner ship, 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, consolida tion 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; (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 eco nomic 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
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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.
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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 disposi tion), or consent to any transfer of, any or all of the
Stockholder Shares, or any inter est 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 con tract, 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 Stock holder 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.
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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 consti tute 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 Agree
ment, 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 securities or the
like, the term "Existing Securities" shall refer to and include the
Existing Securities as well as all such dividends and dis tributions 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 Stock holder has the power
(or, if applicable, corporate power) and authority to enter into and
perform all of the Stockholder's obligations hereun der. The execution,
delivery and performance of this Agreement by the Stockholder will not
violate any other agreement to which the Stockholder is a party
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including, without limitation, any voting agree ment, 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 organiza tional documents applicable to the
Stockholder, (B) result in a xxxxx tion 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 termi nation, cancellation, material modification
or acceleration) under any of the terms, conditions or provisions of any
note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrange ment, understanding, agreement or other instrument or
obligation of any kind to which the Stockholder is a party or by which the
Stock holder 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
Stock holder 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
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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 Stock holder nor any of the
Stockholder's subsidiaries, if applicable, shall (and the Stockholder
shall use its best efforts to cause the Stock holder's officers,
directors, employees, investment bankers, consul tants, attorneys,
accountants, agents, advisors or representatives not to), directly or
indirectly, take any action to solicit, initiate, encour age, 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) concern ing 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 pro vide
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 pursuant to Section 7.1 of the Merger Agreement, and
(E) this Agreement including, but not limited to, all obligations arising
hereunder, will terminate immedi ately 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 Deter mination 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
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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 Agree ment. 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
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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
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 Sched
ule 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
neverthe less 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
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parties as closely as possible in a mutually acceptable manner in order that the
Merger be consummated as originally contem plated 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
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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 proceed
ing 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.
(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, PERFOR XXXXX 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 Agree ment may
not be amended, modified or waived except by an instrument or instru ments in
writing signed and delivered on behalf of the party hereto against whom such
amendment, modification or waiver is sought to be entered.
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(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 Stock holder
have caused this Agreement to be duly executed as of the day and year first
above written.
DEERE & COMPANY
By:
---------------------------------
Name:
Title:
GREEN MERGERSUB, INC.
By:
---------------------------------
Name:
Title:
XXXX X. XXXXXXXX
--------------------------------
FRS CAPITAL COMPANY, LLC
By:
---------------------------------
Name:
Title:
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Schedule I
List of Existing Securities
Stockholders' Holdings of Company Securities
================================================================================
Registered Holder Number of 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
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REGISTERED HOLDER Notice to: With A Copy to:
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Xxxx X. Xxxxxxxx Richton International Corporation Xxxxx Xxxxxx Xxxxx Tischman
000 Xxxxx Xxxxxx Xxxxxxx & Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 One Riverfront Plaza
Telecopier No.: (000) 000-0000 Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx Telecopier No.:(000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
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FRS Capital Company, LLC Richton International Corporation Xxxxx Xxxxxx Xxxxx Tischman
000 Xxxxx Xxxxxx Xxxxxxx & Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 One Riverfront Plaza
Telecopier No.: (000) 000-0000 Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx Telecopier No.:(000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
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