EXHIBIT 11
VOTING AGREEMENT
This Voting Agreement (this "Agreement") has been made as of November
1, 1998 (the "date hereof") by The ServiceMaster Company ("ServiceMaster") and
other party who has executed this Agreement (herein called the "Stockholder").
RECITALS
A. Concurrently with the execution and delivery of this Agreement,
ServiceMaster, SVM Acquisition Corporation, a wholly-owned subsidiary of
ServiceMaster ("Merger Subsidiary"), and LandCare USA, Inc. ("LandCare") are
entering into a Plan of Reorganization and Agreement and Plan of Merger of even
date herewith (which as constituted from time to time is herein called the
"Merger Agreement") which provides, among other things, that Merger Subsidiary
be merged into LandCare and that upon such Merger, LandCare will become a
wholly-owned subsidiary of ServiceMaster. The Merger Agreement also provides
that upon consummation of the Merger, each share of LandCare's Common Stock
outstanding immediately prior to consummation of the Merger will be converted
into a fraction of a share of Common Stock issuable by ServiceMaster. The term
"Merger" whenever it is used in this Agreement means the merger of the Merger
Subsidiary into LandCare.
B. The Stockholder is the record and beneficial owner of the number of
shares of LandCare common stock set forth adjacent to the Stockholder's
signature to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
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(a) The Stockholder confirms that the Stockholder desires that
the Merger occur and has concluded that it is in the best interests of LandCare
and such Stockholder that LandCare's Board approve the Merger Agreement and that
LandCare sign the Merger Agreement and that it is better for LandCare to make
the commitments required by the Merger Agreement than to take the risk that by
seeking a higher offer for LandCare, the opportunity for acquisition by
ServiceMaster may be lost.
(b) At every meeting of the Stockholders of LandCare called
with respect to any of the following, and at every adjournment thereof, and on
every action or approval by written consent of the Stockholders of LandCare with
respect to any of the following, the Stockholder irrevocably agrees to vote the
Stockholder's LandCare Shares: (i) in favor of the adoption of the
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Merger Agreement and approval of the Merger and any matter that could reasonably
be expected to facilitate consummation of the Merger (the "Merger Proposal");
and (ii) against approval of any proposal made in opposition to or competition
with consummation of the Merger and against any merger, consolidation, sale of
assets, reorganization or recapitalization with any party other than with
ServiceMaster and its affiliates and against any reorganization,
recapitalization, liquidation or winding up of LandCare (each of the things
cited in this clause (ii) is hereinafter referred to as an "Opposing Proposal").
(c) The voting commitments in this Section 1 and in Section 2 and
the authorization in Section 3 shall end when and if (but not before) the Merger
Agreement shall be terminated in accordance with its terms.
2. No Support for Opposing Proposals.
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(a) The Stockholder shall not 'invite or seek any Opposing
Proposal, support (or suggest that anyone else should support) any Opposing
Proposal that may be made, or ask LandCare's Board to consider, support or seek
any Opposing Proposal, or otherwise take any action designed to make any
Opposing Proposal more likely.
(b) The Stockholder shall not meet or otherwise communicate
with any person that makes or is considering making an Opposing Proposal or any
representative of a person after becoming aware that the person has made or is
considering making a Opposing Proposal. The Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
representatives may receive from any person relating to any Opposing Proposal or
otherwise indicating that any person may wish to precipitate or engage in any
transaction arising out of any Opposing Proposal and will provide ServiceMaster
with all information ServiceMaster requests available to the Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder will not make any claim or join in any
litigation alleging that LandCare's Board is required to consider, endorse or
support any Opposing Proposal or to invite or seek any Opposing Proposal.
(d) The Stockholder shall not take any other action that is
reasonably likely to make consummation of the Merger less likely or to impair
ServiceMaster's ability to exercise any of the rights granted by this Agreement
or the value of any such exercise.
3. Authorization to Execute Ballot. The Stockholder hereby irrevocably
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authorizes ServiceMaster to execute as attorney in fact for the Stockholder any
ballot or consent form ServiceMaster shall reasonably deem appropriate to
accomplish the votes and consents required by this Agreement.
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4. Transfer Restrictions.
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(a) Until and unless the Merger Agreement has been terminated
(i) none of the Stockholder's LandCare Shares shall be tendered in response to
any tender offer, (ii) no interest in any of the Stockholder's LandCare Shares
shall be sold or otherwise transferred, (iii) the Stockholder will not take any
other action which would impair Stockholder's ability to vote any of
Stockholder's LandCare Shares in the manner required by this Agreement and (iv)
subject to Section 11 hereof, the Stockholder's commitments in Sections 1 though
3 shall be irrevocable.
(b) The Stockholder hereby agrees that for the period ending on the
first anniversary of the issuance of the Stockholder's LandCare Shares the
Stockholder shall not sell, offer to sell, or otherwise transfer or dispose of
any ServiceMaster shares received in the Merger in exchange for the
Stockholder's LandCare Shares (the "Stockholder's ServiceMaster Shares"), engage
in put, call, short-sale, straddle or similar transactions involving
ServiceMaster Shares, or in any other way reduce the Stockholder's risk of
owning Stockholder's ServiceMaster Shares, provided that this restriction shall
not prohibit the Stockholder from pledging Stockholder's ServiceMaster Shares to
secure full-recourse indebtedness. ServiceMaster shall be entitled to place a
legend on the certificates representing the Stockholder's ServiceMaster Shares
identifying the restrictions imposed by this paragraph.
(c) The Stockholder hereby agrees that Stockholder's LandCare
Shares shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
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(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder has the capacity to enter into this Agreement and the right and
power to perform his obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is not a
natural person), (ii) any contract, license, franchise or permit, or (iii) any
order, judgment or decree which would be breached or violated by the execution,
delivery and performance of this Agreement by the Stockholder.
(c) No authorization, consent or approval of, or any filing with,
any public body, court or authority is necessary for consummation by the
Stockholder of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has
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necessary and sufficient right and authority to make the commitments with
respect to the Stockholder's LandCare Shares contained in this Agreement.
(e) The Stockholder is an accredited investor as defined in
the Rule 501 issued by the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and is an affiliate of LandCare. The
Stockholder is able to assess the risks and benefits of the transactions
contemplated by this Agreement. The Stockholder understands that Servivceand
LandCare are each willing to respond to any questions or supply any
information the Stockholder shall desire in order to assess the risks and
benefits of the transactions contemplated by this Agreement and hereby confirms
that there arc no questions that the Stockholder desires to ask or information
the Stockholder desires to obtain that has not been answered or supplied prior
to the Stockholder's execution of this Agreement.
6. Indemnification Currency. The Stockholder acknowledges that the
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Stockholder formerly had any ownership interest in a business enterprise
previously acquired by LandCare and that LandCare issued the Stockholder's
LandCare Shares in connection with LandCare's acquisition of that business. The
agreement pursuant to which that acquisition occurred (the "Prior Acquisition
Agreement" provides that the Stockholder has the right to deliver LandCare
shares in satisfaction for certain indemnification obligations of the
Stockholder that may arise under that Agreement. ServiceMaster hereby agrees
that after the Merger, the Stockholder may use ServiceMaster shares to satisfy
any indemnification obligations that the Stockholder may have under the Prior
Acquisition Agreement to the same extent that the Stockholder was permitted to
use LandCare shares prior to the Merger. The Stockholder hereby agrees that the
Merger shall not limit or impair any indemnification obligation that the
Stockholder may have under the Prior Acquisition Agreement and hereby agrees
that the provisions in the Prior Acquisition Agreement that permit the
Stockholder to utilize LandCare shares to satisfy any certain indemnification
obligations that may arise under the Prior Acquisition Agreement shall be deemed
after the Merger to refer to ServiceMaster shares.
7. Further Assurances. The Stockholder will, upon the request of
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ServiceMaster, execute and deliver such documents and take such action
reasonably deemed by ServiceMaster to be necessary or desirable to more
effectively complete and evidence the transactions contemplated by this
Agreement.
8. Expenses. All costs and expenses incurred in connection with this
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Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
9. Amendment; Assignment. This Agreement may not be modified, amended,
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altered or supplemented except by a writing signed by ServiceMaster and the
Stockholder. Neither the Stockholder nor ServiceMaster may assign any of its
rights or obligations under this Agreement without the written consent of the
other.
10. Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent by registered or certified
mail (postage prepaid, return receipt requested), and shall be deemed to have
been duly given if so given, to the respective parties as follows:
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If to ServiceMaster: The ServiceMaster Company
Xxx XxxxxxxXxxxxx Xxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
With a copy to: Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
If to any Stockholder: To the address set forth adjacent
to the Stockholder's Signature
or to such other address as any party may have furnished to the other in
writing, except that changes of address shall only be effective upon receipt.
11. No Constraints o As a Director. Nothing in this Agreement shall be
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deemed to restrict the Stockholder from taking any action director of the
Corporation that such Stockholder shall believe or is advised by counsel are
necessary to fulfil Stockholder's fiduciary duties as a director. The
Stockholder confirms that the Stockholder will be able to take all of the
actions required by Sections 1 and 3 of this Agreement without any conflict with
the Stockholder's obligations as a director and that, accordingly, nothing in
the preceding sentence shall be deemed to limit or impair the Stockholder's
agreements in Sections 1 and 3.
12. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
13. Governing Law. This Agreement shall be governed by and construed in
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accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof the Stockholder hereby
submits to the nonexclusive jurisdiction of the Federal and state courts located
in Delaware in connection with any dispute related to this Agreement or any of
the matters contemplated hereby.
14. Binding Effect. This Agreement shall be binding upon, inure to the
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benefit of and be enforceable by the successors and permitted assigns of the
parties hereto. Nothing expressed or referred to in this Agreement is intended
or shall be construed to give any person other than the parties to this
Agreement, or their respective successors and permitted assigns any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. Each of the parties to this Agreement will be
entitled to enforce its rights under this Agreement specifically, to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights to which it may be entitled. The Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder's other agreements herein and
that ServiceMaster may in its sole discretion apply to any court of law or
equity of competent jurisdiction for specific performance and/or injunctive
relief in
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order to require any vote required by the terms of this Agreement or to enforce
or prevent any violations of the provisions of this Agreement.
15. Entire Agreement. This Agreement, those documents expressly
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referred to herein and other documents executed by the parties in respect to the
matters herein embody the complete agreement between the parties in respect to
the matter herein and supersede and preempt any prior understandings, agreements
or representatives by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
16. Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
17. Miscellaneous. The headings contained in this Agreement are for
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reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References to Sections, subsections and
clauses refer to Sections, subsections and clauses of this Agreement unless
otherwise stated.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
THE SERVICEMASTER COMPANY
By /s/ X.X. Xxxxxxxx
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Name: X.X. Xxxxxxxx
Title: Executive Vice President
STOCKHOLDER:
/s/ Xxxx X. Xxxxx
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Print Name: Xxxx X. Xxxxx
Address: 0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Number of Stockholder's LandCare Shares:
229,612
Title and Date of Prior Acquisition Agreement and name
or business sold to LandCare:
Agreement and Plan of Organization made as of
March 17, 1998 by and among LandCare USA, Inc.,
Desert Care Acquisition Corp., Desert Care
Landscaping, Inc., Xxxx X. Xxxxx, Xxxxxx Xxxxx,
Xxxxxx X. Xxxxxx, and Xxxxxxx X. Xxxxxx.
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