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EXHIBIT 3
VOTING AND CONVERSION AGREEMENT
This VOTING AND CONVERSION AGREEMENT (this "Agreement"),
dated November 9, 1998, by and among Anchor National Life Insurance Company,
an Arizona corporation ("Anchor"), Rockford Industries, Inc., a California
corporation (the "Company"), and American Express Company, a New York
corporation ("AMEX").
WITNESSETH THAT:
WHEREAS, the Company, AMEX and RXP Acquisition Corporation, a
Delaware corporation and wholly owned subsidiary of AMEX ("Newco"), have
entered into a letter of intent relating to a proposed merger transaction
whereby AMEX would acquire all of the capital stock of the Company on a fully
diluted basis for consideration of approximately $11.88 per share (the
"Merger"); and
WHEREAS, Anchor previously subscribed for and is the record
and beneficial owner of 70,000 shares of Series A Preferred Stock of the
Company (the "Preferred Shares") pursuant to a Subscription Agreement dated May
25, 1995 between the Company and Anchor (the "Subscription Agreement")
representing all of the issued and outstanding shares of Preferred Stock of the
Company; and
WHEREAS, pursuant to the Subscription Agreement, the Preferred
Shares are convertible into a specified number of shares of Common Stock, no
par value, of the Company (the "Common Shares");and
WHEREAS, Anchor believes the consummation of the Merger is
beneficial to Anchor and the other shareholders of the Company; and
WHEREAS, Anchor desires to induce AMEX to enter into a Plan
and Agreement of Merger among AMEX, Newco and the Company (the "Merger
Agreement") and to proceed with the Merger; and
WHEREAS, to facilitate the ability of AMEX, Newco and the
Company to consummate the Merger, Anchor desires to covenant and agree, upon
the terms and subject to the conditions set forth herein, to: (i) vote all of
the Preferred Shares in favor of approval of the Merger,
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and (ii) convert all of the Preferred Shares into Common Shares immediately
prior to the closing of the Merger;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, AMEX's willingness to enter into the Merger
Agreement and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Agreement to Vote Preferred Shares. Anchor agrees, during the term of
this Agreement, to vote all of its Preferred Shares (i) in person or
by proxy in favor of approval of the Merger at every meeting of the
shareholders of the Company at which such matters are considered and
at every adjournment thereof (each, a "Shareholders' Meeting") or (ii)
at the request of the Company, by written consent in favor of approval
of the Merger.
2. Representations of Anchor. Anchor is the beneficial and record owner
of 70,000 Preferred Shares. Such shares are all of the Preferred
Shares owned beneficially or of record by Anchor. Such Preferred
Shares are owned by Anchor free and clear of any pledges, liens,
security interests, adverse claims, assessments, options, equities,
charges or encumbrances with respect to the ownership of or right to
vote or dispose of such Shares.
3. No Voting Trusts or Transfers or Pledges. Anchor agrees that it will
not, nor will Anchor permit any entity under its control to, (i)
deposit any of the Preferred Shares in a voting trust or subject any
of the Preferred Shares to any agreement or arrangement with respect
to the voting thereof, (ii) pledge, grant a security interest in,
hypothecate, sell, assign, transfer or otherwise dispose of or convey
any of its Preferred Shares, or (iii) convert the Preferred Shares
other than in accordance with this Agreement or take any other action
with respect to the Preferred Shares which is inconsistent with
Anchor's agreements under this Agreement. Without limiting the
generality of the foregoing, Anchor shall not grant to any party any
option or right to purchase the Preferred Shares or any interest
therein. Anchor acknowledges and agrees that the transfer agent with
respect to the Preferred Shares shall be
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given notice that the Preferred Shares are subject to the terms of
this Agreement and such Preferred Shares shall not be transferred
except in accordance with the terms of this Agreement.
4. Agreement to Convert Preferred Shares. Anchor agrees during the term
of this Agreement, if AMEX, the Company and Newco (or any other
wholly-owned subsidiary of AMEX) enter into a Merger Agreement,
immediately prior to the closing of the Merger on the Closing Date for
the Merger, Anchor will convert all of its Preferred Shares into
Common Shares pursuant to and on the terms set forth in the
Subscription Agreement and the Certificate of Determination relating
to the Preferred Shares. Until such time as Anchor converts the
Preferred Shares into Common Shares in accordance with this Agreement,
the Company acknowledges and agrees that such Preferred Shares will
continue to accrue dividends, and such dividends shall be payable upon
the conversion of the Preferred Shares in accordance with this
Agreement.
5. Nondisclosure. Anchor understands, acknowledges and agrees that it
must maintain the highest degree of confidentiality, shall not make
any public announcement and shall only disclose to employees when
disclosure is imperative with regard to this Agreement or the Merger
or any of the transactions contemplated hereby or thereby; provided,
however, that nothing in this Section 5 shall be deemed to prohibit
Anchor from making any disclosure which its counsel deems necessary or
advisable in order to fulfill such party's disclosure obligations
imposed by law or the rules of any national securities exchange or
automated quotation system so long as Anchor consults with the Company
and AMEX prior to such disclosure.
6. Specific Performance. Each party hereto acknowledges that it will be
impossible to measure in money the damage to the other party if a
party hereto fails to comply with the obligations imposed by this
Agreement, and that, in the event of any such failure, the other party
will not have an adequate remedy at law or in damages. Accordingly,
each party hereto agrees that
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injunctive relief or other equitable remedy, in addition to remedies
at law or damages, is the appropriate remedy for any such failure and
will not oppose the granting of such relief on the basis that the
other party has an adequate remedy at law. Each party hereto agrees
that it will not seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with any other party's
seeking or obtaining such equitable relief.
7. Term of Agreement. The term of this Agreement shall commence on the
execution and delivery of the Merger Agreement, and such term and this
Agreement shall terminate upon the earliest to occur of (i) the date
on which the Merger Agreement is terminated in accordance with its
terms, (ii) the date following the meeting of the holders of the
Common Stock to approve the Merger, in the event the holders of the
Common Stock do not approve the Merger and (iii) September 30, 1999.
Upon such termination, no party shall have any further obligations or
liabilities hereunder; provided, however, that such termination shall
not relieve any party from liability for any breach of this Agreement
prior to such termination.
8. Entire Agreement. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject
matter hereof and contains the entire agreement among the parties with
respect to the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions hereof may be
modified or waived, except by an instrument in writing signed by all
parties hereto. No waiver of any provisions hereof by any party shall
be deemed a waiver of any other provisions hereof by any such party,
nor shall any such waiver be deemed a continuing waiver of any
provision hereof by such party.
9. Notices. All notices, consents, requests, instructions, approvals and
other communications provided for herein shall be in writing and shall
be deemed to have been duly given if mailed, by first class or
registered mail, five (5) business days after deposit in the United
States Mail, or if telexed or telecopied, sent by telegram, or
delivered by hand or reputable overnight courier, when confirmation is
received, in each case as follows:
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If to Anchor:
Anchor National Life Insurance Company
c/o SunAmerica Corporate Finance
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
If to Rockford:
Rockford Industries, Inc.
0000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxx, Xxx, Xxxxxxxxxx 00000
Attention: Xxxxx XxXxxxxxx
Telecopy: (000) 000-0000
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With a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: J. Xxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to AMEX:
American Express Company
American Express Tower
World Financial Center
New York, New York 10285-4900
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
With a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
or to such other persons or addresses as may be designated in writing
by the party to receive such notice. Nothing in this Section 9 shall
be deemed to constitute consent to the manner and address for service
of process in connection with any legal proceeding (including
litigation arising out of or in connection with this Agreement), which
service shall be effected as required by applicable law.
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10. Amendment and Waiver. No modification, amendment or waiver of any
provision of this Agreement will be effective unless such
modification, amendment or waiver is approved in writing by all of the
parties hereto. The failure of any party to enforce any of the
provisions of this Agreement will in no way be construed as a waiver
of such provisions of this Agreement and will not affect the right of
such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
11. Miscellaneous.
(a) Nothing contained in this Agreement shall be construed as
creating any liability on the part of Anchor under the Merger
Agreement.
(b) This Agreement shall be deemed a contract made under, and for
all purposes shall be construed in accordance with, the laws
of the State of California, without reference to its
conflicts of law principles.
(c) Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this
Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
(d) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
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(e) All Section headings herein are for convenience of reference
only and are not part of this Agreement, and no construction
or reference shall be derived therefrom.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
ANCHOR NATIONAL LIFE INSURANCE
COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Authorized Agent
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ROCKFORD INDUSTRIES, INC.
By: /s/ Xxxxx XxXxxxxxx
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Name: Xxxxx XxXxxxxxx
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Title: CFO
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AMERICAN EXPRESS COMPANY
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Authorized Signatory
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