Exhibit 3
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of June 17,
2001, by and between Land O' Lakes, Inc., a Minnesota cooperative corporation
("Buyer"), and GSCP Recovery, Inc., a corporation organized under the laws of
the Cayman Islands ("Stockholder").
WHEREAS, Buyer, Purina Xxxxx, Inc., a Delaware corporation (the
"Company"), LOL Holdings II, Inc., a Delaware corporation and wholly-owned
subsidiary of Buyer ("LOL Subsidiary"), and LOL Holdings III, Inc., a Delaware
corporation and wholly-owned subsidiary of LOL Subsidiary ("Acquisition"), are
entering into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement") which provides (subject to the terms and conditions set forth
therein) for the merger of Acquisition with and into the Company (the "Merger"),
with the Company remaining as the corporation surviving the Merger.
WHEREAS, in order to induce Buyer, LOL Subsidiary and Acquisition to
enter into the Merger Agreement, Stockholder is entering into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties to this Agreement, intending to be legally
bound, agree as follows:
SECTION 1
DEFINITIONS
1.1 CERTAIN DEFINITIONS. For purposes of this Agreement:
(a) "Company Common Stock" shall mean the common stock, par
value $.0l per share, of the Company.
(b) "Expiration Time" shall mean the earliest of (i) the time
at which the Merger Agreement is terminated, and (ii) the time at which the
Merger is effected.
(c) Stockholder shall be deemed to "Own" or to have acquired
"Ownership" of a security if Stockholder (i) is the record owner of such
security, or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended) of such
security because it has or shares the power to vote such security.
(d) "Person" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(e) "Shares" shall mean (i) all shares of Company Common Stock
Owned by Stockholder as of the date of this Agreement, and (ii) all additional
shares of Company Common Stock of which Stockholder acquires Ownership during
the period from the date of this Agreement through the Expiration Time.
(f) "Subject Securities" shall mean (i) all shares of Company
Common Stock and all options, warrants and other rights to acquire (by purchase,
conversion or otherwise)
shares of Company Common Stock Owned by Stockholder as of the date of this
Agreement, and (ii) all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire (by purchase,
conversion or otherwise) shares of Company Common Stock of which Stockholder
acquires Ownership during the period from the date of this Agreement through the
Expiration Time.
1.2 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires, the singular number shall include the plural, and vice versa.
(b) The parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation".
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Agreement and Exhibits to this Agreement.
(e) As used in this Agreement, the term "affiliate" shall have
the meaning set forth in Rule 12b-2 of the General Rules and Regulations
promulgated under the Securities Exchange Act of 1934, as amended.
(f) As used in this Agreement, the term "subsidiary" of a
specified corporation shall mean any corporation or other entity of which the
outstanding securities having ordinary voting power to elect a majority of the
board of directors or other Persons performing similar functions are directly or
indirectly owned by such specified corporation.
(g) As used in this Agreement, the term "business day" shall
mean any day other than a Saturday, Sunday or a day which is a statutory holiday
under the laws of the United States.
SECTION 2
VOTING; PROXY
2.1 VOTING. Except to the extent they are voted by proxy granted
pursuant to Section 2.2, from the date hereof until the Expiration Time,
Stockholder shall vote, at any meeting of the stockholders of the Company or in
connection with any solicitation of written consents from stockholders of the
Company in lieu of a meeting, all Shares Owned by Stockholder which Stockholder
is entitled to vote at such meeting or by such written consent (a) in favor of
the approval of the Merger Agreement and the Merger, and in favor of any and all
other actions contemplated by the Merger Agreement, (b) against any Acquisition
Proposal (as hereinafter defined), and (c) against any action or agreement that
would result in a breach of any
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covenant, representation or warranty of the Company under the Merger Agreement
or would result in any obligation or agreement of the Company under the Merger
Agreement not being fulfilled or would result in the Company being required to
pay to Buyer the fee contemplated in Section 8.04 of the Merger Agreement (the
matters referred to in clauses (a), (b) and (c) being referred to collectively
as the "Voting Objectives").
2.2 PROXY. From the date hereof until the Expiration Time, Stockholder
hereby irrevocably (to the fullest extent permitted by law) appoints and
constitutes each of Xxxxxx Xxxxxxx and Xxxxx Xxxxxxxxxxx the attorneys-in-fact
and proxies of Stockholder, with full power of substitution and resubstitution,
to vote, at any meeting of the stockholders of the Company or in connection with
any solicitation of written consents from the stockholders of the Company in
lieu of a meeting, in accordance with the Voting Objectives, all Shares Owned by
Stockholder which Stockholder is entitled to vote at such meeting or by such
written consent. Upon the execution hereof, all prior proxies given by
Stockholder with respect to any of the Shares are hereby revoked, and
Stockholder agrees that no subsequent proxies will be given with respect to any
of the Shares. From the date hereof until the Expiration Time, this proxy is
irrevocable. This proxy is coupled with an interest between Buyer and
Stockholder and is granted in consideration of Buyer, LOL Subsidiary and
Acquisition entering into the Merger Agreement.
2.3 OTHER MATTERS. Subject to the provisions of Section 4 hereof,
Stockholder shall retain the right to vote the Shares, at its sole discretion,
at any meeting of the stockholders of the Company or in connection with any
solicitation of written consents from the stockholders of the Company, on all
matters other than those set forth in any of clause (a), (b) or (c) of Section
2.1 hereof which are at any time and from time to time presented for action by
the Company's stockholders.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Buyer as follows:
3.1 AUTHORIZATION, ETC. Stockholder is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation. Stockholder has the absolute and unrestricted right, power,
authority and capacity to execute and deliver this Agreement and to perform
Stockholder's obligations hereunder. All corporate acts and proceedings required
to be taken to authorize the execution, delivery and performance by Stockholder
of this Agreement have been duly and properly taken. This Agreement has been
duly executed and delivered by Stockholder and constitutes the legal, valid and
binding obligation of Stockholder, enforceable against Stockholder in accordance
with its terms, except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in a court of law or equity).
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3.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Agreement by
Stockholder does not, and the performance of this Agreement by Stockholder in
accordance with its terms will not, (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Stockholder or by which
Stockholder or any of the Subject Securities is or may be bound or affected, or
(ii) conflict with, or result in or constitute (with or without notice or lapse
of time) any breach of or default or event of default under, or give to any
other Person (with or without notice or lapse of time) any right of termination,
amendment, acceleration or cancellation of, or result (with or without notice or
lapse of time) in the creation of any encumbrance or restriction on any of the
Subject Securities pursuant to, any contract or instrument to which Stockholder
is a party or by which Stockholder or any of the Subject Securities is or may be
bound or affected.
(b) The execution and delivery of this Agreement by
Stockholder does not, and the performance of this Agreement by Stockholder will
not, require any consent or approval of any Person.
3.3 TITLE TO SECURITIES; VOTING. As of the date of this Agreement, (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Company Common Stock set forth beside
Stockholder's name on Exhibit A hereto under the heading "Shares Held of
Record", (b) Stockholder holds (free and clear of any encumbrances or
restrictions) the options, warrants and other rights to acquire (by purchase,
conversion or otherwise) shares of Company Common Stock set forth beside
Stockholder's name on Exhibit A hereto under the heading "Options and Other
Rights", (c) Stockholder Owns the additional shares of Company Common Stock set
forth beside Stockholder's name on Exhibit A hereto under the heading
"Additional Shares Owned", and (d) neither Stockholder nor any of its
subsidiaries or affiliates directly or indirectly Owns any shares of Company
Common Stock or any option, warrant or other right to acquire (by purchase,
conversion or otherwise) any shares of Company Common Stock other than the
shares and options, warrants and other rights set forth beside Stockholder's
name on Exhibit A hereto. Except as otherwise provided in this Agreement,
Stockholder has the right to vote all Shares and none of the Shares is subject
to a voting agreement, voting trust, irrevocable proxy or other voting
arrangement.
3.4 LITIGATION. There is no claim, action, proceeding or investigation
pending or, to the knowledge of Stockholder, threatened against or relating to
Stockholder by or before any court or governmental or regulatory authority or
body (including the National Association of Securities Dealers, Inc.) that, if
determined adversely, would prohibit Stockholder from performing its obligations
hereunder.
3.5 FINDER'S FEES. No investment banker, broker, finder or other Person
is entitled to a commission or fee from Buyer, LOL Subsidiary or Acquisition in
respect of this Agreement based upon any arrangement or agreement made by or on
behalf of Stockholder.
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SECTION 4
ADDITIONAL COVENANTS OF STOCKHOLDER
4.1 APPRAISAL RIGHTS. Stockholder hereby waives any rights or appraisal
or rights to dissent from the Merger or approval of the Merger Agreement that it
might have under the provisions of Section 262 of the General Corporation Law of
the State of Delaware.
4.2 FURTHER ASSURANCES. Subject to Section 4.5 hereof, Stockholder
agrees that it shall not take, or authorize or permit any of its officers,
directors, employees, representatives, agents, subsidiaries or affiliates to
take, any action which in any manner delays, xxxxxx or impedes the successful
completion of the Merger in an expeditious manner. In addition, from time to
time and without additional consideration, Stockholder shall execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
take such further actions, as Buyer may reasonably request for the purpose of
carrying out and furthering the intent of this Agreement.
4.3 NO PROXIES OR ENCUMBRANCES. Except pursuant to the terms of this
Agreement or the Merger Agreement, from the date hereof until the Expiration
Time, Stockholder shall not, without the prior written consent of Buyer,
directly or indirectly, (a) grant any proxies or enter into any voting trust or
other agreement or arrangement with respect to the voting of any of the Shares,
or (b) sell, assign, transfer, encumber or otherwise dispose of, or enter into
any contract, option or other arrangement or understanding with respect to the
direct or indirect sale, assignment, transfer, encumbrance or other disposition
of, any Subject Securities.
4.4 NO SHOPPING. Subject to Section 4.5 hereof, from the date hereof
until the Expiration Time, Stockholder shall not, and shall not authorize or
permit any of its officers, directors, employees, representatives, agents,
subsidiaries or affiliates to, directly or indirectly, (a) solicit, seek,
initiate or encourage any inquiries or proposals that constitute, or would be
reasonably likely to lead to, a proposal or offer for a merger, consolidation or
business combination involving the Company or any of its subsidiaries, a sale of
substantial assets of the Company and its subsidiaries, taken as a whole (other
than the sale of inventory or obsolete equipment in the ordinary course of
business consistent with past practice), a sale of shares of capital stock of
the Company or any of its subsidiaries (including by way of a tender offer) or
any similar transaction involving the Company or any of its subsidiaries, other
than the transactions contemplated by the Merger Agreement (any of the foregoing
inquiries or proposals being referred to in this Agreement as an "Acquisition
Proposal"), or (b) engage in any discussions or negotiations with any Person or
group (other than Buyer or its affiliates) concerning any Acquisition Proposal,
or provide non-public information to any Person or group (other than Buyer or
its affiliates) that is considering making, or has made, an Acquisition
Proposal. Stockholder shall promptly advise Buyer of the terms of any
communications Stockholder may receive relating to any of the foregoing.
4.5 DISCHARGE OF FIDUCIARY DUTIES. Stockholder is signing this
Agreement in Stockholder's capacity as a stockholder of the Company. Nothing in
Section 4.2 or 4.4 hereof shall restrict any representative of Stockholder who
is a director of the Company from discharging such representative's fiduciary
duties to the stockholders of the Company under
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applicable law or shall restrict Greenwich Street Capital Partners II, L.P. from
consulting with and advising the directors of the Company in the discharge by
them of their fiduciary duties to the stockholders of the Company under
applicable law.
4.6 CONDUCT OF STOCKHOLDER. Stockholder will not (a) take, or agree or
commit to take, any action that would make any representation and warranty of
Stockholder hereunder inaccurate in any respect as of any time prior to the
termination of this Agreement, or (b) omit, or agree or commit to omit, to take
any reasonable action necessary to prevent any such representation or warranty
from being inaccurate in any respect at any such time prior to the termination
of this Agreement.
4.7 DISCLOSURE. Stockholder hereby permits the Company and Buyer to
publish and disclose, in a proxy statement (including all documents and
schedules to be filed in connection with the foregoing with the Securities and
Exchange Commission) and in other filings and public disclosures relating to the
Merger, this Agreement, Stockholder's identity and details regarding
Stockholder's Ownership of shares of Company Common Stock and the nature of
Stockholder's commitments, arrangements and understandings under this Agreement.
SECTION 5
TERMINATION
5.1 TERMINATION. This Agreement, including the proxy granted herein,
will terminate and be of no further force or effect without notice to or further
action of the parties immediately at the Expiration Time. In the event of
termination of this Agreement pursuant to this Section 5.1, this Agreement shall
forthwith become void and there shall be no liability or obligation hereunder on
the part of any party hereto, provided that nothing herein shall release any
party for liability for material breach of this Agreement prior to such
termination.
SECTION 6
MISCELLANEOUS
6.1 INDEMNIFICATION. Stockholder shall hold harmless and indemnify
Buyer and Buyer's affiliates from and against, and shall compensate and
reimburse Buyer and Buyer's affiliates for, any loss, damage, claim, liability,
fee, demand, cost or expense (including reasonable attorneys' fees, costs and
disbursements, and regardless of whether or not such loss, damage, claim,
liability, fee, demand, cost or expense relates to a third-party claim) that is
directly or indirectly suffered or incurred by Buyer or any of Buyer's
affiliates, or to which Buyer or any of Buyer's affiliates otherwise becomes
subject, and that arises directly or indirectly from, or relates directly or
indirectly to, (a) any inaccuracy in or breach of any representation or warranty
contained in this Agreement, or (b) any failure on the part of Stockholder to
observe, perform or abide by, or any other breach by Stockholder of, any
restriction, covenant, obligation or other provision contained in this Agreement
or the proxy granted herein.
6.2 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
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6.3 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, effective when
delivered, or by express courier service, effective one business day after
delivery to such courier, or by registered or certified mail (postage prepaid
and return receipt requested), effective when received or three business days
after the mailing, whichever occurs first, or by telecopy, effective when
transmitted and a confirmation is received, provided the same is on a business
day, and, if not, on the next business day, to the parties at the following
addresses (or at such other address for a party or to such other person's
attention as shall be specified by like notice):
If to Stockholder:
GSCP Recovery, Inc.
c/o GSC Partners
000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
If to Buyer:
Land O'Lakes, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxx
Associate General Counsel, Law Department
Land O'Lakes, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
and
Faegre & Xxxxxx LLP
2200 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
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6.4 SEVERABILITY. If any provision of this Agreement or any part of any
such provision is held under any circumstances to be invalid or unenforceable in
any jurisdiction, then (a) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Agreement. Each provision of this
Agreement is separable from every other provision of this Agreement, and each
part of each provision of this Agreement is separable from every other part of
such provision.
6.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings between the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon either party unless made in writing and signed by both parties.
6.6 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Stockholder, and any attempted or purported assignment or
delegation of any of such interests or obligations shall be void. Subject to the
preceding sentence, this Agreement, including the proxy granted herein, shall be
binding upon Stockholder and Stockholder's successors and assigns, and shall
inure to the benefit of Buyer and its successors and assigns. Without limiting
any of the restrictions set forth in this Agreement, this Agreement, including
the proxy granted herein, shall be binding upon any Person to whom any Subject
Securities are transferred. Nothing in this Agreement (other than the proxy
granted herein, as expressly provided in such proxy) is intended to confer on
any Person other than Buyer and its successors and assigns any rights or
remedies of any nature, except as otherwise provided in Section 4.7 hereof with
respect to the Company and as otherwise provided in Section 6.1 hereof with
respect to Buyer's affiliates.
6.7 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement is not
performed in accordance with its specific terms or is otherwise breached.
Stockholder agrees that, in the event of any breach or threatened breach by
Stockholder of any covenant or obligation contained in this Agreement, Buyer
shall be entitled (in addition to any other remedy that may be available to it,
including monetary damages) to seek and obtain (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or
obligation, and (b) an injunction restraining such breach or threatened breach.
Stockholder further agrees that neither Buyer nor any other Person shall be
required to obtain, furnish or post any bond or similar instrument in connection
with or as a condition to obtaining any remedy referred to in this Section 6.7,
and Stockholder irrevocably waives any right Stockholder may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
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6.8 NON-EXCLUSIVITY. The rights and remedies of Buyer under this
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Buyer under this Agreement, and the
obligations and liabilities of Stockholder under this Agreement, are in addition
to their respective rights, remedies, obligations and liabilities under common
law requirements and under all applicable statutes, rules and regulations.
6.9 GOVERNING LAW; VENUE.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
principles of conflicts of law.
(b) Any legal action or other legal proceeding relating to
this Agreement or the enforcement of any provision of this Agreement shall be
brought or otherwise commenced in any state or federal court located in the
State of Delaware. Each of Stockholder and Buyer:
(i) expressly and irrevocably consents and submits to
the jurisdiction of each state and federal court located in the State
of Delaware in connection with any such legal proceeding;
(ii) agrees that service of any process, summons,
notice or document by U.S. mail addressed to it at the address set
forth above shall constitute effective service of such process,
summons, notice or document for purposes of any such legal proceeding;
(iii) agrees that each state and federal court
located in the State of Delaware shall be deemed to be a convenient
forum; and
(iv) agrees not to assert (by way of motion, as a
defense or otherwise), in any such legal proceeding commenced in any
state or federal court located in the State of Delaware, any claim that
it is not subject personally to the jurisdiction of such court, that
such legal proceeding has been brought in an inconvenient forum, that
the venue of such proceeding is improper or that this Agreement or the
subject matter of this Agreement may not be enforced in or by such
court.
(c) EACH OF STOCKHOLDER AND BUYER IRREVOCABLY WAIVES THE RIGHT
TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS
AGREEMENT OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT.
6.10 COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
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6.11 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
6.12 WAIVER. No failure on the part of Buyer to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
Buyer in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. Buyer shall not be deemed to have waived any claim
available to Buyer arising out of this Agreement, or any power, right, privilege
or remedy of Buyer under this Agreement, unless the waiver of such claim, power,
right, privilege or remedy is expressly set forth in a written instrument duly
executed and delivered on behalf of Buyer; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is
given.
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IN WITNESS WHEREOF, Buyer and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
LAND O'LAKES, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Its: President and Chief Executive Officer
GSCP RECOVERY, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Its: Secretary
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EXHIBIT A TO VOTING AGREEMENT
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Stockholder Shares Held of Options and Additional Shares
Record Other Rights Owned
--------------------------------- ----------------- --------------- ---------------------
GSCP Recovery, Inc. N/A N/A 2,356,168
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