EXHIBIT 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. Ex- cept 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
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 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
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.
(j) WAIVER OF JURY TRIAL. EACH OF THE
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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.
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
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President, Commercial and
Consumer Equipment Division
GREEN MERGERSUB, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
XXXX X. XXXXXXXX
/s/ Xxxx X. Xxxxxxxx
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FRS CAPITAL COMPANY, LLC
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Manager
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
T
REGISTERED HOLDER Notice to: With A Copy to:
--------------------------------- ---------------------------------------------- -------------------------------
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
--------------------------------- ---------------------------------------------- -------------------------------
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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