EXHIBIT 99.3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of November 20, 2000, by and among AGCO
Corporation, a Delaware corporation ("Parent"), The Xxxxx X. XxXxxxx Revocable
Trust (the "Trust"), a trust created pursuant to that certain Trust Agreement
(the "Trust Agreement") dated July 19, 1973, as amended, by and between Xxxxx X.
XxXxxxx and Xxxxxx X. Xxxxxxx ("Xxxxxxx") , and Xxxxx X. XxXxxxx, a resident of
the State of Minnesota ("XxXxxxx" or individually a "Shareholder" and together
with the Trust, the "Shareholders").
WHEREAS, concurrently herewith, Parent and Ag-Chem Equipment Co., Inc.,
a Minnesota corporation ("Company"), are entering into an Agreement and Plan of
Merger (as amended or supplemented from time to time, the "Merger Agreement")
(capitalized terms used without definition herein having the meanings ascribed
thereto in the Merger Agreement);
WHEREAS, as of the date hereof, the Shareholders own and/or have the
power to vote, as applicable, 5,634,148 shares of Company Common Stock (the
"Shares");
WHEREAS, the parties hereto desire that this Agreement apply only to
1,906,393 Shares, representing approximately 19.9% of the voting capital stock
of the Company (the "Subject Shares", as such number of Subject Shares may be
increased pursuant to Section 2(b) hereof);
WHEREAS, approval of the Merger Agreement by the Company's shareholders
is a condition to the consummation of the Merger;
WHEREAS, the Company Board has established a special committee of its
disinterested directors determined pursuant to Section 302A.673 of the MBCA, who
have affirmatively voted pursuant to Section 302A.673 of the MBCA, to approve
the Merger Agreement and the transactions contemplated thereby; and
WHEREAS, as a condition to its entering into the Merger Agreement,
Parent has required that the Shareholders agree, and the Shareholders have so
agreed, to enter into this Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
SECTION 1. AGREEMENT TO VOTE. (a) Each of the Shareholders, by this
Agreement, hereby (i) agree to appear at any annual, special, postponed or
adjourned meeting of the shareholders of the Company or otherwise cause the
Subject Shares such Shareholder beneficially owns on the record date of any such
meeting to be counted as present thereat for purposes of establishing a quorum
and to vote or consent, and (ii) constitute and appoint Parent, or any nominee
thereof, with full power of substitution, during and for the term of this
Agreement, as each such Shareholder's true and lawful attorney and proxy for and
in each such Shareholder's name, place and stead, to vote all the Subject Shares
such Shareholder beneficially owns at the time of the record date for such vote,
at any annual, special, postponed or adjourned meeting of the shareholders of
the Company (and this appointment will include the right to sign the name of
each of the Shareholders (as shareholders) to any consent, certificate or other
document relating
to the Company that laws of the State of Minnesota may require or permit, in the
case of both (i) and (ii) above, (x) in favor of approval of the Merger
Agreement and approval of the Merger and the transactions contemplated thereby,
(y) against any action, transaction or agreement that would result in a breach
in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement (including,
without limitation, any Acquisition Proposal or Superior Proposal), and (z)
except as otherwise agreed to in writing in advance by Parent, against the
following actions (other than the Merger and the transactions contemplated by
the Merger Agreement): (A) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or any
of its Subsidiaries; (B) a sale, lease or transfer of a material amount of
assets of the Company or any of its Subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or any of its
Subsidiaries; (C) (1) any change in a majority of the Persons who constitute the
Company Board; (2) any change in the present capitalization of the Company or
any amendment of the Company Certificate or Company By-Laws; (3) any other
material change in the Company's corporate structure or business; or (4) any
other action involving the Company or any of its Subsidiaries which is intended,
or could reasonably be expected, to impede, interfere with, delay, postpone or
materially adversely affect the Merger or any of the transactions contemplated
by this Agreement or the Merger Agreement. This proxy and power of attorney is a
proxy and power coupled with an interest, and each Shareholder declares that it
is irrevocable until this Agreement shall terminate in accordance with its
terms. Each Shareholder hereby revokes all and any other proxies with respect to
the Subject Shares that such Shareholder may have heretofore made or granted.
For Subject Shares as to which a Shareholder is the beneficial but not the
record owner, such Shareholder shall use his or its reasonable best efforts to
cause any record owner of such Subject Shares to grant to Parent a proxy to the
same effect as that contained herein. Each Shareholder hereby agrees to permit
Parent to publish and disclose in the Registration Statement, any related
filings under the securities laws and any press release or announcement issued
in accordance with the Merger Agreement, such Shareholder's identity, intent in
and ownership of the Subject Shares and the nature of the commitments,
arrangements and understandings under this Agreement.
(b) Nothing herein contained shall (i) restrict, limit or prohibit
XxXxxxx or Xxxxxxx from exercising (in his capacity as a director or officer)
his fiduciary duties to the shareholders of the Company under applicable law, or
(ii) require XxXxxxx or Xxxxxxx, in his capacity as an officer of the Company,
to take any action in contravention of, or omit to take any action pursuant to,
or otherwise take or refrain from taking any actions which are inconsistent
with, instructions or directions of the Board of Directors of the Company
undertaken in the exercise of his fiduciary duties, provided that nothing in
this Section 1(b) shall relieve or be deemed to relieve XxXxxxx or Xxxxxxx from
his obligations under Sections 1 or 2 of this Agreement.
SECTION 2. DISPOSITION OF SUBJECT SHARES. (a) During the term of this
Agreement, except as otherwise expressly provided herein, each Shareholder
agrees that such Shareholder will not (i) tender into any tender or exchange
offer or otherwise sell, offer for sale, transfer, pledge, assign, hypothecate
or otherwise dispose of, or encumber with any security interest, lien, claim,
pledge, option, right of first refusal, agreement, charge or other encumbrance
or restriction or limitation on such Shareholder's right to vote or dispose of,
whether directly or indirectly, any of
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the Subject Shares, (ii) acquire any shares of Company Common Stock or other
securities of the Company (otherwise than in connection with a transaction of
the type described in Section 2(b)), (iii) deposit the Subject Shares into a
voting trust, enter into a voting agreement or arrangement with respect to the
Subject Shares or grant any proxy or power of attorney with respect to the
Subject Shares, (iv) enter into any contract, commitment, arrangement,
understanding or relationship (including any profit sharing arrangement) with
respect to the direct or indirect acquisition or sale, transfer, pledge,
assignment, hypothecation, disposition or encumbrance with any security
interest, lien, claim, pledge, option, right of first refusal, agreement, charge
or other encumbrance or restriction or limitation, or other disposition of any
interest in or the voting of any Subject Shares or any other securities of the
Company, (v) exercise any rights (including, without limitation, under Sections
302A.471 and 302A.473 of the MBCA) to demand appraisal of any Subject Shares
which may arise with respect to the Merger, or (vi) take any other action that
would in any way restrict, limit or interfere with the performance of such
Shareholder's obligations hereunder or the transactions contemplated hereby or
which would otherwise diminish the benefits of this Agreement to Parent.
(b) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of the Company on, of or affecting the Subject Shares
or the like or any other action that would have the effect of changing a
Shareholder's ownership of the Company's capital stock or other securities or
(ii) a Shareholder becomes the beneficial owner of any additional shares of
Company Common Stock or other securities of the Company, then, except as
provided otherwise in this Section 2(b), the terms of this Agreement will apply
to the shares of capital stock held by such Shareholder immediately following
the effectiveness of the events described in clause (i) or such Shareholder
becoming the beneficial owner thereof, as described in clause (ii), as though
they were Subject Shares hereunder.
(c) Each Shareholder hereby agrees, while this Agreement is in effect,
to promptly notify Parent of the number of any new Shares acquired by such
Shareholder, if any, after the date hereof.
(d) Each Shareholder agrees with and covenants to Parent that such
Shareholder shall not request that the Company register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any of
the Subject Shares, unless such transfer is made in compliance with this
Agreement.
SECTION 3. OTHER COVENANTS AND AGREEMENTS. (a) Each party shall execute
and deliver such additional instruments and other documents and shall take such
further actions as may be reasonably necessary or appropriate to effectuate,
carry out and comply with all of their respective obligations under this
Agreement. Without limiting the generality of the foregoing, neither party shall
enter into any agreement or arrangement (or alter, amend or terminate any
existing agreement or arrangement) or take any other action (or fail to take any
other action) if such action (or failure) would materially impair the ability of
any party to effectuate, carry out or comply with all the terms of this
Agreement. Parent agrees to cooperate with each Shareholder in connection with
any filings required to be made by a Shareholder in connection with the
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Merger and the transactions contemplated thereby. XxXxxxx agrees and covenants
that he will not, without the prior written consent of Parent, directly or
indirectly, take any action, or authorize or direct any action to be taken, that
would cause the Trust to be amended, modified, dissolved, revoked or terminated
in any manner that would be adverse to Parent.
(b) In the event a subscription election is made available to the
shareholders of the Company under Section 3.02(c) of the Merger Agreement, the
Shareholders jointly and severally agree and covenant to exercise such
subscription election to subscribe to the maximum number of Parent Common Shares
for which such Shareholders are eligible to subscribe pursuant to such Section
3.02(c); provided that, such Shareholders shall only be obligated to subscribe
for such number of Parent Common Shares that, when added to the aggregate number
of Parent Common Shares received by the Shareholders in the Merger, would equal
7,000,000 Parent Common Shares in the aggregate.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Each
Shareholder represents and warrants to Parent as follows:
(a) The Shares constitute all of the securities (as defined in Section
3(a)(10) of the Exchange Act), of the Company beneficially owned, directly or
indirectly, by such Shareholder.
(b) Except for the Shares, each Shareholder does not, directly or
indirectly, beneficially own or have any option, warrant or other right to
acquire any securities of the Company that are or may by their terms become
entitled to vote or any securities that are convertible or exchangeable into or
exercisable for any securities of the Company that are or may by their terms
become entitled to vote, nor is such Shareholder subject to any contract,
commitment, arrangement, understanding, restriction or relationship (whether or
not legally enforceable), other than this Agreement, that provides for a
Shareholder to vote or acquire any securities of the Company. Such Shareholder
holds exclusive power to vote and dispose of the Shares free and clear of any
security interests, liens, claims, pledges, options, rights of first refusal,
agreement, charge, encumbrance or any other restriction or limitation on their
right to vote or dispose of the Shares, and neither Shareholder has granted a
proxy to any other Person to vote the Shares, subject to the limitations set
forth in this Agreement.
(c) Each Shareholder has all necessary power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by each Shareholder
and, assuming due authorization, execution and delivery of this Agreement by
Parent, is a valid and binding obligation of each Shareholder enforceable
against each of them in accordance with its terms.
(d) None of the execution and delivery of this Agreement by such
Shareholder, the consummation by such Shareholder of the transactions
contemplated hereby or compliance by such Shareholder with any of the provisions
hereof shall (i) result in violation or breach of, or constitute (with or
without 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,
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contract, commitment, lease, permit, franchise, arrangement, understanding,
agreement or other instrument or obligation of any kind to which such
Shareholder is a party or by which such Shareholder or any of his or its
properties or assets may be bound, or (ii) violate any order, writ, injunction,
decree, judgment, law, statute, rule or regulation applicable to such
Shareholder or any of his or its properties or assets, excluding from the
foregoing such violations, breaches or defaults which would not, individually or
in the aggregate, have a material adverse effect on such Shareholder or which
would materially impair the ability of such Shareholder to consummate the
transactions contemplated hereby.
(e) The execution and delivery of this Agreement by such Shareholder
does not, and the performance of this Agreement by such Shareholder shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any court or arbitrator or any governmental body, agency or
official except for applicable requirements, if any, of the Exchange Act, and
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by such Shareholder of his or its obligations under this
Agreement.
(f) Each Shareholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon such Shareholder's execution
and delivery of this Agreement.
(g) There are no Takeover Laws that are applicable to this Agreement or
the transactions contemplated hereby.
SECTION 5. EFFECTIVENESS. It is a condition precedent to the
effectiveness of this Agreement that the Merger Agreement shall have been duly
executed and delivered by the parties thereto.
SECTION 6. TERMINATION. The termination of this Agreement will occur
upon the first to occur of (a) the Effective Time or (b) termination of the
Merger Agreement. In the event (i) a Termination Fee is payable by the Company
pursuant to Section 8.02(b)(i) or 8.02(b)(ii) of the Merger Agreement and (ii)
within 12 months of the termination of the Merger Agreement, the Company
consummates an Acquisition Proposal or Superior Proposal, the Shareholders shall
pay to Parent in cash simultaneously with the consummation of such Acquisition
Proposal or Superior Proposal an amount equal to the product of (x) the excess
of the per share consideration paid in connection with such Acquisition Proposal
or Superior Proposal over $25.80 multiplied by (y) the number of Subject Shares.
The foregoing calculation shall be adjusted appropriately to reflect any stock
split, stock dividend, recapitalization, reclassification, combination or
exchange of shares of capital stock or other securities of the Company after the
date hereof.
SECTION 7. MISCELLANEOUS.
(a) NOTICES, ETC. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when
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delivered by telecopy and confirmed by return telecopy, or three days after
being mailed by courier service that guarantees overnight delivery, in each case
to the applicable addresses set forth below:
If to Parent:
AGCO Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President and
General Counsel
Fax: (000) 000-0000
Phone: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxx LLP
Bank of America Plaza
Suite 5200
000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
Phone: (000) 000-0000
If to either Shareholder:
Ag-Chem Equipment Co., Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx X. XxXxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
with a copy to:
Larkin, Hoffman, Xxxx & Xxxxxxxx, Ltd.
0000 Xxxxx Xxxxx Xxxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
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or to such other address as such party shall have designated by notice so given
to each other party.
(b) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by Parent and Shareholder.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective heirs, successors and assigns, including without limitation any party
succeeding to the ownership of (or power to vote) the Shares. The foregoing
sentence shall be deemed to be an amendment to the Trust Agreement.
(d) ENTIRE AGREEMENT. This Agreement and the Merger Agreement embodies
the entire agreement and understanding between the parties relating to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter. There are no representations, warranties or
covenants by the parties hereto relating to such subject matter other than those
expressly set forth in this Agreement and the Merger Agreement.
(e) SEVERABILITY. If any term of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other party or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law, provided that in
such event the parties shall negotiate in good faith in an attempt to agree to
another provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
(f) SPECIFIC PERFORMANCE. The parties acknowledge that money damages
are not an adequate remedy for violations of this Agreement and that any party
may, in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
(g) REMEDIES CUMULATIVE. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(h) NO WAIVER. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
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(i) THIRD PARTY BENEFICIARIES. This Agreement is not intended to be for
the benefit of and shall not be enforceable by any person or entity who or which
is not a party hereto, except the parties hereto acknowledge that Company is a
third party beneficiary with respect to Section 1(b) of this Agreement.
(j) JURISDICTION. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts located in the State of
Minnesota in any action arising in connection with this Agreement, and agrees
that any such action shall be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to venue
therein); provided, however, that such consent to jurisdiction is solely for the
purpose referred to in this paragraph (j) and shall not be deemed to be a
general submission to the jurisdiction of said courts or in the State of
Minnesota other than for such purposes; provided, further, that if any action
arises in connection with the Merger Agreement in a state or federal court other
than a state or federal court located in the State of Minnesota, each party
hereto agrees to submit to the jurisdiction of such other court with respect to
any action arising in connection with this Agreement. Each party hereto hereby
waives any right to a trial by jury in connection with any such action.
(k) GOVERNING LAW. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the laws of the State
of Minnesota to the fullest extent possible.
(l) NAME, CAPTIONS, GENDER. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof. Whenever the context may
require, any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms.
(m) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
(n) EXPENSES. Each party shall bear its or his own expenses incurred in
connection with this Agreement and the transactions contemplated hereby.
(o) APPLICABILITY. Notwithstanding anything herein to the contrary, the
provisions of Section 1 and 2 hereof shall be deemed to apply only to such
number of Subject Shares representing 19.9% of the Company's outstanding voting
capital stock.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
/s/ X.X. XxXxxxx
-----------------------------------
Xxxxx X. XxXxxxx
TRUST
By: /s/ X.X. XxXxxxx
-------------------------------
Name: Xxxxx X. XxXxxxx
Title: Co-Trustee
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Co-Trustee
PARENT
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board
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