VOTING AGREEMENT
Exhibit
10.1
Execution
Copy
THIS
VOTING AGREEMENT (this “Agreement”) is made
and entered into this 10th day of July 2008 by and among Rohm and Xxxx Company,
a Delaware corporation (the “Company”), The Dow
Chemical Company (the “Purchaser”),
and each of (i) Xxxx X. Xxxx, Xxxx Xxxx Xxxx, Xxxxxx Xxxxxxxx Xxxx, Xxxxxxx
Xxxxx Xxxx and Wachovia Bank, N.A., as trustees of the trust (Tax Identification
No. 00-0000000) (the “First 1945 Trust”)
formed pursuant to the agreement dated December 20, 1945, between Xxxx Xxxx, as
grantor, and Xxxxxx Trust Company, Xxxxxx X. Xxxx, Xxxx X. Xxxx and F. Xxxx
Xxxx, as original trustees, (ii) Xxxx X. Xxxx, Xxxx Xxxx Xxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxxxx Xxxxx Xxxx and Wachovia Bank, N.A., as trustees of the trust (Tax
Identification No. 00-0000000) (the “Second 1945 Trust”)
formed pursuant to the agreement dated December 21, 1945, between Xxxxxx X.
Xxxx, as grantor, and Xxxxxx Trust Company, Xxxx Xxxx, Xxxx X. Xxxx and F. Xxxx
Xxxx, as original trustees, (iii) Xxxx X. Xxxx, Xxxx Xxxx Xxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxxxx Xxxxx Xxxx and Wachovia Bank, N.A., as trustees of the trust (Tax
Identification No. 00-0000000) (the “1955 Trust”) formed
pursuant to the trust agreement dated August 3, 1955, between Xxxx Xxxx, as
grantor, and F. Xxxx Xxxx, Xxxx X. Xxxx and The Philadelphia National Bank, as
original trustees, (iv) Xxxx X. Xxxx, Xxxx Xxxx Xxxx, Xxxxxx Xxxxxxxx Xxxx,
Xxxxxxx Xxxxx Xxxx and Wachovia Bank, N.A., as trustees of the trust (Tax
Identification No. 00-0000000) (the “1956 Trust”) formed
pursuant to the trust agreement dated as of September 28, 1956, between Xxxx
Xxxx, as grantor, and F. Xxxx Xxxx, Xxxx X. Xxxx and The Philadelphia National
Bank, as original trustees, (v) Xxxxxx Xxxx Gravagno, Xxxx Xxxx Xxxx, Xxxxxx
Xxxxxxxx Xxxx and Xxxxxxx Xxxxx Xxxx as trustees of the Trust A - for issue of
F. Xxxx Xxxx (Tax Identification No. 00-0000000) (the “1961 Trust A”) formed
pursuant to the trust agreement dated August 24, 1961, between Xxxxxx X. Xxxx,
as grantor, and F. Xxxx Xxxx and Xxxx X. Xxxx, as original trustees, and (vi)
Xxxx X. Xxxx, Xxxxx X. Xxxx, Xxxxxxx X. Xxxx and Xxxxxxxxx X. Xxxx as trustees
of the Trust B - for issue of Xxxx X. Xxxx (Tax Identification No. 00-0000000)
(the “1961 Trust
B” and, together with the First 1945 Trust, the Second 1945 Trust, the
1955 Trust, the 1956 Trust and the 1961 Trust A, the “Shareholders” and
each a “Shareholder”) formed
pursuant to the trust agreement dated August 24, 1961, between Xxxxxx X. Xxxx,
as grantor, and F. Xxxx Xxxx and Xxxx X. Xxxx, as original
trustees.
WHEREAS,
concurrently herewith the Purchaser, Ramses Acquisition Corp., a Delaware
corporation wholly owned by the Purchaser (“Merger Sub”), and the
Company are entering into an Agreement and Plan of Merger (the “Merger Agreement”)
(unless otherwise defined herein, capitalized terms used herein shall have the
meanings ascribed thereto in the Merger Agreement) pursuant to which the
Purchaser will acquire the Company by merging Merger Sub with and into the
Company (the “Merger”), with the
Company surviving the Merger as the surviving corporation (the “Surviving
Corporation”), subject to the terms and conditions of the Merger
Agreement;
WHEREAS,
as of the date hereof, each Shareholder is the record and beneficial owner of,
and has the right to vote and dispose of, that number of shares of Company
Common Stock (such shares, together with any other capital stock of the Company
acquired by such Shareholder after the date hereof whether acquired directly or
indirectly, upon the exercise of options, conversion of convertible securities
or otherwise or in the event of any change in the capital stock of the Company
by reason of a stock dividend, split-up, merger, recapitalization,
combination,
exchange of shares or similar transactions or any other extraordinary change in
the corporate or capital structure of the Company, being collectively referred
to herein as the “Shares”) set forth
opposite its name on Schedule 1 hereto; and
WHEREAS,
receipt of shareholder approval is a condition to the consummation of the
Merger.
NOW,
THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE
I
VOTING
Section 1.1 Agreement to
Vote. Each
Shareholder irrevocably and unconditionally hereby agrees that from and after
the date hereof until the earlier of (a) receipt of the Company Stockholder
Approval and (b) the termination of the Merger Agreement (such earliest
time, the “Expiration
Time”), at any meeting (whether annual or special and each adjourned or
postponed meeting) of the Company’s shareholders, however called, or in
connection with any written consent of the Company’s shareholders, each
Shareholder will (i) appear at such meeting or otherwise cause its Owned
Shares (as defined below) to be counted as present thereat for purposes of
calculating a quorum and (ii) vote or cause to be voted (including by
written consent, if applicable) all of such Shareholder’s Shares beneficially
owned by such Shareholder as of the relevant time (the “Owned Shares”),
(A) for approval and adoption of the Merger Agreement and the transactions
contemplated by the Merger Agreement (without regard to any Company Change of
Recommendation), (B) against any Company Alternative Proposal, without
regard to the terms of such Company Alternative Proposal, or any other
transaction, proposal, agreement or action made in opposition to adoption of the
Merger Agreement or in competition or inconsistent with the Merger and the other
transactions contemplated by the Merger Agreement, (C) against any other
action that is intended or could prevent, impede, or, in any material respect,
interfere with, delay the transactions contemplated by the Merger Agreement, or
(D) in favor of any other matter necessary to the consummation of the
transactions contemplated by the Merger Agreement.
Section 1.2 Restrictions on
Transfers. The
Shareholders hereby agree that, from the date hereof until the Expiration Time,
they shall not, directly or indirectly, (a) sell, assign, transfer, give,
mortgage, pledge, hypothecate, issue, bequeath or in any manner encumber or
dispose of, or permit to be sold, assigned, transferred or to become subject to
any Lien, whether voluntarily, involuntarily or by operation of law, with or
without consideration (collectively, “Transfer”), any Owned
Shares, (b) deposit any Owned Shares into a voting trust or enter into a
voting agreement or arrangement or grant any proxy or power of attorney with
respect thereto that is inconsistent with this Agreement, or (c) agree (whether
or not in writing) to take any of the actions referred to in the foregoing
clause (a) or (b). Notwithstanding clauses (a) and (c) of the
immediately preceding sentence, the Shareholders may sell for cash to
the Company or to any third party pursuant to any brokers’ transactions in
accordance with Rule 144 of the Securities Act of 1933, as amended, up to that
number of Owned Shares that (together with any dividends paid by the Company on
such Owned Shares) is sufficient to pay the fees and expenses
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of the
Shareholders and to provide for distributions by the Shareholders to their
respective beneficiaries in amounts consistent with past practice, provided that
the Shareholders shall not be entitled to sell Owned Shares, in the aggregate,
in excess of one percent of the Company’s outstanding Common Stock in any three
month period.
Section 1.3 Inconsistent
Agreements. Each
Shareholder hereby agrees that, prior to the Expiration Time, he, she or it
shall not enter into any agreement, contract or understanding with any person
directly or indirectly to vote, grant a proxy or power of attorney or give
instructions with respect to the voting of such Shareholder’s Owned Shares in
any manner which is inconsistent with this Agreement.
ARTICLE
II
NO
SOLICITATION
Section 2.1 Restricted
Activities. Prior
to the Expiration Time, each Shareholder in his, her or its capacity as a
shareholder of the Company shall not, and shall use its reasonable best efforts
to cause its Representatives not to, directly or indirectly: (a)
solicit, initiate or knowingly encourage or take any other action knowingly to
facilitate, any inquiry with respect to, or the making, submission or
announcement of, any proposal or offer that constitutes, or may reasonably be
expected to constitute, a Company Alternative Proposal, (b) enter into,
maintain, participate in or continue any discussions or negotiations regarding,
or furnish to any person (as defined in the Merger Agreement) any nonpublic
information with respect to, any proposal that constitutes, or may reasonably be
expected to constitute, a Company Alternative Proposal, or in response to any
inquiries or proposals that may reasonably be expected to lead to any Company
Alternative Proposal, except to notify such person as to the existence of the
provisions of this Section 2.1, (c) agree to, approve, endorse or recommend
any Company Alternative Proposal, (d) authorize or permit any
Representative of such Shareholder to take any such action or (e) enter
into any letter of intent or similar document or any agreement or commitment
providing for any Company Alternative Proposal (the activities specified in
clauses (a) through (e) being hereinafter referred to as the “Restricted
Activities”); provided, however, that if the
Company is engaging in Restricted Activities that the Shareholders reasonably
believe are in compliance with the provisions of the Merger Agreement, the
Shareholders and their Representatives may participate with the Company in such
Restricted Activities.
Section 2.2 Notification. Each
Shareholder shall, and shall use its reasonable best efforts to cause such
Shareholder’s Representatives to, immediately cease and cause to be terminated
any discussions or negotiations with any parties that may have been conducted
heretofore with respect to a Company Alternative Proposal. Each
Shareholder shall promptly notify the Purchaser orally (and then in writing
within twenty-four (24) hours) after it has received any proposal, inquiry,
offer or request relating to or constituting a Company Alternative Proposal, any
request for discussions or negotiations, or any request for information relating
to such Shareholder in connection with a Company Alternative Proposal or a
potential Company Alternative Proposal or for access to the properties or books
and records thereof of which it or any of its Representatives is or becomes
aware, or any amendments to the foregoing. Such notice to the
Purchaser shall indicate the identity of the person making such proposal and the
terms and conditions of such proposal, if any. Each Shareholder shall
also promptly provide the Purchaser with (i) a copy of any written notice
or other written communication from any person
3
informing
such Shareholder or its Representatives that it is considering making, or has
made a proposal regarding, a Company Alternative Proposal, (ii) a copy of
any Company Alternative Proposal (or any amendment thereof) received by the
Shareholder, and (iii) such other details of any such Company Alternative
Proposal that the Purchaser may reasonably request. Thereafter, such
Shareholder shall promptly (and in any event within twenty-four (24) hours) keep
the Purchaser reasonably informed on a current basis of any change to the terms
of any such Company Alternative Proposal. This Section 2.2 shall not
apply to any Company Alternative Proposal received by the
Company. The receipt of any such Company Alternative Proposal shall
not relieve any Shareholder from any of its obligations hereunder.
Section
2.3 Capacity. Each
Shareholder is signing this Agreement solely in such Shareholder’s capacity as a
shareholder of the Company and nothing contained herein shall limit or affect
any actions taken by any Shareholder, or any trustee of any Shareholder, in his,
her or its capacity as an officer or director of the Company, and no action
taken in any such capacity as an officer or director shall be deemed to
constitute a breach of this Agreement.
ARTICLE
III
REPRESENTATIONS,
WARRANTIES AND COVENANTS
OF
SHAREHOLDERS
Section 3.1 Representations and
Warranties. Each
Shareholder represents and warrants to the Company and the Purchaser as follows:
(a) (i) each Shareholder who is an individual has full legal right and
capacity to execute and deliver this Agreement, to perform such Shareholder’s
obligations hereunder and to consummate the transactions contemplated hereby,
and (ii) each Shareholder that is not an individual is an entity duly
organized or formed, and, if applicable, validly existing and in good standing
under the laws of the jurisdiction of its organization or formation, and such
Shareholder has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby, (b) this Agreement has been duly executed
and delivered by such Shareholder and the execution, delivery and performance of
this Agreement by such Shareholder and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of such Shareholder and no other actions or proceedings on the part of such
Shareholder are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby, (c) assuming this Agreement constitutes
the valid and binding agreement of the Company and the Purchaser, this Agreement
constitutes the valid and binding agreement of such Shareholder, enforceable
against such Shareholder in accordance with its terms, (d) the execution
and delivery of this Agreement by such Shareholder does not, and the
consummation of the transactions contemplated hereby and the compliance with the
provisions hereof will not, conflict with or violate any organizational or
formation document of such Shareholder, any Law or agreement binding upon it,
nor require any authorization, consent or approval of, or filing with, any
Governmental Entity, except for filings with the Securities and Exchange
Commission by the Shareholders, and (e) except for such transfer
restrictions of general applicability as may be provided under the Securities
Act of 1933, as amended, and the “blue sky” laws of the various states of the
United States, such Shareholder owns, beneficially and of record, all of the
Shares set forth opposite such Shareholders’ name on Schedule 1 (and any
additional Shares acquired after the date hereof) free and clear of any proxy,
voting restriction, adverse claim or other Lien (other than any restrictions
created by this
4
Agreement)
and has sole voting power and sole power of disposition with respect to such
Shareholder’s Owned Shares, with no restrictions on such Shareholder’s rights of
voting or disposition pertaining thereto (other than the Company’s rights of
first offer to the Owned Shares of certain Shareholders pursuant to the trust
documents of such Shareholders) and no person other than such Shareholder has
any right to direct or approve the voting or disposition of any of such
Shareholder’s Owned Shares.
Section
3.2 Covenants. Each
Shareholder:
(a) agrees,
prior to the Expiration Time, not to take any action that would make any
representation or warranty of such Shareholder contained herein untrue or
incorrect or have or could have the effect of preventing, impeding or
interfering with or adversely affecting the performance by such Shareholder of
its obligations under this Agreement;
(b) hereby
irrevocably waives, and agrees not to exercise, any rights of appraisal or
rights of dissent from the Merger that such Shareholder may have;
and
(c) agrees
to promptly notify the Company and the Purchaser of the number of any new Shares
acquired by such Shareholder after the date hereof and prior to the Expiration
Time. Any such Shares shall be subject to the terms of this Agreement
as though owned by the Shareholder on the date hereof.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES AND COVENANTS OF THE COMPANY
Section 4.1 Representations and
Warranties of the Company. The
Company represents and warrants to the Purchaser and each Shareholder as
follows: (a) each of this Agreement and the Merger Agreement has been duly
and validly authorized by the Company’s Board of Directors, (b) each of
this Agreement and the Merger Agreement has been duly executed and delivered by
a duly authorized officer or other representative of the Company and
(c) assuming this Agreement constitutes a valid and binding agreement of
the Purchaser and each Shareholder, this Agreement constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms.
Section
4.2 Covenants. Solely
in connection with the consummation of the transactions contemplated by this
Agreement and the Merger Agreement, the Company hereby irrevocably waives, and
agrees not to exercise, any rights of first offer to the Owned Shares of any
Shareholder that the Company may have.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
Section 5.1 Representations and
Warranties of the Purchaser. The
Purchaser represents and warrants to the Company and each Shareholder as
follows: (a) each of this Agreement and the Merger Agreement has been duly
and validly authorized by the Purchaser’s Board of Directors, (b) each of
this Agreement and the Merger Agreement has been duly executed and delivered by
a duly authorized officer or other representative of the Purchaser and
(c) assuming this Agreement constitutes a valid and binding agreement of
the Company and each
5
Shareholder,
this Agreement constitutes a valid and binding agreement of the Purchaser,
enforceable against the Purchaser in accordance with its terms.
ARTICLE
VI
TERMINATION
Section 6.1 Termination. This
Agreement shall automatically terminate and be of no further force or effect
upon the Expiration Time, other than (i) Sections 3.2(b) and 4.2, which
shall terminate upon termination of the Merger Agreement, and (ii) this
Section 6.1 and Article VII, which shall survive any termination of
this Agreement. No such termination shall relieve any party hereto
from any liability for any intentional breach of this Agreement occurring prior
to such termination; provided, that in the
event of the termination of the Merger Agreement and the payment by Company to
Purchaser of the Termination Fee (as defined in the Merger Agreement) pursuant
to the provisions thereof, the Shareholders shall have no liability for any
breach of Article II occurring prior to such termination.
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Expenses. Except
as otherwise may be agreed in writing, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring or required to incur such expenses.
Section
7.2 Notices. Any
notice required to be given hereunder shall be sufficient if in writing, and
sent by facsimile transmission (provided that any
notice received by facsimile transmission or otherwise at the addressee’s
location on any business day after 5:00 p.m. (addressee’s local time) shall be
deemed to have been received at 9:00 a.m. (addressee’s local time) on the next
business day), by reliable overnight delivery service (with proof of service),
or hand delivery, addressed as follows:
To the
Shareholders:
The First
1945 Trust
The
Second 1945 Trust
The 1955
Trust
The 1956
Trust
1961
Trust A
1961
Trust B
Xxxx
Trust Xxxxxx
0000 Xxxx
Xx., 00xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attn:
Xx. Xxxxx Xxxx, Executive Trust Advisor
Tel:
(000) 000-0000
Fax:
(000) 000-0000
6
Wachovia
Bank, N.A., as Trustee
Calibre
0000
Xxxxxx Xxxxxx, XX 0000
Xxxxxxxxxxxx
XX 00000
Attn:
Xxxxx Xxxxx and Xxxx Xxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000 / (000) 000-0000
With a
copy to:
Cravath,
Swaine & Xxxxx LLP
Worldwide
Plaza
000
Xxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxxxxx
Xxxx and Xxxxxx X. Xxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
To the
Company:
Rohm and
Xxxx Company
000
Xxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx,
XX 00000
Attn:
Executive
Vice President, General Counsel
and
Corporate Secretary
Tel: (000)
000-0000
Fax:
(000) 000-0000
With a
copy to:
Wachtell,
Lipton, Xxxxx & Xxxx
00 Xxxx
00xx Xxxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxxxx
X. Xxxx and Xxxxxxxxx X. Xxxxxxxx
Tel:
(000) 000-0000
Fax: (000)
000-0000
To the
Purchaser:
The Dow
Chemical Company
0000 Xxx
Xxxxxx
Xxxxxxx,
XX 00000
Attn: Executive
Vice President and General Counsel
Tel:
(000) 000-0000
Fax:
(000) 000-0000
7
With a
copy to:
Shearman
& Sterling LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxx X. Xxxxxxxx, Xx. and Xxxxx X. Xxxxxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
or to
such other address as any party shall specify by written notice so given, and
such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or scheduled to be received if so
mailed. Any party to this Agreement may notify any other party of any
changes to the address or any of the other details specified in this paragraph;
provided, however, that such
notification shall only be effective on the date specified in such notice or
five (5) business days after the notice is given, whichever is
later. Rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given shall be deemed
to be receipt of the notice as of the date of such rejection, refusal or
inability to deliver.
Section 7.3 Amendments, Waivers,
Etc. At any
time prior to the Expiration Time, any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed by the Company, the Purchaser and the Shareholders. 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 his, her or
its obligations hereunder, shall not constitute a waiver by such party of his,
her or its right to exercise any such or other right, power or remedy or to
demand such compliance.
Section 7.4 Successors and
Assigns. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties.
Section 7.5 No Third Party
Beneficiaries. Nothing expressed or referred to in this
Agreement will be construed to give any person, other than the parties to this
Agreement, any legal or equitable right, remedy or claim under or with respect
to this Agreement or any provision of this Agreement.
Section 7.6 No Partnership, Agency, or
Joint Venture. This
Agreement is intended to create, and creates, a contractual relationship and is
not intended to create, and does not create, any agency, partnership, joint
venture or any like relationship between the parties hereto.
Section 7.7 Entire Agreement. This
Agreement (including the attachment hereto) constitutes the entire agreement,
and supersedes all other prior agreements and understandings, both written and
oral, between the parties, or any of them, with respect to the subject matter
hereof and thereof.
8
Section 7.8 Severability. Any
term or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
Section 7.9 Governing
Law. This
Agreement shall be governed by and construed in accordance with the Laws of the
State of Delaware, without giving effect to any choice or conflict of law
provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.
Section 7.10 Jurisdiction. The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached and that the parties would not have
any adequate remedy at law. It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions to prevent breaches or
threatened breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement exclusively in the Delaware Court of Chancery, or
in the event (but only in the event) that such court does not have subject
matter jurisdiction over such action or proceeding, in the United States
District Court for the District of Delaware or another court sitting in the
state of Delaware. The foregoing is in addition to any other remedy
to which any party is entitled at law, in equity or otherwise. In
addition, each of the parties hereto irrevocably agrees that any legal action or
proceeding with respect to this Agreement and the rights and obligations arising
hereunder, or for recognition and enforcement of any judgment in respect of this
Agreement and the rights and obligations arising hereunder brought by the other
party hereto or its successors or assigns shall be brought and determined
exclusively in the Delaware Court of Chancery, or in the event (but only in the
event) that such court does not have subject matter jurisdiction over such
action or proceeding, in the United States District Court for the District of
Delaware or another court sitting in the state of Delaware. Each of
the parties hereto hereby irrevocably submits with regard to any such action or
proceeding for itself and in respect of its property, generally and
unconditionally, to the personal jurisdiction of the aforesaid courts and agrees
that it will not bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any court other than the
aforesaid courts. Each of the parties hereto hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, counterclaim
or otherwise, in any action or proceeding with respect to this Agreement, (a)
any claim that it is not personally subject to the jurisdiction of the
above-named courts for any reason other than the failure to serve in accordance
applicable law, (b) any claim that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
and (c) to the fullest extent permitted by the applicable Law, any claim that
(i) the suit, action or proceeding in such court is brought in an inconvenient
forum, (ii) the venue of such suit, action or proceeding is improper or (iii)
this Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
Section 7.11 Waiver of Jury
Trial. Each
Shareholder hereby waives, to the fullest extent permitted by applicable law,
any right he, she or it may have to a trial by jury in respect of
9
any
litigation directly or indirectly arising out of, under or in connection with
this Agreement. Each Shareholder certifies that no representative of
any other party has represented, expressly or otherwise, that such other party
would not, in the event of any such litigation, seek to enforce the foregoing
waiver.
Section 7.12 Construction. When
a reference is made in this Agreement to an Article or Section, such reference
shall be to an Article or Section of this Agreement unless otherwise
indicated. Whenever the words “include,” “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words
“without limitation.” The words “hereof,” “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement. All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant thereto unless otherwise defined therein. The definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such term. Any agreement, instrument or statute defined or
referred to herein or in any agreement or instrument that is referred to herein
means such agreement, instrument or statute as from time to time amended,
modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of statutes) by succession of comparable
successor statutes and references to all attachments thereto and instruments
incorporated therein. References to a person are also to its
permitted successors and assigns. Each of the parties has
participated in the drafting and negotiation of this Agreement. If an
ambiguity or question of intent or interpretation arises, this Agreement must be
construed as if it is drafted by all the parties and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of authorship of
any of the provisions of this Agreement.
Section 7.13 Counterparts. This
Agreement may be executed in two or more consecutive counterparts (including by
facsimile), each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument, and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered (by telecopy or otherwise) to the other parties.
[Signature
Pages follow]
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IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date and year first written above.
| ROHM AND XXXX COMPANY | |||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxxxx | ||||
| Title: | Executive Vice President |
| THE DOW CHEMICAL COMPANY | ||||
| By: | /s/ Xxxxxxx X. Xxxxx | ||||
| Name: | Xxxxxxx X. Xxxxx | ||||
| Title: |
Executive
Vice President,
|
||||
| General Counsel and Corporate Secretary | |||||
|
THE
FIRST 1945 TRUST
THE
SECOND 1945 TRUST
THE
1955 TRUST
THE
1956 TRUST
|
|
by
|
|||
| /s/ Xxxx X. Xxxx | |||
| Name: |
Xxxx
X. Xxxx
|
||
| Title: |
Trustee
|
||
|
by
|
|||
| /s/ Xxxx Xxxx Xxxx | |||
| Name: |
Xxxx
Xxxx Xxxx
|
||
| Title: |
Trustee
|
||
|
by
|
|||
| /s/ Xxxxxx Xxxxxxxx Xxxx | |||
| Name: |
Xxxxxx
Xxxxxxxx Xxxx
|
||
| Title: |
Trustee
|
||
|
by
|
|||
| /s/ Xxxxxxx Xxxxx Xxxx | |||
| Name: |
Xxxxxxx
Xxxxx Xxxx
|
||
| Title: |
Trustee
|
||
|
WACHOVIA
BANK, N.A.,
as
Trustee
|
|
by
|
|||
| /s/ Xxxxx X. Xxxxx | |||
| Name: |
Xxxxx
X. Xxxxx
|
||
| Title: |
Senior
Vice President
|
||
|
1961
TRUST A
|
|
by
|
|||
| /s/ Xxxxxx Xxxx Gravagno | |||
| Name: |
Xxxxxx
Xxxx Xxxxxxxx
|
||
| Title: |
Trustee
|
||
|
by
|
|||
| /s/ Xxxx Xxxx Xxxx | |||
| Name: |
Xxxx
Xxxx Xxxx
|
||
| Title: |
Trustee
|
||
|
by
|
|||
| /s/ Xxxxxx Xxxxxxxx Xxxx | |||
| Name: |
Xxxxxx
Xxxxxxxx Xxxx
|
||
| Title: |
Trustee
|
||
|
by
|
|||
| /s/ Xxxxxxx Xxxxx Xxxx | |||
| Name: |
Xxxxxxx
Xxxxx Xxxx
|
||
| Title: |
Trustee
|
||
|
1961
TRUST B
|
|
by
|
|||
| /s/ Xxxx X. Xxxx | |||
| Name: |
Xxxx
X. Xxxx
|
||
| Title: |
Trustee
|
||
|
by
|
|||
| /s/ Xxxxx X. Xxxx | |||
| Name: |
Xxxxx
X. Xxxx
|
||
| Title: |
Trustee
|
||
|
by
|
|||
| /s/ Xxxxxxx X. Xxxx | |||
| Name: |
Xxxxxxx
X. Xxxx
|
||
| Title: |
Trustee
|
||
|
by
|
|||
| /s/ Xxxxxxxxx X. Xxxx | |||
| Name: |
Xxxxxxxxx
X. Xxxx
|
||
| Title: |
Trustee
|
||
SCHEDULE
1
|
Shareholder
|
Shares
|
|
Xxxx
X. Xxxx, Xxxx Xxxx Xxxx, Xxxxxx Xxxxxxxx Xxxx, Xxxxxxx Xxxxx Xxxx and
Wachovia Bank, N.A., as trustees of the trust (Tax Identification No.
00-0000000) (the “First 1945
Trust”) formed pursuant to the agreement dated December 20, 1945,
between Xxxx Xxxx, as grantor, and Xxxxxx Trust Company, Xxxxxx X. Xxxx,
Xxxx X. Xxxx and F. Xxxx Xxxx, as original trustees
|
2,279,788
|
|
Xxxx
X. Xxxx, Xxxx Xxxx Xxxx, Xxxxxx Xxxxxxxx Xxxx, Xxxxxxx Xxxxx Xxxx and
Wachovia Bank, N.A., as trustees of the trust (Tax Identification No.
00-0000000) (the “Second 1945
Trust”) formed pursuant to the agreement dated December 21, 1945,
between Xxxxxx X. Xxxx, as grantor, and Xxxxxx Trust Company, Xxxx Xxxx,
Xxxx X. Xxxx and F. Xxxx Xxxx, as original trustees
|
26,822,996
|
|
Xxxx
X. Xxxx, Xxxx Xxxx Xxxx, Xxxxxx Xxxxxxxx Xxxx, Xxxxxxx Xxxxx Xxxx and
Wachovia Bank, N.A., as trustees of the trust (Tax Identification No.
00-0000000) (the “1955 Trust”)
formed pursuant to the trust agreement dated August 3, 1955, between Xxxx
Xxxx, as grantor, and F. Xxxx Xxxx, Xxxx X. Xxxx and The Philadelphia
National Bank, as original trustees
|
5,801,010
|
|
Xxxx
X. Xxxx, Xxxx Xxxx Xxxx, Xxxxxx Xxxxxxxx Xxxx, Xxxxxxx Xxxxx Xxxx and
Wachovia Bank, N.A., as trustees of the trust (Tax Identification No.
00-0000000) (the “1956 Trust”)
formed pursuant to the trust agreement dated as of September 28, 1956,
between Xxxx Xxxx, as grantor, and F. Xxxx Xxxx, Xxxx X. Xxxx and The
Philadelphia National Bank, as original trustees
|
21,600,755
|
|
Xxxxxx
Xxxx Gravagno, Xxxx Xxxx Xxxx, Xxxxxx Xxxxxxxx Xxxx and Xxxxxxx Xxxxx Xxxx
as trustees of the Trust A - for issue of F. Xxxx Xxxx (Tax Identification
No. 00-0000000) (the “1961 Trust A”)
formed pursuant to the trust agreement dated August 24, 1961, between
Xxxxxx X. Xxxx, as grantor, and F. Xxxx Xxxx and Xxxx X. Xxxx, as original
trustees
|
3,473,652
|
|
Xxxx
X. Xxxx, Xxxxx X. Xxxx, Xxxxxxx X. Xxxx and Xxxxxxxxx X. Xxxx as trustees
of the Trust B - for issue of Xxxx X. Xxxx (Tax Identification No.
00-0000000) (the “1961 Trust B”)
formed pursuant to the trust agreement dated August 24, 1961, between
Xxxxxx X. Xxxx, as grantor, and F. Xxxx Xxxx and Xxxx X. Xxxx, as original
trustees
|
3,473,652
|
