EXHIBIT 2
VOTING AGREEMENT
This Voting Agreement (this "Agreement") has been made as of November
1, 1998 (the "date hereof") by The ServiceMaster Company ("ServiceMaster") and
other parties who have executed this Agreement (herein called the
"Stockholders").
RECITALS
A. Concurrently with the execution and delivery of this Agreement,
ServiceMaster, SVM Acquisition Corporation, a wholly-owned subsidiary of
ServiceMaster ("Merger Subsidiary"), and LandCare USA, Inc. ("LandCare") are
entering into a Plan of Reorganization and Agreement and Plan of Merger of even
date herewith (which as constituted from time to time is herein called the
"Merger Agreement") which provides, among other things, that Merger Subsidiary
be merged into LandCare and that upon such Merger, LandCare will become a
wholly-owned subsidiary of ServiceMaster. The Merger Agreement also provides
that upon consummation of the Merger, each share of LandCare's Common Stock
outstanding immediately prior to consummation of the Merger will be converted
into a fraction of a share of Common Stock issuable by ServiceMaster. The term
"Merger" whenever it is used in this Agreement means the merger of the Merger
Subsidiary into LandCare.
B. The Stockholders are the record and beneficial owners of the number
of shares of LandCare common stock set forth adjacent to the Stockholders'
signatures to this Agreement. The term "Stockholders' LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholders' signatures and any
other LandCare shares the Stockholders may acquire after the date hereof.
C. The Stockholders have entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
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(a) The Stockholders confirm that the Stockholders desire that the
Merger occur and have concluded that it is in the best interests of LandCare and
such Stockholders that LandCare's Board approve the Merger Agreement and that
LandCare sign the Merger Agreement and that it is better for LandCare to make
the commitments required by the Merger Agreement than to take the risk that by
seeking a higher offer for LandCare, the opportunity for acquisition by
ServiceMaster may be lost.
(b) At every meeting of the stockholders of LandCare called with
respect to any of the following, and at every adjournment thereof, and on every
action or approval by written consent of the stockholders of LandCare with
respect to any of the following, the Stockholders irrevocably agree to vote the
Stockholders' LandCare Shares: (i) in favor of the adoption of the Merger
Agreement and approval of the Merger and any matter that could reasonably be
expected to
facilitate consummation of the Merger (the "Merger Proposal"); and (ii) against
approval of any proposal made in opposition to or competition with consummation
of the Merger and against any merger, consolidation, sale of assets,
reorganization or recapitalization, with any party other than with ServiceMaster
and its affiliates and against any reorganization, recapitalization, liquidation
or winding up of LandCare (each of the things cited in this clause (ii) is
hereinafter referred to as an "Opposing Proposal").
(c) The voting commitments in this Section 1 and in Section 2
and the authorization in Section 3 shall end when and if (but not before) the
Merger Agreement shall be terminated in accordance with its terms.
2. No Support for Opposing Proposals.
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(a) The Stockholders shall not invite or seek any Opposing Proposal,
support (or suggest that anyone else should support) any Opposing Proposal that
may be made, or ask LandCare's Board to consider, support or seek any Opposing
Proposal, or otherwise take any action designed to make any Opposing Proposal
more likely.
(b) The Stockholders shall not meet or otherwise communicate with any
person that makes or is considering making an Opposing Proposal or any
representative of a person after becoming aware that the person has made or is
considering making a Opposing Proposal. The Stockholders shall promptly advise
ServiceMaster of each contact the Stockholders or any of the Stockholders'
representatives may receive from any person relating to any Opposing Proposal or
otherwise indicating that any person may wish to precipitate or engage in any
transaction arising out of any Opposing Proposal and will provide ServiceMaster
with all information ServiceMaster requests available to the Stockholders
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholders will not make any claim or join in any litigation
alleging that LandCare's Board is required to consider, endorse or Support any
Opposing Proposal or to invite or seek any Opposing Proposal.
(d) The Stockholders shall not take any other action that is
reasonably likely to make consummation of the Merger less likely or to impair
ServiceMaster's ability to exercise any of the rights granted by this Agreement
or the value of any such exercise.
3. Authorization to Execute Ballot. The Stockholders hereby irrevocably
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authorize ServiceMaster to execute as attorney in fact for the Stockholders any
ballot or consent form ServiceMaster shall reasonably deem appropriate to
accomplish the votes and consents required by this Agreement.
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4. Transfer Restrictions.
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(a) Until and unless the Merger Agreement has been terminated (i) none
of the Stockholders' LandCare Shares shall be tendered in response to any tender
offer, (ii) no interest in any of the Stockholders' LandCare Shares shall be
sold or otherwise transferred, (iii) the Stockholders will not take any other
action which would impair Stockholders' ability to vote any of Stockholders'
LandCare Shares in the manner required by this Agreement and (iv) subject to
Section 11 hereof, the Stockholders' commitments in Sections 1 though 3 shall be
irrevocable.
(b) The Stockholders hereby agree that for the period ending on the
first anniversary of the issuance of the Stockholders' LandCare Shares the
Stockholders shall not sell, offer to sell, or otherwise transfer or dispose of
any ServiceMaster shares received in the Merger in exchange for the
Stockholders' LandCare Shares (the "Stockholders' ServiceMaster Shares"), engage
in put, call, short-sale, straddle or similar transactions involving
ServiceMaster Shares, or in any other way reduce the Stockholders' risk of
owning Stockholders' ServiceMaster Shares, provided that this restriction shall
not prohibit the Stockholders from pledging Stockholders' ServiceMaster Shares
to secure full-recourse indebtedness. ServiceMaster shall be entitled to place a
legend on the certificates representing the Stockholders' ServiceMaster Shares
identifying the restrictions imposed by this paragraph.
(c) The Stockholders hereby agree that Stockholders' LandCare Shares
shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholders shall deliver their LandCare Shares to LandCare for placement of
the restrictive legend and the shares shall be promptly returned to the
Stockholders thereafter.
5. Representations and Warranties of the Stockholders.
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(a) The Stockholders hereby warrant to ServiceMaster that the
Stockholders have the capacity to enter into this Agreement and the night and
power to perform their obligations under this Agreement.
(b) The Stockholders are not subject to or obligated under any
provision of (i) their organizational documents (if the Stockholders are not a
natural person), (ii) any contract, license, franchise or permit, or (iii) any
order, judgment or decree which would be breached or violated by the execution,
delivery and performance of this Agreement by the Stockholders.
(c) No authorization, consent or approval of, or any filing with, any
public body, court or authority is necessary for consummation by the
Stockholders of the transactions contemplated by this Agreement.
(d) The Stockholders' LandCare Shares listed adjacent to the
Stockholders' signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholders possess beneficial ownership or voting power
on the date of this Agreement. The Stockholders have absolute ownership of the
Stockholders' LandCare Shares free of any adverse interest and have
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necessary and sufficient right and authority to make the commitments with
respect to the Stockholders' LandCare Shares contained in this Agreement.
(e) The Stockholders are accredited investors as defined in the Rule
501 issued by the Securities and Exchange Commission under the Securities Act of
1933, as amended, and are affiliates of LandCare. The Stockholders are able to
assess the risks and benefits of the transactions contemplated by this
Agreement. The Stockholders understand that ServiceMaster and LandCare are each
willing to respond to any questions or supply any information the Stockholders
shall desire in order to assess the risks and benefits of the transactions
contemplated by this Agreement and hereby confirm that there are no questions
that the Stockholders desire to ask or information the Stockholders desire to
obtain that has not been answered or supplied prior to the Stockholders'
execution of this Agreement.
6. Indemnification Currency. The Stockholders acknowledge that the
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Stockholders formerly had an ownership interest in a business enterprise
previously acquired by LandCare and that LandCare issued the Stockholders'
LandCare Shares in connection with LandCare's acquisition of that business. The
agreement pursuant to which that acquisition occurred (the "Prior Acquisition
Agreement") provides that the Stockholders have the right to deliver LandCare
shares in satisfaction for certain indemnification obligations of the
Stockholders that may arise under that Agreement. ServiceMaster hereby agrees
that after the Merger, the Stockholders may use ServiceMaster shares to satisfy
any indemnification obligations that the Stockholders may have under the Prior
Acquisition Agreement to the same extent that the Stockholders were permitted to
use LandCare shares prior to the Merger. The Stockholders hereby agree that the
Merger shall not limit or impair any indemnification obligation that the
Stockholders may have under the Prior Acquisition Agreement and hereby agree
that the provisions in the Prior Acquisition Agreement that permit the
Stockholders to utilize LandCare shares to satisfy, any certain indemnification
obligations that may arise under the Prior Acquisition Agreement shall be deemed
after the Merger to refer to ServiceMaster shares.
7. Further Assurances. The Stockholders will, upon the request of
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ServiceMaster, execute and deliver such documents and take such action
reasonably deemed by ServiceMaster to be necessary or desirable to more
effectively complete and evidence the transactions contemplated by this
Agreement.
8. Expenses. All costs and expenses incurred in connection with this
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Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
9. Amendment; Assignment. This Agreement may not be modified, amended,
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altered or supplemented except by a writing signed by ServiceMaster and the
Stockholders. Neither the Stockholders nor ServiceMaster may assign any of its
rights or obligations under this Agreement without the written consent of the
other.
10. Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent
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by registered or certified mail (postage prepaid, return receipt requested), and
shall be deemed to have been duly given if so given, to the respective parties
as follows:
If to ServiceMaster: The ServiceMaster Company
Xxx XxxxxxxXxxxxx Xxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
With a copy to: Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
If to any Stockholder: To the address set forth adjacent
to the Stockholder's Signature
or to such other address as any party may have furnished to the other in
writing, except that changes of address shall only be effective upon receipt.
11. No Constraints on Actions As a Director. Nothing in this Agreement
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shall be deemed to restrict Xxxx X. Xxxx ("Xxxx") from taking any action in the
capacity of director of the Corporation that he shall believe or is advised by
counsel are necessary to fulfill his fiduciary duties as a director. Xxxx
confirms that he will be able to take all of the actions required by Sections 1
and 3 of this Agreement without any conflict with his obligations as a director
and that, accordingly, nothing in the preceding sentence shall be deemed to
limit or impair his agreements in Sections 1 and 3.
12. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
13. Governing Law. This Agreement shall be governed by and construed in
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accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof. The Stockholders hereby
submit to the nonexclusive jurisdiction of the Federal and state courts located
in Delaware in connection with any dispute related to this Agreement or any of
the matters contemplated hereby.
14. Binding Effect. This Agreement shall be binding upon, inure to the
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benefit of and be enforceable by the successors and permitted assigns of the
parties hereto. Nothing expressed or referred to in this Agreement is intended
or shall be construed to give any person other than the parties to this
Agreement, or their respective successors and permitted assigns any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. Each of the parties to this Agreement will be
entitled to enforce its rights under this Agreement specifically, to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights to which it may be entitled. The Stockholders agree
that money damages
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are not an adequate remedy for breach of the Stockholders' voting agreements in
this Agreement or Stockholders' other agreements herein and that ServiceMaster
may in its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief in order to
require any vote required by the terms of this Agreement or to enforce or
prevent any violations of the provisions of this Agreement.
15. Entire Agreement. This Agreement, those documents expressly referred
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to herein and other documents executed by the parties in respect to the matters
herein embody the complete agreement between the parties in respect to the
matter herein and supersede and preempt any prior understandings, agreements or
representatives by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
16. Severability. If any term, provision, covenant or restriction of this
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Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
17. Miscellaneous. The headings contained in this Agreement are for
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reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References to Sections, subsections and
clauses refer to Sections, subsections and clauses of this Agreement unless
otherwise stated.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
THE SERVICEMASTER COMPANY
By: /s/ X.X. Xxxxxxxx
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Name: X.X. Xxxxxxxx
Title: Executive Vice President
STOCKHOLDERS:
/s/ Xxxx X. Xxxx
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Print Name: Xxxx X. Xxxx
Address: 000 Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxx
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Print Name: Xxxxxx X. Xxxx
Address: 000 Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Aggregate Number of`Stockholders'
LandCare Shares: 360,000
Title and Date of Prior Acquisition
Agreement and name of business sold to
LandCare:
Agreement and Plan of Organization made
as of March 17, 1998 by and among
LandCare USA, Inc., Ground Control
Acquisition Corp., Ground Control
Landscaping. Inc., Xxxx X. Xxxx and
Xxxxxx X. Xxxx.
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