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Exhibit 10.3
VOTING AGREEMENT AND IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY (this "Agreement"), dated
as of May 25, 2001, among the shareholders listed on the signature pages hereto
(collectively, the "Shareholders" and each individually, a "Shareholder"), Star
Services Group, Inc., a Florida corporation (the "Company"), Allied Waste North
America, Inc., a Delaware corporation ("Parent"), and Sage Acquisition
Corporation, a Florida corporation ("Purchaser").
RECITALS
A. The Shareholders collectively own of record and beneficially shares
of capital stock of the Company, as set forth on EXHIBIT A (such shares, or any
other voting or equity securities of the Company hereafter acquired by any
Shareholder prior to the termination of this Agreement, being referred to
collectively as the "Shares").
B. Concurrently with the execution of this Agreement, the Company,
Parent and Purchaser are entering into an Agreement and Plan of Merger, dated as
of the date hereof (the "Merger Agreement"), pursuant to which Purchaser will
merge with and into the Company and the Company shall be the surviving entity of
such Merger (the "Merger").
C. As a condition to the willingness of Parent and Purchaser to enter
into the Merger Agreement, and to induce Parent and Purchaser to enter into the
Merger Agreement, the Shareholders agree to vote in favor of approving the
Merger Agreement and the Merger, upon the terms and subject to the conditions
set forth in this Agreement.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree as follows:
SECTION 1. DEFINITIONS. For purposes of this Agreement:
(a) As used in this Agreement, "Acquisition Proposal" shall
mean any proposal or offer made by any Person (as defined in the Exchange Act
(as defined in Section 1(b))) other than Parent, Purchaser or any subsidiary of
Parent or Purchaser to acquire all or a substantial part of the business or
properties of the Company or any of its subsidiaries or any capital stock of the
Company or any of its subsidiaries, whether by merger, tender offer, exchange
offer, sale of assets or similar transactions involving the Company or any of
its subsidiaries.
(b) "Beneficially Own" or "Beneficial Ownership" with respect
to any securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), including pursuant to any agreement,
arrangement or understanding, whether or not in writing; provided that such
beneficial ownership shall be limited to
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securities (not including those that the Person has a right to acquire within 60
days unless so acquired) over which such Person has sole or shared voting power.
Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities Beneficially
Owned by all other Persons with whom such Person would constitute a "group"
within the meaning of Section 13(d)(3) of the Exchange Act and over which such
Person has sole or shared voting power.
SECTION 2. VOTING OF SHARES.
(a) Each Shareholder covenants and agrees that until the
termination of this Agreement in accordance with the terms hereof, at the
meeting of the Company's shareholders to consider the Merger Agreement and the
Merger or any other meeting of the shareholders of the Company, however called,
and in any action by written consent of the shareholders of the Company, such
Shareholder will vote, or cause to be voted, all of his respective Shares (i) in
favor of adoption of the Merger Agreement and approval of the Merger
contemplated by the Merger Agreement, as the Merger Agreement may be modified or
amended from time to time in a manner not adverse to the Shareholders, and (ii)
against any other Acquisition Proposal.
(b) Each Shareholder hereby IRREVOCABLY grants to, and
appoints, Parent, and any individual designated in writing by it, and each of
them individually, as its proxy and attorney-in-fact (with full power of
substitution), for and in its name, place and stead, to vote his Shares at any
meeting of the shareholders of the Company called with respect to any of the
matters specified in, and in accordance and consistent with this Section 2. Each
Shareholder understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon the Shareholder's execution and delivery of this
Agreement. Each Shareholder hereby affirms that the IRREVOCABLE proxy set forth
in this Section 2(b) is given in connection with the execution of the Merger
Agreement, and that such IRREVOCABLE proxy is given to secure the performance of
the duties of such Shareholder under this Agreement. Except as otherwise
provided for herein, each Shareholder hereby (i) affirms that the IRREVOCABLE
proxy is coupled with an interest and MAY UNDER NO CIRCUMSTANCES BE REVOKED,
(ii) ratifies and confirms all that the proxies appointed hereunder may lawfully
do or cause to be done by virtue hereof, and (iii) affirms that such IRREVOCABLE
proxy is executed and intended to be IRREVOCABLE in accordance with the
provisions of Section 607.0722 of the Florida 1989 Business Corporation Act.
Notwithstanding any other provisions of this Agreement, the IRREVOCABLE proxy
granted hereunder shall automatically terminate upon the termination of this
Agreement.
SECTION 3. TRANSFER OF SHARES. Each Shareholder covenants and agrees
that such Shareholder will not directly or indirectly, (a) sell, assign,
transfer (including by purchase, testamentary disposition, interspousal
disposition pursuant to a domestic relations proceeding or otherwise by
operation of law), pledge, encumber or otherwise dispose of any of the Shares,
(b) deposit any of the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares or grant any proxy or power
of attorney with respect thereto which is inconsistent with this Agreement, or
(c) enter into any contract, option or other arrangement or undertaking with
respect to the direct or indirect sale, assignment, transfer (including by
purchase, testamentary disposition, interspousal disposition pursuant to
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a domestic relations proceeding or otherwise by operation of law) or other
disposition of any Shares.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
Shareholder represents and warrants to Parent and Purchaser as follows:
(a) OWNERSHIP OF SHARES. On the date hereof, such Shareholder
is the record and Beneficial Owner of his Shares set forth next to his name on
EXHIBIT A. Such Shareholder has sole voting power, without restrictions, with
respect to all of his Shares.
(b) POWER, BINDING AGREEMENT. Such Shareholder has the legal
capacity, power and authority to enter into and perform all of such
Shareholder's obligations, under this Agreement. The execution, delivery and
performance of this Agreement by such Shareholder will not violate any material
agreement to which such Shareholder is a party, including any voting agreement,
shareholders' agreement, partnership agreement or voting trust. This Agreement
has been duly and validly executed and delivered by such Shareholder and
constitutes a valid and binding obligation of such Shareholder, enforceable
against each Shareholder in accordance with its terms, except as may be
otherwise provided by applicable bankruptcy, fraudulent conveyance or other
similar laws relating to creditors' rights. Such Shareholder has had the
opportunity to review the Merger Agreement and this Agreement, has had the
opportunity to review the Merger Agreement and this Agreement with legal counsel
of his choosing, and is entering into this Agreement knowingly and voluntarily.
(c) NO CONFLICTS. The execution and delivery of this Agreement
do not, and the consummation of the transactions contemplated hereby will not,
conflict with or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, any provision of any loan or credit agreement, note, bond, mortgage,
indenture, lease, or other agreement, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to such Shareholder or any of his properties or assets, other than
such conflicts, violations or defaults or terminations, cancellations or
accelerations which individually or in the aggregate do not impair the ability
of such Shareholder to perform his obligations under this Agreement.
SECTION 5. NO SOLICITATION. Subject to Section 8 and prior to the
termination of this Agreement in accordance with its terms, each Shareholder
agrees, in his individual capacity as a shareholder of the Company, that (a)
such Shareholder will not, nor will he authorize or knowingly permit any of his
employees, agents and representatives to, directly or indirectly, (i) initiate,
solicit or encourage any inquiries or the making of any Acquisition Proposal,
(ii) enter into any agreement with respect to any Acquisition Proposal, or (iii)
participate in any discussions or negotiations regarding, or furnish to any
Person any information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any Acquisition Proposal, and (b) he will notify Parent
and Purchaser as soon as possible if any such inquiries or proposals are
received by, any information or documents is requested from, or any negotiations
or discussions are sought to be initiated or continued with, him or any of his
affiliates in its individual capacity.
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SECTION 6. TERMINATION. This Agreement shall terminate upon the
earliest to occur of (a) the Effective Time (as that term is defined in the
Merger Agreement) of the Merger or (b) any termination of the Merger Agreement
in accordance with the terms thereof; provided that no such termination shall
relieve any party of liability for a breach of this Agreement prior to
termination.
SECTION 7. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
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 in equity.
SECTION 8. FIDUCIARY DUTIES. Each Shareholder is signing this Agreement
solely in such Shareholder's capacity as an owner of his respective Shares, and
nothing herein shall prohibit, prevent or preclude such Shareholder from taking
or not taking any action in his or her capacity as an officer or director of the
Company, to the extent permitted by the Merger Agreement.
SECTION 9. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral, between the parties
with respect thereto. This Agreement may not be amended, modified or rescinded
except by an instrument in writing signed by each of the parties hereto.
(b) 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. 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 to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
(c) The headings in this Agreement are inserted for
convenience only, and shall not constitute a part of this Agreement or be used
to construe or interpret any of its provisions. The parties have participated
jointly in the negotiation and drafting of this Agreement. If a question of
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provision of this
Agreement. The word "include" or "including" means include or including, without
limitation.
(d) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida, without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Florida or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Florida.
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(e) If any legal action or any other proceeding is brought for
the enforcement of this Agreement, or because of an alleged dispute, breach,
default, or misrepresentation in connection with any provision of this
Agreement, the prevailing party or parties shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be entitled.
(f) This Agreement may be executed in two or more original or
facsimile counterparts, each of which shall be deemed an original and all of
which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed individually or by its respective duly authorized officer
as of the date first written above.
STAR SERVICES GROUP, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SAGE ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Officer
Signature
/s/ Xxxxx X. Xxxxxxx
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Print Name: Xxxxx X. Xxxxxxx
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Signature
/s/ Xxxxxxx X. Xxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxx
Signature
/s/ Xxxx X. Xxxxxxxxxx
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Print Name: Xxxx X. Xxxxxxxxxx
Signature
/s/ Xxxx Xxxxxxxxxx
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Print Name: Xxxx Xxxxxxxxxx
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EXHIBIT A
Shareholder Number of Shares
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Xxxxx X. Xxxxxxx 1,100,000
Xxxxxxx X. Xxxxxxx 1,100,000
Xxxx X. Xxxxxxxxxx 620,000
Xxxx Xxxxxxxxxx 435,000
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