VOTING AGREEMENTVoting Agreement |
|
|
You are currently viewing: This Voting Agreement involves
Dow Chemical Company | Girard Trust Company | Philadelphia National Bank | Purchaser, Ramses Acquisition Corp | Rohm and Haas Company | Wachovia Bank, NA. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Voting Agreement by:
Exhibit 10.1
Execution
Copy
VOTING AGREEMENT
THIS
VOTING AGREEMENT (this “ Agreement
”) is made and entered into this 10th day of July 2008
by and among Rohm and Haas Company, a Delaware corporation
(the “ Company
”), The Dow Chemical Company (the “ Purchaser
”), and each of (i) John C. Haas, John Otto Haas,
Thomas Willaman Haas, William David Haas and Wachovia Bank,
N.A., as trustees of the trust (Tax Identification No.
23-6226975) (the “ First 1945
Trust ”) formed pursuant to the agreement dated
December 20, 1945, between Otto Haas, as grantor, and Girard
Trust Company, Phoebe W. Haas, John C. Haas and F. Otto Haas,
as original trustees, (ii) John C. Haas, John Otto Haas,
Thomas Willaman Haas, William David Haas and Wachovia Bank,
N.A., as trustees of the trust (Tax Identification No.
23-6226976) (the “ Second 1945
Trust ”) formed pursuant to the agreement dated
December 21, 1945, between Phoebe W. Haas, as grantor, and
Girard Trust Company, Otto Haas, John C. Haas and F. Otto
Haas, as original trustees, (iii) John C. Haas, John Otto
Haas, Thomas Willaman Haas, William David Haas and Wachovia
Bank, N.A., as trustees of the trust (Tax Identification No.
23-6233446) (the “ 1955
Trust ”) formed pursuant to the trust agreement
dated August 3, 1955, between Otto Haas, as grantor, and F.
Otto Haas, John C. Haas and The Philadelphia National Bank, as
original trustees, (iv) John C. Haas, John Otto Haas, Thomas
Willaman Haas, William David Haas and Wachovia Bank, N.A., as
trustees of the trust (Tax Identification No. 23-6233448) (the
“ 1956
Trust ”) formed pursuant to the trust agreement
dated as of September 28, 1956, between Otto Haas, as grantor,
and F. Otto Haas, John C. Haas and The Philadelphia National
Bank, as original trustees, (v) Carole Haas Gravagno, John
Otto Haas, Thomas Willaman Haas and William David Haas as
trustees of the Trust A - for issue of F. Otto Haas (Tax
Identification No. 23-6524491) (the “ 1961 Trust
A ”) formed pursuant to the trust agreement dated
August 24, 1961, between Phoebe W. Haas, as grantor, and F.
Otto Haas and John C. Haas, as original trustees, and (vi)
John C. Haas, David W. Haas, Leonard C. Haas and Frederick R.
Haas as trustees of the Trust B - for issue of John C. Haas
(Tax Identification No. 23-6524492) (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 Phoebe W. Haas, as grantor, and F. Otto Haas
and John C. Haas, 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
2
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 agreem
