|
Exhibit
10.1
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
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,
|
