<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
SCHEDULE 13D
---------------------------
Under the Securities Exchange Act of 1934
LANDCARE USA, INC.
(Name of Issuer)
Common Stock, Par Value $.01 Per Share
(Title of Class of Securities)
51476F 10 4
(CUSIP Number)
Vernon T. Squires
Senior Vice President and General Counsel
The ServiceMaster Company
One ServiceMaster Way
Downers Grove, Illinois 60515-1700
(630) 2711300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 2, 1998
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
<PAGE>
SCHEDULE 13D
- ----------------------- ---------------------
CUSIP NO. 51476F 10 4 PAGE 2 OF 10 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1
THE SERVICEMASTER COMPANY
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 36-3858106
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
OO
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
DELAWARE
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 5,432,390
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
0
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
5,432,390
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12
[_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
32.7%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
CO
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
ITEM 1. SECURITY AND ISSUER
This Schedule 13D ("Schedule 13D") relates to the common stock, par value
$.01 per share (the "LandCare Common Stock"), of LandCare USA, Inc., a Delaware
corporation ("LandCare"). The principal executive offices of LandCare are
located at 2603 Augusta, Suite 1300, Houston, Texas 77057.
ITEM 2. IDENTITY AND BACKGROUND
This Schedule 13D is being filed by The ServiceMaster Company, a Delaware
corporation ("ServiceMaster"). ServiceMaster is principally a holding company.
The address of ServiceMaster's principal executive offices is One ServiceMaster
Way, Downers Grove, Illinois 60515-1700. ServiceMaster operates primarily
through two major units: ServiceMaster Consumer Services and ServiceMaster
Management Services, and a small, developing unit, ServiceMaster Employer
Services. ServiceMaster common stock is listed on the New York Stock Exchange
and registered under the Securities Exchange Act of 1934, as amended.
ServiceMaster Consumer Services provides for services to over 9.6 million
residential and commercial customers under eight market-leading brand names:
TrueGreen-ChemLawn for lawn, tree and shrub care and commercial landscape and
indoor plant maintenance; Terminex for termite and pest control services;
American Home Shield and AmeriSpec for home system and appliance warranty
contracts and home inspection services; Rescue Rooter for plumbing and drain
cleaning services; ServiceMaster Residential/Commercial Services for heavy-duty
residential and commercial cleaning and disaster restoration services; Merry
Maids for residential maid services; and Furniture Medic for on-site furniture
repair and restoration services. ServiceMaster Management Service provides
facilities management services to over 2,000 customers in the health care,
education, and business and industrial markets. These services include plant
operations and maintenance, housekeeping, grounds and landscaping, clinical
equipment management, energy management, food service, laundry and linen
services, total facilities management and other services. ServiceMaster Employer
Services provides a full-range of support in human resource services, including
administrative processing of payroll, worker's compensation insurance, health
insurance, unemployment insurance and other employee benefits, to approximately
900 customers with over 18,000 leased employees.
The name, citizenship, residence or business address, present principal
occupation or employment of each executive officer and director of ServiceMaster
is set forth on Schedule I hereto and is incorporated herein by reference.
During the last five years, neither ServiceMaster, nor to the knowledge of
ServiceMaster, any of the persons listed on Schedule I hereto, (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Certain stockholders of LandCare have executed voting agreements pursuant
to which such stockholders committed to among other things vote in favor of the
merger involving ServiceMaster described under Item 4 below. ServiceMaster
conditioned its entering into the Merger Agreement (as defined under Item 4) on
such stockholders of LandCare committing to vote for the Merger, as evidenced by
such voting agreements. ServiceMaster did not pay any funds to such stockholders
of
Page 3 of 10 Pages
<PAGE>
LandCare in connection with their entering into such voting agreements. If the
Merger is consummated, each share of LandCare common stock will be converted
into the right to receive a fraction of one share of ServiceMaster common stock
as provided in the Merger Agreement.
ITEM 4. PURPOSE OF TRANSACTION
Merger Agreement
LandCare, ServiceMaster and a wholly-owned subsidiary of ServiceMaster
("Merger Subsidiary") entered into a Plan of Reorganization and Agreement and
Plan of Merger dated as of November 1, 1998 (the "Merger Agreement") pursuant to
which Merger Subsidiary will be merged with and into LandCare, whereupon the
separate corporate existence of Merger Subsidiary will cease, and LandCare will
continue as the surviving corporation and will become a subsidiary of
ServiceMaster (the "Merger"). The Merger Agreement is subject to certain closing
conditions and termination events. In connection with the Merger, each issued
and outstanding share of LandCare common stock will be converted into a fraction
of one share of ServiceMaster common stock as established pursuant to the terms
of the Merger Agreement.
In connection with the Merger, ServiceMaster intends to replace the
present board of directors of LandCare and to amend and restate the certificate
of incorporation and bylaws of LandCare as indicated in the Merger Agreement.
The Merger, which is subject to regulatory and LandCare stockholder approval,
and other closing conditions, is expected to close during the first quarter of
1999.
Upon consummation of the Merger, LandCare common stock will be delisted
from the New York Stock Exchange and deregistered under the Securities Exchange
Act of 1934, as amended.
Voting Agreements
The following LandCare stockholders have entered into a voting agreement as
described in this Schedule 13D in favor of ServiceMaster, and the number of
shares of LandCare common stock owned by each such stockholder is indicated in
parenthesis: William F. Murdy (275,000); William L. Fiedler (110,000); Kenneth
V. Garcia (110,000); Roger Braswell (331,084); Linda Benge (716,591); Mark S.
Yahn and Laurie L. Yahn (360,000); Jeff A. Meyer (225,446); James R. Marcus
(278,906); David K. Luse (640,092); Harold D. Cranston (248,700); Bruce Church
(419,363); Peter C. Forbes (100,000); Infoscope Partners (80,000); Fieldstone
Partners (87,000); and Notre Capital Ventures II, L.L.C. (1,296,408) and Steven
S. Harter (153,800), exclusive of any Norte Capital Ventures II, L.L.C. shares
that he may be deemed to beneficially own. The voting agreements provide that
the LandCare stockholders party thereto will vote their respective 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; 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. The LandCare
stockholders parties thereto also agree under such agreements that until and
unless the Merger Agreement has been terminated: (i) none of the stockholders'
LandCare shares will be tendered in response to any tender offer; (ii) no
interest in any of the stockholders' LandCare shares will be sold or otherwise
transferred; and (iii) the stockholders will not take any other action which
would impair the LandCare stockholders' ability to vote any of stockholders'
LandCare shares in the manner required by the voting agreements. Any shares
acquired by the LandCare stockholders listed above subsequent to November 2,
1998, will also become subject to the voting agreements.
Page 4 of 10 Pages
<PAGE>
The voting agreements filed as Exhibits 2-16 are incorporated herein by
reference.
ServiceMaster expressly disclaims any beneficial ownership of the
shares of LandCare common stock which are subject to the voting agreements.
Neither the filing of this Schedule 13D nor any of its contents shall be deemed
to constitute an admission that ServiceMaster is the beneficial owner of the
shares of LandCare common stock subject to the voting agreements for purposes of
Sections 13D or 16 of the Securities Exchange Act of 1934, as amended, or for
any other purpose and such beneficial ownership is expressly disclaimed.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) ServiceMaster may be deemed the beneficial owner of an aggregate of
5,432,390 shares of LandCare Common Stock constituting approximately 32.7% of
the issued and outstanding LandCare Common Stock (based on 16,624,463 shares of
LandCare Common Stock issued and outstanding on November 1, 1998 pursuant to
information received from LandCare). ServiceMaster does not beneficially own any
LandCare Common Stock other than the LandCare Common Stock that may be deemed to
be beneficially owned by ServiceMaster as a result of the voting agreements
described above. To the knowledge of ServiceMaster, none of the persons listed
on Schedule I beneficially own any shares of LandCare Common Stock.
(b) The table below summarizes the number of shares of LandCare Common
Stock over which ServiceMaster may be deemed to have sole voting and dispositive
power and shared voting and dispositive power.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------
VOTING DISPOSITIVE
- --------------------------------------------------------------------------
<S> <C> <C> <C>
Sole Shared Sole Shared
- --------------------------------------------------------------------------
0 5,432,390 0 0
- --------------------------------------------------------------------------
</TABLE>
(c) Except as set forth in this Schedule 13D, ServiceMaster has not
effected any transaction in the shares of LandCare Common Stock within the
preceding sixty (60) days. To the knowledge of ServiceMaster, none of the
executive officers or directors of ServiceMaster listed on Schedule I hereto
have effected any transaction relating to the LandCare Common Stock during the
past sixty (60) days.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
Except as set forth in this Schedule 13D, to the knowledge of
ServiceMaster, there are no contracts, arrangements, understandings or
relationships (illegal or otherwise) among persons named in Item 2 or listed on
Schedule I hereto and between such persons and any person with respect to any
securities of LandCare, including but not limited to, transfer or voting of any
of the securities of LandCare, joint ventures, loan or option arrangements, puts
or calls, guarantees or profits, division
Page 5 of 10 Pages
<PAGE>
or profits or loss, or the giving or withholding of proxies or a pledge or
contingency the occurrence of which would give another person voting power over
the securities of LandCare.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit No Description
- ---------- -----------
1. Plan of Reorganization and Agreement and Plan of
Merger, dated as of November 1, 1998, by and among
LandCare USA, Inc., The ServiceMaster Company and SVM
Acquisition Company.
2. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company, Mark S. Yahn and Laurie L.
Yahn.
3. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and James R. Marcus.
4. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and Kenneth V. Garcia.
5. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and Peter C. Forbes.
6. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and William L. Fiedler.
7. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and Roger Braswell.
8. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and Bruce Church.
9. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and Harold D. Cranston.
10. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and David K. Luse.
11. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and Jeff A. Meyer.
12. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and Fieldstone Partners.
13. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and William F. Murdy.
14. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company, Notre Capital Ventures II,
L.L.C. and Steven S. Harter.
Page 6 of 10 Pages
<PAGE>
15. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and Linda Benge.
16. Voting Agreement, dated November 1, 1998 by and among
The ServiceMaster Company and Infoscope Partners.
Page 7 of 10 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth herein is true, complete and correct.
Dated: November 2, 1998
The ServiceMaster Company
By: /s/ J. Richard Hoel, Jr.
-------------------------------
Name: J. Richard Hoel, Jr.
Title: Vice President
Page 8 of 10 Pages
<PAGE>
SCHEDULE I
CERTAIN INFORMATION CONCERNING THE DIRECTORS AND
EXECUTIVE OFFICERS OF THE SERVICEMASTER COMPANY
The principal business address of each person described below is One
ServiceMaster Way, Downers Grove, Illinois 60515-1700.
THE SERVICEMASTER COMPANY
<TABLE>
<CAPTION>
<S> <C> <C> <C>
(a) Name and Title (b) Business Address (c) Present Principal (d)Citizenship
Occupation and Principal
Business of Employer
C. William Pollard One ServiceMaster Way Chairman and Director of The USA
Downers Grove, IL 60515-1700 ServiceMaster Company
Carlos H. Cantu One ServiceMaster Way President, Chief Executive USA
Downers Grove, IL 60515-1700 Officer and Director of The
ServiceMaster Company
Charles W. Stair One ServiceMaster Way Vice Chairman and Director of USA
Downers Grove, IL 60515-1700 The ServiceMaster Company
Phillip B. Rooney One ServiceMaster Way Vice Chairman and Director of USA
Downers Grove, IL 60515-1700 The ServiceMaster Company
Paul W. Berezny, Jr. One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
Henry O. Boswell One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
Brian Griffths One ServiceMaster Way Director of The ServiceMaster USA, UK
Downers Grove, IL 60515-1700 Company
Sidney E. Harris One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
Herbert P. Hess One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
Michelle M. Hunt One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
Gunther H. Knoedler One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
James D. McLennan One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
Vincent C. Nelson One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
</TABLE>
Page 9 of 10 Pages
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
(a) Name and Title (b) Business Address (c) Present Principal (d) Citizenship
Occupation and Principal
Business of Employer
Dallen W. Peterson One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
Steven S. Reinerrund One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
Burton E. Sorenson One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
David K. Wessner One ServiceMaster Way Director of The ServiceMaster USA
Downers Grove, IL 60515-1700 Company
Ernest J. Mrozek One ServiceMaster Way President, Consumer Services USA
Downers Grove, IL 60515-1700
Robert F. Keith One ServiceMaster Way President, Management Services USA
Downers Grove, IL 60515-1700
Vernon T. Squires One ServiceMaster Way Senior Vice President and USA
Downers Grove, IL 60515-1700 General Counsel
</TABLE>
<PAGE>
PLAN OF REORGANIZATION AND AGREEMENT AND PLAN OF MERGER
DATED AS OF
NOVEMBER 1, 1998
BY AND AMONG
LANDCARE USA, INC.,
THE SERVICEMASTER COMPANY
AND
SVM ACQUISITION CORPORATION
<PAGE>
TABLE OF CONTENTS
Page
----
<TABLE>
<CAPTION>
ARTICLE 1
<S> <C>
THE MERGER................................................................. 1
Section 1.1 The Merger.......................................... 1
Section 1.2 Conversion of Shares................................ 2
Section 1.3 Surrender and Payment............................... 4
Section 1.4 Stock Options....................................... 6
Section 1.5 Fractional Shares................................... 7
Section 1.6 Adjustments......................................... 9
ARTICLE 2
THE SURVIVING CORPORATION.................................................. 9
Section 2.1 Certificate of Incorporation........................ 9
Section 2.2 Bylaws.............................................. 9
Section 2.3 Directors and Officers.............................. 9
ARTICLE 3
LANDCARE WARRANTIES........................................................ 10
Section 3.1 Organization........................................ 10
Section 3.2 Corporate Authorization; Validity of Agreement;
Board Action........................................ 10
Section 3.3 Consents and Approvals; No Violations............... 11
Section 3.4 Capitalization...................................... 12
Section 3.5 Subsidiaries; Capitalization of Subsidiaries........ 13
Section 3.6 SEC Reports and Financial Statements................ 13
Section 3.7 Disclosure Documents................................ 14
Section 3.8 Absence of Certain Changes.......................... 14
Section 3.9 No Undisclosed Liabilities.......................... 16
Section 3.10 Employee Benefit Plans.............................. 16
Section 3.11 Compliance with Law................................. 19
Section 3.12 Litigation.......................................... 19
Section 3.13 No Default.......................................... 19
Section 3.14 Taxes............................................... 19
Section 3.15 Contracts........................................... 23
Section 3.16 Transactions with Affiliates........................ 23
Section 3.17 Environmental Matters............................... 23
Section 3.18 Intellectual Property............................... 25
Section 3.19 Opinion of Financial Advisor........................ 25
Section 3.20 Finders and Investment Bankers...................... 25
Section 3.21 Takeover Statutes................................... 26
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
Section 3.22 Insurance............................................ 26
Section 3.23 Supportive Stockholder Actions....................... 26
ARTICLE 4
WARRANTIES OF SERVICEMASTER AND MERGER SUBSIDIARY........................... 27
Section 4.1 Organization......................................... 27
Section 4.2 Corporate Authorization; Validity of Agreement;
Necessary Action..................................... 27
Section 4.3 Consents and Approvals; No Violations................ 28
Section 4.4 Capitalization....................................... 29
Section 4.5 SEC Reports and Financial Statements................. 29
Section 4.6 Absence of Certain Changes........................... 29
Section 4.7 No Undisclosed Liabilities........................... 30
Section 4.8 Litigation........................................... 30
Section 4.9 Compliance with Law.................................. 30
Section 4.10 No Default........................................... 30
Section 4.11 Disclosure Documents................................. 30
Section 4.12 Opinion of Financial Advisor......................... 31
ARTICLE 5
COVENANTS OF LANDCARE....................................................... 31
Section 5.1 Conduct of Business by LandCare Pending the Merger... 31
Section 5.2 LandCare Stockholders Meeting........................ 33
Section 5.3 Access to Information................................ 34
Section 5.4 No Solicitation...................................... 34
Section 5.5 Corporate Organization............................... 35
Section 5.6 Pipeline Acquisitions................................ 36
Section 5.7 Redemption of Convertible Notes...................... 39
ARTICLE 6
COVENANTS OF SERVICEMASTER.................................................. 40
Section 6.1 Obligations of Merger Subsidiary..................... 40
Section 6.2 Indemnification...................................... 40
ARTICLE 7
COVENANTS OF SERVICEMASTER AND LANDCARE..................................... 41
Section 7.1 Diligent Efforts..................................... 41
Section 7.2 Certain Filings...................................... 41
Section 7.3 Public Announcements................................. 41
Section 7.4 Further Assurances................................... 41
Section 7.5 Notices of Certain Events............................ 42
Section 7.6 Preparation of the Registration Statement and the
LandCare Proxy Statement............................. 42
Section 7.7 Letters of LandCare's Accountants.................... 43
Section 7.8 Affiliates........................................... 43
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
Section 7.9 NYSE Listing................................................ 43
Section 7.10 Regulatory Matters and Approvals............................ 43
Section 7.11 Tax Treatment............................................... 44
Section 7.12 Representations............................................. 44
Section 7.13 Material Consents........................................... 44
ARTICLE 8
CONDITIONS TO THE MERGER........................................................... 44
Section 8.1 Conditions to the Obligations of Each Party................. 44
Section 8.2 Additional Conditions to the Obligations of ServiceMaster
and Merger Subsidiary....................................... 45
Section 8.3 Additional Conditions to the Obligations of LandCare........ 45
ARTICLE 9
TERMINATION........................................................................ 46
Section 9.1 Termination................................................. 46
Section 9.2 Waiver...................................................... 47
Section 9.3 Closing..................................................... 47
Section 9.4 Effect of Termination; Termination Fee...................... 48
ARTICLE 10
MISCELLANEOUS...................................................................... 49
Section 10.1 Notices..................................................... 50
Section 10.2 Survival of Representations and Warranties.................. 50
Section 10.3 Amendments; No Waivers...................................... 50
Section 10.4 Expenses.................................................... 50
Section 10.5 Successors and Assigns...................................... 50
Section 10.6 Governing Law............................................... 50
Section 10.7 Counterparts; Effectiveness................................. 50
Section 10.8 Headings.................................................... 51
Section 10.9 No Third Party Beneficiaries................................ 51
</TABLE>
-iii-
<PAGE>
PLAN OF REORGANIZATION AND AGREEMENT AND PLAN OF MERGER
This Plan of Reorganization and Agreement and Plan of Merger (this
"Agreement") has been made as of November 1, 1998 (the "date hereof") among
--------- -----------
LandCare USA, Inc., a Delaware corporation ("LandCare"), The ServiceMaster
--------
Company, a Delaware corporation ("ServiceMaster"), and SVM Acquisition
-------------
Corporation, a Delaware corporation and a wholly-owned subsidiary of
ServiceMaster ("Merger Subsidiary").
-----------------
WHEREAS, the respective boards of directors of ServiceMaster, Merger
Subsidiary and LandCare have approved, and declared advisable and in the best
interests of their respective stockholders, this Agreement and the acquisition
of LandCare by ServiceMaster on the terms and conditions set forth herein.
WHEREAS, ServiceMaster has entered into Voting Agreements with
stockholders of LandCare who collectively own approximately 30% of LandCare's
Common Stock outstanding on the date hereof (the "Voting Agreements").
The parties hereto agree as follows:
ARTICLE 1
THE MERGER
Section 1.1 The Merger.
----------
(a) Upon the terms and subject to the conditions set forth in
this Agreement, at the Effective Time (as hereinafter defined), Merger
Subsidiary shall be merged (the "Merger") with and into LandCare in accordance
------
with the General Corporation Law of the State of Delaware ("Delaware Law"),
------------
whereupon the separate existence of Merger Subsidiary shall cease, and LandCare
shall continue as the surviving corporation (the "Surviving Corporation").
---------------------
(b) As soon as practicable after satisfaction or, to the
extent permitted hereunder, waiver of all conditions to the Merger set forth
herein, LandCare and Merger Subsidiary will file a certificate of merger with
the Secretary of State of the State of Delaware and make all other filings or
recordings required by Delaware Law in connection with the Merger. The Merger
shall become effective at such time as the certificate of merger is duly filed
with the Secretary of State of the State of Delaware or at such later time as is
agreed by ServiceMaster and LandCare and specified in the certificate of merger
(the "Effective Time").
--------------
(c) The Merger shall have the effects set forth in Section
259 of the Delaware Law.
<PAGE>
Section 1.2 Conversion of Shares.
--------------------
(a) At the Effective Time:
(i) each share of common stock, par value $0.01 per share
(the "LandCare Common Stock"), of LandCare (the "Shares") held by
--------------------- ------
LandCare as treasury stock immediately prior to the Effective Time
shall be canceled, and no consideration shall be delivered in
exchange therefor;
(ii) each share of common stock of Merger Subsidiary
outstanding immediately prior to the Effective Time shall be
converted into and become one share of common stock of the
Surviving Corporation and shall constitute the only outstanding
share of capital stock of the Surviving Corporation; and
(iii) subject to Section 1.5, each Share outstanding
immediately prior to the Effective Time shall be converted into the
right to receive a fraction (herein called the "Exchange Ratio") of
--------------
one share common stock, par value $0.01 per share, of ServiceMaster
("ServiceMaster Common Stock"). The shares of ServiceMaster Common
--------------------------
Stock to be received as consideration pursuant hereto (together
with cash in lieu of fractional shares of ServiceMaster Common
Stock as specified below) are referred to herein as the "Merger
------
Consideration."
-------------
(b) Adjustment of Exchange Ratio.
----------------------------
(i) The Exchange Ratio shall be 0.55 in the event that the
average of the closing prices (the "Final Average Closing Price")
---------------------------
of ServiceMaster Common Stock on the New York Stock Exchange (the
"NYSE") Composite Transaction Tape (as reported in The Wall Street
----
Journal or, if not reported thereby, any other authoritative
source) on the 20 consecutive Trading Days (as hereinafter defined)
ending on the third Trading Day prior to the Scheduled Meeting Date
is more than $16.35 per share and not more than $20.00 per share.
The term "Scheduled Meeting Date" means the date specified in the
----------------------
LandCare Proxy Statement (as hereinafter defined) distributed to
LandCare's stockholders as the date on which the meeting at which
LandCare's stockholders will vote on the Merger is scheduled to
occur; provided that if such meeting shall actually be held on a
later date, then if ServiceMaster and LandCare shall both agree,
the period during which the Final Average Closing Price shall be
determined may be changed to a period of 20 consecutive Trading
Days ending not more than three Trading Days before the date on
which such meeting shall actually occur. "Trading Day" means any
-----------
day on which the NYSE is open for trading. "LandCare Stockholders
---------------------
Meeting" means the meeting at which the record holders of LandCare
-------
Common Stock shall actually vote with respect to the Merger.
-2-
<PAGE>
(ii) In the event that the Final Average Closing Price is
more than $20.00, then the Exchange Ratio shall be the quotient
derived by dividing $11 by the Final Average Closing Price .
(iii) In the event the Final Average Closing Price is less
than $16.36, then unless ServiceMaster shall otherwise notify
LandCare in writing prior to the date immediately prior to the date
upon which the LandCare Stockholders Meeting is then scheduled to
occur (the "Freeze Deadline"), the Exchange Ratio shall
---------------
automatically adjust to the smallest decimal which when multiplied
by the Final Average Closing Price will equal $9.00. If
ServiceMaster shall notify LandCare in writing prior to the Freeze
--------------------------
Deadline that ServiceMaster elects not to permit the adjustment
prescribed by the preceding sentence, then: (i) the Exchange Ratio
shall be 0.55 (or such greater number as ServiceMaster shall
specify in ServiceMaster's notice to LandCare), (ii) LandCare shall
have the right to reschedule the LandCare Stockholders Meeting up
to ten days later than the date upon which it otherwise would have
been held (provided that without the agreement of LandCare and
ServiceMaster such rescheduling shall not cause the period used to
determine the Final Average Closing Price to change), and (iii)
LandCare shall have the right to terminate this Agreement by giving
written notice to ServiceMaster.
(iv) If any adjustment is made to the Exchange Ratio
pursuant to this Section 1.2(b), then such adjusted Exchange Ratio
shall be rounded to four decimal places, rounding upward from
0.00005.
(v) LandCare shall set the date for the LandCare
Stockholders Meeting; provided that without ServiceMaster's
consent, such date shall not be earlier than February 15, 1999 and
shall not be later than the later of February 15, 1999 or the 45th
day after the Securities and Exchange Commission (the "SEC") shall
---
have declared the Registration Statement effective. The parties may
by agreement change the date on which the LandCare Stockholders
Meeting will occur.
(c) From and after the Effective Time, all Shares converted
in accordance with Section 1.2(a)(iii) shall no longer be outstanding and shall
automatically be canceled and shall cease to exist, and each holder of a
certificate representing any such Shares shall cease to have any rights with
respect thereto, except the right to receive the Merger Consideration and any
dividends payable pursuant to Section 1.3(f) upon surrender in accordance with
Section 1.3, without interest.
For purposes of this Agreement, "Person" or "person" means an
------
individual, a corporation, a limited liability company, a partnership, an
association, a trust or any other entity or
-3-
<PAGE>
organization, including a government or political subdivision or any agency or
instrumentality thereof. For purposes of this Agreement, the word "Subsidiary"
----------
when used with respect to any Person means any other corporation or other entity
of which a majority of the securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions are directly or indirectly owned by such
Person. For purposes of this Agreement, any reference to any event, change or
effect having a material adverse effect on or with respect to any entity (or
group of entities taken as a whole) means such event, change or effect, in the
aggregate with such other events, changes or effects, which is materially
adverse to the business, financial condition, operations, results of operations
or prospects of such entity (or group of entities taken as a whole).
Section 1.3 Surrender and Payment.
---------------------
(a) Prior to the Effective Time, ServiceMaster shall appoint
an agent reasonably acceptable to LandCare (the "Exchange Agent") for the
--------------
purpose of exchanging certificates representing Shares for the Merger
Consideration. Immediately following the Effective Time, ServiceMaster shall
deposit with the Exchange Agent, for the benefit of the holders of certificates
formerly representing Shares, the Merger Consideration issuable pursuant to
Section 1.2(a)(iii) in exchange for outstanding Shares. Promptly after the
Effective Time, ServiceMaster will send, or will cause the Exchange Agent to
send, to each holder of Shares at the Effective Time (i) a letter of transmittal
for use in such exchange (which shall specify that delivery of the Merger
Consideration shall be effected, and risk of loss and title to the certificates
representing ServiceMaster Common Stock and LandCare Common Stock shall pass,
only upon proper deliver of the certificates formerly representing Shares to the
Exchange Agent) and (ii) instructions for use in effecting the surrender of the
certificates formerly representing Shares in exchange for the Merger
Consideration.
(b) Each holder of Shares that have been converted into a
right to receive the Merger Consideration, upon surrender to the Exchange Agent
of a certificate or certificates formerly representing such Shares, together
with a properly completed and duly executed letter of transmittal covering such
Shares and such other documents as may reasonably be required by the Exchange
Agent, will be entitled to receive the Merger Consideration payable in respect
of such Shares and any dividends payable pursuant to Section 1.3(f). Until so
surrendered, each such certificate shall, after the Effective Time, represent
for all purposes only the right to receive the Merger Consideration and any
dividends payable pursuant to Section 1.3(f), without interest.
(c) If any portion of the Merger Consideration is to be paid
to a Person other than the registered holder of the Shares formerly represented
by the certificate or certificates surrendered in exchange therefor, it shall be
a condition to such payment that the certificate or certificates so surrendered
shall be properly endorsed or otherwise be in proper form for transfer and that
the Person requesting such payment shall pay to the Exchange Agent any transfer
or other taxes required as a result of such payment to a Person other than the
registered holder of
-4-
<PAGE>
such Shares represented by the certificate or certificates so surrendered or
establish to the satisfaction of the Exchange Agent that such tax has been paid
or is not applicable.
(d) After the Effective Time, there shall be no further registration
of transfers of Shares. If, after the Effective Time, certificates formerly
representing Shares are presented to the Surviving Corporation, they shall be
canceled and exchanged for the consideration provided for, and in accordance
with the procedures set forth, in this Article 1.
(e) Any portion of the Merger Consideration made available to
the Exchange Agent pursuant to Section 1.3(a) that remains unclaimed by the
holders of Shares one year after the Effective Time shall be returned to
ServiceMaster, upon demand, and any such holder who has not exchanged his Shares
for the Merger Consideration in accordance with this Section 1.3 prior to that
time shall thereafter look only to ServiceMaster for payment of the Merger
Consideration and any dividends payable pursuant to Section 1.3(f) in respect of
his Shares. Neither ServiceMaster, LandCare nor the Exchange Agent shall be
liable to any person in respect of any shares of ServiceMaster Common Stock, any
dividends or distributions with respect thereto or any cash in lieu of
fractional shares of ServiceMaster Common Stock, in each case, delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar law. If any certificate representing Shares shall not have been
surrendered prior to two years after the Effective Time (or immediately prior to
such earlier date on which any Merger Consideration, any dividends or
distributions payable to the holder of such certificate or any cash payable to
the holder of such certificate formerly representing LandCare Common Stock
pursuant to this Article 1, would otherwise escheat to or become the property of
any Governmental Entity (as hereinafter defined)), any such Merger
Consideration, dividends or distributions in respect of such certificate or such
cash shall, to the extent permitted by applicable law, become the property of
the Surviving Corporation, free and clear of all claims or interest of any
person previously entitled thereto.
(f) No dividends or other distributions with respect to
ServiceMaster Common Stock issued in connection with the Merger shall be paid to
the holder of any unsurrendered certificates formerly representing Shares until
such certificates are surrendered as provided in this Section 1.3. Subject to
the effect of applicable laws, following the surrender of such certificates,
there shall be paid, without interest, to the record holder of ServiceMaster
Common Stock issued in exchange therefor at the time of such surrender, the
amount of dividends or other distributions with a record date after the
Effective Time payable prior to or on the date of such surrender with respect to
such whole shares of ServiceMaster Common Stock and not previously paid, less
the amount of any withholding taxes which may be required thereon.
(g) The Exchange Agent shall invest any cash deposited with
the Exchange Agent, as directed by ServiceMaster, on a daily basis. Any interest
and other income resulting from such investments shall be paid to ServiceMaster.
-5-
<PAGE>
(h) If any certificate representing Shares shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such certificate to be lost, stolen or destroyed and, if
required by the Surviving Corporation, the posting by such person of a bond in
such reasonable amount as the Surviving Corporation may direct as indemnity
against any claim that may be made against it with respect to such certificate,
the Exchange Agent shall issue in exchange for such lost, stolen or destroyed
certificate the Merger Consideration and, if applicable, any unpaid dividends
and distributions on shares of ServiceMaster Common Stock deliverable in respect
thereof and any cash in lieu of fractional shares, in each case, due to such
person pursuant to this Agreement.
Section 1.4 Stock Options.
-------------
(a) As soon as practicable following the date of this Agreement, the
Board of Directors of LandCare (and, if appropriate, any committee administering
its 1998 Long-Term Incentive Plan and 1998 Non-Employee Director's Stock Plan
(the "LandCare Option Plans")) shall adopt such resolutions or take such other
---------------------
actions as may be required to effect the following:
(i) adjust the terms of all outstanding LandCare Stock Options
(defined below) granted under the LandCare Option Plans and the terms
of the LandCare Option Plans, to provide that at the Effective Time,
each LandCare Stock Option outstanding immediately prior to the
Effective Time shall be deemed to constitute an option to acquire, on
the same terms and conditions as were applicable under such LandCare
Stock Option (subject to adjustments and lapsing of restrictions,
vesting or acceleration of exercisability of LandCare Stock Options
required by this Section 1.4), the same number of shares of
ServiceMaster Common Stock as the holder of such LandCare Stock Option
would have been entitled to receive pursuant to the Merger had such
holder exercised such LandCare Stock Option in full immediately prior
to the Effective Time, at a price per share equal to the quotient
derived by dividing the Exchange Ratio into the exercise price per
share at which the LandCare Common Stock shall have been purchasable
on exercise of such LandCare Stock Option prior to the Effective Time;
and
(ii) make such other changes to the LandCare Option Plans as it
deems appropriate to give effect to the Merger (subject to approval of
ServiceMaster, which shall not be unreasonably withheld).
(b) At the Effective Time and subject to the last sentence to
this Section 1.4(b), all conditions and restrictions relating to all outstanding
LandCare Stock Options which have been granted pursuant to the LandCare Option
Plans (the "LandCare Stock Options"), including limitations on exercisability,
------------------------
risks of forfeiture and conditions and restrictions requiring continued
performance of services with respect to the exercisability or settlement of such
LandCare Stock Options, shall immediately lapse. LandCare shall use diligent
efforts to cause the individuals listed
-6-
<PAGE>
in Section 1.4(b) of the LandCare Disclosure Schedule (as hereinafter defined)
(hereinafter referred to as the "Senior Option Holders") to waive the complete
---------------------
lapsing of conditions and restrictions relating to exercisability of LandCare
Stock Options set forth above, and accept a modified vesting schedule whereby
one-half of each Senior Option Holder's LandCare Stock Options shall vest and
thereafter be exercisable as provided in the respective LandCare Option
Agreement on the date six months immediately following the Effective Time, and
the remaining one-half of such LandCare Stock Options shall vest and thereafter
be exercisable as provided in the respective LandCare Option Agreement on the
first anniversary of the Effective Time; provided, however, in the event a
Senior Option Holder's employment is terminated by LandCare without Cause (as
defined in the respective Senior Option Holder's employment agreement with
LandCare) or if the Senior Option Holder elects to terminate his employment with
LandCare for Good Reason (as defined in the respective Senior Option Holder's
employment agreement with LandCare) the unvested portion of such Senior Option
Holder's LandCare Stock Options shall immediately vest and be exercisable for a
period of three months following termination of employment.
(c) As soon as practicable after the Effective Time, ServiceMaster
shall deliver to the holders of LandCare Stock Options appropriate notices
setting forth such holders' rights pursuant to the respective LandCare Option
Plans and the agreements evidencing the grants of such LandCare Stock Options
shall continue in effect on the same terms and conditions (except as expressly
provided above).
(d) ServiceMaster shall take all corporate action necessary to
reserve for issuance a sufficient number of shares of ServiceMaster Common Stock
for delivery on exercise of the LandCare Stock Options assumed in accordance
with this Section 1.4. As soon as reasonably practicable after the Effective
Time, ServiceMaster shall file a registration statement on Form S-8 (or any
successor or other appropriate form) with respect to the shares of ServiceMaster
Common Stock subject to such LandCare Stock Options and shall use reasonable
efforts to maintain the effectiveness of such registration statement or
registration statements (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such LandCare Stock Options
remain outstanding.
Section 1.5 Fractional Shares.
-----------------
(a) No certificates or scrip representing fractional shares of
ServiceMaster Common Stock shall be issued upon the surrender for exchange of
certificates formerly representing Shares, no dividend or distribution of
ServiceMaster shall relate to such fractional share interests and such
fractional share interests will not entitle the owner thereof to vote or to any
rights of a stockholder of ServiceMaster.
(b) As promptly as practicable following the Effective Time,
ServiceMaster shall cause the Exchange Agent to determine the excess of (i) the
number of whole shares of ServiceMaster Common Stock delivered to the Exchange
Agent by ServiceMaster pursuant to
-7-
<PAGE>
Section 1.3(a) hereof over (ii) the aggregate number of whole shares of
ServiceMaster Common Stock to be distributed to former holders of Shares
pursuant to Section 1.3(b) hereof (such excess being herein called the "Excess
------
Shares"). Following the Effective Time, the Exchange Agent shall, on behalf of
- ------
former holders of certificates representing Shares, sell the Excess Shares at
then-prevailing prices on the NYSE, all in the manner provided in this Section.
(c) The sale of the Excess Shares by the Exchange Agent shall
be executed on the NYSE through one or more member firms of the NYSE and shall
be executed in round lots to the extent practicable. ServiceMaster shall cause
the Exchange Agent to use reasonable efforts to complete the sale of the Excess
Shares as promptly following the Effective Time as, in the Exchange Agent's sole
judgment, is practicable consistent with obtaining the best execution of such
sales in light of prevailing market conditions. Until the net proceeds of such
sale or sales have been distributed to the holders of certificates formerly
representing Shares, the Exchange Agent shall hold such proceeds in trust for
such holders (the "Common Stock Trust"). The Surviving Corporation shall pay all
--------------------
commissions, transfer taxes and other out-of-pocket transaction costs, including
the expenses and compensation of the Exchange Agent incurred in connection with
such sale of the Excess Shares. The Exchange Agent shall determine the portion
of the Common Stock Trust to which each former holder of Shares is entitled, if
any, by multiplying the amount of the aggregate net proceeds comprising the
Common Stock Trust by a fraction, the numerator of which is the amount of the
fractional share interest to which such former holder of Shares is entitled
(after taking into account all Shares held at the Effective Time by such holder)
and the denominator of which is the aggregate amount of fractional share
interests to which all former holders of Shares are entitled.
(d) Notwithstanding subsections (a), (b) and (c) above, the
Surviving Corporation may elect at its option, exercised prior to the Effective
Time, in lieu of the issuance and sale of Excess Shares and the making of the
payments herein above contemplated, to pay each former holder of Shares an
amount in cash equal to the product obtained by multiplying (i) the fractional
share interest to which such former holder (after taking into account all Shares
held at the Effective Time by such holder) would otherwise be entitled by (ii)
the closing price for a share of ServiceMaster Common Stock as reported on the
NYSE Composite Transaction Tape (as reported in The Wall Street Journal, or, if
not reported thereby, any other authoritative source) on the Closing Date (as
hereinafter defined), and, in such case, all references herein to the cash
proceeds of the sale of the Excess Shares and similar references shall be deemed
to mean and refer to the payments calculated as set forth in this subsection
(d).
(e) As soon as practicable after the determination of the
amount of cash, if any, to be paid to holders of certificates formerly
representing Shares with respect to any fractional share interests,
ServiceMaster shall cause the Exchange Agent to make available such amounts to
such holders of certificates formerly representing Shares, subject to surrender
of such certificates in accordance with Section 1.3. For purposes of this
Section 1.5, Shares of any holder represented
-8-
<PAGE>
by two or more certificates may be aggregated, and in no event shall any holder
be paid an amount in cash in respect of more than one share of ServiceMaster
Common Stock.
Section 1.6 Adjustments. In the event of any stock dividend in respect
-----------
of outstanding ServiceMaster Common Stock, or of any split, combination or
reclassification of the outstanding ServiceMaster Common Stock or of any
issuance of any other securities in exchange or in substitution for outstanding
shares of ServiceMaster Common Stock at any time during the period from the date
of this Agreement to the Effective Time, LandCare and ServiceMaster shall make
such adjustment to the Merger Consideration as LandCare and ServiceMaster shall
mutually agree so as to preserve the economic benefits that LandCare and
ServiceMaster each reasonably expected on the date of this Agreement to receive
as a result of the consummation of the Merger and the other transactions
contemplated by this Agreement.
ARTICLE 2
THE SURVIVING CORPORATION
Section 2.1 Certificate of Incorporation. The certificate of incorporation
----------------------------
of Merger Subsidiary in effect at the Effective Time shall be the certificate of
incorporation of the Surviving Corporation until amended in accordance with
applicable law.
Section 2.2 Bylaws. The bylaws of Merger Subsidiary in effect at the
------
Effective Time shall be the bylaws of the Surviving Corporation until amended in
accordance with applicable law.
Section 2.3 Directors and Officers. From and after the Effective Time,
----------------------
until successors are duly elected or appointed and qualified in accordance with
the Delaware Law and the certificate of incorporation and bylaws of the
Surviving Corporation, the directors and officers of Merger Subsidiary at the
Effective Time shall be the directors and officers of the Surviving Corporation,
and the directors and officers of LandCare immediately prior to the Effective
Time shall cease to be directors and officers of LandCare at the Effective Time.
ARTICLE 3
LANDCARE WARRANTIES
References in this Agreement to the "LandCare Disclosure Schedule" mean the
----------------------------
document captioned "LandCare Disclosure Schedule" as constituted upon its
delivery to ServiceMaster prior to ServiceMaster's execution and delivery of
this Agreement. LandCare warrants to ServiceMaster and Merger Subsidiary,
subject in the case of the warranties in each particular section below to the
exceptions set forth in the corresponding section of the LandCare Disclosure
Schedule:
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<PAGE>
Section 3.1 Organization. Each of LandCare and its Subsidiaries is a
------------
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, and has all requisite corporate power
and authority and all necessary governmental approvals to own, lease and operate
its properties and to carry on its business as now being conducted, except where
the failure to be so organized, existing and in good standing or to have such
power, authority and governmental approvals would not have a material adverse
effect on LandCare and its Subsidiaries taken as a whole. Each of LandCare and
its Subsidiaries is duly qualified or licensed to do business and in good
standing in each jurisdiction in which the property owned, leased or operated by
it or the nature of the business conducted by it makes such qualification or
licensing necessary, except where the failure to be so duly qualified or
licensed and in good standing would not, in the aggregate, have a material
adverse effect on LandCare and its Subsidiaries taken as a whole.
Section 3.2 Corporate Authorization; Validity of Agreement; Board Action.
------------------------------------------------------------
(a) LandCare has full corporate power and authority to execute
and deliver this Agreement and, subject to obtaining any necessary approval of
its stockholders as contemplated by Section 5.2 with respect to the adoption of
this Agreement, to consummate the transactions contemplated hereby. The
execution, delivery and performance by LandCare of this Agreement, and the
consummation by it of the transactions contemplated hereby, have been duly and
validly authorized by its board of directors and, except for obtaining the
approval of the stockholders of LandCare as contemplated by Section 5.2 with
respect to the adoption of this Agreement, no other corporate action or
proceedings on the part of LandCare is necessary to authorize the execution and
delivery by LandCare of this Agreement, and the consummation by it of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by LandCare and, assuming this Agreement constitutes a valid and
binding obligation of ServiceMaster and Merger Subsidiary, constitutes a valid
and binding obligation of LandCare, enforceable against LandCare in accordance
with its terms, except that (i) such enforcement may be subject to applicable
bankruptcy, insolvency or other similar laws, now or hereafter in effect,
affecting creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(b) The affirmative vote of the holders of a majority of the
LandCare Common Stock outstanding at the record date for the LandCare
Stockholders Meeting is the only vote of the holders of any class or series of
capital stock of LandCare necessary to adopt this Agreement, and thus to approve
of the transactions contemplated by this Agreement.
Section 3.3 Consents and Approvals; No Violations. Except for all
-------------------------------------
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Securities Act of 1933, as amended
------------
(the "Securities Act"), the Hart-Scott-Rodino Antitrust Improvements Act of
--------------
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<PAGE>
1976, as amended (the "HSR Act"), the state securities or "blue sky" laws, state
-------
takeover laws, and except for the adoption of this Agreement by the stockholders
of LandCare and the filing of the certificate of merger as required by Delaware
Law, neither the execution, delivery or performance of this Agreement nor the
consummation by LandCare of the transactions contemplated hereby nor compliance
by LandCare with any of the provisions hereof will:
(a) conflict with or result in any breach of any provision of
the certificate of incorporation or bylaws or similar organizational documents
of LandCare or of any of its Subsidiaries;
(b) require any filing with, or permit, authorization, consent
or approval of, any court, arbitral tribunal, administrative agency or
commission or other governmental or other regulatory authority, commission or
agency (a "Governmental Entity"), except where the failure to obtain such
-------------------
permits, authorizations, consents or approvals or to make such filings would not
have a material adverse effect on LandCare and its Subsidiaries taken as a whole
and would not, or would not be reasonably likely to, materially impair the
ability of LandCare, ServiceMaster or Merger Subsidiary to consummate the
transactions contemplated by this Agreement;
(c) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
guarantee, other evidence of indebtedness (collectively, the "Debt
----
Instruments"), lease, license, contract, agreement or other instrument or
- -----------
obligation to which LandCare or any of its Subsidiaries is a party or by which
any of them or any of their properties or assets may be bound (a "LandCare
--------
Agreement"), except for any violation, breach or default which would not have a
- ---------
material adverse effect on LandCare and its Subsidiaries taken as a whole;
(d) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to LandCare, any of its Subsidiaries or any of their
properties or assets, except for any violation which would not have a material
adverse effect on LandCare and its Subsidiaries taken as a whole; or
(e) result in the creation or imposition of any mortgage, lien,
pledge, charge, encumbrance or other security interest on any asset of LandCare
or any of its Subsidiaries, except for any such results which would not have a
material adverse effect on LandCare and its Subsidiaries taken as a whole.
Section 3.4 Capitalization.
--------------
(a) The authorized capital stock of LandCare consists of
102,000,000 shares of LandCare Common Stock (including shares of LandCare Common
Stock issued upon the conversion of LandCare's Restricted Voting Common Stock)
and 5,000,000 shares of preferred
-11-
<PAGE>
stock, par value $ .01 per share ("LandCare Preferred Stock"). As of the close
------------------------
of business on the date hereof, (i) 16,624,463 shares of LandCare Common Stock
were issued and outstanding and no shares of LandCare Common Stock were held in
treasury and (ii) no shares of LandCare Preferred Stock were issued and
outstanding or held in treasury. All outstanding shares of the capital stock of
LandCare are, and all shares which may be issued pursuant to the exercise of
LandCare Stock Options will be, when issued in accordance with the respective
terms thereof, duly authorized, validly issued, fully paid and non-assessable.
(b) As of the date hereof, options to acquire an aggregate of
2,185,673 shares of LandCare Common Stock are outstanding under the LandCare
Option Plans. Schedule 3.4(b) lists each holder of an option under the LandCare
Option Plans, the number of shares of LandCare Common Stock issuable with
respect to each such option (assuming full vesting) and the exercise price of
such option. No option issued by the LandCare is or purports to be an "incentive
stock option" within the meaning of Section 422 of the Code (as hereinafter
defined).
(c) There are no bonds, debentures, notes or other indebtedness
having voting rights (or convertible into securities having such rights)
("Voting Debt") of LandCare or any of its Subsidiaries issued and outstanding.
-----------
There are no shares of capital stock of LandCare authorized, issued or
outstanding and there are no existing options, warrants, calls, preemptive
rights, subscriptions or other rights, convertible securities, agreements,
arrangements or commitments of any character, relating to the issued or unissued
capital stock of LandCare or any of its Subsidiaries, obligating LandCare or any
of its Subsidiaries to issue, transfer or sell or cause to be issued,
transferred or sold any shares of capital stock or Voting Debt of, or other
equity interest in, LandCare or any of its Subsidiaries or securities
convertible into or exchangeable for such shares or equity interests or
obligations of LandCare or any of its Subsidiaries to grant, extend or enter
into any such option, warrant, call, subscription or other right, convertible
security, agreement, arrangement or commitment.
(d) There are no outstanding contractual obligations of LandCare or
any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital
stock of LandCare or any Subsidiary or affiliate of LandCare or to provide funds
to make any investment (in the form of a loan, capital contribution or
otherwise) in any Subsidiary or any other entity. None of LandCare or its
Subsidiaries is required to redeem, repurchase or otherwise acquire shares of
capital stock of LandCare, or any of its Subsidiaries, respectively, as a result
of the transactions contemplated by this Agreement.
(e) Except for the Voting Agreements identified in the preamble to
this Agreement, there are no voting trusts or other agreements or understandings
to which LandCare or any of its Subsidiaries is a party with respect to the
voting of the capital stock of LandCare or any of the Subsidiaries.
-12-
<PAGE>
Section 3.5 Subsidiaries; Capitalization of Subsidiaries. Schedule 3.5
--------------------------------------------
sets forth a complete and correct list of the direct and indirect Subsidiaries
of LandCare. All of the outstanding shares of capital stock of, or other
ownership interests in, each Subsidiary of LandCare, is owned by LandCare,
directly or indirectly, free and clear of any mortgage, lien, pledge, charge,
encumbrance or other security interest (including any restriction on the right
to vote, sell or otherwise dispose of such capital stock or other ownership
interests), and all such shares or other ownership interests have been validly
issued and are fully paid and nonassessable.
Section 3.6 SEC Reports and Financial Statements.
------------------------------------
(a) LandCare has filed with the SEC and has heretofore made
available to ServiceMaster true and complete copies of, all forms, reports,
schedules, statements and other documents required to be filed by it and its
Subsidiaries since the LandCare's inception under the Exchange Act and the
Securities Act (as such documents have been amended since the time of their
filing, collectively, the "LandCare SEC Documents"). As of their respective
----------------------
dates or, if amended, as of the date of the last such amendment, the LandCare
SEC Documents, including, without limitation, any financial statements and
schedules included therein, (i) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading and (ii) complied in all material
respects with the applicable requirements of the Exchange Act and the Securities
Act, as the case may be, and the applicable rules and regulations of the SEC
thereunder.
(b) Each of the consolidated financial statements included in
LandCare SEC Documents and the Third Quarter Financial Statements (as
hereinafter defined) has been prepared from, and is in accordance with, the
books and records of LandCare and/or its consolidated Subsidiaries, complies in
all material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, has been
prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis during the periods involved
----
(except as may be indicated in the notes thereto) and fairly presents in all
material respects the consolidated financial position and the consolidated
results of operations (and changes in financial position, if any) of LandCare
and its consolidated Subsidiaries as at the dates thereof or for the periods
presented therein (subject, in the case of unaudited interim financial
statements, to normal year end adjustments and lack of footnote disclosures).
"Third Quarter Financial Statements" means the unaudited consolidated and
- -----------------------------------
consolidating balance sheets and statements of income and changes in
stockholders' equity of LandCare as of and for the three and nine months ended
September 30, 1998 attached hereto as Schedule 3.6.
Section 3.7 Disclosure Documents.
--------------------
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<PAGE>
(a) None of the information supplied or to be supplied by LandCare
specifically for inclusion or incorporation by reference in (i) the registration
statement on Form S-4 to be filed with the SEC by ServiceMaster in connection
with the issuance of ServiceMaster Common Stock in connection with the Merger
(the "Registration Statement") will, at the time the Registration Statement is
----------------------
filed with the SEC, at any time it is amended or supplemented or at the time it
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading or (ii) the proxy statement of LandCare to
be filed by LandCare with the SEC in connection with the Merger (the "LandCare
--------
Proxy Statement") will, at the date it is first mailed to the stockholders of
- ---------------
LandCare or at the time of the LandCare Stockholders Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(b) The LandCare Proxy Statement will comply as to form in all
material respects with the requirements of the Exchange Act, except that no
representation or warranty is made by LandCare with respect to statements made
or incorporated by reference therein based on information supplied by
ServiceMaster specifically for inclusion or incorporation by reference in the
LandCare Proxy Statement.
(c) At the time of the filing of any disclosure document filed
after the date hereof pursuant to the Securities Act, the Exchange Act or any
state securities law (other than the LandCare Proxy Statement, each a "LandCare
--------
Disclosure Document"), and at the time of distribution thereof and until the
- -------------------
Closing Date, each such LandCare Disclosure Document (as supplemented or
amended) will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made therein, in
the light of the circumstances under which they were made, not misleading.
Section 3.8 Absence of Certain Changes. Since June 30, 1998, LandCare and
--------------------------
its Subsidiaries have conducted their respective businesses and operations in
the ordinary course of business. Since June 30, 1998 there has not occurred:
(a) any events, changes or effects (including the incurrence of any
liabilities of any nature, whether or not accrued, contingent or otherwise)
having, or which would be reasonably likely to have, in the aggregate, a
material adverse effect on LandCare and its Subsidiaries taken as a whole;
(b) any declaration, setting aside or payment of any dividend or
other distribution (whether in cash, stock or property) with respect to the
equity interests of LandCare or of any of its Subsidiaries, other than dividends
paid by wholly-owned Subsidiaries;
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(c) any change by LandCare or any of its Subsidiaries in accounting
principles or methods, except for any such change required by reason of a change
in GAAP;
(d) any amendment of any term of any outstanding security of LandCare
or any of its Subsidiaries that would materially increase the obligations of
LandCare or of such Subsidiary under such security;
(e) any incurrence or assumption by LandCare or any of its
Subsidiaries of any indebtedness for borrowed money other than (i) under
existing credit facilities (or any renewals, replacements or extensions that do
not increase the aggregate commitments thereunder), (ii) in the ordinary course
of business (it being understood that any indebtedness incurred prior to the
date hereof in respect of capital expenditures shall be considered to have been
in the ordinary course of business) or (iii) in connection with any acquisition
or capital expenditure permitted by Section 5.1 or the transactions contemplated
hereby;
(f) any guarantee, endorsement or other incurrence or assumption of
liability (whether directly, contingently or otherwise) by LandCare or any of
its Subsidiaries for the obligations of any other person (other than any wholly-
owned Subsidiary of LandCare), other than in the ordinary course of business;
(g) any making of any loan, advance or capital contribution to or
investment in any person by LandCare or any of its Subsidiaries other than (i)
any acquisition permitted by Section 5.6, (ii) loans, advances or capital
contributions to or investments in wholly-owned Subsidiaries of LandCare or
(iii) loans or advances to employees of LandCare or any of its Subsidiaries made
in the ordinary course of business;
(h) any contract or agreement entered into by LandCare or any of its
Subsidiaries on or prior to the date hereof relating to any material acquisition
or disposition of any assets or business or any modification, amendment,
assignment, termination or relinquishment by LandCare or any of its Subsidiaries
of any contract, license or other right (including any insurance policy naming
it or any of its Subsidiaries as a beneficiary or a loss payable payee) that
would have a material adverse effect on LandCare and its Subsidiaries taken as a
whole, other than transactions, commitments, contracts or agreements in the
ordinary course of business and those contemplated by this Agreement; or
(i) any employment, deferred compensation, severance, retirement or
other similar agreement entered into with any director, officer or employee of
LandCare or any of its Subsidiaries (or any amendment to any such existing
agreement), grant of any severance or termination pay to any director, officer
or employee of LandCare or any of its Subsidiaries or change in compensation or
other benefits payable to any director, officer or employee of LandCare or any
of its Subsidiaries pursuant to any severance or retirement plans or policies
thereof, in each case other than in the ordinary course of business.
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<PAGE>
For purposes of this Agreement, "ordinary course of business" with respect
to LandCare and/or its Subsidiaries shall be determined by reference to the
period subsequent to the time LandCare became subject to the Exchange Act and
with respect to any particular Subsidiary, subsequent to the time that such
Subsidiary became a Subsidiary of LandCare .
Section 3.9 No Undisclosed Liabilities. Except (i) to the extent disclosed
--------------------------
in LandCare SEC Documents filed prior to the date of this Agreement and (ii) for
liabilities and obligations incurred since September 30, 1998 in the ordinary
course of business, neither LandCare nor any of its Subsidiaries has incurred
any liabilities or obligations of any nature, whether or not accrued, contingent
or otherwise, that have, or would be reasonably likely to have, individually or
in the aggregate, a material adverse effect on LandCare and its Subsidiaries
taken as a whole. Schedule 3.9 sets forth each instrument evidencing
indebtedness of LandCare and its Subsidiaries which will accelerate or become
due or payable, or result in a right of redemption or repurchase on the part of
the holder of such indebtedness, or with respect to which any other payment or
amount will become due or payable, in any such case with or without due notice
or lapse of time, as a result of this Agreement or the transactions contemplated
hereby.
Section 3.10 Employee Benefit Plans.
----------------------
(a) Schedule 3.10(a) contains an accurate and complete list of (i)
each "employee benefit plan" (as such term is defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
-----
contributed to, maintained or sponsored by LandCare or any of its Subsidiaries,
or with respect to which LandCare or any of its Subsidiaries has any liability
or potential liability; and (ii) each other retirement, savings, thrift,
deferred compensation, severance, stock ownership, stock purchase, stock option,
performance, bonus, incentive, vacation or holiday pay, travel, fringe benefit,
hospitalization or other medical, disability, life or other insurance, and any
other welfare benefit policy, trust, understanding or arrangement of any kind,
whether written or oral, contributed to, maintained or sponsored by LandCare or
any of its Subsidiaries for the benefit of any present or former employee,
officer or director of LandCare or any of its Subsidiaries, or with respect to
which LandCare or any of its Subsidiaries has any liability or potential
liability. Each item listed on Schedule 3.10(a) is referred to herein as a
"Benefit Plan."
------------
(b) Schedule 3.10(b) contains an accurate and complete list of
each collective bargaining agreement and each other agreement, arrangement,
commitment, understanding, plan, or policy of any kind, whether written or oral,
with or for the benefit of any current or former employee, officer, director or
consultant of LandCare or any of its Subsidiaries (including, without
limitation, each employment, compensation, termination or consulting agreement
or arrangement). Each item listed on Schedule 3.10(b) is referred to herein as a
"Compensation Commitment."
-----------------------
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<PAGE>
(c) Each Benefit Plan that is intended to be qualified within the
meaning of Section 401(a) of the Internal Revenue Code of 1986, as amended (the
"Code") and each trust which forms a part of any such Benefit Plan (i) has
----
received a determination from the Internal Revenue Service (the "IRS") that such
---
Benefit Plan is qualified under Section 401(a) of the Code and that such related
trust is exempt from taxation under Section 501(a) of the Code, and nothing has
occurred since the date of such determination that could adversely affect the
qualification of such Benefit Plan or the exemption from taxation of such
related trust; and (ii) is in compliance with the requirements of Sections
401(a)(4) and 410(b) of the Code for each plan year of such Benefit Plan
commencing on or before the Closing Date.
(d) Neither LandCare nor any of its Subsidiaries currently contribute
to, maintain, sponsor or have any liability with respect to any "employee
pension benefit plan" (as such term is defined in Section 3(2) of ERISA) that is
subject to Section 302 of ERISA or Section 412 of the Code, and neither LandCare
nor any of its Subsidiaries has contributed to, maintained or sponsored or have
any liability with respect to any such employee pension benefit plan for any
time preceding the Closing Date.
(e) None of the Benefit Plans or Compensation Commitments obligates
LandCare or any of its Subsidiaries to pay any separation, severance,
termination or similar benefit solely as a result of any transaction
contemplated by this Agreement or solely as a result of a change in control or
ownership within the meaning of Section 280G of the Code.
(f) (i) Each Benefit Plan and any related trust, insurance contract
or fund has been maintained, funded and administered in compliance with its
respective terms and the terms of any applicable collective bargaining
agreements and in compliance with all applicable laws and regulations,
including, but not limited to, ERISA and the Code; (ii) there has been no
application for or waiver of the minimum funding standards imposed by Section
412 of the Code with respect to any Benefit Plan, and neither LandCare nor any
of its Subsidiaries is aware of any facts or circumstances that would materially
change the funded status of any such Benefit Plan; (iii) no asset of LandCare or
any of its Subsidiaries that is to be acquired by ServiceMaster, directly or
indirectly, pursuant to this Agreement is subject to any lien under ERISA or the
Code; (iv) neither LandCare nor any of its Subsidiaries has incurred any
liability under Title IV of ERISA (other than for contributions not yet due) or
to the Pension Benefit Guaranty Corporation (other than for payment of premiums
not yet due); and (v) there are no pending or threatened actions, suits,
investigations or claims with respect to any Benefit Plan or Compensation
Commitment (other than routine claims for benefits) which could result in
liability to LandCare or any of its Subsidiaries (whether direct or indirect),
and neither LandCare nor any of its Subsidiaries has knowledge of any facts
which could give rise to (or be expected to give rise to) any such actions,
suits, investigations or claims.
(g) (i) LandCare and each of its Subsidiaries has complied with the
health care continuation requirements of Part 6 of Title I of ERISA; and (ii)
LandCare and its Subsidiaries
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<PAGE>
have no obligation under any Benefit Plan or otherwise to provide health
benefits to former employees of LandCare or any of its Subsidiaries or any other
person, except as specifically required by Part 6 of Title I of ERISA.
(h) (i) Neither LandCare nor any of its Subsidiaries has incurred any
liability on account of a "partial withdrawal" or a "complete withdrawal"
(within the meaning of Sections 4205 and 4203, respectively, of ERISA) from any
Benefit Plan subject to Title IV of ERISA which is a "multiemployer plan" (as
such term is defined in Section 3(37) of ERISA) (a "Multiemployer Plan"), no
------------------
such liability has been asserted, and there are no events or circumstances which
could result in any such partial or complete withdrawal; and (ii) neither
LandCare nor any of its Subsidiaries is bound by any contract or agreement or
has any obligation or liability described in Section 4204 of ERISA. To the best
knowledge of LandCare and each of its Subsidiaries, each Multiemployer Plan
complies in form and has been administered in accordance with the requirements
of ERISA and, where applicable, the Code; and each Multiemployer Plan is
qualified under Section 401(a) of the Code as amended to the date hereof.
(i) The actions contemplated by this Agreement will not give rise to
any liability with respect to any "employee welfare benefit plan" (as such term
is defined in Section 3(1) of ERISA) that is a "multiemployer plan" (as such
term is defined in Section 3(37) of ERISA).
(j) Neither LandCare nor any ERISA Affiliate has any liability or
potential liability with respect to any "employee benefit plan" (as defined in
Section 3(3) of ERISA) solely by reason of being treated as a single employer
under Section 414 of the Code with any trade, business or entity.
(k) Neither LandCare nor any of its Subsidiaries has, contributes to,
maintains or sponsors or has any liability with respect to any employee benefit
plan, agreement or arrangement applicable to employees of LandCare or any of its
Subsidiaries located outside the United States (the "Foreign Plans").
-------------
(l) With respect to each Benefit Plan and each Compensation
Commitment, LandCare or the appropriate Subsidiary of LandCare has made
available to ServiceMaster true, complete and correct copies of (to the extent
applicable) (i) all documents pursuant to which the Benefit Plan or Compensation
Commitment is maintained, funded and administered, (ii) the most recent annual
report (Form 5500 series) filed with the IRS (with applicable attachments),
(iii) the most recent financial statement, (iv) the most recent actuarial
valuation of benefit obligations, and (v) the most recent determination letter
received from the IRS and the most recent application to the IRS for such
determination letter.
Section 3.11 Compliance with Law. LandCare and its Subsidiaries have complied
-------------------
with all laws, statutes, regulations, rules, ordinances and judgments, decrees,
orders, writs and
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<PAGE>
injunctions, of any court or Governmental Entity relating to any of the property
owned, leased or used by them, or applicable to their business, including, but
not limited to, equal employment opportunity, discrimination, occupational
safety and health, environmental, insurance regulatory, antitrust laws, ERISA
and laws relating to Taxes (as hereinafter defined), except to the extent that
any such non-compliance would not have a material adverse effect on LandCare and
its Subsidiaries taken as a whole.
Section 3.12 Litigation. There is no suit, claim, action, proceeding,
----------
review or investigation pending or, to the knowledge of LandCare, threatened
against or affecting, LandCare or any of its Subsidiaries which, individually or
in the aggregate, is reasonably likely to have a material adverse effect on
LandCare and its Subsidiaries taken as a whole, or would, or would be reasonably
likely to, materially impair the ability of LandCare to consummate the
transactions contemplated by this Agreement.
Section 3.13 No Default. The business of LandCare and each of its
----------
Subsidiaries is not being conducted in default or violation of any term,
condition or provision of (a) its respective certificate of incorporation or
bylaws or similar organizational documents, or (b) any LandCare Agreement,
excluding from the foregoing clause (b) defaults or violations that would not
have a material adverse effect on LandCare and its Subsidiaries taken as a whole
and would not, or would not be reasonably likely to, materially impair the
ability of LandCare, ServiceMaster or Merger Subsidiary to consummate the
transactions contemplated by this Agreement.
Section 3.14 Taxes.
-----
(a) Definitions. For purposes of all of Section 3.14:
-----------
(i) The term "LandCare" includes LandCare and each Subsidiary
--------
of LandCare, including without limitation any corporation or other
entity that became or becomes a Subsidiary of the Company prior to the
Effective Time.
(ii) The term "Tax" means any federal, state, local or foreign
---
income, gross receipts, franchise, estimated, alternative minimum,
add-on minimum, sales, use, transfer, registration, value added,
excise, natural resources, severance, stamp, occupation, premium,
windfall profit, environmental, customs, duties, real property,
personal property, capital stock, social security, unemployment,
disability, payroll, license, employee or other withholding, or other
tax, of any kind whatsoever, including any interest, penalties or
additions to tax or additional amounts in respect of the foregoing.
(iii) The term "Return" means any returns, declarations, reports,
------
claims for refund, amended returns, information returns or other
documents (including any related or supporting schedules, statements
or information) filed or required to be
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<PAGE>
filed in connection with the determination, assessment or collection
of any Tax, or the administration of any laws, regulations or
administrative requirements relating to any Tax.
(b) Tax Filings and Payments.
------------------------
(i) All Returns (as hereinafter defined) required to be filed
on or before the date hereof and the date of the Closing by or on
behalf of LandCare have been duly filed on a timely basis and such
Returns are true, correct and complete in all material respects,
except that such returns may contain inadvertent errors and omissions
which are not material.
(ii) LandCare has timely paid or made adequate provision for
all Taxes and, no other material Taxes are payable by LandCare with
respect to items or periods covered by such Returns (whether or not
shown on or reportable on such Returns).
(iii) LandCare has made or will make adequate provision for all
Taxes payable for any periods that end on or before the Closing for
which no Returns have yet been filed and for any periods that begin
before the Closing and end after the Closing to the extent such Taxes
are attributable to the portion of any such period ending at the
Closing.
(iv) The charges, accruals and reserves for current Taxes
(excluding reserves for deferred Taxes) reflected on the books of
LandCare are not materially less than the Tax liabilities accruing or
payable by LandCare in respect of periods prior to the date hereof and
such charges, accruals and reserves are reflected on LandCare's most
recent financial statements.
(v) LandCare is not delinquent in the payment of any Taxes or
has requested any extension of time within which to file or send any
Return, which Return has not since been filed or sent and which Taxes
have not been paid.
(vi) No deficiencies exist for any Taxes or any penalties,
interest or assessments nor have any been proposed, asserted, or
assessed against LandCare that are not adequately reserved for.
(vii) There is no dispute or claim concerning any material Tax
liability of LandCare either (A) claimed or raised by any authority in
writing or (B) as to which LandCare has knowledge based upon personal
contact with any agent of such authority.
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<PAGE>
(viii) There is no pending audit, examination, or, to LandCare's
knowledge, any investigation of any Return by any authority nor has
LandCare received any notice of such audit, examination, or
investigation.
(ix) LandCare has not waived any statute of limitations in
respect of Taxes or granted any extension of the limitations period
applicable to any claim of Taxes.
(x) LandCare is not subject to liability for Taxes of any
person (other than LandCare or any other member of the affiliated
group of corporations that files a consolidated federal income tax
return, of which LandCare is the common parent), including, without
limitation, liability arising from the application of U.S. Treasury
Regulation section 1.1502-6 or any analogous provision of state, local
or foreign law.
(xi) LandCare is not nor has it ever been a party to any tax
sharing agreement with any entity.
(xii) To LandCare's knowledge, no claim has ever been made by an
authority in a jurisdiction where LandCare does not file Returns that
it is or may be subject to taxation by that jurisdiction.
(xiii) There are no liens on any of the assets of LandCare that
arose in connection with any failure (or alleged failure) to pay any
Taxes.
(xiv) LandCare has withheld and paid over and complied with all
material information reporting and backup withholding requirements,
including, without limitation, maintenance of required records with
respect thereto, in connection with amounts paid or owing to any
employee, independent contractor, creditor, stockholder, or other
third party.
(xv) LandCare does not expect any authority to assess any
additional Taxes for any period for which Returns have been filed
except to an extent consistent with LandCare's past experience as
reflected in its publicly released financial statements.
(xvi) LandCare has delivered to ServiceMaster correct and
complete copies of all Returns, examination reports, and statements of
deficiencies assessed against or agreed to by LandCare.
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<PAGE>
(xvii) LandCare is not a party to any safe harbor lease within
the meaning of Section 168(f)(8) of the Code, as in effect prior to
the amendment by the Tax Equity and Fiscal Responsibility Act of 1982.
(xviii) All material net operating losses, credits and other tax
attributes utilized by LandCare during any taxable year ending on or
prior to the Closing were fully and properly available to LandCare
under all applicable tax laws, regulations and administrative
interpretations thereof.
(c) Tax Characteristics of LandCare.
-------------------------------
(i) To LandCare's knowledge, no stockholder of LandCare who
owns more than 5% of LandCare's Common Stock is a "foreign person" (as
that term is defined in Section 1445(f)(3) of the Code).
(ii) LandCare is not a "consenting corporation" under Section
341(f) of the Code.
(iii) LandCare has not entered into any compensatory agreement
with respect to the performance of services which payment thereunder
would result in a nondeductible expense to LandCare pursuant to
Sections 162(m) or 280G of the Code or an excise tax to the recipient
of such payment pursuant to Section 4999 of the Code.
(iv) LandCare has not agreed, nor is it required to make, any
adjustment under Section 481(a) of the Code by reason of a change in
accounting method or otherwise.
(v) To LandCare's knowledge, LandCare will not be required as
a result of any "closing agreement" described in Section 7121 of the
Code (or any corresponding provision of state, local or foreign income
Tax law), to include any item of income in, or exclude any item of
deduction from, taxable income for any taxable period (or portion
thereof) ending after the Closing.
(vi) LandCare will not be required as a result of any deferred
intercompany gain described in Treasury Regulation Section 1.1502-13
or any excess loss account described in Treasury Regulation Section
1.1502-19 (or any corresponding or similar provision or administrative
rule of federal, state, local or foreign income tax law), to include
any item of income in taxable income for any period (or portion
thereof) ending after the Closing Date.
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(vii) Not later than December 1, 1998, LandCare will supply a
schedule to ServiceMaster showing: (A) the amount of any net operating
loss, net capital loss, unused credits, unused foreign tax or excess
charitable contribution; and (B) the amount of any deferred gain or
loss arising out of any deferred intercompany transaction.
Section 3.15 Contracts. Each material LandCare Agreement is valid, binding
---------
and enforceable and in full force and effect, except where failure to be valid,
binding and enforceable and in full force and effect would not have a material
adverse effect on LandCare and its Subsidiaries taken as a whole, and there are
no defaults thereunder, except those defaults that would not have a material
adverse effect on LandCare and its Subsidiaries taken as a whole. Neither
LandCare nor any of its Subsidiaries is a party to any agreement that expressly
and materially limits the ability of LandCare or any of its Subsidiaries to
compete in or conduct any line of business or compete with any person or in any
geographic area or during any period of time. All material contracts of LandCare
and its Subsidiaries will continue to be legal, valid, binding and enforceable,
and in full force and effect, on identical terms following the consummation of
the Merger.
Section 3.16 Transactions with Affiliates. Except to the extent disclosed
----------------------------
in LandCare SEC Documents filed prior to the date of this Agreement, since June
30, 1998 there have been no material transactions, agreements, arrangements or
understandings between LandCare or its Subsidiaries, on the one hand, and the
affiliates of LandCare (other than wholly-owned Subsidiaries of LandCare) or
other Persons, on the other hand, that would be required to be disclosed under
Item 404 of Regulation S-K under the Securities Act.
Section 3.17 Environmental Matters. Except as set forth in LandCare SEC
---------------------
Documents filed prior the date hereof:
(a) For purposes of this Agreement, "Environmental, Health and
-------------------------
Safety Requirements" shall mean all federal, state, local and foreign statutes,
- -------------------
regulations, ordinances and other provisions having the force or effect of law,
all judicial and administrative orders and determinations, all contractual
obligations and all common law concerning public health and safety, worker
health and safety, and pollution or protection of the environment, including
without limitation all those relating to the presence, use, production,
generation, handling, transportation, treatment, storage, disposal,
distribution, labeling, testing, processing, discharge, release, threatened
release, control, or cleanup of any hazardous materials, substances or wastes,
chemical substances or mixtures, pesticides, pollutants, contaminants, toxic
chemicals, petroleum products or byproducts, asbestos, polychlorinated
biphenyls, noise or radiation, each as amended.
(b) Each of LandCare and its Subsidiaries has complied and is in
compliance with all Environmental, Health, and Safety Requirements, except for
any noncompliance that
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<PAGE>
would not, in the aggregate, have a material adverse effect on LandCare and its
Subsidiaries taken as a whole.
(c) Without limiting the generality of the foregoing, each of
LandCare and its Subsidiaries has obtained and complied with, and is in
compliance with, all permits, licenses and other authorizations that are
required pursuant to Environmental, Health and Safety Requirements
("Environmental Permits") for the occupation of its facilities and the operation
---------------------
of its business, except for any failure to maintain or comply with Environmental
Permits that would not, in the aggregate, have a material adverse effect on
LandCare and its Subsidiaries taken as a whole.
(d) Neither LandCare, nor any of its Subsidiaries has received any
written or oral notice, report or other information regarding any actual or
alleged violation of Environmental, Health and Safety Requirements, or any
liabilities or potential liabilities (whether accrued, absolute, contingent,
unliquidated or otherwise), including any investigatory, remedial or corrective
obligations, relating to any of them or its facilities arising under
Environmental, Health and Safety Requirements, except for such notices, reports
or other information, the subject of which would not, in the aggregate, have a
material adverse effect on LandCare and its Subsidiaries taken as a whole.
(e) None of LandCare or its Subsidiaries, or their respective
predecessors, has treated, stored, disposed of, arranged for or permitted the
disposal of, transported, handled or released any substance, including without
limitation any hazardous substance, or owned or operated any property or
facility (and no such property or facility is contaminated by any such
substance) in a manner that has given or would give rise to liabilities,
including any liability for response costs, corrective action costs, personal
injury, property damage, natural resources damages or attorney fees, pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), the Solid Waste Disposal Act, as amended ("SWDA"),
------ ----
or any other Environmental, Health and Safety Requirements, except for such
liabilities that would not, in the aggregate, have a material adverse effect on
LandCare and its Subsidiaries taken as a whole.
(f) Neither this Agreement nor the consummation of the transaction
that is the subject of this Agreement will result in any obligations for site
investigation or cleanup, or notification to or consent of government agencies
or third parties, pursuant to any of the so-called "transaction-triggered" or
"responsible property transfer" Environmental, Health and Safety Requirements.
(g) Neither LandCare nor its Subsidiaries has, either expressly or by
operation of law, assumed, undertaken or otherwise become subject to any
liability, including without limitation any obligation for corrective or
remedial action, of any other person or entity relating to Environmental, Health
and Safety Requirements except that the Company acquires ownership of businesses
by merging the entity owning the business with a subsidiary of the Company and
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<PAGE>
in such acquisitions the resulting subsidiary would be subject to the
liabilities to which the merging entity was subject.
(h) No facts, events or conditions relating to the past or present
facilities, properties or operations of LandCare, its Subsidiaries or any of
their predecessors will prevent, hinder or limit continued compliance with
Environmental, Health and Safety Requirements, give rise to any investigatory,
remedial or corrective obligations pursuant to Environmental, Health and Safety
Requirements or give rise to any other liabilities (whether accrued, absolute,
contingent, unliquidated or otherwise) pursuant to Environmental, Health and
Safety Requirements, including without limitation any relating to onsite or
offsite releases or threatened releases of hazardous materials, substances or
wastes, personal injury, property damage or natural resources damage, except for
such liabilities which would not, in the aggregate, have a material adverse
effect on LandCare and its Subsidiaries taken as a whole.
Section 3.18 Intellectual Property. LandCare and its Subsidiaries own or
---------------------
have a valid license to use all patents, trademarks, service marks, trade names,
copyrights, trade secrets and other intellectual property rights (collectively,
the "LandCare Intellectual Property") necessary to carry on their respective
------------------------------
business as currently conducted; and neither LandCare nor any of its
Subsidiaries has received any notice of infringements of or conflict with, and
to LandCare's knowledge, there are no infringements of or conflicts with, the
rights of others with respect to the use of any of LandCare Intellectual
Property that, in either such case, would have a material adverse effect on
LandCare.
Section 3.19 Opinion of Financial Advisor. LandCare has received the
----------------------------
written opinion of BT Alex. Brown Incorporated ("BT Alex. Brown") to the effect
--------------
that, as of the date hereof, the Merger Consideration to be received by the
holders of Shares in connection with the Merger is fair to such holders from a
financial point of view. LandCare has delivered or made available to
ServiceMaster a copy of such opinion.
Section 3.20 Finders and Investment Bankers. No broker, finder or
------------------------------
investment banker is entitled to any brokerage, finder's or other fee or
commission, or to the reimbursement of any of its expenses, in connection with
the transactions contemplated by this Agreement or any similar transaction based
upon arrangements made by or on behalf of LandCare, except for the arrangements
between LandCare and BT Alex. Brown under which the aggregate payments will not
exceed $1.2 million. LandCare shall supply ServiceMaster not later than November
5, 1998 with the engagement letter for BT Alex. Brown and all other agreements
or understandings affecting the amount that may be payable by LandCare to BT
Alex. Brown.
Section 3.21 Takeover Statutes. To the best of LandCare's knowledge, no
-----------------
"fair price," "moratorium," "control share acquisition" or other similar
antitakeover statute or regulation enacted under state or federal laws in the
United States (each, a "Takeover Statute") applicable to
----------------
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<PAGE>
LandCare or any of its Subsidiaries is applicable to the Merger or the other
transactions contemplated by this Agreement.
Section 3.22 Insurance. The LandCare Disclosure Schedule lists the
---------
insurance policies covering LandCare on the date hereof and on the date hereof
each such policy is in full force and effect. Neither LandCare nor any
Subsidiary of LandCare is in default with respect to its obligations under any
insurance policy maintained by it, and neither LandCare nor any LandCare
Subsidiary (since the time any such Subsidiary became a Subsidiary of LandCare)
has been denied insurance coverage at any time for any reason.
Section 3.23 Supportive Stockholder Actions.
------------------------------
(a) Every person listed in Section 3.23(a) of the LandCare
Disclosure Schedule has executed in the capacity of stockholder a Voting
Agreement in a form substantially identical to the Voting Agreement executed on
the date hereof between ServiceMaster and Linda T. Benge. The persons listed in
Section 3.23(a) of the LandCare Disclosure Schedule collectively own and have
the right to vote approximately 30% shares of LandCare Common Stock outstanding
on the date hereof.
(b) LandCare has obtained Voting and Share Substitution Agreements
from each of the persons listed in Section 3.23(b) of the LandCare Disclosure
Schedule in substantially the form previously provided to ServiceMaster and each
such agreement is enforceable against the person listed in Section 3.23(b) of
the LandCare Disclosure Schedule who is a party to that Agreement in accordance
with its terms.
(c) Agreements complying with Section 1.4 (b) have been obtained
from the five individuals cited in Section 1.4(b) of the LandCare Disclosure
Schedule and each such Agreement is enforceable against the individual party to
it in accordance with its terms.
(d) LandCare will provide ServiceMaster with two original executed
copies of each such agreement cited in this Section 3.23 not later than November
5, 1998.
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ARTICLE 4
WARRANTIES OF
SERVICEMASTER AND MERGER SUBSIDIARY
References in this Agreement to the "ServiceMaster Disclosure Schedule"
---------------------------------
mean the document captioned "ServiceMaster Disclosure Schedule" as constituted
upon its delivery to LandCare prior to LandCare's execution and delivery of this
Agreement. ServiceMaster warrants to LandCare, subject in the case of the
warranties in each particular section below to the exceptions set forth in the
corresponding section of the ServiceMaster Disclosure Schedule:
Section 4.1 Organization. ServiceMaster is a corporation duly
------------
organized, validly existing and in good standing under the laws of the State of
Delaware. Merger Subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Each of
ServiceMaster and its Subsidiaries has all requisite corporate or other power
and authority and all necessary governmental approvals to own, lease and operate
its properties and to carry on its business as now being conducted, except where
the failure to be so organized, existing and in good standing or to have such
power, authority and governmental approvals would not have a material adverse
effect on ServiceMaster and its subsidiaries taken as a whole. ServiceMaster and
each of its Subsidiaries is duly qualified or licensed to do business and in
good standing in each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be so duly
qualified or licensed and in good standing would not in the aggregate, have a
material adverse effect on ServiceMaster and its Subsidiaries taken as a whole.
Merger Subsidiary has not heretofore conducted any business other than in
connection with this Agreement and the transactions contemplated hereby.
Section 4.2 Corporate Authorization; Validity of Agreement; Necessary
---------------------------------------------------------
Action. ServiceMaster and Merger Subsidiary have full corporate power and
- ------
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
ServiceMaster and Merger Subsidiary of this Agreement and the consummation by
ServiceMaster and Merger Subsidiary of the transactions contemplated hereby have
been duly and validly authorized by their respective boards of directors and no
other corporate action or proceedings on the part of ServiceMaster and Merger
Subsidiary are necessary to authorize the execution and delivery by
ServiceMaster and Merger Subsidiary of this Agreement, and the consummation by
ServiceMaster and Merger Subsidiary of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by ServiceMaster and Merger
Subsidiary, and, assuming this Agreement constitutes a valid and binding
obligation of LandCare, constitutes a valid and binding obligation of each of
ServiceMaster and Merger Subsidiary, enforceable against each of them in
accordance with their terms, except that (i) such enforcement may be subject to
applicable bankruptcy, insolvency or other similar laws, now or hereafter in
effect, affecting creditors' rights generally, and (ii) the remedy of specific
performance
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and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought. ServiceMaster Common Stock to be issued in connection with the
Merger will when issued be duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights. No vote of the holders of
ServiceMaster Common Stock is necessary for ServiceMaster to consummate the
Merger or to issue the shares of ServiceMaster Common Stock to be issued in
connection with the Merger or for Merger Subsidiary to consummate the Merger.
Section 4.3 Consents and Approvals; No Violations. Except for filings,
-------------------------------------
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Exchange Act, the Securities Act, the HSR
Act, state Securities or "blue sky" laws and any applicable state takeover laws,
and the filing of the Certificate of Merger as required by Delaware Law, neither
the execution, delivery or performance of this Agreement by ServiceMaster and
Merger Subsidiary nor the consummation by ServiceMaster and Merger Subsidiary of
the transactions contemplated hereby nor compliance by ServiceMaster and Merger
Subsidiary with any of the provisions hereof will:
(a) conflict with or result in any breach of any provision of
the certificate of incorporation or bylaws of ServiceMaster or Merger Subsidiary
or any other Subsidiary of ServiceMaster;
(b) require any filing with, or permit, authorization, consent
or approval of, any Governmental Entity, except where the failure to obtain such
permits, authorizations, consents or approvals or to make such filings would not
have a material adverse effect on ServiceMaster and its Subsidiaries taken as a
whole and would not, or would not be reasonably likely to, materially impair the
ability of LandCare, ServiceMaster and Merger Subsidiary to consummate the
transactions contemplated by this Agreement;
(c) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
guarantee, other evidence of indebtedness, lease, license, contract, agreement
or other instrument or obligation to which ServiceMaster or any of its
Subsidiaries is a party or by which any of them or any of their properties or
assets may be bound other than any violation, breach or default which would not
have a material adverse effect on ServiceMaster and its Subsidiaries taken as a
whole; or
(d) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to ServiceMaster, any of its Subsidiaries or any of
their properties or assets, other than any violation which would not have a
material adverse effect on ServiceMaster and its Subsidiaries taken as a whole.
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Section 4.4 Capitalization. The authorized capital stock of
--------------
ServiceMaster consists of 1,000,000,000 shares of ServiceMaster Common Stock and
11,000,000 shares of preferred stock, par value $0.01 per share (the
"ServiceMaster Preferred Stock"). As of the close of business on October 23,
-----------------------------
1998, (a) 296,104,099 shares of ServiceMaster Common Stock were issued and
outstanding and (b) no shares of ServiceMaster Preferred Stock were issued and
outstanding. As of the close of business on September 30, 1998, 1,552,369 shares
of ServiceMaster Common Stock were held in treasury. All of the issued and
outstanding shares of ServiceMaster Common Stock are duly authorized, validly
issued, fully paid and non-assessable.
Section 4.5 SEC Reports and Financial Statements.
------------------------------------
(a) ServiceMaster has filed with the SEC and has heretofore
made available to LandCare true and complete copies of, all forms, reports,
schedules, statements and other documents required to be filed by it since
December 31, 1996 under the Exchange Act and the Securities Act (as such
documents have been amended since the time of their filing, collectively, the
"ServiceMaster SEC Documents"). As of their respective dates or, if amended, as
---------------------------
of the date of the last such amendment, ServiceMaster SEC Documents, including,
without limitation, any financial statements and schedules included therein (i)
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (ii) complied in all material respects with the applicable
requirements of the Exchange Act and the Securities Act, as the case may be, and
the applicable rules and regulations of the SEC thereunder.
(b) Each of the consolidated financial statements included in
ServiceMaster SEC Documents complies in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto, has been prepared in accordance with GAAP applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto) and fairly presents in all material respects the consolidated
financial position and the consolidated results of operations and cash flows
(and changes in financial position, if any) of ServiceMaster and its
consolidated Subsidiaries as at the dates thereof or for the periods presented
therein (subject, in the case of unaudited interim financial statements, to
normal year end adjustments and lack of footnote disclosures).
Section 4.6 Absence of Certain Changes. Except as disclosed in
--------------------------
ServiceMaster SEC Documents filed with the SEC prior to the date hereof, since
June 30, 1998, ServiceMaster and its Subsidiaries have conducted their
respective businesses and operations in the ordinary course of business
consistent with past practice. Since June 30, 1998, there has not occurred: (i)
any events, changes or effects (including the incurrence of any liabilities of
any nature, whether or not accrued, contingent or otherwise) having or, which
would be reasonably likely to have, in the aggregate, a material adverse effect
on ServiceMaster and its Subsidiaries taken as a whole; (ii) any declaration,
setting aside or payment of any distribution (whether in cash, shares or
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property) with respect to the equity interests of ServiceMaster or of any of its
Subsidiaries, other than regular quarterly cash dividends or dividends paid by
wholly-owned Subsidiaries; or (iii) any change by ServiceMaster or any of its
Subsidiaries in accounting principles or methods, except for any such change
required by reason of a change in GAAP.
Section 4.7 No Undisclosed Liabilities. Except (i) to the extent
--------------------------
disclosed in ServiceMaster SEC Documents filed prior to the date of this
Agreement and (ii) for liabilities and obligations incurred in the ordinary
course of business consistent with past practice, since September 30, 1998,
neither ServiceMaster nor any of its Subsidiaries has incurred any liabilities
or obligations of any nature, whether or not accrued, contingent or otherwise,
that have, or would be reasonably likely to have, individually or in the
aggregate, a material adverse effect on ServiceMaster and its Subsidiaries taken
as a whole.
Section 4.8 Litigation. There is no suit, claim, action, proceeding,
----------
review or investigation pending or, to the knowledge of ServiceMaster,
threatened against or affecting, ServiceMaster or any of its Subsidiaries which,
individually or in the aggregate, is reasonably likely to have a material
adverse effect on ServiceMaster and its Subsidiaries taken as a whole, or would,
or would be reasonably likely to, materially impair the ability of ServiceMaster
to consummate the transactions contemplated by this Agreement.
Section 4.9 Compliance with Law. ServiceMaster and its Subsidiaries
-------------------
have complied with all laws, statutes, regulations, rules, ordinances and
judgments, decrees, orders, writs and injunctions, of any court or Governmental
Entity relating to any of the property owned, leased or used by them, or
applicable to their business, including, but not limited to, equal employment
opportunity, discrimination, occupational safety and health, environmental,
insurance, regulatory, antitrust laws, ERISA and laws relating to Taxes, except
to the extent that any such non-compliance would not have a material adverse
effect on ServiceMaster and its Subsidiaries taken as a whole.
Section 4.10 No Default. The business of ServiceMaster and each of its
----------
Subsidiaries is not being conducted in default or violation of any term,
condition or provision of (i) its respective certificate of incorporation or
bylaws or similar organizational documents, or (ii) agreements to which
ServiceMaster and its Subsidiaries are parties, excluding from the foregoing
clause (ii) defaults or violations that would not have a material adverse effect
on ServiceMaster and its Subsidiaries taken as a whole and would not, or would
not be reasonably likely to, materially impair the ability of ServiceMaster,
LandCare or Merger Subsidiary to consummate transactions contemplated by this
Agreement.
Section 4.11 Disclosure Documents. None of the information supplied or
--------------------
to be supplied by ServiceMaster specifically for inclusion or incorporation by
reference in (i) the Registration Statement will, at the time the Registration
Statement is filed with the SEC, at any time it is amended or supplemented or at
the time it becomes effective under the Securities Act, contain any
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untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or (ii) the
LandCare Proxy Statement will, at the date it is first mailed to LandCare
stockholders or at the time of LandCare Stockholders Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The Registration
Statement will comply as to form in all material respects with the requirements
of the Securities Act, except that no representation or warranty is made by
ServiceMaster with respect to statements made or incorporated by reference in
either the Registration Statement or the LandCare Proxy Statement based on
information supplied by LandCare specifically for inclusion or incorporation by
reference therein.
Section 4.12 Opinion of Financial Advisor. ServiceMaster has received
----------------------------
an opinion from CS First Boston dated the date of this Agreement to the effect
that, as of such date, the consideration to be paid by ServiceMaster in the
Merger is fair to ServiceMaster from a financial point of view.
ARTICLE 5
COVENANTS OF LANDCARE
Section 5.1 Conduct of Business by LandCare Pending the Merger.
--------------------------------------------------
LandCare covenants and agrees that prior to the Effective Time or the date, if
any, on which this Agreement is earlier terminated pursuant to Section 9.1
hereof, unless ServiceMaster and Merger Subsidiary shall otherwise consent in
writing or except as otherwise contemplated by this Agreement:
(a) the businesses of LandCare and its Subsidiaries will be
conducted only in the ordinary and usual course; LandCare will use its
reasonable best efforts to preserve intact its business organization and
goodwill, keep available the services of its officers and employees and maintain
satisfactory relationships with customers and others having business
relationships with it and its Subsidiaries; and LandCare will promptly notify
ServiceMaster and Merger Subsidiary of any event or occurrence or emergency not
in the ordinary and usual course of the business of LandCare or any of its
Subsidiaries or material to the business of LandCare and its Subsidiaries, taken
as a whole;
(b) LandCare will not (i) amend its certificate of
incorporation or bylaws or (ii) split, combine or reclassify the outstanding
Shares or declare, set aside or pay any dividend payable in cash, stock or
property with respect to the Shares, other than dividends paid by any of its
Subsidiaries to LandCare;
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<PAGE>
(c) neither LandCare nor any of its Subsidiaries will issue or
agree to issue any additional shares of, or rights of any kind to acquire shares
of, its capital stock of any class, other than (i) the issuance of shares of
capital stock of a Subsidiary of LandCare to LandCare, (ii) with respect to
LandCare, Shares issuable upon exercise of LandCare Stock Options outstanding on
the date hereof, (iii) options to purchase Shares issued to employees of
enterprises acquired in Additional Acquisitions closed after the date hereof
provided that the number of Shares subject to options issued with respect to any
particular Additional Acquisition shall not exceed 10% of the number of Shares
issued in that Acquisition and the exercise price for such Option shall not be
lower than $11 per Share; (iv) Shares issuable in connection with the conversion
of any of the notes set forth in the Section of LandCare Disclosure Schedule
corresponding to Section 3.4(c) and (v) the issuance of shares of capital stock
as expressly permitted under Section 5.6 of this Agreement.
(d) neither LandCare nor any of its Subsidiaries will enter
into or agree to enter into any new or amended contract or agreement with any
labor unions representing employees of LandCare or any of its Subsidiaries;
(e) except permitted by Section 5.4 or by Section 5.6,
LandCare will not authorize, recommend, propose or announce an intention to
authorize, recommend or propose, or enter into an agreement in principle or an
agreement with respect to any merger, consolidation or business combination
(other than the Merger), any acquisition or disposition of a material amount of
assets or securities (including, without limitation, the assets or securities of
any of its Subsidiaries) or any material change in its capitalization, or enter,
other than in the ordinary course of business, into a material contract;
(f) neither LandCare nor any of its Subsidiaries shall modify,
amend or terminate any of the material LandCare Agreements or waive, release or
assign any material rights or claims, except in the ordinary course of business;
(g) neither LandCare nor any of its Subsidiaries shall: (i)
grant any increase in the compensation payable or to become payable by LandCare
or any of its Subsidiaries to any officer or management employee other than
scheduled annual increases in the ordinary course of business; (ii) adopt any
new, or amend or otherwise increase, or accelerate the payment or vesting of the
amounts payable or to become payable under any existing, bonus, incentive
compensation, deferred compensation, severance, profit sharing, stock option,
stock purchase, insurance, pension, retirement or other employee benefit plan
agreement or arrangement; (iii) enter into any, or amend any existing,
employment, consulting or severance agreement with or, except in accordance with
the existing written policies of LandCare, grant any severance or termination
pay to any officer, director or employee of LandCare or any of its Subsidiaries;
(iv) make any additional contributions to any grantor trust created by LandCare
to provide funding for non-tax-qualified employee benefits or compensation; or
(v) provide any new severance program or rights;
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(h) to the extent within their control, neither LandCare nor
any of its Subsidiaries shall permit any material insurance policy naming it as
a beneficiary or a loss payable payee to be canceled or terminated, except in
the ordinary course of business;
(i) except for increases in the aggregate principal amount of
LandCare's senior credit facility of up to $125 million, neither LandCare nor
any of its Subsidiaries shall: (i) incur or assume any debt except for
borrowings under existing credit facilities in the ordinary course of business;
(ii) assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any other
person, except in the ordinary course of business; (iii) make any loans,
advances or capital contributions to, or investments in, any other person (other
than to wholly-owned Subsidiaries of LandCare, customary loans or advances to
employees in the ordinary course of business and short-term investments pursuant
to customary cash management systems of LandCare in the ordinary course of
business); or (iv) make or commit to make any material capital expenditure in an
amount or character that is not consistent with LandCare's past practices;
(j) neither LandCare nor any of its Subsidiaries shall change
any of the accounting principles used by it unless required by GAAP;
(k) except upon the prior written consent of ServiceMaster,
LandCare shall not make any Tax election; and
(l) neither LandCare nor any Subsidiary of LandCare shall
agree in writing or otherwise to take (i) any action that it is prohibited from
taking by this Section 5.1, or (ii) any action that would constitute or is
likely to cause or result in a breach of any covenant, agreement, representation
or warranty set forth herein.
Section 5.2 LandCare Stockholders Meeting. The board of directors of
-----------------------------
LandCare shall unanimously recommend to the stockholders of LandCare the
adoption of this Agreement and declare the approval of this Agreement advisable
and LandCare shall take all reasonably lawful action to solicit such adoption by
its stockholders. Notwithstanding the previous sentence, the board of directors
of LandCare may withdraw or modify its recommendation that stockholders approve
this Agreement and its finding that such approval is advisable if the board of
directors of LandCare, after having consulted with outside counsel, determines
that the refusal to do so would constitute a breach by the board of directors of
LandCare of their fiduciary duties under applicable laws; provided, the board of
directors of LandCare may not approve or recommend (and in connection therewith,
withdraw or modify its approval or recommendation with respect to this
Agreement) an Acquisition Transaction (as hereinafter defined) unless such
Acquisition Transaction is a bona fide unsolicited written proposal from a third
party that the board of directors of LandCare determines in good faith is more
favorable to the stockholders of LandCare than the Merger; provided, further,
that the board of directors shall continue to take all action necessary to
convene the LandCare Stockholders Meeting and shall submit for (or shall not
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<PAGE>
withdraw from) the consideration of the stockholders of LandCare the adoption of
this Agreement (even if the board of directors of LandCare is permitted to
withdraw or modify its approval with respect to this agreement or is permitted
to approve or recommend an Acquisition Transaction to its stockholders pursuant
to this sentence).
Section 5.3 Access to Information. LandCare will give ServiceMaster,
---------------------
its counsel, financial advisors, auditors and other authorized representatives
full access throughout the period prior to the Effective Time to all of the
offices, properties, business and marketing plans, books, files and records of
LandCare and the Subsidiaries of LandCare, will furnish to ServiceMaster, its
counsel, financial advisors, auditors and other authorized representatives such
financial and operating data and other information as such persons may request
and will instruct LandCare's employees, counsel and financial advisors to
cooperate with ServiceMaster in its investigation of the business of LandCare
and its Subsidiaries and to promptly answer and respond to any questions and
inquiries of ServiceMaster. LandCare will furnish promptly to ServiceMaster and
Merger Subsidiary (a) a copy of each report, schedule and other document filed
or received by it pursuant to the requirements of Federal or state securities
laws and (b) all such other information concerning its business, properties and
personnel as ServiceMaster or Merger Subsidiary may reasonably request; provided
that no investigation pursuant to this Section 5.3 shall affect any
representation or warranty contained herein or the conditions to the obligations
of the parties to consummate the Merger.
Section 5.4 No Solicitation.
---------------
(a) LandCare warrants to ServiceMaster that the board of
directors of LandCare has (i) made such assessments of LandCare's value and has
taken such other actions as to satisfy the fiduciary duties of its board of
directors that must be satisfied to enable LandCare to enter into this Agreement
and to render this Agreement binding upon LandCare in accordance with its terms
and (ii) has adopted a resolution approving this Agreement and declaring its
advisability.
(b) LandCare agrees that, prior to the Effective Time, it
shall not, and shall not authorize or permit any of its Subsidiaries or any of
its or its Subsidiaries' directors, officers, employees, agents or
representatives, directly or indirectly, to solicit, initiate or knowingly
encourage (including by way of furnishing or disclosing non-public information)
any inquiries or the making of any proposal with respect to any merger,
consolidation or other business combination involving LandCare or the
acquisition of all or any material portion of the assets or capital stock of
LandCare (an "Acquisition Transaction") or negotiate, explore or otherwise
-----------------------
engage in substantive discussions with any person (other than ServiceMaster,
Merger Subsidiary or their respective directors, officers, employees, agents and
representatives), or enter into any agreement, with respect to any Acquisition
Transaction or enter into any agreement, arrangement or understanding requiring
it to abandon, terminate or fail to consummate the Merger or any other
transactions contemplated by this Agreement.
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<PAGE>
(c) Notwithstanding subsection (b) above:
(i) LandCare may provide non-public information to
and seek to negotiate an Acquisition Transaction with a person
(the "Competitor") provided that the Competitor shall make a
----------
bona fide unsolicited written proposal to make an Acquisition
Transaction for all the capital stock or assets of LandCare on
Superior Terms. For purposes of this Agreement, terms will be
deemed to be "Superior Terms" only if the proposal of such
--------------
Competitor is more favorable than the Merger to the stockholders
of LandCare as determined in good faith by the board of
directors of LandCare. A proposal to acquire LandCare on
Superior Terms is herein called a "Qualified Competing
-------------------
Proposal." LandCare shall prior to entering into an agreement
--------
with respect to a Qualified Competing Proposal pay or cause to
be paid to ServiceMaster the amount specified in Section 9.4(b).
Nothing contained in this Agreement shall prevent the board of
directors of LandCare from complying with Rule 14c-2 under the
Exchange Act with regard to an Acquisition Transaction.
(ii) If LandCare receives a Qualified Competing
Proposal, LandCare will nevertheless (i) permit its stockholders
to vote on the adoption of this Agreement and (ii) not take any
action that would preclude LandCare from consummating the Merger
if this Agreement is adopted by LandCare's stockholders or make
the Merger any less advantageous to ServiceMaster if this
Agreement is adopted by LandCare's stockholders. If this
Agreement is adopted by LandCare's stockholders (i) LandCare
will consummate the Merger and (ii) shall not consummate any
Acquisition Transaction contemplated by a Qualified Competing
Proposal.
(d) Upon executing this Agreement, LandCare shall immediately
advise ServiceMaster in writing regarding (i) the identity of any other persons
or entities with whom LandCare has had direct or indirect contact since January
1, 1998 regarding a possible Acquisition Transaction and (ii) the status of any
discussions or negotiations regarding a possible Acquisition Transaction
involving any such person or entity. LandCare warrants that LandCare is not
bound by any contract or agreement that would require it to take any action
which would violate any restriction contained in Section 5.4(b). Hereafter,
LandCare shall advise ServiceMaster in writing of the receipt, directly or
indirectly, of any inquiries or proposals relating to an Acquisition Transaction
promptly upon such receipt and of its intention to enter into any agreement
relating to an Acquisition Transaction which is a Qualified Competing Proposal
at least 48 hours prior to executing any such agreement, and promptly advise
ServiceMaster in writing of any actions taken pursuant to Section 5.4(c) hereof
and furnish to ServiceMaster either a copy of such proposal or a written summary
of such proposal.
Section 5.5 Corporate Organization. Notwithstanding anything to the
----------------------
contrary contained in this Agreement or in the disclosure schedules hereto,
LandCare and each of its Subsidiaries
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shall take all actions necessary in order to be duly qualified and in good
standing on the Effective Time with the Secretary of State in each jurisdiction
in which the character of its properties owned or held under lease or the nature
of its activities makes such qualification necessary.
Section 5.6 Pipeline Acquisitions.
---------------------
(a) LandCare has delivered to ServiceMaster prior to the
execution of this Agreement a schedule captioned "Pipeline Schedule" which as
-----------------
constituted when so delivered to ServiceMaster prior to execution of this
Agreement is herein called the "Pipeline Schedule." LandCare warrants to
ServiceMaster that the Pipeline Schedule shows: (i) every enterprise with which
LandCare has entered into a letter of intent or binding acquisition agreement
contemplating the acquisition of such enterprise by LandCare which is in
existence on the date hereof (except that the acquisition of Albuquerque
Landscape identified in Section 5.6(f) shall not be deemed to be part of the
Pipeline Schedule); (ii) the purchase price for such enterprise specified in
such letter of intent or acquisition agreement; and (iii) the annual revenues
and proforma EBITDA that LandCare estimates such enterprise generated in the
trailing 12 months prior to the execution of the letter of intent with respect
to that enterprise.
(b) LandCare shall not enter into any letter of intent or
agreement to make any acquisition of any business enterprise or consummate any
acquisition of any business enterprise after the date hereof except that
LandCare may enter into purchase agreements for the enterprises shown on the
Pipeline Schedule on terms that comply with the requirements in Section 5.6(d)
and may consummate such acquisitions and except that LandCare shall have the
right to make additional acquisitions of enterprises not shown on the Pipeline
Schedule that comply with the requirements set forth in paragraphs (c) and (d)
of this Section 5.6.
(c) LandCare may without ServiceMaster's consent acquire
businesses not shown on the Pipeline Schedule provided that the standards in
Section 5.6(d) and the following additional standards are met with respect to
each such acquisition:
(i) the purchase price payable for such business shall
not exceed .8 times trailing twelve month revenues or six times
trailing twelve month pro forma EBITDA for the business (both
calculated in the same manner used to calculate trailing 12
month revenues and pro forma EBITDA for purposes of the Pipeline
Schedule and for purposes of this requirement all debt
obligations to which the acquired enterprise shall be subject
(net of excess cash) shall count as part of the purchase price);
(ii) such business shall have generated during the
trailing 12 months and shall be likely to continue to generate
pro forma EBITDA margins of at least 10%; and
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(iii) such business has a quality and potential
comparable to the businesses shown on the Pipeline Schedule on
the date hereof.
(d) The following requirements shall apply to every
acquisition made by LandCare after the date hereof ("New Acquisitions"):
----------------
(i) LandCare shall not use its LandCare Common Stock for
any New Acquisition unless that such stock shall be valued for
purposes of that acquisition at:
(A) not less than the actual average closing price
for LandCare Common Stock during a five Trading Day period
ending within two Trading Days prior to the closing of the
New Acquisition;
(B) not less than $9 per LandCare share; and
(C) not less than $1 per LandCare share
issued in the New Acquisition below the "Applicable
ServiceMaster Deal Price." For purposes of this Section
5.6, the "Applicable ServiceMaster Deal Price" for
-----------------------------------
purposes of any particular New Acquisition shall be equal
to the Applicable Exchange Ratio times the average closing
price per share for ServiceMaster Common Stock for the
period of 20 consecutive Trading Days ending on the third
Trading Day before the date on which the particular New
Acquisition closes. The "Applicable Exchange Ratio" shall
-------------------------
be the Exchange Ratio that would have been applicable if
the Scheduled Meeting Date coincided with the date on
which the New Acquisition shall close.
(ii) LandCare shall limit the shares of LandCare Common
Stock issuable in New Acquisitions so that in the aggregate the
shares of LandCare Common Stock issued in such transactions will
result in aggregate Deal Losses of not more than $1 million. For
purposes of this requirement, the Deal Loss in any particular
New Acquisition shall be the product derived by multiplying the
number of shares of LandCare Common Stock issued in that New
Acquisition times the amount by which the Applicable Service
Master Deal Price shall exceed the value per share for which
shares of LandCare Common Stock were valued for purposes of that
New Acquisition.
(iii) LandCare shall not use LandCare Shares in any
particular New Acquisition unless the characteristics of the
persons receiving such stock and all other relevant
considerations with respect to that New Acquisition are such
that the use of such stock will not cause either LandCare or
ServiceMaster to breach any of the requirements of the federal
securities laws.
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(iv) The terms governing each New Acquisition will
include (i) warranties to LandCare and indemnifications from the
sellers comparable to the scope and value of the warranties
usually obtained by LandCare in acquisitions made after its
acquisition of its "founding companies" and prior to the date
hereof and (ii) other terms as favorable to LandCare as the
comparable terms in acquisitions made after its acquisition of
its "founding companies" and prior to the date hereof. The
indemnification and other rights that continue after the closing
of a New Acquisition shall be on terms such that LandCare's
rights will not be impaired or diminished in value by the
consummation of the Merger. Without ServiceMaster's consent,
such terms shall not allow the sellers to use stock to satisfy
their indemnification obligations and shall prohibit the sellers
from transferring any interest in the shares of LandCare Common
Stock they receive in the deal (or in the ServiceMaster shares
issued in the Merger to replace those Shares) for a period of
one year after their New Acquisition closes.
(e) ServiceMaster shall have the right to terminate this
Agreement if by the Scheduled Meeting Date:
(A) LandCare shall not have completed and closed Qualified New
Acquisitions that meet the following criteria: (i) the aggregate
purchase price for the Qualified Pipeline Acquisitions shall not
be more than 5% in excess of the aggregate of the projected
acquisition prices projected on the Pipeline Schedule for New
Acquisitions shown on that Schedule and closed prior to the
Scheduled Meeting Date; and (ii) the aggregate purchase price
for Qualified Post Pipeline Acquisitions shall not exceed the
maximum price permitted by clause (i) in Section 5.6(c); and
(iii) the trailing 12 month revenues for the Qualified New
Acquisitions (measured as of the time each such New Acquisition
closed) shall not be less than $46.6 million; and (iv) the
trailing 12 month EBITDA for the Qualified New Acquisitions
(measured as of the time each such New Acquisition closed) shall
not be less than $5.9 million; or
(B) LandCare shall have made any New Acquisitions after the
date hereof (other than Albuquerque Landscape) that are contrary
to the requirements in paragraphs (c) or (d) in this Section
5.6; or
(C) the aggregate trailing 12 month revenues of all businesses
acquired in New Acquisitions closed prior to the Scheduled
Meeting Date shall exceed $70 million.
For purposes of this Section 5(e):
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(i) New Acquisitions shown on the Pipeline Schedule that
in ServiceMaster's reasonable judgment satisfy the requirements
paragraph (d) of this Section 5.6 are herein called "Qualified
---------
Pipeline Acquisitions."
---------------------
(ii) New Acquisitions not listed on the Pipeline Schedule
that in ServiceMaster's reasonable judgment satisfy the
requirements paragraphs (c) and (d) of this Section 5.6 are
herein called "Qualified Post Pipeline Acquisitions."
------------------------------------
(iii) The term "Qualified New Acquisitions" means all
--------------------------
Qualified Pipeline Acquisitions and all Qualified Post Pipeline
Acquisitions that shall have closed prior to the Scheduled
Meeting Date.
(iv) In the event ServiceMaster or any ServiceMaster
subsidiary shall acquire any enterprise shown on the Pipeline
Schedule, then for purposes of this Section 5.6(e) LandCare
shall be deemed to have acquired such enterprise on the terms
specified in the Pipeline Schedule for that enterprise.
(f) In the event LandCare shall within the next two weeks
close its acquisition of Albuquerque Landscape on the terms provided in the
definitive agreements governing that acquisition in effect on the date hereof,
then (i) such acquisition shall not be required to meet any of the standards
prescribed by this Section 5.6 but (ii) such acquisition shall not be deemed a
New Acquisition and shall not be taken into account in determining whether
ServiceMaster shall have a termination right under the provisions in Section
5.6(e).
(g) LandCare shall supply ServiceMaster at such time as
ServiceMaster shall reasonably request in order to enable ServiceMaster to
prepare for the Closing and to determine whether applicable closing conditions
have been satisfied all information ServiceMaster shall reasonably request about
New Acquisitions.
Section 5.7 Redemption of Convertible Notes. LandCare shall use
-------------------------------
diligent efforts to cause each of the convertible notes of LandCare described in
the section of LandCare Disclosure Schedule corresponding to Section 3.4(c) to
be redeemed and repaid in full for an amount less than the greater of (unless
otherwise agreed by ServiceMaster) (i) the outstanding principal amount of such
note plus accrued interest or (ii) the then market value of the LandCare shares
into which the notes would be convertible if the conversion were governed by the
conversion ratio applicable after a change in control.
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ARTICLE 6
COVENANTS OF SERVICEMASTER
Section 6.1 Obligations of Merger Subsidiary. ServiceMaster will take
--------------------------------
all action necessary to cause Merger Subsidiary to perform its obligations under
this Agreement and to consummate the Merger on the terms and conditions set
forth in this Agreement.
Section 6.2 Indemnification.
---------------
(a) From and after the Effective Time, ServiceMaster and the
Surviving Corporation jointly and severally shall indemnify, to the full extent
permitted under Delaware Law, the present and former directors and officers of
LandCare and its Subsidiaries (the "Indemnified Parties") in respect of actions
------------------
taken prior to and including the Effective Time in connection with their duties
as directors or officers of LandCare or its Subsidiaries (including the
transactions contemplated hereby) for a period of not less than six years from
the Effective Time; provided that, in the event any claim or claims are asserted
or made within such six-year period, all rights to indemnification in respect of
any such claim or claims shall continue until final disposition of any and all
such claims. Without limitation of the foregoing, in the event any Indemnified
Party becomes involved in such capacity in any action, proceeding or
investigation in connection with any matter, including the transactions
contemplated hereby, occurring prior to and including the Effective Time, the
Surviving Corporation, to the extent permitted and on such conditions as may be
required by applicable law, will periodically advance expenses to such
Indemnified Party for his legal and other out-of-pocket expenses (including the
cost of any investigation and preparation) incurred in connection therewith.
(b) For not less than six years after the Effective Time,
ServiceMaster or the Surviving Corporation shall maintain in effect directors'
and officers' liability insurance covering the persons who are currently covered
by LandCare's existing directors' and officers' liability insurance with respect
to actions that shall have taken place prior to the Effective Time, on terms and
conditions no less favorable to such persons than those in effect on the date
hereof under LandCare's existing directors' and officers' liability insurance;
provided, however, that in no event shall ServiceMaster or the Surviving
Corporation be required to pay in any year an amount to maintain such insurance
covering the Indemnified Parties in excess of twice the amount paid by LandCare
as of the Closing Date for such coverage; provided further that if the annual
premiums of such insurance coverage exceed such amount, ServiceMaster shall be
obligated to obtain a policy with a premium equal to such amount.
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ARTICLE 7
COVENANTS OF SERVICEMASTER AND LANDCARE
Section 7.1 Diligent Efforts. Subject to the terms and conditions of
----------------
this Agreement, each party will use its diligent efforts to take, or cause to be
taken, all action and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate the
transactions contemplated by this Agreement; provided that nothing herein shall
require ServiceMaster to hold, manage or operate any assets separately or to
enter into any sale or divestiture of assets. LandCare, ServiceMaster and Merger
Subsidiary shall each furnish to one another and to one another's counsel all
such information as may be required in order to accomplish the foregoing
actions. In connection with and without limiting the foregoing, LandCare and
ServiceMaster shall (i) take all action necessary to ensure that no state
takeover statute or similar statute or regulation is or becomes applicable to
the Merger, this Agreement or any of the other transactions contemplated hereby
and (ii) if any state takeover statute or similar statute or regulation becomes
applicable to the Merger, this Agreement or any of the other transactions
contemplated hereby, take all action necessary to ensure that the Merger and the
other transactions contemplated hereby may be consummated as promptly as
practicable on the terms contemplated by this Agreement and otherwise to
minimize the effect of such statute or regulation on the Merger and the other
transactions contemplated by this Agreement.
Section 7.2 Certain Filings. LandCare and ServiceMaster shall cooperate
---------------
with one another (i) in connection with the preparation of the Registration
Statement and the LandCare Proxy Statement, (ii) in determining whether any
other action by or in respect of, or filing with, any governmental body, agency
or official, or authority or any actions, consents, approvals or waivers are
required to be obtained from parties to any material contracts in connection
with the consummation of the transactions contemplated by this Agreement and
(iii) in seeking any such actions, consents, approvals or waivers or making any
such filings, furnishing information required in connection therewith or with
the Registration Statement and the LandCare Proxy Statement and seeking timely
to obtain any such actions, consents, approvals or waivers.
Section 7.3 Public Announcements. ServiceMaster and LandCare will
--------------------
consult with each other before issuing any press release or making any public
statement with respect to this Agreement and the transactions contemplated
hereby and, except as may be required by applicable law or any listing agreement
with any national securities exchange, will not issue any such press release or
make any such public statement prior to such consultation.
Section 7.4 Further Assurances. At and after the Effective Time, the
------------------
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of LandCare or Merger Subsidiary,
any deeds, bills of sale, assignments or assurances and to take and do, in the
name and on behalf LandCare or Merger Subsidiary, any other actions and things
to vest, perfect or confirm of record or otherwise in the Surviving Corporation
any and
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all right, title and interest in, to and under any of the rights, properties or
assets of LandCare acquired or to be acquired by the Surviving Corporation as a
result of, or in connection with, the Merger.
Section 7.5 Notices of Certain Events. LandCare and ServiceMaster shall
-------------------------
promptly notify the other of:
(a) any notice or other communication from any person alleging
that the consent of such person is or may be required in connection with the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement;
(c) any actions, suits, claims, investigations or proceedings
commenced or, to the best of its knowledge threatened against, relating to or
involving or otherwise affecting LandCare or any of its Subsidiaries, on the one
hand, or ServiceMaster or Merger Subsidiary, on the other hand, which relate to
the consummation of the transactions contemplated by this Agreement; and
(d) any action, event or occurrence that would constitute a
breach of any representation, warranty, covenant or agreement of it set forth in
this Agreement.
Section 7.6 Preparation of the Registration Statement and the LandCare
----------------------------------------------------------
Proxy Statement. As soon as practicable following the date of this Agreement,
- ---------------
LandCare and ServiceMaster shall jointly prepare and file with the SEC the
LandCare Proxy Statement and ServiceMaster shall prepare and file with the SEC
the Registration Statement, in which the LandCare Proxy Statement will be
included. Each of LandCare and ServiceMaster shall use best efforts to have the
Registration Statement declared effective under the Securities Act as promptly
as practicable after such filing. LandCare will use its reasonable best efforts
to cause the LandCare Proxy Statement to be mailed to the stockholders of
LandCare as promptly as practicable after the Registration Statement is declared
effective under the Securities Act. ServiceMaster shall also take any action
(other than qualifying to do business in any jurisdiction in which it is not now
so qualified or to file a general consent to service of process) required to be
taken under any applicable state securities laws in connection with the issuance
of ServiceMaster Common Stock in the Merger and LandCare shall furnish all
information concerning LandCare and the holders of the Shares as may be
reasonably requested in connection with any such action. No filing of, or
amendment or supplement to, the Registration Statement will be made by
ServiceMaster or to the LandCare Proxy Statement will be made by LandCare or
ServiceMaster without providing the other party the opportunity to review and
comment thereon. ServiceMaster will advise LandCare, promptly after it receives
notice thereof, of the time when the Registration Statement has become effective
or any supplement or amendment has been filed, the issuance of any stop order,
the suspension
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of the qualification of ServiceMaster Common Stock issuable in connection with
the Merger for offering or sale in any jurisdiction, or any request by the SEC
for amendment of the LandCare Proxy Statement or the Registration Statement or
comments thereon and responses thereto or requests by the SEC for additional
information. If at any time prior to the Effective Time any information relating
to LandCare or ServiceMaster, or any of their respective affiliates, officers or
directors, should be discovered by LandCare or ServiceMaster which should be set
forth in an amendment or supplement to any of the Registration Statement or the
LandCare Proxy Statement, so that any of such documents would not include any
misstatement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, the party which discovers such information shall promptly
notify the other party hereto and an appropriate amendment or supplement
describing such information shall be promptly filed with the SEC and, to the
extent required by law, disseminated to the stockholders of LandCare.
Section 7.7 Letters of LandCare's Accountants. LandCare shall use its
---------------------------------
reasonable best efforts to cause to be delivered to ServiceMaster two letters
from LandCare's independent accountants, one dated a date within two business
days before the date on which the Registration Statement shall become effective
and one dated a date within two business days before the Closing Date, each
addressed to ServiceMaster, in form and substance reasonably satisfactory to
ServiceMaster and customary in scope and substance for comfort letters delivered
by independent public accountants in connection with registration statements
similar to the Registration Statement.
Section 7.8 Affiliates. Not less than 30 days prior to the Effective
----------
Time, LandCare shall deliver to ServiceMaster a list of names and addresses of
each person who, in the reasonable judgment of LandCare, is an affiliate of
LandCare within the meaning of Rule 145 of the rules and regulations promulgated
under the Securities Act (each such person, an "Affiliate"). Each person who
---------
shall execute a Voting Agreement shall be deemed an affiliate of LandCare and
shall be so designated on the list contemplated in the preceding sentence.
LandCare shall provide ServiceMaster such information and documents as
ServiceMaster shall reasonably request for purposes of reviewing such list.
ServiceMaster shall be entitled to place Rule 145 legends on the certificates
evidencing any shares of ServiceMaster Common Stock to be received by the
Affiliates in the Merger.
Section 7.9 NYSE Listing. ServiceMaster shall use its reasonable best
------------
efforts to cause the shares of ServiceMaster Common Stock to be issued in
connection with the Merger to be approved for listing on the New York Stock
Exchange, subject to official notice of issuance, as promptly as practicable
after the date hereof, and in any event prior to the Closing Date.
Section 7.10 Regulatory Matters and Approvals. Each of LandCare and
--------------------------------
ServiceMaster shall (and ServiceMaster shall cause Merger Subsidiary to) give
any notices to, make any filings with and use its reasonable best efforts to
obtain any authorizations, consents and approvals of, Governmental Entities in
connection with the transactions contemplated by this Agreement.
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Without limiting the generality of the foregoing, LandCare and ServiceMaster
shall each file any Notification and Report Forms and related material that it
may be required to file in connection with the transactions contemplated by this
Agreement with the Federal Trade Commission and the Antitrust Division of the
United States Department of Justice under the HSR Act, shall each use its
reasonable best efforts to obtain an early termination of the applicable waiting
period, and shall each make any further filings pursuant thereto that may be
necessary, proper or advisable.
Section 7.11 Tax Treatment. Each of ServiceMaster and LandCare shall use
-------------
reasonable best efforts to cause the Merger to qualify as a reorganization under
the provisions of Section 368(a) of the Code, including, without limitation,
forbearing from taking any action that would cause the Merger not to qualify as
a reorganization under the provisions of Section 368(a) of the Code.
Section 7.12 Representations. Each of LandCare, on the one hand, and
---------------
ServiceMaster and Merger Subsidiary, on the other, (i) will use their reasonable
best efforts to take all action necessary to render true and correct as of the
Closing its representations and warranties contained in this Agreement, (ii)
will refrain from taking any action that would render any such representation or
warranty untrue or incorrect as of such time and (iii) will perform or cause to
be satisfied each agreement, covenant or condition to be performed or satisfied
by it.
Section 7.13 Material Consents. Between the date of this Agreement and
-----------------
the Closing Date, LandCare and ServiceMaster and each of their respective
Subsidiaries shall in good faith use their reasonable best efforts to obtain all
consents and approvals of all lenders, lessors, vendors, customers and other
persons necessary to permit the transactions contemplated by this Agreement to
be consummated without violating any loan agreement, lease or other material
contract to which LandCare, ServiceMaster or any of their respective
Subsidiaries is a party or by which LandCare, ServiceMaster or any of their
respective Subsidiaries is bound.
ARTICLE 8
CONDITIONS TO THE MERGER
Section 8.1 Conditions to the Obligations of Each Party. The obligations
-------------------------------------------
of LandCare, ServiceMaster and Merger Subsidiary to consummate the Merger are
subject to the satisfaction of the following conditions:
(a) this Agreement shall have been adopted by the stockholders
of LandCare in accordance with Delaware Law;
(b) any applicable waiting period under the HSR Act relating to
the Merger shall have expired or been terminated;
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(c) no judgment, injunction, order or decree shall prohibit the
consummation of the Merger;
(d) the Registration Statement shall have become effective under
the Securities Act and shall not be the subject of any stop order or proceedings
seeking a stop order;
(e) the shares of ServiceMaster Common Stock issuable to the
stockholders of LandCare in the Merger as contemplated by this Agreement shall
have been approved for listing on the New York Stock Exchange, subject to
official notice of issuance; and
(f) this Agreement shall not have been terminated in accordance
with its terms.
Section 8.2 Additional Conditions to the Obligations of ServiceMaster
--------------------------------------------------------
and Merger Subsidiary. The obligations of ServiceMaster and Merger Subsidiary to
- ---------------------
consummate the Merger are subject to the satisfaction of the following
additional conditions: (i) the representations and warranties of LandCare as set
forth in this Agreement shall be true and correct in all material respects as if
made on and as of the Effective Time (other than those representations and
warranties which address matters only as of a certain date, which shall be true
and correct in all material respects as of such certain date), (ii) LandCare
shall have complied with or performed in all material respects all agreements
and covenants required to be complied with or performed by it under this
Agreement at or prior to the Closing Date, and (iii) ServiceMaster shall have
received from each person who is, immediately prior to the Effective Time, a
director or officer of LandCare or any of its Subsidiaries his written
resignation, effective as of the Effective Time, from each position as a
director of LandCare and each Subsidiary.
Section 8.3 Additional Conditions to the Obligations of LandCare. The
----------------------------------------------------
obligations of LandCare to consummate the Merger are subject to the satisfaction
of the following additional condition: the representations and warranties of
ServiceMaster and Merger Subsidiary as set forth in this Agreement shall be true
and correct in all material respects as if made on and as of the Effective Time
(other than those representations and warranties which address matters only as
of a certain date, which shall be true and correct in all material respects as
of such certain date) and ServiceMaster and Merger Subsidiary shall have
complied with or performed in all material respects all agreements and covenants
required to be complied with or performed by it under this Agreement at or prior
to the Closing Date.
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ARTICLE 9
TERMINATION AND CLOSING
Section 9.1 Termination. This Agreement may be terminated and the Merger
-----------
may be abandoned at any time prior to the Effective Time (notwithstanding any
approval of this Agreement by the stockholders of LandCare):
(a) by mutual written consent of LandCare, ServiceMaster and
Merger Subsidiary;
(b) by either LandCare or ServiceMaster, if the Merger has not
been consummated by May 1, 1999; provided that no party may terminate this
Agreement pursuant to this subsection if such party's failure to fulfill any of
its obligations under this Agreement shall have been the primary and but-for
reason that the Effective Time shall not have occurred on or before said date
and provided further that in no event shall ServiceMaster's failure to permit an
adjustment in the Exchange Ratio under Section 1.2(b)(iii) preclude or impair
ServiceMaster's right to terminate under this clause (b);
(c) by either LandCare or ServiceMaster, if there shall be any
judgment, injunction, order or decree enjoining ServiceMaster or LandCare from
consummating the transactions contemplated by this Agreement is entered and such
judgment, injunction, order or decree shall have become final and nonappealable;
(d) by either LandCare or ServiceMaster, if this Agreement shall
not have been adopted by the stockholders of LandCare at the LandCare
Stockholders Meeting;
(e) by ServiceMaster or Merger Subsidiary, if the board of
directors of LandCare shall (i) withdraw, modify or change its recommendation or
approval in respect of this Agreement in a manner adverse to ServiceMaster or
(ii) have recommended any proposal other than by ServiceMaster or Merger
Subsidiary in respect of an Acquisition Transaction; and
(f) by ServiceMaster or Merger Subsidiary, if any corporation,
partnership, person, other entity or group (as defined in Section 13(d)(3) of
the Exchange Act) other than ServiceMaster or Merger Subsidiary or any of their
respective Subsidiaries or affiliates shall have become the beneficial owner of
more than 40% of the outstanding LandCare Common Stock (either on a primary or a
fully diluted basis).
(g) by ServiceMaster, if LandCare shall have breached
(regardless of the knowledge of ServiceMaster of such breach at or subsequent to
the date of this Agreement) in any material respect any of its representations,
warranties, covenants or agreements contained herein;
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(h) by ServiceMaster if the Committee acting under the 1998
Long-Term Incentive Plan, LandCare's Board of Directors and all other necessary
persons shall not have taken all actions necessary to cause the conversions
prescribed by Section 1.4(a) to occur automatically upon consummation of the
Merger; or
(i) by LandCare, if a Qualified Competing Proposal is made to
LandCare, subject to the restrictions set forth in Section 5.4(c)(ii); provided
that the right to terminate described in this subsection shall not be effective
unless and until LandCare shall have paid to ServiceMaster the fee described in
Section 9.4(b); provided further that the right to terminate described in this
subsection shall immediately expire and be of no force or effect if LandCare's
stockholders approve the Merger; or
(j) by LandCare, if ServiceMaster or Merger Subsidiary shall
have breached (regardless of the knowledge of LandCare of such breach at or
subsequent to the date of this Agreement) in any material respect any of its
representations, warranties, covenants or agreements contained herein; or
(k) by LandCare if LandCare shall become entitled to terminate
under Section 1.2(b)(iii); or
(l) by ServiceMaster if the right to termination shall arise
under Section 5.6(e).
Such right of termination shall be exercised by written notice of termination
given by the terminating party to the other parties hereto in the manner
hereinafter provided. Any such right of termination shall not be an exclusive
remedy hereunder but shall be in addition to any other legal or equitable
remedies that may be available to any non-defaulting party hereto arising out of
any default hereunder by any other party hereto.
Section 9.2 Waiver. At any time prior to the Effective Time, the parties
------
hereto, by action taken by or pursuant to resolutions of their respective boards
of directors, may (a) extend the time for the performance of any of the
obligations or other acts of the parties hereto, (b) waive any inaccuracies in
the representations and warranties contained herein or in any document delivered
pursuant hereto, and (c) except for adoption of this Agreement by the
stockholders of LandCare waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid if set forth in an instrument in writing
signed on behalf of such party.
Section 9.3 Closing. Subject to the satisfaction of the conditions
-------
contained in Article 8 hereof, the closing of the Merger (the "Closing") shall
take place at the offices of Kirkland & Ellis in Chicago, Illinois as soon as
practicable after the satisfaction or waiver of all of the
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conditions to the Merger or at such other time and place as LandCare,
ServiceMaster, and Merger Subsidiary shall agree (the "Closing Date").
Section 9.4 Effect of Termination; Termination Fee.
--------------------------------------
(a) If this Agreement is terminated pursuant to Section 9.1
hereof, this Agreement shall become void and of no effect with no liability on
the part of any party hereto, except that the agreements contained in Sections
9.4(b), 9.4(c) and 10.4 hereof shall survive the termination hereof and except
that no such termination shall relieve any party from liability for breach of
this Agreement or failure by it to perform its obligations hereunder.
(b) If this Agreement shall be terminated pursuant to clause
(d), (e), (f), (g), (h), or (i) in Section 9.1, then LandCare shall promptly,
but in no event later than two business days after the date of such termination,
pay ServiceMaster a termination fee equal to the sum of (i) $7,577,045 plus (ii)
$0.44 multiplied by the aggregate number of shares of LandCare Common Stock
(other than any shares of LandCare Common Stock issued upon the exercise of
LandCare Stock Options) issued subsequent to the date hereof and on or prior to
the date of termination of this Agreement pursuant to Section 9.1. In no event
shall LandCare be required to pay more than one termination fee pursuant to this
Section 9.4(b).
(c) If this Agreement shall be terminated by ServiceMaster
pursuant to its termination rights in Section 5.6(e), then LandCare shall
promptly, but in no event later than two business days after the date of such
termination, pay ServiceMaster an amount, not to exceed $1,000,000, equal to the
actual and reasonably documented out-of-pocket expenses incurred by
ServiceMaster directly attributable to the proposed acquisition of LandCare and
incurred since October 15, 1998, including negotiation and execution of this
Agreement and the attempted completion of the Merger, which fee and amount shall
be payable in cash in same day funds.
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ARTICLE 10
MISCELLANEOUS
Section 10.1 Notices. All notices, requests and other communications to
-------
any party hereunder shall be in writing (including facsimile, telex or similar
writing) and shall be given,
If to ServiceMaster or Merger Subsidiary, to:
One ServiceMaster Way
Downers Grove, IL 60515
Attention: General Counsel
Facsimile: (630) 271-5870
with a copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Robert H. Kinderman
Facsimile: (312) 861-2200
If to LandCare, to:
2603 Augusta
Suite 1300
Houston, TX 77057
Attention: General Counsel
Facsimile: (713) 965-0343
with a copy to:
Bracewell & Patterson L.L.P.
South Tower Pennzoil Place
711 Louisiana Street
Houston, TX 77002
Attention: Thomas Adkins
Facsimile: (713) 221-1212
or such other address, telecopy or telex number as such party may hereafter
specify for the purpose by notice to the other parties hereto. Each such notice,
request or other communication
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shall be effective (a) if given by facsimile or telex, upon confirmation of
receipt, or (b) if given by any other means, when delivered at the address
specified in this Section 10.1.
Section 10.2 Survival of Representations and Warranties. The
------------------------------------------
representations and warranties contained herein shall not survive the Effective
Time.
Section 10.3 Amendments; No Waivers.
-----------------------
(a) Any provision of this Agreement may be amended or waived
prior to the Effective Time if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by LandCare, ServiceMaster and
Merger Subsidiary or in the case of a waiver, by the party against whom the
waiver is to be effective; provided that after the adoption of this Agreement by
the stockholders of LandCare, no such amendment or waiver shall, without the
further approval of such stockholders, alter or change the amount or kind of
consideration to be received in exchange for the Shares (except as contemplated
by Section 1.02(b)).
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 10.4 Expenses. Except as provided in Section 9.4 hereof, each
--------
party shall pay its own costs and expenses relating to this Agreement and the
transactions contemplated hereby, except that each of ServiceMaster and LandCare
shall bear and pay one-half of the costs and expenses incurred in connection
with the filing, printing and mailing of the Registration Statement and the
LandCare Proxy Statement (including SEC filing fees).
Section 10.5 Successors and Assigns. The provisions of this Agreement
----------------------
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto.
Section 10.6 Governing Law. This Agreement shall be construed in
-------------
accordance with and governed by the law of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (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 10.7 Counterparts; Effectiveness. This Agreement may be signed in
---------------------------
any number of counterparts (including by means of telecopied signature pages),
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same
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instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
Section 10.8 Headings. Section headings used in this Agreement are for
--------
convenience only and shall be ignored in the construction and interpretation
hereof.
Section 10.9 No Third Party Beneficiaries. Except for Section 6.2 hereof,
----------------------------
no provision of this Agreement is intended to, or shall, confer any third party
beneficiary or other rights or remedies upon any person other than the parties
hereto.
* * * * *
-51-
<PAGE>
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/ Phillip B. Rooney
-------------------------------------
Name: Phillip B. Rooney
Title: Vice Chairman
SVM ACQUISITION CORPORATION
By: /s/ Phillip B. Rooney
-------------------------------------
Name: Phillip B. Rooney
Title: Vice President
LANDCARE USA, INC.
By: /s/ William F. Murdy
------------------------------------
Name: William F. Murdy
Title: Chief Executive Officer
<PAGE>
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.
------------------------
(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
<PAGE>
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.
---------------------------------
(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
--------------------------------
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.
2
<PAGE>
4. Transfer Restrictions.
----------------------
(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.
--------------------------------------------------
(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
3
<PAGE>
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
------------------------
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
------------------
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
--------
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,
---------------------
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
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent
4
<PAGE>
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
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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
---------------------------------------
shall be deemed to restrict Mark S. Yahn ("Yahn") 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. Yahn
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
------------
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
-------------
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
--------------
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
5
<PAGE>
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
----------------
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
------------
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
-------------
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.
6
<PAGE>
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/ R.D. Erickson
------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDERS:
/s/ Mark S. Yahn
----------------------------------------
Print Name: Mark S. Yahn
Address: 222 Sovereign Court
Altamonte Springs, FL 32701
/s/ Laurie L. Yahn
----------------------------------------
Print Name: Laurie L. Yahn
Address: 222 Sovereign Court
Altamonte Springs, FL 32701
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., Mark S. Yahn and
Laurie L. Yahn.
7
<PAGE>
EXHIBIT 3
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number
of shares of LandCare common stock set forth adjacent to the Stockholder's
signatures to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
------------------------
(a) The Stockholder confirms that the Stockholder desires that
the Merger occur and has concluded that it is in the best interests of LandCare
and such Stockholder 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 Stockholder irrevocably agrees 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
1
<PAGE>
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.
---------------------------------
(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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder 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 Stockholder 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 Stockholder hereby
-------------------------------
irrevocably authorizes ServiceMaster to execute as attorney in fact for the
Stockholder any ballot or consent form ServiceMaster shall reasonably deem
appropriate to accomplish the votes and consents required by this Agreement.
2
<PAGE>
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated
(i) none of the Stockholder's LandCare Shares shall be tendered in response to
any tender offer, (ii) no interest in any of the Stockholder's LandCare Shares
shall be sold or otherwise transferred, (iii) the Stockholder will not take any
other action which would impair Stockholder's ability to vote any of
Stockholder's LandCare Shares in the manner required by this Agreement and (iv)
subject to Section 11 hereof, the Stockholder's commitments in Sections 1 though
3 shall be irrevocable.
(b) The Stockholder hereby agrees that for the period ending
on the first anniversary of the issuance of the Stockholder's LandCare Shares
the Stockholder shall not sell, offer to sell, or otherwise transfer or dispose
of any ServiceMaster shares received in the Merger in exchange for the
Stockholder's LandCare Shares (the "Stockholder's ServiceMaster Shares"), engage
in put, call, short-sale, straddle or similar transactions involving
ServiceMaster Shares, or in any other way reduce the Stockholder's risk of
owning Stockholder's 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 Stockholder's ServiceMaster Shares
identifying the restrictions imposed by this paragraph.
(c) The Stockholder hereby agree that Stockholder's LandCare
Shares shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver their LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder have the capacity to enter into this Agreement and the night and
power to perform their obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its 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 Stockholder.
(c) No authorization, consent or approval of, or any filing
with, any public body, court or authority is necessary for consummation by the
Stockholder of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has
3
<PAGE>
necessary and sufficient right and authority to make the commitments with
respect to the Stockholder's LandCare Shares contained in this Agreement.
(e) The Stockholder is an accredited investors as defined in
the Rule 501 issued by the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and is an affiliate of LandCare. The
Stockholder is able to assess the risks and benefits of the transactions
contemplated by this Agreement. The Stockholder understands that ServiceMaster
and LandCare are each willing to respond to any questions or supply any
information the Stockholder 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 Stockholder desires to ask or information
the Stockholder desires to obtain that has not been answered or supplied prior
to the Stockholder's execution of this Agreement.
6. Indemnification Currency. The Stockholder acknowledges that the
------------------------
Stockholder formerly had an ownership interest in a business enterprise
previously acquired by LandCare and that LandCare issued the Stockholder's
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 Stockholder has the right to deliver LandCare
shares in satisfaction for certain indemnification obligations of the
Stockholder that may arise under that Agreement. ServiceMaster hereby agrees
that after the Merger, the Stockholder may use ServiceMaster shares to satisfy
any indemnification obligations that the Stockholder may have under the Prior
Acquisition Agreement to the same extent that the Stockholder was permitted to
use LandCare shares prior to the Merger. The Stockholder hereby agrees that the
Merger shall not limit or impair any indemnification obligation that the
Stockholder may have under the Prior Acquisition Agreement and hereby agrees
that the provisions in the Prior Acquisition Agreement that permit the
Stockholder 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 Stockholder will, upon the request of
------------------
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
--------
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, altered or supplemented except by a writing signed by ServiceMaster and
the Stockholder. Neither the Stockholder 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
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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:
4
<PAGE>
If to ServiceMaster: The ServiceMaster Company
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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 shall be deemed to restrict the Stockholder from taking any action in
the capacity of director of the Corporation that such Stockholder shall believe
or is advised by counsel are necessary to fulfill the Stockholder's fiduciary
duties as a director. The Stockholder will be able to take all of the actions
required by Sections 1 and 3 of this Agreement without any conflict with the
Stockholder's obligations as a director and that, accordingly, nothing in the
preceding sentence shall or impair the Stockholder's agreements in Sections 1
and 3.
12. Counterparts. This Agreement may be executed in two or more
------------
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 accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof. The Stockholder hereby
submits 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 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, and permitted assigns any legal or equitable right, remedy or claim
under or in respect of this Agreement or provision contained herein. Each of the
parties to this Agreement will be entitled to enforce its rights under recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other right which it may be entitled. The Stockholder agrees that
money damages are not an adequate remedy for breach of the Stockholder's voting
agreements in this Agreement or Stockholder's 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
5
<PAGE>
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 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 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
-------------
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.
6
<PAGE>
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/ R.D. Erickson
--------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
/s/ James R. Marcus
-----------------------------------------
Print Name: James R. Marcus
Address: 13842 Malcolm Ave.
Saratoga, CA 95070
Aggregate Number of`Stockholder's LandCare
Shares:
278,906
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., Four Seasons Acquisition Corp., Four
Seasons Landscaping and Maintenance, Inc.,
James R. Marcus, Harold D. Cranston, Harold
Cranston as Trustee of the Harold and Mary
Cranston Charitable Remainder Unitrust,
Kenneth Sinclair, John Cranston, Susan
Cranston, Robert Bilotti, Steve Jacobson,
Roger Vesey, and James A Cumbra.
7
<PAGE>
EXHIBIT 4
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number
of shares of LandCare common stock set forth adjacent to the Stockholder's
signatures to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
------------------------
(a) The Stockholder confirms that the Stockholder desires that
the Merger occur and has concluded that it is in the best interests of LandCare
and such Stockholder 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 Stockholder irrevocably agrees 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
1
<PAGE>
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.
---------------------------------
(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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder 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 Stockholder 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 Stockholder hereby
-------------------------------
irrevocably authorizes ServiceMaster to execute as attorney in fact for the
Stockholder any ballot or consent form ServiceMaster shall reasonably deem
appropriate to accomplish the votes and consents required by this Agreement.
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated
(i) none of the Stockholder's LandCare Shares shall be tendered in response to
any tender offer, (ii) no interest in
2
<PAGE>
any of the Stockholder's LandCare Shares shall be sold or otherwise transferred,
(iii) the Stockholder will not take any other action which would impair
Stockholder's ability to vote any of Stockholder's LandCare Shares in the manner
required by this Agreement and (iv) subject to Section 11 hereof, the
Stockholder's commitments in Sections 1 though 3 shall be irrevocable.
(b) The Stockholder hereby agree that Stockholder's LandCare
Shares shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver their LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder have the capacity to enter into this Agreement and the night and
power to perform their obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its 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 Stockholder.
(c) No authorization, consent or approval of, or any filing
with, any public body, court or authority is necessary for consummation by the
Stockholder of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has necessary and
sufficient right and authority to make the commitments with respect to the
Stockholder's LandCare Shares contained in this Agreement.
(e) The Stockholder is an accredited investors as defined in
the Rule 501 issued by the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and is an affiliate of LandCare. The
Stockholder is able to assess the risks and benefits of the transactions
contemplated by this Agreement. The Stockholder understands that ServiceMaster
and LandCare are each willing to respond to any questions or supply any
information the Stockholder 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 Stockholder desires to ask or information
the Stockholder desires to obtain that has not been answered or supplied prior
to the Stockholder's execution of this Agreement.
6. Further Assurances. The Stockholder will, upon the request of
------------------
ServiceMaster, execute and deliver such documents and take such action
reasonably deemed by ServiceMaster to
3
<PAGE>
be necessary or desirable to more effectively complete and evidence the
transactions contemplated by this Agreement.
7. Expenses. All costs and expenses incurred in connection with this
--------
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
8. Amendment; Assignment. This Agreement may not be modified,
---------------------
amended, altered or supplemented except by a writing signed by ServiceMaster and
the Stockholder. Neither the Stockholder nor ServiceMaster may assign any of its
rights or obligations under this Agreement without the written consent of the
other.
9. Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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.
10. No Constraints on Actions As a Officer of the Corporation.
---------------------------------------------------------
Nothing in this Agreement shall be deemed to restrict the Stockholder from
taking any action in the capacity of director of the Corporation that such
Stockholder shall believe or is advised by counsel are necessary to fulfill the
Stockholder's fiduciary duties as a director. The Stockholder will be able to
take all of the actions required by Sections 1 and 3 of this Agreement without
any conflict with the Stockholder's obligations as a director and that,
accordingly, nothing in the preceding sentence shall or impair the Stockholder's
agreements in Sections 1 and 3.
11. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
4
<PAGE>
12. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof. The Stockholder hereby
submits 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.
13. Binding Effect. This Agreement shall be binding upon, inure to
--------------
the 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, and permitted assigns any legal or equitable right, remedy or claim
under or in respect of this Agreement or provision contained herein. Each of the
parties to this Agreement will be entitled to enforce its rights under recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other right which it may be entitled. The Stockholder agrees that
money damages are not an adequate remedy for breach of the Stockholder's voting
agreements in this Agreement or Stockholder's 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.
14. Entire Agreement. This Agreement, those documents expressly
----------------
referred 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.
15. Severability. If any term, provision, covenant or restriction of
------------
this 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.
16. Miscellaneous. The headings contained in this Agreement are for
-------------
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.
5
<PAGE>
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/ R.D. Erickson
--------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
/s/ Kenneth V. Garcia
-----------------------------------------
Print Name: Kenneth V. Gracia
Address: 1218 Campton Ct.
Houston, TX 77055
Number of Stockholder's LandCare Shrares:
110,000
6
<PAGE>
EXHIBIT 5
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number of
shares of LandCare common stock set forth adjacent to the Stockholder's
signature to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
------------------------
(a) The Stockholder confirms that the Stockholder desires that the
Merger occur and has concluded that it is in the best interests of LandCare and
such Stockholder 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 Stockholder irrevocably agrees to vote the
Stockholder's 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
1
<PAGE>
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.
---------------------------------
(a) The Stockholder 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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder 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 Stockholder 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 Stockholder hereby irrevocably
-------------------------------
authorizes ServiceMaster to execute as attorney in fact for the Stockholder any
ballot or consent form ServiceMaster shall reasonably deem appropriate to
accomplish the votes and consents required by this Agreement.
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated (i)
none of the Stockholder's LandCare Shares shall be tendered in response to any
tender offer, (ii) no interest in
2
<PAGE>
any of the Stockholder's LandCare Shares shall be sold or otherwise transferred,
(iii) the Stockholder will not take any other action which would impair
Stockholder's ability to vote any of Stockholder's LandCare Shares in the manner
required by this Agreement and (iv) subject to Section 10 hereof, the
Stockholder's commitments in Sections 1 though 3 shall be irrevocable.
(b) The Stockholder hereby agrees that Stockholder's LandCare Shares
shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder has the capacity to enter into this Agreement and the right and
power to perform his obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is 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 Stockholder.
(c) No authorization, consent or approval of, or any filing with, any
public body, court or authority is necessary for consummation by the Stockholder
of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has necessary and
sufficient right and authority to make the commitments with respect to the
Stockholder's LandCare Shares contained in this Agreement.
(e) The Stockholder is an accredited investor as defined in the Rule
501 issued by the Securities and Exchange Commission under the Securities Act of
1933, as amended, and is an affiliate of LandCare. The Stockholder is able to
assess the risks and benefits of the transactions contemplated by this
Agreement. The Stockholder understands that ServiceMaster and LandCare are each
willing to respond to any questions or supply any information the Stockholder
shall desire in order to assess the risks and benefits of the transactions
contemplated by this Agreement and hereby confirms that there are no questions
that the Stockholder desires to ask or information the Stockholder desires to
obtain that has not been answered or supplied prior to the Stockholder's
execution of this Agreement.
6. Further Assurances. The Stockholder will, upon the request of
------------------
ServiceMaster, execute and deliver such documents and take such action
reasonably deemed by ServiceMaster to
3
<PAGE>
be necessary or desirable to more effectively complete and evidence the
transactions contemplated by this Agreement.
7. Expenses. All costs and expenses incurred in connection with this
--------
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
8. Amendment; Assignment. This Agreement may not be modified, amended,
---------------------
altered or supplemented except by a writing signed by ServiceMaster and the
Stockholder. Neither the Stockholder nor ServiceMaster may assign any of its
rights or obligations under this Agreement without the written consent of the
other.
9. Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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.
10. No Constraints on Actions As a Director. Nothing in this Agreement
---------------------------------------
shall be deemed to restrict the Stockholder from taking any action in the
capacity of director of the Corporation that such Stockholder shall believe or
is advised by counsel arc necessary to fulfill the Stockholder's fiduciary
duties as a director. The Stockholder confirms that the Stockholder will be able
to take all of the actions required by Sections 1 and 3 of this Agreement
without any conflict with the Stockholder's obligations as a director and that,
accordingly, nothing in the preceding sentence shall be deemed to limit or
impair the Stockholder's agreements in Sections 1 and 3.
11. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
4
<PAGE>
12. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof. The Stockholder hereby
submits 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.
13. Binding Effect. This Agreement shall be binding upon, inure to the
--------------
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 Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder's 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.
14. Entire Agreement. This Agreement, those documents expressly referred
----------------
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.
15. Severability. If any term, provision, covenant or restriction of this
------------
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.
16. Miscellaneous. The headings contained in this Agreement are for
-------------
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.
5
<PAGE>
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/ R.D. Erickson
------------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
/s/ Peter C. Forbes
-----------------------------------------------
Print Name: Peter C. Forbes
Address: 2603 Augusta, Suite 1300
Houston, TX 77057
Number of`Stockholder's LandCare Shares: 100,000
6
<PAGE>
EXHIBIT 6
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number of
shares of LandCare common stock set forth adjacent to the Stockholder's
signature to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
The parties agree as follows:
1. Agreement to Vote Shares.
------------------------
(a) The Stockholder confirms that the Stockholder desires that the
Merger occur and has concluded that it is in the best interests of LandCare and
such Stockholder 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 hy written consent of the Stockholders of LandCare with
respect to any of the following, the Stockholder irrevocably agrees to vote the
Stockholder's 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
1
<PAGE>
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.
---------------------------------
(a) The Stockholder 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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder 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 Stockholder 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 Stockholder hereby irrevocably
-------------------------------
authorizes ServiceMaster to execute as attorney in fact for the Stockholder any
ballot or consent form ServiceMaster shall reasonably deem appropriate to
accomplish the votes and consents required by this Agreement.
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated (i)
none of the Stockholder's LandCare Shares shall be tendered in response to any
tender offer, (ii) no interest in
2
<PAGE>
any of the Stockholder's LandCare Shares shall be sold or otherwise transferred,
(iii) the Stockholder will not take any other action which would impair
Stockholder's ability to vote any of Stockholder's LandCare Shares in the manner
required by this Agreement and (iv) subject to Section 10 hereof, the
Stockholder's commitments in Sections 1 though 3 shall be irrevocable.
(b) The Stockholder hereby agrees that Stockholder's LandCare Shares
shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder has the capacity to enter into this Agreement and the right and
power to perform his obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is 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 Stockholder.
(c) No authorization, consent or approval of, or any filing with, any
public body, court or authority is necessary for consummation by the Stockholder
of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has necessary and
sufficient night and authority to make the commitments with respect to the
Stockholder's LandCare Shares contained in this Agreement.
(e) The Stockholder is an accredited investor as defined in the Rule
501 issued by the Securities and Exchange Commission under the Securities Act of
1933, as amended, and is an affiliate of LandCare. The Stockholder is able to
assess the risks and benefits of the transactions contemplated by this
Agreement. The Stockholder understands that ServiceMaster and LandCare are each
willing to respond to any questions or supply any information the Stockholder
shall desire in order to assess the risks and benefits of the transactions
contemplated by this Agreement and hereby confirms that there are no questions
that the Stockholder desires to ask or information the Stockholder desires to
obtain that has not been answered or supplied prior to the Stockholder's
execution of this Agreement.
6. Further Assurances. The Stockholder will, upon the request of
------------------
ServiceMaster, execute and deliver such documents and take such action
reasonably deemed by ServiceMaster to
3
<PAGE>
be necessary or desirable to more effectively complete and evidence the
transactions contemplated by this Agreement.
7. Expenses. All costs and expenses incurred in connection with this
--------
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
8. Amendment; Assignment. This Agreement may not be modified, amended,
---------------------
altered or supplemented except by a writing signed by ServiceMaster and the
Stockholder. Neither the Stockholder nor ServiceMaster may assign any of its
rights or obligations under this Agreement without the written consent of the
other.
9. Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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.
10. No Constraints on Actions As an Officer of the Corporation. Nothing in
----------------------------------------------------------
this Agreement shall be deemed to restrict Stockholder from acting on behalf of
the board of directors as an officer of the Corporation when requested to do so
by the board of directors in furtherance of their fiduciary duties. Stockholder
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 an officer
of the Corporation and that, accordingly, nothing in the preceding sentence
shall be deemed to limit or impair Stockholder's agreements in Sections 1 and 3.
11. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
4
<PAGE>
12. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof. The Stockholder hereby
submits 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.
13. Binding Effect. This Agreement shall be binding upon, inure to the
--------------
benefit of and be enforceability 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 Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder's 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.
14. Entire Agreement. This Agreement, those documents expressly referred
----------------
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.
15. Severability. If any term, provision, covenant or restriction of this
------------
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.
16. Miscellaneous. The headings contained in this Agreement are for
------------
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.
5
<PAGE>
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/ R.D. Erickson
---------------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
/s/ William L. Fiedler
--------------------------------------------------
Print Name: William L. Fiedler
Address: 2603 Augusta, Suite 1300
Houston, TX 77057
Number of`Stockholder's LandCare Shares:
110,000
6
<PAGE>
EXHIBIT 7
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number
of shares of LandCare common stock set forth adjacent to the Stockholder's
signature to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
------------------------
(a) The Stockholder confirms that the Stockholder desires that
the Merger occur and has concluded that it is in the best interests of LandCare
and such Stockholder 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 Stockholder irrevocably agrees to vote the
Stockholder's 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
1
<PAGE>
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.
---------------------------------
(a) The Stockholder 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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder is
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 Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder 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 Stockholder shall not take any other action that is
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 Stockholder hereby
-------------------------------
irrevocably authorizes ServiceMaster to execute as attorney in fact for the
Stockholder any ballot or consent form ServiceMaster shall reasonably deem
appropriate to accomplish the votes and consents required by this Agreement.
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated
(i) none of the Stockholder's LandCare Shares shall be tendered in response to
any tender offer, (ii) no interest in
2
<PAGE>
any of the Stockholder's LandCare Shares shall be sold or otherwise transferred,
(iii) the Stockholder will not take any other action which would impair
Stockholder's ability to vote any of Stockholder's LandCare Shares in the manner
required by this Agreement and (iv) subject to Section 11 hereof, the
Stockholder's commitments in Sections 1 though 3 shall be irrevocable.
(b) The Stockholder hereby agrees that for the period ending
on the first anniversary of the issuance of the Stockholder's LandCare Shares
the Stockholder shall not sell, offer to sell, or otherwise transfer or dispose
of any ServiceMaster shares received in the Merger in exchange for the
Stockholder's LandCare Shares (the "Stockholder's ServiceMaster Shares"), engage
in put, call, short-sale, straddle or similar transactions involving
ServiceMaster Shares, or in any other way reduce the Stockholder's risk of
owning Stockholder's ServiceMaster Shares, provided that this restriction shall
not prohibit the Stockholder from pledging Stockholder's ServiceMaster Shares to
secure full-recourse indebtedness. ServiceMaster shall be entitled to place a
legend on the certificates representing the Stockholder's ServiceMaster Shares
identifying the restrictions imposed by this paragraph.
(c) The Stockholder hereby agrees that Stockholder's LandCare
Shares shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder has the capacity to enter into this Agreement and the right and
power to perform his obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is 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 Stockholder.
(c) No authorization, consent or approval of, or any filing
with, any public body, court or authority is necessary for consummation by the
Stockholder of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has necessary and
sufficient right and authority to make the commitments with respect to the
Stockholder's LandCare Shares contained in this Agreement.
3
<PAGE>
(e) The Stockholder is an accredited investor as defined in
the Rule 501 issued by the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and is an affiliate of LandCare. The
Stockholder is able to assess the risks and benefits of the transactions
contemplated by this Agreement. The Stockholder understands that ServiceMaster
and LandCare are each willing to respond to any questions or supply any
information the Stockholder shall desire in order to assess the risks and
benefits of the transactions contemplated by this Agreement and hereby confirms
that there are no questions that the Stockholder desires to ask or information
the Stockholder desires to obtain that has not been answered or supplied prior
to the Stockholder's execution of this Agreement.
6. Indemnification Currency. The Stockholder acknowledges that the
------------------------
Stockholder formerly had any ownership interest in a business enterprise
previously acquired by LandCare and that LandCare issued the Stockholder's
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 Stockholder has the right to deliver LandCare
shares in satisfaction for certain indemnification obligations of the
Stockholder that may arise under that Agreement. ServiceMaster hereby agrees
that after the Merger, the Stockholder may use ServiceMaster shares to satisfy
any indemnification obligations that the Stockholder may have under the Prior
Acquisition Agreement to the same extent that the Stockholder was permitted to
use LandCare shares prior to the Merger. The Stockholder hereby agrees that the
Merger shall not limit or impair any indemnification obligation that the
Stockholder may have under the Prior Acquisition Agreement and hereby agrees
that the provisions in the Prior Acquisition Agreement that permit the
Stockholder 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 Stockholder will, upon the request of
------------------
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
--------
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, altered or supplemented except by a writing signed by ServiceMaster and
the Stockholder. Neither the Stockholder 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
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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:
4
<PAGE>
If to ServiceMaster: The ServiceMaster Company
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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 shall be deemed to restrict the Stockholder from taking any action in
the capacity of director of the Corporation that such Stockholder shall believe
or is advised by counsel are necessary to fulfill the Stockholder's fiduciary
duties as a director. The Stockholder confirms that the Stockholder will be able
to take all of the actions required by Sections 1 and 3 of this Agreement
without any conflict with the Stockholder's obligations as a director and that,
accordingly, nothing in the preceding sentence shall be deemed to limit or
impair the Stockholder's agreements in Sections 1 and 3.
12. Counterparts. This Agreement may be executed in two or more
------------
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 accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof. The Stockholder hereby
submits 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 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 Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder's 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
5
<PAGE>
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 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 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
-------------
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.
6
<PAGE>
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/ R.D. Erickson
---------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
/s/ Roger Braswell
-------------------------------------
Print Name: Roger Braswell
Address: 12225 Hamilton Rd.
Charlotte NC 28273
Number of Stockholder's LandCare Shares:
337,334
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., Southern Tree Acquisition Corp.,
Southern Tree & Landscape Co., Inc., Southern
Shade Tree Co., and N. David Blakeley.
7
<PAGE>
EXHIBIT 8
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number
of shares of LandCare common stock set forth adjacent to the Stockholder's
signature to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
------------------------
(a) The Stockholder confirms that the Stockholder desires that
the Merger occur and has concluded that it is in the best interests of LandCare
and such Stockholder 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 Stockholder irrevocably agrees to vote the
Stockholder's 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
1
<PAGE>
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.
---------------------------------
(a) The Stockholder 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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder 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 Stockholder 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 Stockholder hereby
-------------------------------
irrevocably authorizes ServiceMaster to execute as attorney in fact for the
Stockholder any ballot or consent form ServiceMaster shall reasonably deem
appropriate to accomplish the votes and consents required by this Agreement.
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated (i)
none of the Stockholder's LandCare Shares shall be tendered in response to any
tender offer, (ii) no interest in
2
<PAGE>
any of the Stockholder's LandCare Shares shall be sold or otherwise transferred,
(iii) the Stockholder will not take any other action which would impair
Stockholder's ability to vote any of Stockholder's LandCare Shares in the manner
required by this Agreement and (iv) subject to Section 11 hereof, the
Stockholder's commitments in Sections 1 though 3 shall be irrevocable.
(b) The Stockholder hereby agrees that for the period ending on
the first anniversary of the issuance of the Stockholder's LandCare Shares the
Stockholder shall not sell, offer to sell, or otherwise transfer or dispose of
any ServiceMaster shares received in the Merger in exchange for the
Stockholder's LandCare Shares (the "Stockholder's ServiceMaster Shares"), engage
in put, call, short-sale, straddle or similar transactions involving
ServiceMaster Shares, or in any other way reduce the Stockholder's risk of
owning Stockholder's ServiceMaster Shares, provided that this restriction shall
not prohibit the Stockholder from pledging Stockholder's ServiceMaster Shares to
secure full-recourse indebtedness. ServiceMaster shall be entitled to place a
legend on the certificates representing the Stockholder's ServiceMaster Shares
identifying the restrictions imposed by this paragraph.
(c) The Stockholder hereby agrees that Stockholder's LandCare
Shares shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder has the capacity to enter into this Agreement and the right and
power to perform his obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is 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 Stockholder.
(c) No authorization, consent or approval of, or any filing with,
any public body, court or authority is necessary for consummation by the
Stockholder of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has necessary and
sufficient right and authority to make the commitments with respect to the
Stockholder's LandCare Shares contained in this Agreement.
3
<PAGE>
(e) The Stockholder is an accredited investor as defined in the
Rule 501 issued by the Securities and Exchange Commission under the Securities
Act of 1933, as amended, and is an affiliate of LandCare. The Stockholder is
able to assess the risks and benefits of the transactions contemplated by this
Agreement. The Stockholder understands that ServiceMaster and LandCare are each
willing to respond to any questions or supply any information the Stockholder
shall desire in order to assess the risks and benefits of the transactions
contemplated by this Agreement and hereby confirms that there are no questions
that the Stockholder desires to ask or information the Stockholder desires to
obtain that has not been answered or supplied prior to the Stockholder's
execution of this Agreement.
6. Indemnification Currency. The Stockholder acknowledges that the
------------------------
Stockholder formerly had any ownership interest in a business enterprise
previously acquired by LandCare and that LandCare issued the Stockholder's
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 Stockholder has the right to deliver LandCare
shares in satisfaction for certain indemnification obligations of the
Stockholder that may arise under that Agreement. ServiceMaster hereby agrees
that after the Merger, the Stockholder may use ServiceMaster shares to satisfy
any indemnification obligations that the Stockholder may have under the Prior
Acquisition Agreement to the same extent that the Stockholder was permitted to
use LandCare shares prior to the Merger. The Stockholder hereby agrees that the
Merger shall not limit or impair any indemnification obligation that the
Stockholder may have under the Prior Acquisition Agreement and hereby, agrees
that the provisions in the Prior Acquisition Agreement that permit the
Stockholder 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 Stockholder will, upon the request of
------------------
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
--------
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, altered or supplemented except by a writing signed by ServiceMaster and
the Stockholder. Neither the Stockholder 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
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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:
4
<PAGE>
If to ServiceMaster: The ServiceMaster Company
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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 As a Director. Nothing in this Agreement shall be
----------------------------
deemed to restrict the Stockholder from taking any action director of the
Corporation that such Stockholder shall believe or is advised by counsel are
necessary to fulfil Stockholder's fiduciary duties as a director. The
Stockholder confirms that the Stockholder will be able to take all of the
actions required by Sections 1 and 3 of this Agreement without any conflict with
the Stockholder's obligations as a director and that, accordingly, nothing in
the preceding sentence shall be deemed to limit or impair the Stockholder's
agreements in Sections 1 and 3.
12. Counterparts. This Agreement may be executed in two or more
------------
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 accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflict of laws thereof. The Stockholder hereby
submits 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 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 he
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 Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder's 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
5
<PAGE>
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 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 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
-------------
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.
6
<PAGE>
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/ R.D. Erickson
------------------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
/s/ Bruce Church
---------------------------------------------------
Print Name: Bruce Church
Address: 951 N. Ridge Ave.
Lombard, IL 60148
Number of`Stockholder's LandCare Shares:
419,363
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.,
D.R. Church Landscape Co., Inc., Bruce A. Church,
Bruce A. Church as Trustee of the D.R. Church
Landscape Co., Inc. Employee Stock Ownership Plan,
Denise L. Church, Peggy R. Church Olson, Deborah
A. Church, and Denny R. Church.
7
<PAGE>
EXHIBIT 9
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number of
shares of LandCare common stock set forth adjacent to the Stockholder's
signature to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
(a) The Stockholder confirms that the Stockholder desires that the
Merger occur and has concluded that it is in the best interests of LandCare and
such Stockholder that LandCare's Board approve the Merger Agreement and that
LandCare sign the Merger Agreement and that it is better or 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 Stockholder irrevocably agrees to vote the
Stockholder's 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
1
<PAGE>
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.
---------------------------------
(a) The Stockholder 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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder 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 Stockholder 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 Stockholder hereby irrevocably
-------------------------------
authorizes ServiceMaster to execute as attorney in fact for the Stockholder any
ballot or consent form ServiceMaster shall reasonably deem appropriate to
accomplish the votes and consents required by this Agreement.
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated (i)
none of the Stockholder's LandCare Shares shall be tendered in response to any
tender offer, (ii) no interest in
2
<PAGE>
any of the Stockholder's LandCare Shares shall be sold or otherwise transferred,
(iii) the Stockholder will not take any other action which would impair
Stockholder's ability to vote any of Stockholder's Shares in the manner required
by this Agreement and (iv) subject to Section 11 hereof, the Stockholder's
commitments in Sections 1 though 3 shall be irrevocable.
(b) The Stockholder hereby agrees that for the period ending on the
first anniversary of the issuance of the Stockholder's LandCare Shares the
Stockholder shall not sell, offer to sell, or otherwise transfer or dispose of
any ServiceMaster shares received in the Merger in exchange for the
Stockholder's LandCare Shares (the "Stockholder's ServiceMaster Shares"), engage
in put, call, short-sale, straddle or similar transactions involving
ServiceMaster Shares, or in any other way reduce the Stockholder's risk of
owning Stockholder's ServiceMaster Shares, provided that this restriction shall
not prohibit the Stockholder from pledging Stockholder's ServiceMaster Shares to
secure full-recourse indebtedness. ServiceMaster shall be entitled to place a
legend on the certificates representing the Stockholder's ServiceMaster Shares
identifying the restrictions imposed by this paragraph.
(c) The Stockholder hereby agrees that Stockholder's LandCare
Shares shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder has the capacity to enter into this Agreement and the right and
power to perform his obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is 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 Stockholder.
(c) No authorization, consent or approval of, or any filing with,
any public body, court or authority is necessary for consummation by the
Stockholder of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has necessary and
sufficient right and authority to make the commitments with respect to the
Stockholder's LandCare Shares contained in this Agreement.
3
<PAGE>
(e) The Stockholder is an accredited investor as defined in the
Rule 501 issued by the Securities and Exchange Commission under the Securities
Act of 1933, as amended, and is an affiliate of LandCare. The Stockholder is
able to assess the risks and benefits of the transactions contemplated by this
Agreement. The Stockholder understands that ServiceMaster and LandCare are each
willing to respond to any questions or supply any information the Stockholder
shall desire in order to assess the risks and benefits of the transactions
contemplated by this Agreement and hereby confirms that there are no questions
that the Stockholder desires to ask or information the Stockholder desires to
obtain that has not been answered or supplied prior to the Stockholder's
execution of this Agreement.
6. Indemnification Currency. The Stockholder acknowledges that the
------------------------
Stockholder formerly had any ownership interest in a business enterprise
previously acquired by LandCare and that LandCare issued the Stockholder's
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 Stockholder has the right to deliver LandCare
shares in satisfaction for certain indemnification obligations of the
Stockholder that may arise under that Agreement. ServiceMaster hereby agrees
that after the Merger, the Stockholder may use ServiceMaster shares to satisfy
any indemnification obligations that the Stockholder may have under the Prior
Acquisition Agreement to the same extent that the Stockholder was permitted to
use LandCare shares prior to the Merger. The Stockholder hereby agrees that the
Merger shall not limit or impair any indemnification obligation that the
Stockholder may have under the Prior Acquisition Agreement and hereby agrees
that the provisions in the Prior Acquisition Agreement that permit the
Stockholder 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 Stockholder will, upon the request of
-------------------
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
--------
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,
---------------------
altered or supplemented except by a writing signed by ServiceMaster and the
Stockholder. Neither the Stockholder 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
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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:
4
<PAGE>
If to ServiceMaster: The ServiceMaster Company
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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
----------------------------------------
shall be deemed to restrict the Stockholder from taking any action in the
capacity of director of the Corporation that such Stockholder shall believe or
is advised by counsel are necessary to fulfill the Stockholder's fiduciary
duties as a director. The Stockholder confirms that the Stockholder will be able
to take all of the actions required by Sections 1 and 3 of this Agreement
without any conflict with the Stockholder's obligations as a director and that,
accordingly, nothing in the preceding sentence shall be deemed to limit or
impair the Stockholder's agreements in Sections 1 and 3.
12. Counterparts. This Agreement may be executed in two or more
-------------
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
--------------
accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflict's of laws thereof. The Stockholder hereby
submits 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
---------------
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 Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder's 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
5
<PAGE>
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 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 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
--------------
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.
6
<PAGE>
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/ R.D. Erickson
-------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
/s/ Harold D. Cranston
-----------------------------------
Print Name: Harold D. Cranston
Address: 1615 Monterey Blvd.
San Francisco, CA 94127
Number of`Stockholder's LandCare Shares:
252,449
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., Four Seasons Acquisition Corp., Four
Seasons Landscape and Maintenance, Inc.,
James R. Marcus, Harold D. Cranston, Harold
Cranston as Trustee of the Harold and Mary
Cranston Charitable Remainder Unitrust,
Kenneth Sinclair, John Cranston, Susan
Cranston, Robert Bilotti, Steve Jacobson,
Roger Vesey, and James A. Cumbra.
7
<PAGE>
EXHIBIT 10
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number of
shares of LandCare common stock set forth adjacent to the Stockholder's
signature to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
------------------------
(a) The Stockholder confirm that the Stockholder desires that the
Merger occur and has concluded that it is in the best interests of LandCare and
such Stockholder 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 Stockholder irrevocably agrees to vote the
Stockholder's 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
1
<PAGE>
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.
---------------------------------
(a) The Stockholder 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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder 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 Stockholder 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 Stockholder hereby irrevocably
-------------------------------
authorizes ServiceMaster to execute as attorney in fact for the Stockholder any
ballot or consent form ServiceMaster shall reasonably deem appropriate to
accomplish the votes and consents required by this Agreement.
2
<PAGE>
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated
(i) none of the Stockholder's LandCare Shares shall be tendered in response to
any tender offer, (ii) no interest in any of the Stockholder's LandCare Shares
shall be sold or otherwise transferred, (iii) the Stockholder will not take any
other action which would impair Stockholder's ability to vote any of
Stockholder's LandCare Shares in the manner required by this Agreement and (iv)
subject to Section 11 hereof, the Stockholder's commitments in Sections 1 though
3 shall be irrevocable.
(b) The Stockholder hereby agrees that for the period ending on the
first anniversary of the issuance of the Stockholder's LandCare Shares the
Stockholder shall not sell, offer to sell, or otherwise transfer or dispose of
any ServiceMaster shares received in the Merger in exchange for the
Stockholder's LandCare Shares (the "Stockholder's ServiceMaster Shares"), engage
in put, call, short-sale, straddle or similar transactions involving
ServiceMaster Shares, or in any other way reduce the Stockholder's risk of
owning Stockholder's ServiceMaster Shares, provided that this restriction shall
not prohibit the Stockholder from pledging Stockholder's ServiceMaster Shares to
secure full-recourse indebtedness. ServiceMaster shall be entitled to place a
legend on the certificates representing the Stockholder's ServiceMaster Shares
identifying the restrictions imposed by this paragraph.
(c) The Stockholder hereby agrees that Stockholder's LandCare Shares
shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder has the capacity to enter into this Agreement and the right and
power to perform his obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is 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 Stockholder.
(c) No authorization, consent or approval of, or any filing with, any
public body, court or authority is necessary for consummation by the Stockholder
of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has
3
<PAGE>
necessary and sufficient night and authority to make the commitments with
respect to the Stockholder's LandCare Shares contained in this Agreement.
(e) The Stockholder is an accredited investor as defined in the Rule
501 issued by the Securities and Exchange Commission under the Securities Act of
1933, as amended, and is an affiliate of LandCare. The Stockholder is able to
assess the risks and benefits of the transactions contemplated by this
Agreement. The Stockholder understands that ServiceMaster and LandCare are each
willing to respond to any questions or supply any information the Stockholder
shall desire in order to assess the risks and benefits of the transactions
contemplated by this Agreement and hereby confirms that there are no questions
that the Stockholder desires to ask or information the Stockholder desires to
obtain that has not been answered or supplied prior to the Stockholder's
execution of this Agreement.
6. Indemnification Currency. The Stockholder acknowledges that the
------------------------
Stockholder formerly had any ownership interest in a business enterprise
previously acquired by LandCare and that LandCare issued the Stockholder's
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 Stockholder has the right to deliver LandCare
shares in satisfaction for certain indemnification obligations of the
Stockholder that may arise under that Agreement. ServiceMaster hereby agrees
that after the Merger, the Stockholder may use ServiceMaster shares to satisfy
any indemnification obligations that the Stockholder may have under the Prior
Acquisition Agreement to the same extent that the Stockholder was permitted to
use LandCare shares prior to the Merger. The Stockholder hereby agrees that the
Merger shall not limit or impair any indemnification obligation that the
Stockholder may have under the Prior Acquisition Agreement and hereby agrees
that the provisions in the Prior Acquisition Agreement that permit the
Stockholder 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 Stockholder will, upon the request of
------------------
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
--------
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,
---------------------
altered or supplemented except by a writing signed by ServiceMaster and the
Stockholder. Neither the Stockholder 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
-------
communications hereunder shall be in writing and shall he given in person, by
telegram or facsimile (receipt verified), or sent 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:
4
<PAGE>
If to ServiceMaster: The ServiceMaster Company
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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
---------------------------------------
shall be deemed to restrict the Stockholder from taking any action in the
capacity of director of the Corporation that such Stockholder shall believe or
is advised by counsel are necessary to fulfill the Stockholder's fiduciary
duties as a director. The Stockholder will be able to take all of the actions
required by Sections 1 and 3 of this Agreement without conflict with the
Stockholder's obligations as a director and that, accordingly, nothing in the
preceding sentence shall or impair the Stockholder's agreements in Sections 1
and 3.
12. Counterparts. Agreement may be executed in two or more 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
-------------
accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof. The Stockholder hereby
submits 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
--------------
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 nights 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 Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder's other agreements herein and
that ServiceMaster may in its sole discretion apply to any
5
<PAGE>
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 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 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
-------------
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.
6
<PAGE>
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/ R.D. Erickson
------------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
/s/ David K. Luse
---------------------------------------------
Print Name: David K. Luse
Address: _________________________________
_________________________________
Number of Stockholder's LandCare Shares:
640,092
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., Arteka Acquisition Corp., Arteka
Natural Acquisition Corp., Arteka Nurseries
Acquisition Corp., Arteka Corporation, Arteka
Natural Green Corporation, Arteka Nurseries,
Inc., David K. Luse, O. Charles Brown as
Trustee of the David Luse Trust for Andrea
Luse, O. Charles Brown as Trustee of the
David Luse Trust for Kiel Luse, O. Charles
Brown as Trustee of the David Luse Trust for
Allison Luse, O. Charles Brown as Trustee of
the David Luse Trust for Michael Thompson,
Stewart Hanson, Scott Shanesy, and O. Charles
Brown.
7
<PAGE>
EXHIBIT 11
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number of
shares of LandCare common stock set forth adjacent to the Stockholder's
signature to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
-------------------------
(a) The Stockholder confirms that the Stockholder desires that
the Merger occur and has concluded that it is in the best interests of LandCare
and such Stockholder 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 Stockholder irrevocably agrees to vote the
Stockholder's LandCare Shares: (i) in favor of the adoption of the
1
<PAGE>
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.
---------------------------------
(a) The Stockholder 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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder 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 Stockholder 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 Stockholder hereby irrevocably
-------------------------------
authorizes ServiceMaster to execute as attorney in fact for the Stockholder any
ballot or consent form ServiceMaster shall reasonably deem appropriate to
accomplish the votes and consents required by this Agreement.
2
<PAGE>
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated
(i) none of the Stockholder's LandCare Shares shall be tendered in response to
any tender offer, (ii) no interest in any of the Stockholder's LandCare Shares
shall be sold or otherwise transferred, (iii) the Stockholder will not take any
other action which would impair Stockholder's ability to vote any of
Stockholder's LandCare Shares in the manner required by this Agreement and (iv)
subject to Section 11 hereof, the Stockholder's commitments in Sections 1 though
3 shall be irrevocable.
(b) The Stockholder hereby agrees that for the period ending on the
first anniversary of the issuance of the Stockholder's LandCare Shares the
Stockholder shall not sell, offer to sell, or otherwise transfer or dispose of
any ServiceMaster shares received in the Merger in exchange for the
Stockholder's LandCare Shares (the "Stockholder's ServiceMaster Shares"), engage
in put, call, short-sale, straddle or similar transactions involving
ServiceMaster Shares, or in any other way reduce the Stockholder's risk of
owning Stockholder's ServiceMaster Shares, provided that this restriction shall
not prohibit the Stockholder from pledging Stockholder's ServiceMaster Shares to
secure full-recourse indebtedness. ServiceMaster shall be entitled to place a
legend on the certificates representing the Stockholder's ServiceMaster Shares
identifying the restrictions imposed by this paragraph.
(c) The Stockholder hereby agrees that Stockholder's LandCare
Shares shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder has the capacity to enter into this Agreement and the right and
power to perform his obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is 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 Stockholder.
(c) No authorization, consent or approval of, or any filing with,
any public body, court or authority is necessary for consummation by the
Stockholder of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has
3
<PAGE>
necessary and sufficient right and authority to make the commitments with
respect to the Stockholder's LandCare Shares contained in this Agreement.
(e) The Stockholder is an accredited investor as defined in
the Rule 501 issued by the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and is an affiliate of LandCare. The
Stockholder is able to assess the risks and benefits of the transactions
contemplated by this Agreement. The Stockholder understands that Servivceand
LandCare are each willing to respond to any questions or supply any
information the Stockholder shall desire in order to assess the risks and
benefits of the transactions contemplated by this Agreement and hereby confirms
that there arc no questions that the Stockholder desires to ask or information
the Stockholder desires to obtain that has not been answered or supplied prior
to the Stockholder's execution of this Agreement.
6. Indemnification Currency. The Stockholder acknowledges that the
-------------------------
Stockholder formerly had any ownership interest in a business enterprise
previously acquired by LandCare and that LandCare issued the Stockholder's
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 Stockholder has the right to deliver LandCare
shares in satisfaction for certain indemnification obligations of the
Stockholder that may arise under that Agreement. ServiceMaster hereby agrees
that after the Merger, the Stockholder may use ServiceMaster shares to satisfy
any indemnification obligations that the Stockholder may have under the Prior
Acquisition Agreement to the same extent that the Stockholder was permitted to
use LandCare shares prior to the Merger. The Stockholder hereby agrees that the
Merger shall not limit or impair any indemnification obligation that the
Stockholder may have under the Prior Acquisition Agreement and hereby agrees
that the provisions in the Prior Acquisition Agreement that permit the
Stockholder 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 Stockholder will, upon the request of
-------------------
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
--------
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,
---------------------
altered or supplemented except by a writing signed by ServiceMaster and the
Stockholder. Neither the Stockholder 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
--------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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:
4
<PAGE>
If to ServiceMaster: The ServiceMaster Company
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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 o As a Director. Nothing in this Agreement shall be
------------------------------
deemed to restrict the Stockholder from taking any action director of the
Corporation that such Stockholder shall believe or is advised by counsel are
necessary to fulfil Stockholder's fiduciary duties as a director. The
Stockholder confirms that the Stockholder will be able to take all of the
actions required by Sections 1 and 3 of this Agreement without any conflict with
the Stockholder's obligations as a director and that, accordingly, nothing in
the preceding sentence shall be deemed to limit or impair the Stockholder's
agreements in Sections 1 and 3.
12. Counterparts. This Agreement may be executed in two or more
------------
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
-------------
accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof the Stockholder hereby
submits 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
--------------
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 Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder's 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
5
<PAGE>
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 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 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
-------------
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.
6
<PAGE>
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/ R.D. Erickson
-------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
/s/ Jeff A. Meyer
---------------------------------------
Print Name: Jeff A. Meyer
Address: 7430 E. Edward Lane
Scottsdale, AZ 85250
Number of Stockholder's LandCare Shares:
229,612
Title and Date of Prior Acquisition Agreement and name
or business sold to LandCare:
Agreement and Plan of Organization made as of
March 17, 1998 by and among LandCare USA, Inc.,
Desert Care Acquisition Corp., Desert Care
Landscaping, Inc., Jeff A. Meyer, Alison Meyer,
Marcus A. Rector, and Vincent J. Rector.
7
<PAGE>
EXHIBIT 12
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number of
shares of LandCare common stock set forth adjacent to the Stockholder's
signature to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to vote Shares.
------------------------
(a) The Stockholder confirms that the Stockholder desires that the
Merger occur and has concluded that it is in the best interests of LandCare and
such Stockholder 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 Stockholder irrevocably, agrees to vote the
Stockholder's LandCare Shares: (i) in favor of the adoption of the
1
<PAGE>
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.
---------------------------------
(a) The Stockholder 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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder 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 Stockholder 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 Stockholder hereby irrevocably
-------------------------------
authorizes ServiceMaster to execute as attorney in fact for the Stockholder any
ballot or consent form ServiceMaster shall reasonably deem appropriate to
accomplish the votes and consents required by this Agreement.
2
<PAGE>
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated
(i) none of the Stockholder's LandCare Shares shall be tendered in response to
any tender offer, (ii) no interest in any of the Stockholder's LandCare Shares
shall be sold or otherwise transferred, (iii) the Stockholder will not take any
other action which would impair Stockholder's ability to vote any of
Stockholder's LandCare Shares in the manner required by this Agreement and (iv)
subject to Section 10 hereof, the Stockholder's commitments in Sections 1 though
3 shall be irrevocable.
(b) The Stockholder hereby agrees that Stockholder's LandCare Shares
shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder warrants to ServiceMaster that: (i) the
Stockholder is duly organized and in good standing under the laws of the state
its organization and has the requisite power to enter into and perform this
Agreement; (ii) this Agreement has been duly authorized by all necessary action
on the part of the Stockholder, has been duly executed by the Stockholder and
constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms;
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is 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 Stockholder.
(c) No authorization, consent or approval of, or any filing with,
any public body, court or authority is necessary for consummation by the
Stockholder of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has necessary and
sufficient right and authority to make the commitments with respect to the
Stockholder's LandCare Shares contained in this Agreement.
(e) The Stockholder is an accredited investor as defined in the
Rule 501 issued by the Securities and Exchange Commission under the Securities
Act of 1933, as amended, and is an affiliate of LandCare. The Stockholder is
able to assess the risks and benefits of the transactions contemplated by this
Agreement. The Stockholder understands that ServiceMaster and LandCare are each
willing to respond to any questions or supply any information the Stockholder
shall desire
3
<PAGE>
in order to assess the risks and benefits of the transactions contemplated by
this Agreement and hereby confirms that there are no questions that the
Stockholder desires to ask or information the Stockholder desires to obtain that
has not been answered or supplied prior to the Stockholder's execution of this
Agreement.
6. Further Assurances. The Stockholder will, upon the request of
------------------
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.
7. Expenses. All costs and expenses incurred in connection with this
--------
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
8. Amendment; Assignment. This Agreement may not be modified, amended,
---------------------
altered or supplemented except by a writing signed by ServiceMaster and the
Stockholder. Neither the Stockholder nor ServiceMaster may assign any of its
rights or obligations under this Agreement without the written consent of the
other.
9. Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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 famished to the other in writing,
except that changes of address shall only be effective upon receipt.
10. No Constraints on Actions As a Consultant to the Board of Director.
------------------------------------------------------------------
Nothing in this Agreement shall be deemed to restrict Stephen Cook ("Cook")
from consulting with the board of directors of the Corporation when requested
to do so by the board of directors in furtherance of their fiduciary duties.
Cook 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 consultant to the Board of directors and that, accordingly, nothing in the
preceding sentence shall be deemed to limit or impair Cook's agreements in
Sections 1 and 3.
4
<PAGE>
11. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
12. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof. The Stockholder hereby
submits 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.
13. Binding Effect. This Agreement shall be binding upon, inure to the
--------------
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 Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder's 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.
14. Entire Agreement. This Agreement, those documents expressly
referred 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.
15. Severability. If any term, provision, covenant or restriction of
------------
this 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.
16. Miscellaneous. The headings contained in this Agreement are for
-------------
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.
5
<PAGE>
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/ R.D. Erickson
------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
FIELDSTONE PARTNERS
By: /s/ Stephen C. Cook
--------------------------------------
Name: Stephen C. Cook
Title: President CEO
Address: 6631 Main St.,#301
Houston, TX 77030
Number of Stockholder's LandCare
Shares: 87,000
6
<PAGE>
EXHIBIT 13
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the
number of shares of LandCare common stock set forth adjacent to the
Stockholder's signature to this Agreement. The term "Stockholder's LandCare
Shares" means the shares of Common Stock listed adjacent to the Stockholder's
signature and any other LandCare shares the Stockholder may acquire after the
date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
------------------------
(a) The Stockholder confirms that the Stockholder desires that
the Merger occur and has concluded that it is in the best interests of LandCare
and such Stockholder 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 maybe 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 Stockholder irrevocably agrees to vote the
Stockholder's LandCare Shares: (i) in favor of the adoption of the
1
<PAGE>
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.
----------------------------------
(a) The Stockholder 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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder 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 Stockholder 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 Stockholder hereby
-------------------------------
irrevocably authorizes ServiceMaster to execute as attorney in fact for the
Stockholder any ballot or consent form ServiceMaster shall reasonably deem
appropriate to accomplish the votes and consents required by this Agreement.
2
<PAGE>
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated
(i) none of the Stockholder's LandCare Shares shall be tendered in response to
any tender offer, (ii) no interest in any of the Stockholder's LandCare Shares
shall be sold or otherwise transferred, (iii) the Stockholder will not take any
other action which would impair Stockholder's ability to vote any of
Stockholder's LandCare Shares in the manner required by this Agreement and (iv)
subject to Section 10 hereof, the Stockholder's commitments in Sections 1 though
3 shall be irrevocable.
(b) The Stockholder hereby agrees that Stockholder's LandCare
Shares shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder has the capacity to enter into this Agreement and the right and
power to perform his obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is 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 Stockholder.
(c) No authorization, consent or approval of, or any filing
with, any public body, court or authority is necessary for consummation by the
Stockholder of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has necessary and
sufficient right and authority to make the commitments with respect to the
Stockholder's LandCare Shares contained in this Agreement.
(e) The Stockholder is an accredited investor as defined in
the Rule 501 issued by the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and is an affiliate of LandCare. The
Stockholder is able to assess the risks and benefits of the transactions
contemplated by this Agreement. The Stockholder understands that ServiceMaster
and Land Care are each willing to respond to any questions or supply any
information the Stockholder shall desire in order to assess the risks and
benefits of the transactions contemplated by this Agreement and hereby confirms
that there are no questions that the Stockholder desires to ask or information
the
3
<PAGE>
Stockholder desires to obtain that has not been answered or supplied prior to
the Stockholder's execution of this Agreement.
6. Further Assurances. The Stockholder will, upon the request of
------------------
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.
7. Expenses. All costs and expenses incurred in connection with
--------
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expenses.
8. Amendment; Assignment. This Agreement may not be modified,
---------------------
amended, altered or supplemented except by a writing signed by ServiceMaster and
the Stockholder. Neither the Stockholder nor ServiceMaster may assign any of its
rights or obligations under this Agreement without the written consent of the
other.
9. Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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.
10. No Constraints on Actions As a Director. Nothing in this
---------------------------------------
Agreement shall be deemed to restrict the Stockholder from taking any action in
the capacity of director of the Corporation that such Stockholder shall believe
or is advised by counsel are necessary to fulfill the Stockholder's fiduciary
duties as a director. The Stockholder confirms that the Stockholder will be able
to take all of the actions required by Sections 1 and 3 of this Agreement
without any conflict with the Stockholder's obligations as a director and that,
accordingly, nothing in the preceding sentence shall be deemed to limit or
impair the Stockholder's agreements in Sections 1 and 3.
4
<PAGE>
11. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
12. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the State of Delaware, without
giving effect to the principles of conflicts of laws thereof The Stockholder
hereby submits 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.
13. Binding Effect. This Agreement shall be binding upon, inure
--------------
to the 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 Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder's 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.
14. Entire Agreement. This Agreement, those documents expressly
----------------
referred 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.
15. Severability. If any term, provision, covenant or restriction
------------
of this 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.
16. Miscellaneous. The headings contained in this Agreement are
-------------
for 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.
5
<PAGE>
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/ R.D. Erickson
------------------------------
Name R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
/s/ William F. Murdy
----------------------------------
Print Name: William F. Murdy
Address: 71 St. John Place
New Camden, CT 06840
Number of Stockholder's LandCare Shares:
302,300
6
<PAGE>
EXHIBIT 14
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.
------------------------
(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
1
<PAGE>
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.
---------------------------------
(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
-------------------------------
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.
2
<PAGE>
4. Transfer Restrictions.
---------------------
(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.
--------------------------------------------------
(a) Notre Capital Ventures II, L.L.C. ("Notre") warrants to
ServiceMaster that: (i) it is duly organized and in good standing under the laws
of the state its organization and has the requisite power to enter into and
perform this Agreement; (ii) this Agreement has been duty authorized by all
necessary action on the part of Notre, has been duly executed by Notre and
constitutes a legal, valid and binding obligation of Notre, enforceable against
Notre in accordance with its terms;
(b) Steven S. Harter ("Harter") hereby warrants to ServiceMaster that
he has the capacity to enter into this Agreement and the right and power to
perform his obligations under this Agreement.
(c) Notre is not subject to or obligated under any provision of its
organizational documents and the Stockholders are not subject to or obligated
under any provision of any contract, license, franchise or permit, or any order,
judgment or decree which would be breached or violated by the execution,
delivery and performance of this Agreement by the Stockholders.
3
<PAGE>
(d) 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.
(e) The Stockholders' LandCare Shares listed adjacent to the
Stockholders' signatures 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 necessary
said sufficient right and authority to make the commitments with respect to the
Stockholders' LandCare Shares contained in this Agreement.
(f) 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 confirms 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. Further Assurances. The Stockholders will, upon the request of
------------------
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.
7. Expenses. All costs and expenses incurred in connection with this
--------
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
8. Amendment; Assignment. This Agreement may not be modified, amended,
---------------------
altered or supplemented except by a writing signed by ServiceMaster and the
Stockholders. Neither the Stockholders nor ServiceMaster may assign any of their
rights or obligations under this Agreement without the written consent of the
other.
9. Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
4
<PAGE>
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
If to any Stockholder: To the address set forth adjacent to
the Stockholders' Signatures
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.
10. No Constraints on Actions As a Consultant to the Board of
---------------------------------------------------------
Directors. Nothing in this Agreement shall be deemed to restrict Harter from
- ---------
consulting with the board of directors of the Corporation when requested to do
so by the board of directors in furtherance of their fiduciary duties. Harter
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
consultant to the board of directors and that, accordingly, nothing in the
preceding sentence shall be deemed to limit or impair Harter's agreements in
Sections 1 and 3.
11. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
12. Governing Law. This Agreement shall be governed by and construed in
-------------
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.
13. Binding Effect. This Agreement shall be binding upon, inure to the
--------------
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 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.
14. Entire Agreement. This Agreement, those documents expressly
----------------
referred to herein and other documents executed by the parties in respect to the
matters herein embody the complete
5
<PAGE>
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.
15. Severability. If any term, provision, covenant or restriction of this
------------
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.
16. Miscellaneous. The headings contained in this Agreement are for
-------------
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.
6
<PAGE>
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/ R.D. Erickson
------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDERS:
NOTRE CAPITAL VENTURES II L.L.C.
By: /s/Steven S. Harter
--------------------------------------
Name: Steven S. Harter
Title: _________________________________
Address. Three Riverway, Suite 630
Houston, Texas 77056
/s/ Steven S. Harter
-----------------------------------------
Print Name: Steven S. Harter
Address: Three Riverway, Suite 630
Houston, Texas 77056
Number of Stockholders' LandCare Shares:
1,300,000
7
<PAGE>
EXHIBIT 15
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number of
shares of LandCare common stock set forth adjacent to the Stockholder's
signature to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
------------------------
(a) The Stockholder confirms that the Stockholder desires that the
Merger occur and has concluded that it is in the best interests of LandCare and
such Stockholder that LandCare's Board approve the Merger Agreement and that
LandCare sign the Merger Agreement and that it is better for 4ndCare 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 Stockholder irrevocably agrees to vote the
Stockholder's LandCare Shares: (i) in favor of the adoption of the
1
<PAGE>
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.
---------------------------------
(a) The Stockholder 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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder 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 Stockholder 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 Stockholder hereby irrevocably
-------------------------------
authorizes ServiceMaster to execute as attorney in fact for the Stockholder any
ballot or consent form ServiceMaster shall reasonably deem appropriate to
accomplish the votes and consents required by this Agreement.
2
<PAGE>
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated (i)
none of the Stockholder's LandCare Shares shall be tendered in response to any
tender offer, (ii) no interest in any of the Stockholder's LandCare Shares shall
be sold or otherwise transferred, (iii)the Stockholder will not take any other
action which would impair Stockholder's ability to vote any of Stockholder's
LandCare Shares in the manner required by this Agreement and (iv) subject to
Section 11 hereof, the Stockholder's commitments in Sections 1 though 3 shall be
irrevocable.
(b) The Stockholder hereby agrees that for the period ending on the
first anniversary of the issuance of the Stockholder's LandCare Shares the
Stockholder shall not sell, offer to sell, or otherwise transferor dispose of
any ServiceMaster shares received in the Merger in exchange for the
Stockholder's LandCare Shares (the "Stockholder's ServiceMaster Shares"), engage
in put, call, short-sale, straddle or similar transactions involving
ServiceMaster Shares, or in any other way reduce the Stockholder's risk of
owning Stockholder's ServiceMaster Shares, provided that this restriction shall
not prohibit the Stockholder from pledging Stockholder's ServiceMaster Shares to
secure full-recourse indebtedness. ServiceMaster shall be entitled to place a
legend on the certificates representing the Stockholder's ServiceMaster Shares
identifying the restrictions imposed by this paragraph.
(c) The Stockholder hereby agrees that Stockholder's LandCare Shares
shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder hereby warrants to ServiceMaster that the
Stockholder has the capacity to enter into this Agreement and the right and
power to perform her obligations under this Agreement.
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is 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 Stockholder.
(c) No authorization, consent or approval of, or any filing with, any
public body, court or authority is necessary for consummation by the Stockholder
of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement. The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has
3
<PAGE>
necessary and sufficient right and authority to make the commitments with
respect to the Stockholder's LandCare Shares contained in this Agreement.
(e) The Stockholder is an accredited investor as defined in the Rule
501 issued by the Securities and Exchange Commission under the Securities Act of
1933, as amended, and is an affiliate of LandCare. The Stockholder is able to
assess the risks and benefits of the transactions contemplated by this
Agreement. The Stockholder understands that ServiceMaster and LandCare are each
willing to respond to any questions or supply any information the Stockholder
shall desire in order to assess the risks and benefits of the transactions
contemplated by this Agreement and hereby confirms that there are no questions
that the Stockholder desires to ask or information the Stockholder desires to
obtain that has not been answered or supplied prior to the Stockholder's
execution of this Agreement.
6. Indemnification Currency. The Stockholder acknowledges that the
------------------------
Stockholder formerly had any ownership interest in a business enterprise
previously acquired by LandCare and that LandCare issued the Stockholder's
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 Stockholder has the right to deliver Land Care
shares in satisfaction for certain indemnification obligations of the
Stockholder that may arise under that Agreement. ServiceMaster hereby agrees
that after the Merger, the Stockholder may use ServiceMaster shares to satisfy
any indemnification obligations that the Stockholder may have under the Prior
Acquisition Agreement to the same extent that the Stockholder was permitted to
use LandCare shares prior to the Merger. The Stockholder hereby agrees that the
Merger shall not limit or Impair any indemnification obligation that the
Stockholder may have under the Prior Acquisition Agreement and hereby agrees
that the provisions in the Prior Acquisition Agreement that permit the
Stockholder 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 Stockholder will, upon the request of
------------------
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
--------
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,
---------------------
altered or supplemented except by a writing signed by ServiceMaster and the
Stockholder. Neither the Stockholder 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
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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:
4
<PAGE>
If to ServiceMaster: The ServiceMaster Company
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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
---------------------------------------
shall be deemed to restrict the Stockholder from taking any action in the
capacity of director of the Corporation that such Stockholder shall believe or
is advised by counsel are necessary to fulfill the Stockholder's fiduciary
duties as a director. The Stockholder confirms that the Stockholder will be able
to take all of the actions required by Sections 1 and 3 of this Agreement
without any conflict with the Stockholder's obligations as a director and that,
accordingly, nothing in the preceding sentence shall be deemed to limit or
impair the Stockholder's agreements in Sections 1 and 3.
12. Counterparts. This Agreement may be executed in two or more
------------
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
-------------
accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof. The Stockholder hereby
submits 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
--------------
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 Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder',s other agreements herein
and that ServiceMaster may in its sole discretion apply to any
5
<PAGE>
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
----------------
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
------------
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provision, 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
-------------
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.
6
<PAGE>
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/ R.D. Erickson
-----------------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
/s/ Linda Benge
--------------------------------------------------
Print Name: Linda Benge
Address: P.O. Box 38038
Houston, TX 77238
Number of Stockholder's LandCare Shares:
727,941
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.,
Trees Acquisition Corp., Trees, Inc., Linda Benge,
Gerald Benge, Susan Benge Givens, and Linda Benge
as Escrow Agent under Stock Pledge and Escrow
Agreement dated August 14, 1992.
7
<PAGE>
EXHIBIT 16
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 party who has executed this Agreement (herein called the "Stockholder").
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 Stockholder is the record and beneficial owner of the number of
shares of LandCare common stock set forth adjacent to the Stockholder's
signature to this Agreement. The term "Stockholder's LandCare Shares" means the
shares of Common Stock listed adjacent to the Stockholder's signature and any
other LandCare shares the Stockholder may acquire after the date hereof.
C. The Stockholder has entered into this Agreement to induce
ServiceMaster to enter into the Merger Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Agreement to Vote Shares.
------------------------
(a) The Stockholder confirms that the Stockholder desires that
the Merger occur and has concluded that it is in the best interests of LandCare
and such Stockholder 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 Stockholder irrevocably agrees to vote the
Stockholder's LandCare Shares: (i) in favor of the adoption of the
1
<PAGE>
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.
---------------------------------
(a) The Stockholder 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 Stockholder 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 Stockholder shall promptly advise
ServiceMaster of each contact the Stockholder or any of the Stockholder's
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 Stockholder
regarding any Opposing Proposal or possible Opposing Proposal.
(c) The Stockholder 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 Stockholder 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 Stockholder hereby
-------------------------------
irrevocably authorizes ServiceMaster to execute as attorney in fact for the
Stockholder any ballot or consent form ServiceMaster shall reasonably deem
appropriate to accomplish the votes and consents required by this Agreement.
2
<PAGE>
4. Transfer Restrictions.
---------------------
(a) Until and unless the Merger Agreement has been terminated
(i) none of the Stockholder's LandCare Shares shall be tendered in response to
any tender offer, (ii) no interest in any of the Stockholder's LandCare Shares
shall be sold or otherwise transferred, (iii) the Stockholder ill not take any
other action which would impair Stockholder's ability to vote any of
Stockholder's LandCare Shares in the manner required by this Agreement and (iv)
the Stockholder's commitments in Sections 1 though 3 shall be irrevocable.
(b) The Stockholder hereby agrees that Stockholder's LandCare
Shares shall be legended to reflect the restrictions set forth herein in form
reasonably satisfactory to ServiceMaster. Upon execution of this Agreement, the
Stockholder shall deliver its LandCare Shares to LandCare for placement of the
restrictive legend and the shares shall be promptly returned to the Stockholder
thereafter.
5. Representations and Warranties of the Stockholder.
-------------------------------------------------
(a) The Stockholder warrants to ServiceMaster that: (i) the
Stockholder is duly organized and in good standing under the laws of the state
its organization and has the requisite power to enter into and perform this
Agreement, (ii) this Agreement has been duly authorized by all necessary action
on the part of the Stockholder, has been duly executed by the Stockholder and
constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms-,
(b) The Stockholder is not subject to or obligated under any
provision of (i) its organizational documents (if the Stockholder is 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 Stockholder.
(c) No authorization, consent or approval of, or any filing
with, any public body, court or authority is necessary for consummation by the
Stockholder of the transactions contemplated by this Agreement.
(d) The Stockholder's LandCare Shares listed adjacent to the
Stockholder's signature to this Agreement constitute all of LandCare Common
Stock over which the Stockholder possesses beneficial ownership or voting power
on the date of this Agreement . The Stockholder has absolute ownership of the
Stockholder's LandCare Shares free of any adverse interest and has necessary and
sufficient night and authority to make the commitments with respect to the
Stockholder's LandCare Shares contained in this Agreement.
(e) The Stockholder is an accredited investor as defined in
the Rule 501 issued by the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and is an affiliate of LandCare. The
Stockholder is able to assess the risks and benefits of the transactions
contemplated by this Agreement. The Stockholder understands that ServiceMaster
and LandCare are each willing to respond to any questions or supply any
information the Stockholder shall desire
3
<PAGE>
in order to assess the risks and benefits of the transactions contemplated by
this Agreement and hereby confirms that there are no questions that the
Stockholder desires to ask or information the Stockholder desires to obtain that
has not been answered or supplied prior to the Stockholder's execution of this
Agreement.
6. Further Assurances. The Stockholder will, upon the request of
------------------
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.
7. Expenses. All costs and expenses incurred in connection with this
--------
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
8. Amendment; Assignment. This Agreement may not be modified, amended,
---------------------
altered or supplemented except by a writing signed by ServiceMaster and the
Stockholder. Neither the Stockholder nor ServiceMaster may assign any of its
rights or obligations under this Agreement without the written consent of the
other.
9. Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent 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
One ServiceMaster Way
Downers Grove, IL 60515
Attention: Vernon T. Squires
With a copy to: Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Robert H. Kinderman
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.
10. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
11. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflicts
4
<PAGE>
of laws thereof The Stockholder hereby submits 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.
12. Binding Effect. This Agreement shall be binding upon, inure to the
--------------
benefit of and be enforced 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 Stockholder agrees
that money damages are not an adequate remedy for breach of the Stockholder's
voting agreements in this Agreement or Stockholder's 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.
13. Entire Agreement. This Agreement, those documents expressly
----------------
referred to herein and other documents executed by the parties in respect to the
matters herein embody the complete 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.
14. Severability. If any term, provision, covenant or restriction of
------------
this 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.
15. Miscellaneous. The headings contained in this Agreement are for
-------------
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.
5
<PAGE>
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.
SERVICEMASTER COMPANY
By /s/ R.D. Erickson
-----------------------------------------
Name: R.D. Erickson
Title: Executive Vice President
STOCKHOLDER:
INFOSCOPE PARTNERS
By: /s/ John T. King
----------------------------------------
Name: John T. King
Title: President and CEO
Address: 6631 Main, Suite 300
Houston, TX 77030
Number of Stockholder's LandCare Shares:
80,000
6
