VOTING AND CONVERSION AGREEMENT
This VOTING AND CONVERSION AGREEMENT (this
"Agreement"), dated November 9, 1998, by and among Anchor
National Life Insurance Company, an Arizona corporation
("Anchor"), Rockford Industries, Inc., a California
corporation (the "Company"), and American Express Company, a
New York corporation ("AMEX").
WITNESSETH THAT:
WHEREAS, the Company, AMEX and RXP Acquisition
Corporation, a Delaware corporation and wholly owned
subsidiary of AMEX ("Newco"), have entered into a letter of
intent relating to a proposed merger transaction whereby
AMEX would acquire all of the capital stock of the Company
on a fully diluted basis for consideration of approximately
$11.88 per share (the "Merger"); and
WHEREAS, Anchor previously subscribed for and is
the record and beneficial owner of 70,000 shares of Series A
Preferred Stock of the Company (the "Preferred Shares")
pursuant to a Subscription Agreement dated May 25, 1995
between the Company and Anchor (the "Subscription
Agreement") representing all of the issued and outstanding
shares of Preferred Stock of the Company; and
WHEREAS, pursuant to the Subscription Agreement,
the Preferred Shares are convertible into a specified number
of shares of Common Stock, no par value, of the Company (the
"Common Shares");and
WHEREAS, Anchor believes the consummation of the
Merger is beneficial to Anchor and the other shareholders of
the Company; and
WHEREAS, Anchor desires to induce AMEX to enter
into a Plan and Agreement of Merger among AMEX, Newco and
the Company (the "Merger Agreement") and to proceed with the
Merger; and
WHEREAS, to facilitate the ability of AMEX, Newco
and the Company to consummate the Merger, Anchor desires to
covenant and agree, upon the terms and subject to the
conditions set forth herein, to: (i) vote all of the
Preferred Shares in favor of approval of the Merger, and
(ii) convert all of the Preferred Shares into Common Shares
immediately prior to the closing of the Merger;
NOW, THEREFORE, in consideration of the mutual
covenants and agreements set forth herein, AMEX's
willingness to enter into the Merger Agreement and for other
good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as
follows:
Agreement to Vote Preferred Shares. Anchor agrees,
during the term of this Agreement, to vote all of its
Preferred Shares (i) in person or by proxy in favor of
approval of the Merger at every meeting of the
shareholders of the Company at which such matters are
considered and at every adjournment thereof (each, a
"Shareholders' Meeting") or (ii) at the request of the
Company, by written consent in favor of approval of the
Merger.
Representations of Anchor. Anchor is the beneficial
and record owner of 70,000 Preferred Shares. Such
shares are all of the Preferred Shares owned
beneficially or of record by Anchor. Such Preferred
Shares are owned by Anchor free and clear of any
pledges, liens, security interests, adverse claims,
assessments, options, equities, charges or encumbrances
with respect to the ownership of or right to vote or
dispose of such Shares.
No Voting Trusts or Transfers or Pledges. Anchor
agrees that it will not, nor will Anchor permit any
entity under its control to, (i) deposit any of the
Preferred Shares in a voting trust or subject any of
the Preferred Shares to any agreement or arrangement
with respect to the voting thereof, (ii) pledge, grant
a security interest in, hypothecate, sell, assign,
transfer or otherwise dispose of or convey any of its
Preferred Shares, or (iii) convert the Preferred Shares
other than in accordance with this Agreement or take
any other action with respect to the Preferred Shares
which is inconsistent with Anchor's agreements under
this Agreement. Without limiting the generality of the
foregoing, Anchor shall not grant to any party any
option or right to purchase the Preferred Shares or any
interest therein. Anchor acknowledges and agrees that
the transfer agent with respect to the Preferred Shares
shall be given notice that the Preferred Shares are
subject to the terms of this Agreement and such
Preferred Shares shall not be transferred except in
accordance with the terms of this Agreement.
Agreement to Convert Preferred Shares. Anchor agrees
during the term of this Agreement, if AMEX, the Company
and Newco (or any other wholly-owned subsidiary of
AMEX) enter into a Merger Agreement, immediately prior
to the closing of the Merger on the Closing Date for
the Merger, Anchor will convert all of its Preferred
Shares into Common Shares pursuant to and on the terms
set forth in the Subscription Agreement and the
Certificate of Determination relating to the Preferred
Shares. Until such time as Anchor converts the
Preferred Shares into Common Shares in accordance with
this Agreement, the Company acknowledges and agrees
that such Preferred Shares will continue to accrue
dividends, and such dividends shall be payable upon the
conversion of the Preferred Shares in accordance with
this Agreement.
Nondisclosure. Anchor understands, acknowledges and
agrees that it must maintain the highest degree of
confidentiality, shall not make any public announcement
and shall only disclose to employees when disclosure is
imperative with regard to this Agreement or the Merger
or any of the transactions contemplated hereby or
thereby; provided, however, that nothing in this
Section 5 shall be deemed to prohibit Anchor from
making any disclosure which its counsel deems necessary
or advisable in order to fulfill such party's
disclosure obligations imposed by law or the rules of
any national securities exchange or automated quotation
system so long as Anchor consults with the Company and
AMEX prior to such disclosure.
Specific Performance. Each party hereto acknowledges
that it will be impossible to measure in money the
damage to the other party if a party hereto fails to
comply with the obligations imposed by this Agreement,
and that, in the event of any such failure, the other
party will not have an adequate remedy at law or in
damages. Accordingly, each party hereto agrees that
injunctive relief or other equitable remedy, in
addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not
oppose the granting of such relief on the basis that
the other party has an adequate remedy at law. Each
party hereto agrees that it will not seek, and agrees
to waive any requirement for, the securing or posting
of a bond in connection with any other party's seeking
or obtaining such equitable relief.
Term of Agreement. The term of this Agreement shall
commence on the execution and delivery of the Merger
Agreement, and such term and this Agreement shall
terminate upon the earliest to occur of (i) the date on
which the Merger Agreement is terminated in accordance
with its terms, (ii) the date following the meeting of
the holders of the Common Stock to approve the Merger,
in the event the holders of the Common Stock do not
approve the Merger and (iii) September 30, 1999. Upon
such termination, no party shall have any further
obligations or liabilities hereunder; provided,
however, that such termination shall not relieve any
party from liability for any breach of this Agreement
prior to such termination.
Entire Agreement. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto
with respect to the subject matter hereof and contains
the entire agreement among the parties with respect to
the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions
hereof may be modified or waived, except by an
instrument in writing signed by all parties hereto. No
waiver of any provisions hereof by any party shall be
deemed a waiver of any other provisions hereof by any
such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such
party.
Notices. All notices, consents, requests,
instructions, approvals and other communications
provided for herein shall be in writing and shall be
deemed to have been duly given if mailed, by first
class or registered mail, five (5) business days after
deposit in the United States Mail, or if telexed or
telecopied, sent by telegram, or delivered by hand or
reputable overnight courier, when confirmation is
received, in each case as follows:
If to Anchor:
Anchor National Life Insurance Company
c/o SunAmerica Corporate Finance
700 Louisiana Street, Suite 3905
Houston, Texas 77002
Attention: Thomas Denkler
Telecopy: (713) 222-1402
If to Rockford:
Rockford Industries, Inc.
1851 East First Street, 6th Floor
Santa, Ana, California 92705
Attention: Kevin McDonnell
Telecopy: (714) 547-7166
With a copy to:
O'Melveny & Myers LLP
610 Newport Center Drive
Newport Beach, California 92660
Attention: J. Jay Herron, Esq.
Telecopy: (714) 669-6994
If to AMEX:
American Express Company
American Express Tower
World Financial Center
New York, New York 10285-4900
Attention: Carol V. Schwartz, Esq.
Telecopy: (212) 619-7099
With a copy to:
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: Bruce N. Hawthorne, Esq.
Telecopy: (404) 572-5146
or to such other persons or addresses as may be
designated in writing by the party to receive such
notice. Nothing in this Section 9 shall be deemed to
constitute consent to the manner and address for
service of process in connection with any legal
proceeding (including litigation arising out of or in
connection with this Agreement), which service shall be
effected as required by applicable law.
Amendment and Waiver. No modification, amendment or
waiver of any provision of this Agreement will be
effective unless such modification, amendment or waiver
is approved in writing by all of the parties hereto.
The failure of any party to enforce any of the
provisions of this Agreement will in no way be
construed as a waiver of such provisions of this
Agreement and will not affect the right of such party
thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
I. Miscellaneous.
(a) Nothing contained in this Agreement shall be
construed as creating any liability on the part of
Anchor under the Merger Agreement.
(b) This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in
accordance with, the laws of the State of
California, without reference to its conflicts of
law principles.
(c) Whenever possible, each provision of this
Agreement will be interpreted in such manner as to
be effective and valid under applicable law, but
if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect
under any applicable law or rule in any
jurisdiction, such invalidity, illegality or
unenforceability will not affect any other
provision or any other jurisdiction, but this
Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal
or unenforceable provision had never been
contained herein.
(d) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be
an original but all of which together shall
constitute one and the same instrument.
(e) All Section headings herein are for convenience of
reference only and are not part of this Agreement,
and no construction or reference shall be derived
therefrom.
IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Agreement as of the date first written
above.
ANCHOR NATIONAL LIFE INSURANCE
COMPANY
By: /s/ Tom Denker
----------------------------
Name: Thomas N. Denkler
Title: Authorized Agent
ROCKFORD INDUSTRIES, INC.
By: /s/ Kevin McDonnell
----------------------------
Name: Kevin McDonnell
Title: Chief Financial
Officer
AMERICAN EXPRESS COMPANY
By: /s/ Steven A. Alesio
----------------------------
Name: Steven A. Alesio
Title: Authorized Signatory