EXHIBIT 10.15
AGREEMENT
This Agreement is made this 5th day of November, 1996 by and between RDO
Equipment Co. (RDOEC), a corporation duly organized and existing under the
laws of the State of North Dakota; Xxxx Deere Company -- A Division of Deere &
Company (XX-Xx), a corporation duly organized and existing under the laws of
the State of Delaware; and Xxxx Deere Industrial Equipment Company (JDIEC), a
corporation duly organized and existing under the laws of the State of
Delaware.
Whereas the 1 October 1996 agreement of Xxxxxx X. Xxxxxx (Xxxxxx) and the
parties hereto contemplates an additional agreement, by the parties hereto,
which:
(a) identifies events which, from Xxxxxx'x death forward, will constitute
changes in the control of RDOEC; and
(b) provides XX-Xx and JDIEC an additional right to terminate RDOEC's dealer
appointments, effective immediately, if such an event occurs after
Xxxxxx'x death without the prior written approval of XX-Xx and JDIEC; and
Whereas the parties hereto desire to establish and agree upon the terms of
such contemplated additional agreement;
Now Therefore, in consideration of the premises and mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. As used in this Agreement:
a. "Area of Responsibility" means:
(1) with regard to RDOEC's XX-Xx dealerships, an individual
dealership location; and
(2) with regard to RDOEC's JDIEC dealerships, a geographic region
now or hereafter treated by JDIEC as a separate dealership
trade area in its dealer agreements with RDOEC.
b. "Board" means the board of directors of RDOEC.
c. "Change in Control" means the occurrence of any of the following:
(1) the sale, lease, exchange, or other transfer, directly or
indirectly, of substantially all of the assets of RDOEC (in
one transaction or in a series of transactions);
(2) a merger, consolidation, reorganization, or similar transaction
to which RDOEC is a party if the shareholders of RDOEC
immediately prior to the effective date of such transaction
have "beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act), immediately following the effective date of such
transaction, of securities of the surviving corporation
representing (a) more than 50%, but not more than 80%, of the
combined voting power of the surviving corporation's then
outstanding securities ordinarily having the right to vote
at elections of directors, unless such transaction has been
approved in advance by the Continuity Directors, or (b) 50% or
less of the combined voting power of the surviving corporation's
then outstanding securities ordinarily having the right to vote
at elections of directors (regardless of any approval by the
Continuity Directors);
(3) a vote by the Board or the shareholders of RDOEC to approve an
event of the kind described in sections 1.c(1) or 1.c(2)(b)
above;
(4) any person or entity (other than Xxxxxx'x legal representatives
and heirs who receive Xxxxxx'x RDOEC stock pursuant to Xxxxxx'x
estate plan, including any trust as to which Xxxxxx retained
voting control over such shares of RDOEC stock until his death)
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of (a) 20% or more,
but not 50% or more, of the combined voting power of RDOEC's
outstanding securities ordinarily having the right to vote at
election of directors, unless the transaction resulting in
such ownership has been approved in advance by the Continuity
Directors, or (b) 50% or more of the combined voting power
of RDOEC's outstanding securities ordinarily having the right
to vote at elections of directors (regardless of any approval
by the Continuity Directors);
(5) Continuity Directors cease for any reason to constitute at
least a majority of the Board;
2
(6) the appointment of a new corporate executive officer or a new
divisional manager of RDOEC (whether as the result of a new hire,
promotion, reassignment, or otherwise) who has not been approved
in advance by XX-Xx, XXXXX or both, as may be appropriate.
d. "Continuity Director" means any individual who is a member of the
Board at the time of Xxxxxx'x death, while he or she is a member of
the Board, and any individual who subsequently becomes a member of
the Board whose election or nomination for election to the Board
was approved by a vote of at least a majority of the RDOEC directors
who are Continuity Directors (either by a specific vote or by
approval of the proxy statement of RDOEC in which such individual is
named as a nominee for director without objection to such nomination).
e. "Exchange Act" means the Securities Exchange Act of 1934, as amended.
f. "Supplemental Agreement" means the 1 October 1996 agreement of Xxxxxx
and the parties hereto.
2. From Xxxxxx'x death forward, XX-Xx and JDIEC will have the right to
terminate RDOEC's dealer appointments, effective immediately, in the
event of a Change in Control which is not approved in writing by
XX-Xx and JDIEC. XX-Xx and JDIEC shall have the right to disapprove any
Change in Control in their sole discretion. Termination under this
section 2 may be executed, at the sole discretion of XX-Xx and JDIEC, on
an overall basis or by individual Area of Responsibility.
3. RDOEC will give XX-Xx and JDIEC written notice immediately following any
Change in Control. In addition, RDOEC will give XX-Xx and JDIEC advance
written notice of any Change in Control which RDOEC reasonably may
anticipate. Such advance written notice will be given when RDOEC first
determines that a Change in Control is reasonably likely to occur.
4. XX-Xx and JDIEC shall have input with respect to the selection of
nominees for the Board in advance of their nomination, and with
respect to the removal of Board members in advance of their removal.
5. Nothing contained in this Agreement shall be construed as a waiver
or modification of any terms, conditions, or rights contained in
any existing agreement between XX-Xx or JDIEC and RDOEC. By way of
illustration (and not limitation), the termination rights provided
for XX-Xx and JDIEC in this Agreement are in addition to, and shall
in no way affect or
3
limit, the termination rights of XX-Xx and JDIEC under the Supplemental
Agreement, RDOEC's dealer agreements (as modified by the Supplemental
Agreement), or any other agreement between RDOEC and XX-Xx or JDIEC.
XXXX DEERE COMPANY -- A DIVISION OF
DEERE & COMPANY
By:
-----------------------------------
Title:
---------------------------------
XXXX DEERE INDUSTRIAL EQUIPMENT COMPANY
By:
-----------------------------------
Title:
---------------------------------
RDO EQUIPMENT CO.
By:
-----------------------------------
Title:
---------------------------------
4
