STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT, dated as of December 19, 2000
(this "AGREEMENT"), by and between Berkshire Hathaway, Inc., a Delaware
corporation ("PARENT"), J Acquisition Corporation, a Delaware corporation
("ACQUISITION SUBSIDIARY"), and the Manville Personal Injury Settlement
Trust, a New York trust (the "STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Xxxxx Xxxxxxxx Corporation,
a Delaware corporation (the "COMPANY"), Parent and Acquisition Subsidiary
are entering into that certain Agreement and Plan of Merger dated as of the
date hereof (in the form so entered into, the "MERGER AGREEMENT") pursuant
to which and in accordance with the terms and conditions thereof
Acquisition Subsidiary will commence the Offer (as defined in the Merger
Agreement), and following the consummation thereof, Acquisition Subsidiary
will be merged with and into the Company, with the Company as the Surviving
Corporation (the "MERGER");
WHEREAS, the Stockholder owns beneficially and of record
112,730,819 shares (the "SHARES") of Common Stock, par value $.01 per
share, of the Company ("COMMON STOCK"), subject to the planned purchase by
the Company of up to 10,500,000 Shares from the Stockholder prior to
December 31, 2000 (the "COMPANY STOCK BUYBACK") pursuant to a Share
Purchase Agreement, dated as of December 19, 2000, between the Company and
the Stockholder; and
WHEREAS, as an inducement and a condition to entering into
the Merger Agreement, Parent and Acquisition Subsidiary have required that
the Stockholder agree, and the Stockholder has agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements
contained herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. Provisions Concerning the Shares.
(a) The Stockholder hereby agrees that during the
period commencing on (x) the date the Federal Bankruptcy Court of
the Southern District of New York (the "COURT") has issued an order
upon application of the Trustees of the Stockholder (the
"TRUSTEES") (i) approving the Stockholder's execution, delivery and
performance of this Agreement and the transactions contemplated
hereby; (ii) approving the Stockholder's execution, delivery and
performance of the Escrow Agreement (provided that the Court
Approval (as defined below) shall not be deemed to not have been
obtained if the provisions therein regarding the separate order
referred to in the Escrow Agreement shall not have been obtained)
and the Tax Matters Agreement and the transactions contemplated
thereby, and the execution, delivery and performance of the Amended
Supplemental Agreement and the Trust Amendment (each of the Escrow
Agreement, the Amended Supplemental Agreement and the Trust
Amendment as defined in the Tax Matters Agreement, and together
with this Agreement and the Tax Matters Agreement, the "TRUST
MERGER AGREEMENTS"); (iii) discharging fully the Trustees from any
and all liabilities relating to or arising from the execution,
delivery and performance of their obligations under the Trust
Merger Agreements and discharging fully the Trustees from any and
all liabilities relating to or arising from the consummation of the
transactions contemplated by the Trust Merger Agreements (other
than the Trustees' obligations to the other parties under the Trust
Merger Agreements) and (iv) approving the transfer of all assets of
the grantor trust portion of the Trust that would constitute
Qualified Payments (as defined in Section 468B(d) of the Code),
including the cash payment to the Stockholder in the Offer to the
Designated Settlement Fund (as defined in the Tax Matters
Agreement) immediately following the receipt of such amount (and
from time to time thereafter as Qualified Payments are received as
provided in Section 2.6 of the Tax Matters Agreement) pursuant to
the Reorganization Plan, all in a form reasonably acceptable to the
Stockholder, which order shall be in full force and effect, but may
be subject to appeal or discretionary review by another court (the
"COURT APPROVAL"); or (y) if upon its review of objections raised
to the issuance of the Court Approval, the Stockholder believes in
good faith after consultation with the Company that as a condition
to the Stockholder's obligations under this Agreement the Court
Approval should be a Final Order (as defined in Section 1.1 of the
Tax Matters Agreement), then the date the Court Approval becomes a
Final Order (the "FINAL COURT APPROVAL"), and continuing until this
Agreement terminates pursuant to Section 5 hereof, at any meeting
of the holders of shares of Common Stock, however called or in
connection with any solicitation for written consent by the
stockholders of the Company, the Stockholder shall vote all of the
Shares (other than any Shares which have been purchased by the
Company in the Company Stock Buyback) and any additional shares of
Common Stock hereafter acquired and owned of record by the
Stockholder at the time of the Special Meeting ("ADDITIONAL
SHARES"), (i) in favor of the adoption of the Merger Agreement,
(ii) against any proposal to the stockholders of the Company which
would be reasonably likely to prevent the consummation of the
Merger and (iii) against any Acquisition Proposal other than the
Merger.
(b) The Stockholder shall not enter into any
agreement or understanding with any Person the effect of which
would be inconsistent or violative of the provisions of this
Agreement; provided, however, that this subsection (b) shall not
affect any of the rights of the Stockholder otherwise expressly
provided herein.
(c) For purposes of this Agreement:
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Exchange
Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing; without duplicative
counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would
constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act.
(d) In the event of a stock dividend or distribution,
or any change in the shares of Common Stock by reason of any stock
dividend, stock split, recapitalization, reclassification,
combination, exchange of shares, merger or the like, the terms
"SHARES" and "ADDITIONAL SHARES" as used in this Agreement shall be
deemed to refer to and include the Shares and Additional Shares as
well as all such stock dividends and distributions and any shares
or other securities into which or for which any or all of such
shares may be converted, changed or exchanged, to the extent that
any such securities have the right to vote on any proposal
submitted to the stockholders of the Company.
(e) Stockholder hereby agrees to, promptly following
receipt of the Court Approval, or if applicable, the Final Court
Approval, tender into the Offer, all of the Shares (other than any
Shares which have been purchased by the Company in the Company
Stock Buyback) and any Additional Shares.
(f) Stockholder hereby authorizes Parent and
Acquisition Subsidiary to publish and disclose in the Offer
Documents and, if approval of the Company's stockholders is
required under applicable law, the Proxy Statement, its identity,
its ownership of Shares and Additional Shares, and the nature of
its commitments, arrangements and understandings under this
Agreement.
2. Representations and Warranties.
(a) Stockholder Representations and Warranties. As of
the date hereof, the Stockholder hereby represents and warrants to
Parent and Acquisition Subsidiary as follows:
(i) Ownership of Shares. Subject to the
Company Stock Buyback, the Stockholder is the Beneficial
Owner of all of the Shares. On the date hereof, the Shares
constitute all of the shares of Common Stock of the Company
owned of record and Beneficially Owned by the Stockholder.
Subject to the terms of the Supplemental Agreement and the
Company Stock Buyback, the Stockholder has sole voting power
and sole power to issue instructions with respect to the
matters set forth in Section 1 hereof, sole power of
disposition and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to
all of the Shares, with no limitations, qualifications or
restrictions on such rights (subject to applicable
securities laws).
(ii) Power; Binding Agreement. The Stockholder
has the legal capacity and power and, subject to obtaining
the Court Approval, authority to enter into and perform all
of its obligations under this Agreement. This Agreement has
been duly and validly authorized and executed and delivered
by the Stockholder and constitutes a valid and binding
agreement of the Stockholder, enforceable against the
Stockholder in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity). There is no beneficiary or
holder of a voting trust certificate or other interest of
any trust of which the Stockholder is settlor or trustee or,
except for the Court, any other Person whose consent is
required for the execution and delivery of this Agreement or
the consummation by the Stockholder of the transactions
contemplated hereby.
(iii) No Conflicts. (A) Except for filings
under the HSR Act, if any, the Court Approval and filings
under the Exchange Act, no filing or registration with,
notification to, authorization, permit, consent or approval
of, any court, legislative, executive or regulatory
authority or agency is necessary for the execution of this
Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby and (B)
none of the execution and delivery of this Agreement by the
Stockholder, the consummation by the Stockholder of the
transactions contemplated hereby or compliance by the
Stockholder with any of the provisions hereof will (i)
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 third party right of termination,
amendment, cancellation, material modification, creation of
a Lien pursuant to, or acceleration) under any of the terms,
conditions or provisions of any declaration of trust, note,
bond, mortgage, guarantee, indenture, security or pledge
agreement, voting agreement, stockholders' agreement or
voting trust, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation
of any kind to which the Stockholder is a party or by which
the Stockholder or any of the Stockholder's properties or
assets may be bound, or (ii) violate any order, writ,
injunction, decree, judgment, order, statute, rule or
regulation applicable to the Stockholder or any of the
Stockholder's properties or assets, except in any such case
where such violation, breach, default or right would not be
reasonably likely to be materially adverse to the
Stockholder or prevent or materially delay the Stockholder
from the fulfillment of its obligations hereunder.
(iv) No Broker. Except for Xxxxxxx, Sachs &
Co., no broker, finder, investment banker, financial adviser
or other Person is entitled to any commission, broker's fee,
finder's fee, adviser's fee or similar fee in connection
with the transactions contemplated by this Agreement based
upon arrangements made by or on behalf of the Stockholder,
and neither Parent nor Acquisition Subsidiary shall be
responsible for any such fees and related expenses to be
paid to Xxxxxxx, Xxxxx & Co. based upon arrangements made by
or on behalf of the Stockholder. The Stockholder is solely
responsible for the fees and expenses of Xxxxxxx, Sachs &
Co. pursuant to any agreement between the Stockholder and
Xxxxxxx, Xxxxx & Co.
(v) Opinion. The Stockholder has received the
oral opinion of Xxxxxxx, Sachs & Co., on the date hereof, to
the effect that the $13.00 in cash to be received by the
Stockholder for each of its Shares in the Offer or pursuant
to this Agreement or in the Merger, is fair from a financial
point of view to the Stockholder.
(vi) Information in Disclosure Documents. The
information relating to the Stockholder provided by or on
behalf of the Stockholder specifically for inclusion in the
Offer Documents, the Proxy Statement, if any, and any
amendment thereof or supplement thereto will not contain, at
the date mailed to Company stockholders, any false or
misleading 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 are made, not false or
misleading.
(b) Parent and Acquisition Subsidiary Representations
and Warranties. As of the date hereof, each of Parent and
Acquisition Subsidiary represents and warrants to the Trust as
follows:
(i) Power; Binding Agreement. Each of Parent
and Acquisition Subsidiary has the legal capacity, power and
authority to enter into and perform all of its obligations
under this Agreement. This Agreement has been duly and
validly authorized, executed and delivered by each of Parent
and Acquisition Subsidiary and constitutes a valid and
binding agreement of each of Parent and Acquisition
Subsidiary, enforceable against each of Parent and
Acquisition Subsidiary in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity). There is no Person whose
consent is required for the execution and delivery of this
Agreement or the consummation by either Parent or
Acquisition Subsidiary of the transactions contemplated
hereby.
(ii) No Conflicts. (A) Except for filings
under the HSR Act, if any, and filings under the Exchange
Act, no filing or registration with, notification to,
authorization, permit, consent or approval of, any court,
legislative, executive or regulatory authority or agency is
necessary for the execution of this Agreement by either
Parent or Acquisition Subsidiary and the consummation by
each of Parent and Acquisition Subsidiary of the
transactions contemplated hereby and (B) none of the
execution and delivery of this Agreement by either Parent or
Acquisition Subsidiary, the consummation by each of Parent
and Acquisition Subsidiary of the transactions contemplated
hereby or compliance by each of Parent and Acquisition
Subsidiary with any of the provisions hereof will (i) 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 third party right of termination, amendment,
cancellation, material modification, creation of a Lien
pursuant to, or acceleration) under any of the terms,
conditions or provisions of any declaration of trust, note,
bond, mortgage, guarantee, indenture, security or pledge
agreement, voting agreement, stockholders' agreement or
voting trust, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation
of any kind to which either Parent or Acquisition Subsidiary
is a party or by which either Parent or Acquisition
Subsidiary or any of Parent's or Acquisition Subsidiary's
properties or assets may be bound, or (ii) violate any
order, writ, injunction, decree, judgment, order, statute,
rule or regulation applicable to Parent, Acquisition
Subsidiary or any of Parent's or Acquisition Subsidiary's
properties or assets.
(iii) Information for Offer Documents and
Proxy Statement. The information relating to the Acquisition
Subsidiary provided by or on behalf of Parent or Acquisition
Subsidiary specifically for inclusion in the Offer
Documents, the Proxy Statement, if any, and any amendment
thereof or supplement thereto will not contain, at the date
mailed to Company stockholders, any false or misleading
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 are made, not false or misleading.
3. No Solicitation
(a) Until this Agreement terminates, the Stockholder
agrees that, except with respect to the Company Stock Buyback, it
shall not, and shall instruct the Trustees and the Stockholder's
officers, investment bankers, attorneys, accountants, financial
advisors, agents and other representatives not to, (i) initiate,
solicit, encourage or knowingly facilitate the making of any
Acquisition Proposal or (ii) except as permitted below, engage in
negotiations or discussions with, or furnish any non-public
information or data to, any third party relating to any Acquisition
Proposal (other than the transactions contemplated by the Merger
Agreement). Notwithstanding anything to the contrary contained in
this Agreement, until the acceptance for payment of shares of
Common Stock in the Offer and subject to the provisions of Section
3(b) and (c), the Stockholder (i) may participate in negotiations
or discussions (including, as a part thereof, making any
counterproposal) with or furnish information or data to any third
party pursuant to a customary confidentiality agreement, if either
(A) the Board of Directors of the Company had participated in such
negotiations or discussions or furnished such information or data
in accordance with and subject to the conditions contained in
Section 6.2 of the Merger Agreement or (B) the Trustees determine
in good faith that a third party has made after the date hereof a
Superior Stockholder Proposal (as defined below) or an Acquisition
Proposal that the Trustees, after receiving the advice of its
financial advisors, conclude would be reasonably likely to
constitute a Superior Stockholder Proposal (and any such proposal
was not solicited by the Stockholder, any Trustee or any of their
respective affiliates or agents at the explicit or implicit
direction of the Stockholder or the Trustee); and (ii) shall be
permitted to request from any Person making an Acquisition Proposal
such information as may be necessary for the Trustees to inform
themselves as to the material terms of the Acquisition Proposal.
Immediately after the execution and delivery of this Agreement, the
Stockholder and the Trustees will, and will instruct the
Stockholder's employees, officers, investment bankers, attorneys,
accountants and other agents to, immediately cease and terminate
any existing activities, discussions or negotiations with any
parties conducted prior to the date hereof with respect to any
possible Acquisition Proposal. The Stockholder agrees that it will
take the necessary steps to promptly inform its officers, trustees,
investment bankers, attorneys, accountants, financial advisors,
agents or other representatives involved in the transactions
contemplated by this Agreement of the obligations undertaken in
this Section 3(a).
(b) In addition to the obligations of the Stockholder
set forth in paragraph (a) above, the Stockholder shall advise
Parent and Acquisition Subsidiary orally and in writing by the end
of the next Business Day, but in no event more than 36 hours after
its receipt, of any written request for information or of any
Acquisition Proposal and the material terms and conditions of such
request or Acquisition Proposal and the identity of the Person
making any such request or Acquisition Proposal and any
determination by the Trustees that an Acquisition Proposal is a
Superior Stockholder Proposal or would be reasonably likely to
constitute a Superior Stockholder Proposal. The Stockholder will
keep Parent and Acquisition Subsidiary reasonably informed as to
the status and material terms and conditions of any such request or
Acquisition Proposal. Notwithstanding the foregoing, the
Stockholder shall not be in violation of the provisions of this
paragraph (b) if the Company shall have provided Parent and
Acquisition Subsidiary with the same information contemplated by
this paragraph in the same timely manner. The term "SUPERIOR
STOCKHOLDER PROPOSAL" shall mean any bona fide proposal to the
Stockholder, which was not solicited by the Stockholder or any
Trustee or their respective affiliates or agents at the explicit or
implicit direction of the Stockholder or Trustee, to enter into an
Acquisition Proposal made by a third party on terms and conditions
which the Trustees determine in their good faith, after receipt of
the advice of the Stockholder's financial advisors, to be more
favorable to the Stockholder from a financial point of view than
the transactions contemplated by the Merger Agreement (taking
account of all of the terms thereof, including price, likelihood of
financing being obtained and likelihood and expected timing of
consummation).
(c) In addition to any other right that it may have
in this Agreement to decline to tender the Shares or vote the
Shares in favor of the adoption of the Merger Agreement, if the
Stockholder is entitled to engage in negotiations or discussions
with, or furnish any information or data to, any third party on the
terms contemplated in Section 3(a), the Trustees and the
Stockholder may, until the acceptance for payment of shares of
Common Stock in the Offer (i) decline to tender the Shares into the
Offer, (ii) withhold the vote of the Stockholder in favor of
adoption of the Merger Agreement, (iii) approve of, or propose
publicly to approve of, a Superior Stockholder Proposal or (iv)
cause the Stockholder to enter into any letter of intent, agreement
in principle, acquisition agreement or other similar agreement
related to a Superior Stockholder Proposal. The Trustees and the
Stockholder may only take the actions described in clauses (i),
(ii), (iii) and (iv) of this subparagraph, however, if this
Agreement has terminated in accordance with Section 5, including,
if applicable, following the expiration of the five Business Day
period referred to in Section 5(b)(iii).
4. Restriction on Transfer; Proxies; Non-Interference; Stop
Transfers; etc.
(a) The Stockholder shall not, directly or
indirectly, during the period commencing on the date hereof and
continuing until this Agreement terminates: (i) except as
contemplated by the Company Stock Buyback, offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of,
or grant or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Shares or Additional Shares or
any interest therein, or (ii) except as contemplated by this
Agreement, grant any proxies or powers of attorney, deposit any of
the Shares or Additional Shares into a voting trust or enter into a
voting agreement with respect to any of the Shares or Additional
Shares.
(b) Without limiting the generality of Section 4(a)
above, the Stockholder agrees with, and covenants to, Parent and
Acquisition Subsidiary that the Stockholder shall not, during the
period set forth in Section 4(a), request that the Company register
the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing the Shares or Additional
Shares, unless such transfer is made in compliance with this
Agreement.
(c) Upon the terms and subject to the conditions
herein provided, the Stockholder agrees to use its commercially
reasonable best efforts to take, or cause to be taken, all action
and to do, or cause to be done, all things reasonably necessary,
proper or advisable under applicable laws and regulations (i) to
obtain the Court Approval and the Final Court Approval, if
applicable, and to promptly pursue the Court Approval by making all
reasonably necessary motions and filings (it being agreed that the
filings and motions required by the Stockholder in order to obtain
the Court Approval shall be filed with the Court as promptly as
practicable after the date hereof but in no event later than
January 10, 2001), including motions and filings made in response
to any third party filings made in opposition to the Court
Approval, (ii) to promptly oppose any attempt of which it has
knowledge to have the Court Approval vacated, reversed or modified
or amended, in whole or in part, so as to materially limit the
Court Approval unless the Stockholder shall be entitled to take the
actions set forth in Section 3(c) thereof; it being understood that
nothing set forth in this clause (ii) shall affect the
Stockholder's rights under Section 5(b) hereof and (iii) to obtain
the orders contemplated in Section 1.1 of the Escrow Agreement. The
Stockholder will furnish to Parent and the Acquisition Subsidiary
copies of all motions and filings made by the Stockholder with the
Court, or any other information supplied by the Stockholder to a
Governmental Entity in connection with this Agreement and the
transactions contemplated hereby.
5. Termination; Effect of Termination.
(a) This Agreement shall terminate automatically in
the event that any of the following occur: (i) the Merger Agreement
is terminated in accordance with the terms thereof, (ii) the Offer
is consummated and the Shares (other than any Shares which have
been purchased by the Company in the Company Stock Buyback) and any
Additional Shares are purchased pursuant thereto, (iii) Acquisition
Subsidiary purchases the Subject Shares in accordance with the
terms of Section 23 hereof or (iv) the Merger is consummated.
(b) This Agreement shall terminate at the election of
the Stockholder (i) if, prior to acceptance for purchase of shares
of Common Stock tendered in the Offer, the board of directors of
the Company modifies or withdraws its recommendation of the Merger
Agreement, the Offer or the Merger in accordance with the terms of
the Merger Agreement and, in connection with such modification or
withdrawal, the Company enters into a binding agreement with
respect to or consummates a transaction that constitutes a Superior
Proposal (as defined in the Merger Agreement), (ii) if the Court
fails to issue the Court Approval after a notice and hearing
thereon or the Court Approval is vacated, reversed or modified or
amended, in whole or in part, so as to materially limit the Court
Approval or, if applicable, does not become a Final Court Approval,
or (iii) if, prior to acceptance for payment of shares of Common
Stock tendered in the Offer, the Trustees authorize the Stockholder
to enter into a binding agreement with respect to a transaction
that constitutes a Superior Stockholder Proposal and the
Stockholder has notified Parent and Acquisition Subsidiary in
writing that it intends to enter into such an agreement and
terminate this Agreement pursuant to this clause 5(b)(iii),
attaching the most current version of such agreement to such
notice, and during the five Business Day period after the
Stockholder's notice, the representatives of Trustees shall have
negotiated with Parent and Acquisition Subsidiary regarding the
terms and conditions of a revised offer by Parent and Acquisition
Subsidiary and if the Trustees shall have concluded, after
considering any revised offer made by Parent and Acquisition
Subsidiary during such period, that the Superior Stockholder
Proposal giving rise to the Stockholder's notice, as then revised,
continues to be a Superior Stockholder Proposal. The Stockholder
may not effect such termination sooner than the second Business Day
after Parent and Acquisition Subsidiary receive the Stockholder's
notice, and Stockholder agrees to notify Parent and Acquisition
Subsidiary promptly if the Trustees determine not to enter into a
binding agreement with respect to the Superior Stockholder Proposal
as to which notification was given.
(c) This Agreement shall terminate at the election of
Parent and Acquisition Subsidiary prior to the purchase of shares
of Common Stock in the Offer (i) if the Court fails to issue the
Court Approval after a notice and hearing thereon, or the Court
Approval is vacated, reversed or modified or amended, in whole or
in part, so as to materially limit the Court Approval or, if
applicable, fails to become a Final Court Approval, or (ii) if a
binding written agreement with respect to a Superior Stockholder
Proposal is entered into by the Stockholder.
(d) Notwithstanding anything to the contrary herein
no termination of this Agreement shall relieve any party of
liability for a breach hereof prior to termination.
6. Further Assurances. From time to time, at the other
party's request and without further consideration, Parent, Acquisition
Subsidiary and the Company, consistent with this Agreement shall execute
and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective,
in the most expeditious manner practicable, the transactions contemplated
by this Agreement.
7. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
8. Certain Events. The Stockholder agrees that this
Agreement and the obligations hereunder, including the tender and voting
obligations described in Section 1, shall attach to the Shares (other than
any Shares which have been purchased by the Company in the Company Stock
Buyback) and any Additional Shares and shall be binding upon any Person to
which legal or beneficial ownership of any of such shares shall pass,
whether by operation of law or otherwise, including, without limitation,
the Stockholder's administrators, trustees or successors. Notwithstanding
any transfer of any of such shares, the transferor shall remain liable for
the performance of all obligations of the transferor under this Agreement.
9. Assignment. Neither this Agreement nor any of the rights,
interest or obligations hereunder shall be assigned by any party hereto
(whether by operation of law or otherwise) without the prior written
consent of the other party; provided that the Acquisition Subsidiary shall
be permitted to assign its rights hereunder to Parent or any other wholly
owned Subsidiary of Parent without the consent of the Stockholder. All
covenants and agreements contained in this Agreement by or on behalf of the
parties hereto shall be binding on and inure to the benefit of the
respective successors and permitted assigns of the parties hereto.
10. Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except upon the execution and delivery of a written agreement executed by
each of the parties hereto.
11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given upon (a) transmitter's
confirmation of a receipt of a facsimile transmission, (b) confirmed
delivery by a standard overnight carrier or when delivered by hand or (c)
the expiration of five Business Days after the day when mailed in the
United States by certified or registered mail, postage prepaid, addressed
at the following addresses (or at such other address for a party as shall
be specified by like notice):
(a) if to the Stockholder, to:
Manville Personal Injury Settlement Trust
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Chairman and Managing Trustee
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
And
(b) if to Parent or Acquisition Subsidiary, to:
Berkshire Hathaway Inc.
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Hamburg
with copies to:
Xxxxxx, Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: R. Xxxxxxx Xxxxxx, Esq.
12. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void, unenforceable or against its
regulatory policy, 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, so long as the
economic and legal substance of the transactions hereby, taken as a whole,
are not affected in a manner materially adverse to any party hereto.
13. Specific Performance. The Stockholder recognizes and
acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause Parent and Acquisition Subsidiary to sustain
damages for which it would not have an adequate remedy at law for money
damages, and therefore the Stockholder agrees that in the event of any such
breach Parent and Acquisition Subsidiary shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and
other equitable relief in addition to any other remedy to which Parent and
Acquisition Subsidiary may be entitled, at law or in equity.
14. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at
law or in equity shall be cumulative and not alternative, and the exercise
of any thereof by any party shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.
15. No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder, shall
not constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
16. No Third Party Beneficiaries. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and
nothing in this Agreement, express or implied, is intended to or shall
confer upon any other person any rights, benefits or remedies of any nature
whatsoever under or by reason of this Agreement. Without limiting the
foregoing, no direct or indirect holder of any equity interests or
securities of either party hereto (whether such holder is a limited or
general partner, member, stockholder or otherwise), nor any affiliate of
any party hereto, nor any director, officer, employee, representative,
agent or other controlling person of each of the parties hereto and their
respective affiliates shall have any liability or obligation arising under
this Agreement or the transactions contemplated hereby.
17. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
18. WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT AND ANY DOCUMENT EXECUTED IN CONNECTION
HEREWITH.
19. Headings. The descriptive headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
20. Capitalized Terms. Capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
21. Submission to Jurisdiction. Each of the parties hereto
(a) consents to submit itself to the personal jurisdiction of any Federal
court located in the State of Delaware or any Delaware state court in the
event any dispute arises, out of this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave
from any such court and (c) agrees that such forum is not an inconvenient
forum.
22. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of
which shall be considered to constitute one and the same Agreement.
23. Purchase and Sale Agreement. If immediately following
the acceptance for payment of shares of Company Common Stock tendered in
the Offer, the Court Approval shall be in full force and effect or, if
applicable, a Final Court Approval shall be in effect, and the Stockholder
continues to own of record any of the Shares or any Additional Shares (the
"SUBJECT SHARES") the Stockholder shall sell, and Acquisition Subsidiary
shall purchase, all of the Subject Shares at a price per Share (the
"PURCHASE PRICE") equal to the price per share of Common Stock paid by
Acquisition Subsidiary in the Offer in cash. The Closing with respect to
the sale and purchase of the Subject Shares shall occur at the opening of
business on the first Business Day following the expiration of the Offer at
the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(the "SUBJECT SHARES CLOSING"). At the Subject Shares Closing, the
Stockholder shall deliver the Subject Shares and Acquisition Subsidiary
shall pay to the Stockholder to an account designated by the Stockholder by
wire transfer of immediately available funds, an amount equal to the number
of Subject Shares multiplied by the Purchase Price.
[signature page follows]
IN WITNESS WHEREOF, Parent, Acquisition Subsidiary and the
Stockholder have executed and delivered this Agreement as of the day and
year first above written.
BERKSHIRE HATHAWAY INC.
By:
------------------------------------
Name:
Title:
J ACQUISITION CORPORATION
By:
------------------------------------
Name:
Title:
MANVILLE PERSONAL INJURY
SETTLEMENT TRUST,
by its Trustee(s):
---------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxxxxxxx X. Xxxxxx, Xx.
