SHARE PURCHASE AGREEMENT
AGREEMENT, dated as of December 19, 2000, between Xxxxx Xxxxxxxx
Corporation, a Delaware corporation (the "Company"), and Manville Personal
Injury Settlement Trust (the "Trust").
WHEREAS, the Trust owns 112,730,819 shares (the "Shares") of the
Company's common stock, $.01 par value per share (the "Common Stock");
WHEREAS, the Company desires to purchase from the Trust, and the
Trust desires to sell to the Company, a portion of the Shares, subject to
the terms and conditions contained herein;
WHEREAS, the Company intends to enter into an Agreement and Plan of
Merger dated December 19, 2000 (the "Merger Agreement"), with Berkshire
Hathaway Inc. and J Acquisition Corporation ("Acquisition Subsidiary")
providing for the Acquisition Subsidiary to offer to purchase any and all
of the outstanding shares of Common Stock (the "Offer") at a price of
$13.00 per share (the "Offer Price").
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the adequacy and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES
1.1 Purchase and Sale of the Shares. Upon the terms of this
Agreement, at the Closing provided for in Section 1.3 hereof, the Trust
will sell, assign, transfer and deliver to the Company, and the Company
will purchase, acquire and accept from the Trust, free and clear of all
liens, encumbrances, options, pledges, security interests, claims, charges
or restrictions whatsoever (collectively, "Liens"), 10,500,000 of the
Shares (the "Subject Shares").
1.2 Consideration. Upon the terms and subject to the conditions of
this Agreement, in consideration of the aforesaid sale, assignment,
transfer and delivery of the Subject Shares, at the Closing provided for in
Section 1.3 hereof, the Company shall pay to the Trust the amount of
$136,500,000 (the "Share Consideration").
1.3 Closing. The consummation of the transactions contemplated by
Section 1.1 of this Agreement (the "Closing") will take place at 11:00
a.m., New York City time, on December 29, 2000.
1.4 Deliveries by the Trust. At the Closing, the Trust shall deliver
to the Company one or more stock certificates representing the Subject
Shares, duly endorsed or accompanied by stock powers duly executed in blank
or duly executed instruments of transfer and with all requisite stock
transfer tax stamps attached.
1.5 Deliveries by the Company. At the Closing, the Company shall
deliver to the Trust the Share Consideration by wire transfer of federal
funds to the account specified on Schedule 1.5.
1.6 Termination of Merger Agreement. If the Merger Agreement is
terminated prior to the consummation of the Offer, the Company shall,
subject to director's fiduciary duties and applicable law, as soon as
practicable offer to purchase up to 9.31% of the outstanding shares of
Common Stock held by stockholders other than the Trust or any affiliate of
the Trust at a per share price of $13.00, or such higher price paid to the
Trust pursuant hereto, and the Trust hereby consents to such offer, and
agrees not to tender any shares of Common Stock in such offer and waives
any rights it may have with respect to such offer.
1.7 Subsequent Purchase by the Company. In the event that the Company
enters into any agreement or is subject to any transaction within one year
following the Closing pursuant to which the Company or any third party
acquires or would acquire by way of a merger, consolidation, restructuring,
transfer of assets or other business combination, sale of shares of capital
stock, tender offer, exchange offer, recapitalization, stock repurchase
program or other similar transaction, 20% or more of the outstanding shares
of Common Stock other than such a transaction involving the Trust, but not
the Company or its stockholders generally (a "Subsequent Purchase"), and
the consideration paid for each share of Common Stock subject to the
Subsequent Purchase is greater than the Offer Price, then the Company shall
pay promptly following the consummation of the Subsequent Purchase, an
amount equal to (x) the difference between the per share consideration paid
in the Subsequent Purchase and the Offer Price multiplied by (y) the number
of Subject Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Trust. The Trust represents
and warrants to the Company as of the date of this Agreement and as of the
date of the Closing that:
(a) The Trust has been duly organized and is validly existing
as a trust under the laws of the State of New York. The Trust has all
requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery
of this Agreement have been duly and validly authorized by the Trust, and
no other proceedings on the part of the Trust are necessary to authorize
the execution and delivery of this Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by the Trust and constitutes a valid and binding obligation of
the Trust enforceable against the Trust in accordance with its terms.
(c) The Trust has all requisite power and authority to
consummate the transactions contemplated by this Agreement. Such
transactions have been duly and validly authorized by the Trust, and no
other proceedings on the part of the Trust are necessary to authorize such
transactions.
(d) Except for certain rights set forth in the Second Amended
and Restated Supplemental Agreement, dated as of April 5, 1996 between the
Company and the Trust, (i) the Trust has good and valid title to the
Shares, free and clear of all Liens (ii) at the Closing, good and valid
title to the Shares will pass to the Company, free and clear of all Liens
and (iii) the Shares are not subject to any voting trust agreement or other
contract, agreement, arrangement, commitment or understanding, including,
without limitation, any contract, agreement, arrangement, commitment or
understanding relating to the voting, dividend rights or disposition of the
Shares.
(e) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and orders of domestic, foreign,
supranational, national, federal, state, regional or local government and
departments, bureaus, agencies, authorities, commissions, boards, courts,
tribunals, or other legislative, executive, judicial, regulatory or
administrative bodies or instrumentalities of any such government or any
official empowered to act on behalf of any of the foregoing, or any
arbitral tribunal acting within the proper scope of its jurisdiction
(collectively, "Governmental Agencies"), if any, and other persons required
to be received by the Trust in order to consummate the transactions
contemplated by this Agreement have been received by the Trust, except for
those which the failure to receive would not prevent or materially delay
the consummation of the transactions contemplated hereby.
2.2 Representations and Warranties of the Company. The Company
represents and warrants to the Trust as of the date of this Agreement and
as of the Closing that:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware. The Company has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement have been duly and
validly authorized by the Company, and no other proceedings on the part of
the Company are necessary to authorize the execution and delivery of this
Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of
the Company enforceable against the Company in accordance with its terms.
(c) The Company has all requisite power and authority to
consummate the transactions contemplated by this Agreement. Such
transactions have been duly and validly authorized by the Company, and no
other proceedings on the part of the Company are necessary to authorize
such transactions.
(d) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and orders of Governmental Agencies, if any,
and other persons required to be received by the Company in order to
consummate the transactions contemplated by this Agreement have been
received by the Company, except for those which the failure to receive
would not prevent or materially delay the consummation of the transactions
contemplated hereby.
ARTICLE III
MISCELLANEOUS
3.1 Termination. If the Closing shall not have occurred on or prior
to December 31, 2000, then either party shall have the right to terminate
this Agreement by giving written notice to the other party hereto.
3.2 Amendments. This Agreement may be modified, supplemented or
amended at any time and from time to time only by a writing signed by each
party hereto.
3.3 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given:
if to the Trust, to:
Manville Personal Injury Settlement Trust
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
with copies to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
if to the Company, to:
Xxxxx Xxxxxxxx Corporation
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
3.4 Counterparts; Integration. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement together with its Schedule constitutes the
entire agreement and understanding between the parties hereto relating to
the subject matter hereof and supersedes any and all prior agreements and
understandings, oral and written, relating to the subject matter hereof.
3.5 Headings. The headings used in this Agreement are inserted for
convenience only and neither constitute a portion of this Agreement nor in
any manner affect the construction of the provisions of this Agreement.
3.6 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 assigns except that neither the Company nor the
Trust may assign or otherwise transfer any of its rights or delegate
obligations under this Agreement.
3.7 Survival of Representations and Warranties. The representations
and warranties of the parties contained in this Agreement shall survive the
Closing indefinitely.
3.8 Expenses. Each party shall bear all costs and expenses incurred
by it in connection with this Agreement.
3.9 Specific Performance. Each of the Company and the Trust agrees
that the other party would be irreparably damaged if for any reason
the Trust or the Company, as the case may be, failed to perform its
obligations under this Agreement and that such other party would not have
an adequate remedy at law for money damages in such event. Accordingly, the
Company and the Trust each agrees that the other party shall, to the
maximum extent permitted, be entitled to specific performance and
injunctive and other relief to enforce the performance of this Agreement.
This provision is without prejudice to any other rights that the Company or
the Trust may have against the other party for any failure of such other
party to perform its obligations hereunder.
3.10 Third Parties. This Agreement constitutes an agreement solely
between the parties hereto, and is not intended to and shall not confer any
rights, remedies, obligations or liabilities, legal or equitable, on any
person or entity other than the parties hereto and their respective
permitted successors and assigns, or otherwise constitute any person or
entity a third- party beneficiary under or by reason of this Agreement.
3.11 Governing Law; Submission to Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the State of
New York, including Section 5-1401 of the New York General Obligations Law.
The Company and the Trust hereby submit to the exclusive jurisdiction of
the United States Bankruptcy Court for the Southern District of New York
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each of the Company and
the Trust irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum.
3.12 Further Assurances. From time to time after the Closing, at the
request of one of the parties hereto, the Trust and the Company shall
execute and deliver to such requesting party such documents and take such
other action as such requesting party may reasonably request in order to
consummate more effectively the transactions contemplated hereby.
3.13 No Further Representations. Except as set forth in this
Agreement, neither the Company nor the Trust makes nor has made any
other representations or warranties, express or implied.
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.
XXXXX XXXXXXXX CORPORATION
By:
--------------------------------
Name:
Title:
MANVILLE PERSONAL INJURY
SETTLEMENT TRUST
By:
--------------------------------
Name:
Title:
Schedule 1.5
Wire Transfer Instructions
Bankers Trust Company
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, XX 00000
ABA #000000000
RE: 99401399
Attn: Xxxxxx Xxxxxx x3102
For Further Credit to Manville Trust Grantor Account #106100
