Exhibit 2.2
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of
April 1, 2003, is made and entered into among Berkshire Hathaway Inc., a
Delaware corporation ("Parent"), B Merger Sub Inc., a Delaware corporation and
wholly owned subsidiary of Parent ("Merger Sub"), and Xxxxx X. Xxxxxxx, an
individual, and the Xxxxxxx Family Foundation, a Tennessee nonprofit corporation
(each of Xxxxx X. Xxxxxxx and the Xxxxxxx Family Foundation being referred to
herein as a "Stockholder" and collectively as the "Stockholders");
W I T N E S S E T H:
WHEREAS, as of the date hereof, each Stockholder owns,
beneficially and of record ("beneficial owner," "beneficial ownership,"
"beneficially," and related terms, wherever used herein, within the meaning of
Section 13(d)(1) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) the number of shares of common stock, par value $.10 per share
("Company Common Stock"), of Xxxxxxx Homes, Inc., a Delaware corporation (the
"Company"), set forth opposite the Stockholder's name on Exhibit A hereto (the
total number of shares of Company Common Stock owned by the Stockholder, and any
other Company Common Stock that the Stockholder acquires, whether by means of
purchase, dividend, distribution, option exercise, gift or otherwise, prior to
the termination of this Agreement, being collectively referred to as the
"Stockholder Shares");
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company, Parent, and Merger Sub are entering into an Agreement
and Plan of Merger (the "Merger Agreement") of even date herewith, which (upon
the terms and subject to the conditions set forth therein) provides for, among
other things, the merger of Merger Sub with and into the Company (the "Merger");
and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested each Stockholder to
agree, and in order to induce Parent and Merger Sub to enter into the Merger
Agreement each Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants, and agreements hereinafter set forth,
the parties hereto hereby agree as follows:
ARTICLE I
STOCKHOLDERS' REPRESENTATIONS AND WARRANTIES
Each Stockholder hereby severally and not jointly represents
and warrants to Parent and Merger Sub as follows:
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1.1 Due Organization and Authorization. Stockholder (other
than Xxxxx X. Xxxxxxx) is a nonprofit corporation duly organized, validly
existing and in good standing under the laws of the State of Tennessee.
Stockholder possesses the requisite power and authority to execute, deliver, and
perform this Agreement, to appoint or cause to be appointed Merger Sub and
Parent (or any nominee thereof) as his or its Proxy (as defined below), and to
consummate the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement, the appointment of Merger Sub and Parent (or any
nominee thereof) as Stockholder's Proxy, and the consummation of the
transactions contemplated hereby have been duly authorized by all requisite
action of Stockholder. This Agreement has been duly executed and delivered by or
on behalf of Stockholder and constitutes a legal, valid, and binding obligation
of Stockholder, enforceable against Stockholder in accordance with its terms,
except as enforceability (i) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting creditors' rights generally or (ii)
is subject to general principles of equity. Stockholder consents to each other
Stockholder's execution, delivery and performance of this Agreement. There is no
beneficial owner of any of the Stockholder Shares or other beneficiary or holder
of any other interest in any of the Stockholder Shares whose consent is required
for the execution and delivery of this Agreement or for the consummation by
Stockholder of the transactions contemplated hereby.
1.2 No Conflicts; Required Filings and Consents. (a) The
execution and delivery of this Agreement by Stockholder do not, and the
performance of this Agreement by Stockholder will not, (i) conflict with or
violate the organizational documents of Stockholder (if Stockholder is an
entity), (ii) conflict with or violate any law applicable to Stockholder or by
which Stockholder or any of Stockholder's assets is bound or affected, or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, acceleration, or cancellation of, or result in the
creation of a lien or encumbrance on any assets of Stockholder, including,
without limitation, the Stockholder Shares, pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise, or
other instrument or obligation to which Stockholder is a party or by which
Stockholder or any of Stockholder's assets is bound or affected.
(b) The execution and delivery of this Agreement by
Stockholder does not, and the performance of this Agreement by Stockholder will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority, domestic or
foreign, other than any necessary filing under the Exchange Act or the HSR Act.
1.3 Title to Stockholder Shares. Stockholder is the sole
record and beneficial owner of the shares of Company Common Stock, and the sole
owner of the options to acquire shares of Company Common Stock, in each case set
forth opposite Stockholder's name on Exhibit A hereto, free and clear of any
pledge, lien, security interest, mortgage, claim, proxy, voting restriction or
other voting trust, agreement, understanding, or arrangement of any kind, right
of first refusal, right of first offer, or other limitation on disposition,
adverse claim of ownership, or other encumbrance of any kind, other than (i)
restrictions imposed by securities laws or pursuant to this Agreement, (ii) in
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the case of Xxxxx X. Xxxxxxx, pledges of an aggregate of 1,993,069 Stockholder
Shares to financial institutions (the identity of which has been disclosed to
Parent), all of which pledges Xxxxx X. Xxxxxxx hereby covenants to cause to be
terminated in their entirety, and to be of no further force and effect with
respect to any of his Stockholder Shares, within fifteen (15) days of the date
of this Agreement, or (iii) in the case of the options owned by Xxxxx X. Xxxxxxx
to acquire shares of Company Common Stock (the "Stockholder Options"),
restrictions imposed pursuant to the applicable stock option plans of the
Company under which the Stockholder Options were granted. As of the date hereof,
except as set forth on Exhibit A, Stockholder does not own beneficially or of
record any other shares of Company Common Stock or option to acquire any other
shares of Company Common Stock.
1.4 Information for Offer Documents and Proxy Statement. None
of the information relating to Stockholder and his or its affiliates provided by
or on behalf of Stockholder or his or its affiliates specifically for inclusion
in the Proxy Statement or Option Offer Documents will, at the respective times
the Proxy Statement and such Option Offer Documents are filed with the SEC or
are first published, sent or given to stockholders of the Company, or, in the
case of the Proxy Statement, at the time of the special meeting of stockholders
to consider the Merger, 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.
1.5 Acknowledgment. Stockholder, on behalf of himself and his
affiliates (or itself and its affiliates, as applicable), acknowledges and
agrees that neither he nor they (or neither it nor they, as applicable) shall be
paid or shall otherwise be entitled to any broker's, finder's, financial
advisor's, or other similar fee or commission in connection with the
transactions contemplated hereby or by the Merger Agreement.
ARTICLE II
STOCKHOLDERS' COVENANTS
Each Stockholder hereby severally and not jointly covenants to
Parent and Merger Sub as follows:
2.1 Voting of Stockholder Shares. Stockholder hereby agrees
that from the date hereof until the termination of this Agreement pursuant to
Section 3.2 (the "Term"), at any meeting of the stockholders of the Company
however called and in any action by written consent of the stockholders of the
Company, Stockholder shall vote his or its Stockholder Shares (i) in favor of
the Merger and the Merger Agreement, (ii) against any Takeover Proposal and
against any proposal for action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or which could reasonably be expected to
result in any of the Company's obligations under the Merger Agreement not being
fulfilled, any change in the composition of the board of directors of the
Company (except as contemplated by the Merger Agreement), any change in the
present capitalization of the Company or any amendment to the Company's
corporate structure or business, or any other action which could reasonably be
expected to impede, interfere with, delay, postpone or materially adversely
affect the transactions contemplated by this Agreement or the Merger Agreement
or the likelihood of such transactions being consummated and (iii) in favor of
any other matter necessary for consummation of the transactions contemplated by
the Merger Agreement which is considered at any such meeting of shareholders or
in such consent, and in connection therewith to execute any documents which are
necessary or appropriate in order to effectuate the foregoing, including
documents enabling Parent and Merger Sub or their nominee(s) to vote the
Stockholder Shares directly.
2.2 Proxy. Stockholder hereby revokes all prior proxies or
powers of attorney with respect to any of the Stockholder Shares. During the
Term, Stockholder hereby constitutes and appoints Parent and Merger Sub, or any
nominee designated by Parent and Merger Sub, with full power of substitution and
resubstitution at any time during the Term, as his or its true and lawful
attorney and proxy ("Proxy"), for and in his name, place, and xxxxx, in the
Proxy's discretion to demand that the Secretary of the Company call a special
meeting of the stockholders of the Company for the purpose of considering any
matter referred to in Section 2.1 and to vote each share of Company Common Stock
held by Stockholder as his or its Proxy in respect of any such matter, at every
annual, special, adjourned, or postponed meeting of the stockholders of the
Company, including the right to sign his or its name as stockholder to any
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consent, certificate, or other document relating to the Company that the law of
the State of Delaware might permit or require. THE FOREGOING PROXY AND POWER OF
ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST THROUGHOUT THE TERM.
Stockholder will take such further action and execute such other documents as
may be necessary to effectuate the intent of this Section 2.2.
2.3 Restrictions on Transfer, Proxies and Non-Interference.
Stockholder hereby agrees, during the Term and except as contemplated hereby,
not to (i) sell, transfer, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to, the sale, transfer, pledge, encumbrance, assignment or other
disposition of, any of the Stockholder Shares or Stockholder Options, (ii) grant
any proxies, deposit any Stockholder Shares into a voting trust or enter into a
voting agreement with respect to any Stockholder Shares, or (iii) take any
action that would make any representation or warranty of Stockholder contained
herein untrue or incorrect in any material respect or have the effect of
preventing or disabling Stockholder from performing Stockholder's obligations
under this Agreement.
2.4 Disclosure. Stockholder hereby authorizes Parent and
Merger Sub to publish and disclose in the Proxy Statement and Option Offer
Documents (including all documents and schedules filed with the SEC), his or its
identity, his or its ownership of Company Common Stock, Stockholder Options and,
if applicable, any other securities issued by the Company, and the nature of his
or its commitments, arrangements, and understandings under this Agreement.
2.5 No Solicitation. Stockholder covenants and agrees that,
during the Term, he or it shall not, directly or indirectly, solicit, initiate,
knowingly encourage, or take any other action designed to facilitate any
inquiries or the making of any proposal from any person (other than from Parent
or Merger Sub or, in the case of the Option Offer, from the Company) relating to
(i) any acquisition of any Stockholder Shares, any Company Common Stock or any
Stockholder Options or (ii) any transaction that constitutes a Takeover
Proposal. Stockholder further covenants and agrees that, during the Term, he or
it shall not participate in any discussions or negotiations (except with Parent
or Merger Sub) regarding, or furnish to any person (other than Parent or Merger
Sub) any information with respect to, or otherwise cooperate in any way with, or
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assist or participate in or facilitate or encourage, any effort or attempt by
any person (other than Parent and Merger Sub) to make, any transaction that may
constitute a Takeover Proposal. Stockholder immediately shall cease and cause to
be terminated any existing discussions or negotiations of Stockholder and his or
its agents or other representatives with any person (other than Parent and
Merger Sub) with respect to any of the foregoing. Stockholder shall notify
Parent and Merger Sub promptly of any proposal or offer made to Stockholder
relating to a Takeover Proposal, or any inquiry or contact with any person with
respect thereto of which he or it becomes aware and shall, in any such notice to
Parent and Merger Sub, indicate in reasonable detail the identity of the person
making such proposal, offer, inquiry, or contact and the material terms and
conditions of such proposal, offer, inquiry, or contact. Notwithstanding the
foregoing, nothing in this Agreement will prevent any director or officer of the
Company from taking any actions, in his or her capacity as such, as are
permitted by Section 5.2 of the Merger Agreement.
ARTICLE III
MISCELLANEOUS
3.1 Definitions. Terms used but not otherwise defined in this
Agreement, have the meanings assigned to such terms in the Merger Agreement, as
it may be amended from time to time.
3.2 Termination. This Agreement shall terminate and be of no
further force and effect (i) by the written mutual consent of the parties hereto
or (ii) automatically and without any required action of the parties hereto upon
the earliest to occur of (A) the Effective Time, (B) the termination of the
Merger Agreement in accordance with its terms, (C) the amendment of the Merger
Agreement without the written consent of the Stockholders that (x) provides for
a reduction in the Merger Consideration below $12.50; (y) changes the form of
the Merger Consideration to other than cash or (z) otherwise is material and
adverse to the Stockholders, and (D) December 31, 2003. Notwithstanding the
foregoing, except with respect to Permitted Transactions applicable to a
particular Stockholder (as defined on Exhibit B hereto), the provisions of this
Agreement shall survive and continue in full force and effect with respect to
such Stockholder for a period (the "Extended Term") of twelve (12) months after
the date of termination of the Merger Agreement pursuant to Section 7.1(b)(i),
7.1(b)(ii), 7.1(c)(i), 7.1(c)(ii), 7.1(d)(i) or 7.1(d)(ii) thereof to the extent
that such termination (1) occurs following a Takeover Proposal that is initially
communicated to the Company or publicly disseminated after May 9, 2003 (a "Post
May 9 Proposal"), which Takeover Proposal (together with any modifications
thereof) has not been withdrawn by the date of the event giving rise to such
termination, or (2) relates to or results from a Post May 9 Proposal. The
termination of this Agreement shall not relieve any party hereto from any
liability for any breach of this Agreement prior to termination.
3.3 Expenses. All costs and expenses incurred in connection
with the transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses.
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3.4 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given (i) upon hand
delivery, (ii) upon confirmation of receipt of facsimile transmission, (iii)
upon confirmed delivery by a standard overnight courier, or (iv) after five (5)
business days if sent by registered or certified mail, postage prepaid, return
receipt requested, to the following address or to such other address that a
party hereto might later specify by like notice:
(a) If to Parent or Merger Sub, to:
Berkshire Hathaway Inc.
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with copies to:
Xxxxxx, Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
(b) If to Xxxxx X. Xxxxxxx, to:
Xxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
with copies to:
Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
(c) If to the Xxxxxxx Family Foundation, to:
Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
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with copies to:
Xxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
3.5 Severability. In the event that any provision in this
Agreement is held invalid, illegal, or unenforceable in a jurisdiction, such
provision shall be modified or deleted as to the jurisdiction involved but only
to the extent necessary to render the same valid, legal, and enforceable. The
validity, legality, and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby nor shall the validity, legality,
or enforceability of such provision be affected thereby in any other
jurisdiction.
3.6 Entire Agreement. This Agreement, together with the
Exhibits hereto, constitutes the entire agreement among the parties with respect
to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect thereto.
3.7 Assignment. No party may assign or delegate this Agreement
or any right, interest, or obligation hereunder, provided that Parent or Merger
Sub, in its sole discretion, may assign or delegate its rights and obligations
hereunder to any direct or indirect wholly owned subsidiary of Parent without
obtaining the consent of any other party hereto; provided further that any such
assignment or delegation shall not relieve Parent or Merger Sub from liability
hereunder.
3.8 No Third-Party Beneficiaries. This Agreement shall be
binding upon, inure solely to the benefit of, and be enforceable by only the
parties hereto, their respective successors, and permitted assigns, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
person, other than the parties hereto, their respective successors, and
permitted assigns, any rights, remedies, obligations, or liabilities of any
nature whatsoever.
3.9 Waiver of Appraisal Rights. Each Stockholder hereby waives
any rights of appraisal or rights to dissent from the Merger.
3.10 Further Assurance. Each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
3.11 Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to his or its Stockholder
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Stockholder Shares shall pass, whether by operation
of law or otherwise. Notwithstanding any transfer of Stockholder Shares, the
transferor shall remain liable for the performance of all obligations under this
Agreement.
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3.12 No Waiver. The failure of any party hereto to exercise
any right, power, or remedy provided under this Agreement or otherwise available
at law or in equity, the failure of any party hereto to insist upon compliance
by any other party hereto with its obligations hereunder, or the existence of
any custom or practice of the parties at variance with the terms hereof 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.
3.13 Specific Performance. The parties hereto acknowledge that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, the parties agree that an aggrieved party shall
be entitled to injunctive relief to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court having
jurisdiction, this being in addition to any other right or remedy to which such
party may be entitled under this Agreement, at law, or in equity.
3.14 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving
effect to provisions thereof relating to conflicts of law.
3.15 Headings. The descriptive headings in this Agreement were
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
3.16 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be executed in a manner sufficient to bind them as of the date
first written above.
BERKSHIRE HATHAWAY INC
By: /s/ Xxxx X. Hamburg
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Its: Vice President and Chief Financial Officer
B MERGER SUB INC.
By: /s/ Xxxx X. Hamburg
-------------------------------------------------------
Its: President
STOCKHOLDERS
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------------------
Xxxxx X. Xxxxxxx
XXXXXXX FAMILY FOUNDATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------------------
Its: President
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Exhibit A
No. of Shares of Company Common No. of Options to Acquire Shares
Name Stock Owned of Company Common Stock Owned
---- ------------ -----------------------------
Xxxxx X. Xxxxxxx 28,488,451 312,302
Xxxxxxx Family Foundation 9,175,411
Exhibit B
Permitted Transactions
For purposes of this Agreement, a "Permitted Transaction" shall mean:
(i) with respect to the Xxxxxxx Family Foundation, a sale of
Stockholder Shares in the ordinary course, and not in connection with, related
to or in a transaction designed to facilitate a Takeover Proposal,
(ii) with respect to Xxxxx X. Xxxxxxx:
(1) a charitable gift of certain Stockholder Shares to the
Xxxxxxx Family Foundation (which Stockholder Shares shall then be bound by this
Agreement as Stockholder Shares of the Xxxxxxx Family Foundation);
(2) a bona fide gift of certain Stockholder Shares to a family
member of Xxxxx X. Xxxxxxx; or
(3) a pledge of certain Stockholder Shares to a financial
institution in connection with a bona fide financing transaction which does not
involve the grant of a proxy on any of the Stockholder Shares under any
circumstances,
and, with respect to any Permitted Transaction described under sections (i) or
(ii) above, which occurs during the Extended Term and which does not involve a
gift, pledge or sale which, after giving effect thereto and when aggregated with
all other gifts, pledges and sales of Stockholder Shares made (or proposed to be
made) during the Term pursuant to Permitted Transactions effected (or to be
effected) by either Stockholder (and any other transactions which affect the
number of Stockholder Shares owned by either Stockholder), would cause the
number of Stockholder Shares then owned beneficially and of record in the
aggregate by the Stockholders, free and clear of any pledge or other
encumbrance, to equal less than twenty percent (20%) of the then outstanding
shares of Company Common Stock.
In addition, in the event that a change to the composition of the
Company's board of directors is proposed during the Extended Term, which
proposal (i) is not submitted in connection with, or designed to facilitate, a
Takeover Proposal, or submitted by or on behalf of any proponent of a Takeover
Proposal, and (ii) would not, if given effect (and when combined with all other
changes to the composition of the Company's board of directors that may take
place following the date of this Agreement), result in more than three (3)
directors who do not currently serve on the Company's board of directors being
members of such board of directors, any vote by a Stockholder in connection with
such proposal shall be deemed a "Permitted Transaction."
In addition, in the event the Board of Directors of the Company
determines, on any one occasion during the Extended Term, that the Company
should issue additional shares of Company Common Stock to satisfy a requirement
for additional capital, the vote by Xxxxx X. Xxxxxxx in favor of such a proposal
to issue additional shares of Company Common Stock shall be a "Permitted
Transaction," provided the proposal (together with any related transactions)
does not result in the issuance of shares of Company Common Stock which would
total more than 20% of the outstanding stock of the Company on a fully diluted
basis and, provided further, that such proposal is not submitted in connection
with, related to or designed to facilitate a Takeover Proposal, or by or on
behalf of any proponent of a Takeover Proposal.
