VOTING AGREEMENT
EXHIBIT 99.2
This VOTING AGREEMENT (the “Agreement”), dated as of April 7, 2009, is made by and
between (the “Stockholder”), and Centex Corporation, a
Nevada corporation (“Company”). Capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, concurrently herewith, Pulte Homes, Inc., a Michigan corporation (“Parent”),
Pi Nevada Building Company, a Nevada corporation and a direct wholly owned subsidiary of Parent
(“Merger Sub”), and the Company, are entering into an Agreement and Plan of Merger, dated
as of the date hereof (the “Merger Agreement”), providing for the merger of Merger Sub with
and into the Company, with the Company surviving the Merger as a wholly owned subsidiary of Parent
(the “Merger”), upon the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS, prior to the entry into of this Agreement by the parties hereto, the Company Board
has adopted the Merger Agreement and approved the consummation of the transactions contemplated
thereby, including the Merger and this Agreement, upon the terms and subject to the conditions set
forth therein;
WHEREAS, prior to the entry into of this Agreement by the parties hereto, the Parent Board has
approved the Merger Agreement and approved the consummation of the transactions contemplated
thereby, including the Merger and this Agreement, upon the terms and subject to the conditions set
forth therein;
WHEREAS, as of the date hereof, the Stockholder owns, beneficially or of record, or has
complete investment authority over, and has (or upon exercise or exchange of a convertible security
will have), the power to vote and dispose of the number of shares of Parent Common Stock set forth
on Schedule A hereto (the “Owned Shares” and, together with any securities issued
or exchanged with respect to such shares of Parent Common Stock upon any recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete liquidation, stock dividend,
split-up or combination of the securities of Parent or any other change in Parent’s capital
structure or securities of which such Stockholder acquires beneficial ownership after the date
hereof and prior to the termination hereof, whether by purchase, acquisition or upon exercise of
options, warrants, conversion of other convertible securities or otherwise, collectively referred
to herein as, the “Covered Shares”); and
WHEREAS, as a condition to the willingness of the Company to enter into the Merger Agreement,
the Company has required that the Stockholder agree, and in order to induce the Company to enter
into the Merger Agreement, the Stockholder has agreed, to enter into this Agreement with respect to
the Covered Shares and certain other matters as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I.
VOTING AGREEMENT
VOTING AGREEMENT
Section 1.1 Voting Agreement. The Stockholder hereby irrevocably and unconditionally
covenants and agrees that during the Voting Period (as defined below), at any meeting of the
stockholders of Parent (whether annual or special), however called, or at any adjournment or
postponement thereof or in any other circumstances (including an action by written consent) upon
which a vote or other approval is sought, the Stockholder shall (i) when a meeting is held, appear
at such meeting or otherwise cause the Covered Shares as to which the Stockholder controls the
right to vote to be counted as present thereat for the purpose of establishing a quorum and respond
to any other request by Parent for written consent, (ii) vote (or cause to be voted) in person or
by proxy the Covered Shares as to which the Stockholder controls the right to vote (A) in favor of
the Charter Amendment and the Stock Issuance, (B) in favor of the approval of any other matter to
be approved by the stockholders of Parent to facilitate the Charter Amendment, the Stock Issuance,
and the transactions contemplated by the Merger Agreement, as the Merger Agreement may be modified
or amended from time to time in a manner not adverse to the Stockholder, (C) against any amendment
of Parent’s articles of incorporation or by-laws other than as permitted by the Merger Agreement,
(D) against any other proposal, action or transaction involving Parent or any of its Subsidiaries,
which amendment or other proposal, action or transaction would reasonably be expected to in any
manner impede, frustrate, prevent or nullify the Merger Agreement, the Parent Stockholder
Approvals, the Merger or any of the other transactions contemplated by the Merger Agreement or
change in any manner the voting rights of any class of Parent’s capital stock, and (E) against any
extraordinary dividend, distribution or recapitalization by Parent or change in the capital
structure of Parent (other than pursuant to or as permitted by the Merger Agreement). For the
purposes of this Agreement, “Voting Period” shall mean the period commencing on the date
hereof and ending immediately prior to any termination of this Agreement in accordance with its
terms pursuant to Section 5.1 hereof. The Stockholder further agrees not to commit or agree to
take any action inconsistent with the foregoing.
Section 1.2 Grant of Proxy. The Stockholder hereby revokes any and all previous
proxies granted with respect to the Covered Shares and irrevocably grants to, and appoints, the
Company, and any individual designated in writing by the Company, as such Stockholder’s proxy and
attorney-in-fact (with full power of substitution), for and in its name, place and stead, to be
counted as present, vote, express consent or dissent or otherwise to act on behalf of such
Stockholder with respect to the Covered Shares in the manner contemplated by Section 1.1. The
Stockholder understands and acknowledges that the Company is entering into the Merger Agreement in
reliance upon the Stockholder’s execution and delivery of this Agreement. The Stockholder hereby
affirms that the irrevocable proxy set forth in this Section 1.2 is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Except as provided for in the
last sentence of this Section 1.2, the Stockholder hereby (i) affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked and (ii) ratifies and confirms
all that the proxies appointed hereunder may lawfully do or cause to be done by virtue hereof.
Notwithstanding any other provisions of this Agreement, the irrevocable proxy granted hereunder
shall automatically terminate upon the termination of this Agreement.
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ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Stockholder as follows:
Section 2.1 Valid Existence. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and has the requisite corporate
power and authority to carry on its business as it is now being conducted.
Section 2.2 Authority Relative to This Agreement. The Company has all necessary
corporate power and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and
validly authorized, executed and delivered by the Company and, assuming the due execution and
delivery by the Stockholder, constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to creditors rights generally
and by general equitable principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Section 2.3 No Conflicts. Except for the applicable requirements of the Exchange Act,
no filing or notification with, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary on the part of the Company for the execution and delivery of this
Agreement by the Company and the consummation by the Company of the transactions contemplated
hereby, except where the failure to obtain such permits, authorizations, consents or approvals, or
to make such filings or notifications, would not impair the ability of the Company to perform its
obligations hereunder.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Company as follows:
Section 3.1 Authority Relative To This Agreement. The Stockholder has the capacity to
execute and deliver this Agreement, to perform his or her obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming the due authorization, execution and delivery by the
Company, constitutes a legal, valid and binding obligation of the Stockholder, enforceable against
such Stockholder in accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors rights generally and by general
equitable principles (regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 3.2 No Conflict.
(a) The execution and delivery of this Agreement by the Stockholder do not, and the
performance of his or her obligations under this Agreement and the consummation by the Stockholder
of the transactions contemplated hereby will not, (i) conflict with or violate any law,
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rule, regulation, order, judgment or decree applicable to the Stockholder, the Covered Shares
or any of the Stockholder’s properties or assets or (ii) 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 any
contract to which the Stockholder is a party, except for conflicts, violations, breaches or
defaults that would not impair the ability of the Stockholder to perform his or her obligations
hereunder.
(b) Except for the applicable requirements of the Exchange Act, no filing or notification
with, and no permit, authorization, consent or approval of, any Governmental Entity is necessary on
the part of the Stockholder for the execution and delivery of this Agreement, except where the
failure to obtain such permits, authorizations, consents or approvals, or to make such filings or
notifications, would not impair the ability of such Stockholder to perform his or her obligations
hereunder.
Section 3.3 Ownership Of Shares. As of the date hereof, except as set forth in
Schedule A hereto, the Stockholder has good and marketable title to and is the record or
beneficial owner of the Owned Shares set forth opposite the Stockholder’s name on Schedule
A hereto free and clear of all pledges, liens, proxies, claims, charges, security interests,
preemptive rights, voting trusts, voting agreements, options, rights of first offer or refusal and
any other encumbrances or arrangements whatsoever with respect to the ownership, transfer or other
voting of the Owned Shares. Except as set forth in Schedule A hereto, the Stockholder has
full and unrestricted power to dispose of and vote all of, and has not granted any proxy
inconsistent with this Agreement that is still effective with respect to, the Owned Shares (other
than options or other stock-based awards granted by Parent to acquire shares of capital stock of
Parent). The Stockholder does not own, beneficially or of record, any shares of capital stock of
Parent or securities convertible into or exercisable or exchangeable for shares of capital stock of
Parent, other than the Covered Shares. As of the date hereof, no proceedings are pending which, if
adversely determined, will have a material adverse effect on any ability to vote or dispose of any
of the Covered Shares.
Section 3.4 Stockholder Has Adequate Information. The Stockholder is a sophisticated
investor with respect to the Covered Shares and has independently and without reliance upon the
Company and based on such information as the Stockholder has deemed appropriate, made his or her
own analysis and decision to enter into this Agreement. The Stockholder acknowledges that the
Company has not made nor makes any representation or warranty, whether express or implied, of any
kind or character except as expressly set forth in this Agreement.
Section 3.5 No Setoff. To the knowledge of the Stockholder, there are no legal or
equitable defenses or counterclaims that have been or may be asserted by or on behalf of Parent, as
applicable, to reduce the amount of the Covered Shares or affect the validity or enforceability of
the Covered Shares.
Section 3.6 No Other Representations or Warranties. Except for the representations
and warranties expressly contained in this Article III, the Stockholder makes no express or implied
representation or warranty with respect to such Stockholder, the Covered Shares, or otherwise.
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ARTICLE IV.
COVENANTS OF THE STOCKHOLDER
COVENANTS OF THE STOCKHOLDER
The Stockholder hereby covenants and agrees as follows:
Section 4.1 No Transfer. Other than pursuant to the terms of this Agreement or the
Merger Agreement, without the prior written consent of the Company or as otherwise provided in this
Agreement, during the term of this Agreement, the Stockholder hereby agrees to not, directly or
indirectly, (i) grant any proxies or power of attorney or enter into any voting trust or other
agreement or arrangement with respect to or restricting the voting of any Covered Shares or (ii)
sell, pledge, assign, transfer, encumber or otherwise dispose of (including by merger,
consolidation, testamentary disposition, interspousal disposition pursuant to a domestic relations
proceeding or otherwise by operation of law), or enter into any contract, option or other
arrangement or understanding with respect to the direct or indirect assignment, transfer,
encumbrance or other disposition of (including by merger, consolidation, testamentary disposition,
interspousal disposition pursuant to a domestic relations proceeding or otherwise by operation of
law) (each, a “Transfer”), any Covered Shares. Any action taken or attempted to be taken
in violation of the preceding sentence will be null and void. The Stockholder further agrees to
authorize and request Parent and the Company to notify Parent’s transfer agent that there is a stop
transfer order with respect to the Covered Shares and that this Agreement places limits on the
voting of the Covered Shares. Notwithstanding the foregoing or anything to the contrary set forth
in this Agreement, the Stockholder may Transfer any or all of the Covered Shares (i) by will, or by
operation of law, in which case this Agreement shall bind the transferee, or (ii) in connection
with estate and charitable planning purposes, including Transfers to relatives, trusts and
charitable organizations, so long as the transferee, prior to such Transfer executes a counterpart
of this Agreement (with such modifications as the Company may reasonably request solely to reflect
such Transfer).
Section 4.2 Public Announcement. The Stockholder shall consult with the Company
before issuing any press releases or otherwise making any public statements with respect to the
transactions contemplated herein, in his or her capacity as a stockholder of Parent, except as may
be required by applicable Law. Unless required by applicable Law, each Stockholder shall not, and
shall cause its Representatives not to, make any press release, public announcement or other public
communication that criticizes or disparages this Agreement and the Merger Agreement and the
transactions contemplated hereby and thereby, without the prior written consent of the Company.
The Stockholder hereby consents to disclosure in the Joint Proxy Statement (including all documents
and schedules filed with the SEC) and press releases with respect to the Merger in accordance with
the Merger Agreement, of the identity of the Stockholder and ownership of the Covered Shares and
the nature of his or her commitments, arrangements and understandings pursuant to this Agreement.
Section 4.3 Additional Shares. The Stockholder shall as promptly as practicable
notify the Company of the number of any new Covered Shares acquired by the Stockholder, if any,
after the date hereof. Any such shares shall be automatically subject to the terms of this
Agreement as though owned by the Stockholder on the date hereof.
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Section 4.4 No Restraint on Officer or Director Action; Etc. Notwithstanding anything
to the contrary herein, the Company hereby acknowledges and agrees that no provision in this
Agreement shall limit or otherwise restrict the Stockholder with respect to any act or omission
that the Stockholder may undertake or authorize in his or her capacity as a director or officer of
Parent or any subsidiary thereof, including any vote that such individual may make as a director of
Parent with respect to any matter presented to the Parent Board. The Stockholder has executed this
Agreement solely in his or her capacity as the record and/or beneficial owner of his or her Covered
Shares and no action taken by the Stockholder in his or her capacity as a director or officer of
Parent or any subsidiary thereof shall be deemed to constitute a breach of any provision of this
Agreement.
Section 4.5 Non-Interference. The Stockholder agrees that during the term of this
Agreement, the Stockholder shall not take any action that would make any representation or warranty
of the Stockholder contained herein untrue or incorrect or have the effect of preventing, impeding,
interfering with or adversely affecting the performance by the Stockholder of its obligations under
this Agreement.
ARTICLE V.
MISCELLANEOUS
MISCELLANEOUS
Section 5.1 Termination. This Agreement and all of its provisions shall terminate
upon the earlier of (i) the Effective Time, (ii) the termination of the Merger Agreement in
accordance with its terms, or (iii) written notice of termination of this Agreement by the Company
to the Stockholder (such date of termination, the “Termination Date”), except that the
provisions of Article V shall survive any such termination; provided, that no such
termination shall relieve any party of liability for a willful breach hereof prior to termination.
Section 5.2 Survival of Representations and Warranties. The respective
representations and warranties of the Stockholder and the Company contained herein shall not be
deemed waived or otherwise affected by any investigation made by the other party hereto. The
representations and warranties contained herein shall expire with, and be terminated and
extinguished upon, consummation of the Merger or termination of this Agreement pursuant to Section
5.1, and thereafter no party hereto shall be under any liability whatsoever with respect to any
such representation or warranty.
Section 5.3 Fees And Expenses. Except as otherwise provided herein or as set forth in
the Merger Agreement, 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.
Section 5.4 Notices. Any notice required to be given hereunder shall be sufficient if
in writing, and sent by facsimile transmission (provided that any notice received by facsimile
transmission or otherwise at the addressee’s location on any non-business day or any business day
after 5:00 p.m. (addressee’s local time) shall be deemed to have been received at 9:00 a.m.
(addressee’s local time) on the next business day), by reliable overnight delivery service (with
proof of service) or hand delivery, addressed as follows:
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if to the Company:
Centex Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
0000 X. Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
with copies to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxx
if to the Stockholder:
c/o Pulte Homes, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Additionally, any notice delivered to any party hereto shall also be given to Parent in accordance
with this Section 5.4 at:
Pulte Homes, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
with copies to:
Sidley Austin LLP
Xxx Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxx Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Section 5.5 Severability. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the
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extent of such invalidity or unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement in such jurisdiction or affecting the invalidity
or enforceability of any of the terms and provisions of this Agreement in any other jurisdiction.
If any provision of this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as closely
as possible to the fullest extent permitted by applicable Law in a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated to the fullest extent
possible.
Section 5.6 Entire Agreement; Assignment. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, among the parties hereto, or any of them,
with respect to the subject matter hereof. This Agreement shall not be assigned (whether pursuant
to a merger, by operation of law or otherwise) without the prior written consent of the other
party, except that the Company may assign all or any of its rights and obligations hereunder to an
affiliate; provided, however, that no such assignment shall relieve the assigning
party of its obligations hereunder if such assignee does not perform such obligations.
Section 5.7 Amendment. This Agreement may be amended by the parties at any time prior
to the Effective Time. This Agreement may not be amended except by an instrument in writing signed
by each of the parties hereto.
Section 5.8 Waiver. At any time prior to the Effective Time, any party hereto may (a)
extend the time for the performance of any obligation or other act of any other party hereto, (b)
waive any inaccuracy in the representations and warranties of any other party contained herein or
in any document delivered pursuant hereto and (c) waive compliance with any agreement of any other
party or any condition to its own obligations contained herein. Any such extension or waiver shall
be valid if set forth in an instrument in writing signed by the party or parties to be bound
thereby. The failure of any party to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of those rights.
Section 5.9 Parties in Interest. 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 right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement. However, if after the execution hereof and before
the Termination Date the Stockholder should die or become incapacitated, this Agreement shall be
binding on the Stockholder’s estate or other legal representative.
Section 5.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to any choice or conflict
of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of Delaware.
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Section 5.11 Specific Performance; Submission To Jurisdiction. (a) The parties agree
that irreparable damage would occur if any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is accordingly agreed that
each of the parties shall be entitled (in addition to any other remedy that may be available to it,
including monetary damages) to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement exclusively in the Delaware
Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the
Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state and
federal courts located within the State of Delaware). The parties further agree that no party to
this Agreement shall be required to obtain, furnish or post any bond or similar instrument in
connection with or as a condition to obtaining any remedy referred to in this Section 5.11 and each
party waives any objection to the imposition of such relief or any right it may have to require the
obtaining, furnishing or posting of any such bond or similar instrument. In addition, each of the
parties irrevocably agrees that any legal action or proceeding with respect to this Agreement and
the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in
respect of this Agreement and the rights and obligations arising hereunder brought by the other
party hereto or its successors or assigns, shall be brought and determined exclusively in the
Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware
(or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter,
any state and federal courts located within the State of Delaware). Each of the parties hereby
irrevocably submits with regard to any such action or proceeding for itself and in respect of its
property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and
agrees that it will not bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than the aforesaid courts. Each of the parties
hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim
or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is
not personally subject to the jurisdiction of the above named courts for any reason other than the
failure to serve in accordance with this Section 5.11, (b) any claim that it or its property is
exempt or immune from jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted
by the applicable Law, any claim that (i) the suit, action or proceeding in such court is brought
in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii)
this Agreement, or the subject matter hereof, may not be enforced in or by such courts. The
Company and the Stockholder hereby consent to service being made through the notice procedures set
forth in Section 5.4 and agree that service of any process, summons, notice or document by
registered mail (return receipt requested and first-class postage prepaid) to the respective
addresses set forth in Section 5.4 shall be effective service of process for any suit or proceeding
in connection with this Agreement or the transactions contemplated by this Agreement.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WITH AND UPON THE ADVICE OF COMPETENT COUNSEL IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT
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OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO IT
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,
(ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.11(b).
Section 5.12 Interpretation. Headings of the Articles and Sections of this Agreement
are for convenience of the parties only and shall be given no substantive or interpretive effect
whatsoever. The language used in this Agreement shall be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict construction shall be applied
against any party. Whenever the words “include,” “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation.”
Section 5.13 Counterparts. This Agreement may be executed in two or more counterparts
(including by facsimile), each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument, and shall become effective when one or
more counterparts have been signed by each of the parties and delivered (by telecopy, e-mail or
otherwise) to the other parties.
Section 5.14 Further Assurances. From time to time, at the request of another party
and without further consideration, each party hereto shall take such reasonable further action as
may be necessary or desirable to confirm and assure the rights and obligations set forth in this
Agreement or to consummate and make effective the transactions contemplated by this Agreement. The
Stockholder hereby gives any consents or waivers that are reasonably required for the consummation
of the Merger under the terms of any agreement to which the Stockholder is a party or pursuant to
any rights the Stockholder may have in its capacity as a stockholder of Parent.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Stockholder have caused this Agreement to be duly
executed on the date hereof.
| CENTEX CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| STOCKHOLDER |
||||
| Name: | ||||
Schedule A
Set forth below is a schedule identifying each of the directors and officers of
Pulte Homes, Inc. who entered into voting agreements with Centex Corporation, the number of their
shares of Pulte common stock governed by the agreement as of the date
of the agreement, and any exceptions to title:
| Securities Convertible or | ||||
| Exercisable or | ||||
| Exchangeable for | ||||
| Stockholder | Shares of Common Stock | Common Stock | ||
Xxxxxxx X. Xxxxx |
28,800 | 101,000 | ||
Xxxxxxx X. Xxxxxxxx |
26,872 | 85,000 | ||
Xxxxxxx X. Pulte1 |
41,720,309 | 0 | ||
Xxxxx X. XxXxxxxx |
151,600 | 69,000 | ||
Xxxxx X. Xxxxx |
578,820 | 1,923,716 | ||
Xxxxxx X. Xxxxxxxx |
534,405 | 743,000 | ||
Xxxx X. Xxxxxxxx |
98,400 | 53,000 | ||
Xxxxxxx X. Xxxxx, Xx. |
691,319 | 1,740,000 | ||
Xxxxx X. Xxxxxxxx |
16,500 | 33,000 | ||
Xxxxx X. Xxxxx-Xxxxx |
17,510 | 117,000 |
Pursuant to Section 3.3, please note below any exceptions to title over the Owned Shares, including
pledges, liens, proxies, claims, charges, security interests, preemptive rights, voting trusts,
voting agreements, options, rights of first offer or refusal and any other encumbrances or
arrangements whatsoever with respect to the ownership, transfer or other voting of the Owned
Shares:
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A. | Credit Line Account Application and Agreements between UBS Bank USA and the Xxxxxxx X. Xxxxx Trust, as amended. | ||
| B. | Commercial Pledge Agreement dated May 5, 2007, among Xxxxxxx X. Xxxxx, individually and as trustee of the Xxxxxxx X. Xxxxx Trust, New Urban Communities, L.L.C. and Bank of America, N.A., as amended by the First Amendment to Commercial Pledge Agreement dated September 11, 2007, the Second Amendment to Commercial Pledge Agreement dated October 31, 2007, the Third Amendment to Commercial Pledge Agreement and Collateral Agency Agreement dated March 5, 2008, and the Fourth Amendment to Commercial Pledge Agreement and Collateral Agency Agreement dated October 21, 2008. | |||
| C. | Stock Purchase Agreement, dated as of December 3, 2008, between Xxxxxxx X. Xxxxx, as trustee of the Xxxxxxx X. Xxxxx Trust, and UBS Securities LLC. | |||
| Pledge Agreement, dated as of December 3, 2008, between Xxxxxxx X. Xxxxx, as trustee of the Xxxxxxx X. Xxxxx Trust, UBS Securities LLC, UBS AG, Stamford Branch, as Collateral Agent and the other parties named therein. | ||||
| D. | Transaction Acknowledgement and Preliminary Agreement (STARS Variable Share Prepaid Forward), dated February 6, 2009, between Xxxxxxx X. Xxxxx, as trustee of the Xxxxxxx X. Xxxxx Trust, and Bank of America, N.A. | |||
| Pledge Agreement, dated February 6, 2009 between Xxxxxxx X. Xxxxx, as trustee of the Xxxxxxx X. Xxxxx Trust, and Bank of America, N.A. | ||||
| Specialized Term Appreciation Retention Sale Agreement, dated as of February 10, 2009, between Bank of America, N.A. and Xxxxxxx X. Xxxxx, as Grantor and Trustee of the Xxxxxxx X. Xxxxx Trust. |
