STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of July
30, 2001, is made and entered into among Berkshire Hathaway Inc., a
Delaware corporation ("Parent"), BX Merger Sub Inc., a Delaware corporation
and wholly owned subsidiary of Parent ("Purchaser"), and each party listed
under the heading "STOCKHOLDER" on the signature page hereof (each a
"Stockholder" and collectively, the "Stockholders");
W I T N E S S E T H:
WHEREAS, as of the date hereof, each Stockholder is the
beneficial owner ("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) of
the number of shares of common stock, par value $.50 per share ("Company
Common Stock"), of XTRA Corporation, 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 beneficially owned by
the Stockholder, and any other Company Common Stock or any stock option
that the Stockholder acquires, as record or beneficial holder, whether by
means of purchase, dividend, distribution, or otherwise, prior to the
termination of this Agreement, other than the shares referred to on Exhibit
B, being collectively referred to as the "Shares");
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company, Parent, and Purchaser 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, a tender offer (the "Offer") by
Purchaser for the Company Common Stock and the subsequent merger of
Purchaser with and into the Company (the "Merger"); and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Purchaser have requested each Stockholder to
agree, and in order to induce Parent and Purchaser 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 jointly and severally represents and
warrants to Parent and Purchaser as follows:
1.1 DUE ORGANIZATION AND AUTHORIZATION. Stockholder (other than
Xx. Xxxxxxxxx) is a corporation or limited liability company duly
organized, validly existing, and in good standing under the laws of the
jurisdiction in which it is formed. Stockholder possesses the requisite
power and authority to execute, deliver, and perform this Agreement, to
appoint or cause to be appointed Purchaser and Parent (or any nominee
thereof) as its Proxy (as defined below), and to consummate the
transactions contemplated hereby. The execution, delivery, and performance
of this Agreement, the appointment of Purchaser 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. Stockholder consents to each other Stockholder's execution,
delivery, and performance of this Agreement. There is no other beneficial
owner of any of the Shares or other beneficiary or holder of any other
interest in any of the 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 certificate or articles of incorporation, bylaws or other
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 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, except in the case of clauses (ii) and (iii), for such matters
as would not prevent or in any way impair Stockholder's ability to perform
its obligations under this Agreement.
(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 (i) filings under the HSR Act and any similar foreign
requirements, and (ii) any necessary filing under the Securities Exchange
Act of 1934, as amended.
1.3 TITLE TO SHARES. Stockholder is the beneficial owner of the
shares of Company Common Stock as set forth opposite Stockholder's name on
Exhibit A hereto (or shares beneficial ownership as set forth on Exhibit
A), 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 or other limitation on
disposition, adverse claim of ownership, or other encumbrance of any kind,
other than restrictions imposed by securities laws or pursuant to this
Agreement or as set forth on Exhibit A. Exhibit A also sets forth the
record owner of the Shares. As of the date hereof, Stockholder does not own
beneficially or of record any other shares of Company Common Stock or
option to acquire any such shares (other than as set forth on Exhibit B).
1.4 INFORMATION FOR OFFER DOCUMENTS AND PROXY STATEMENT. None of
the information relating to Stockholder and its affiliates provided in
writing to Parent by or on behalf of Stockholder or its affiliates
specifically for inclusion in the Schedule TO, Schedule 14D-9, Offer
Documents, or Proxy Statement will, at the respective times the Schedule
TO, Schedule 14D-9, Offer Documents, and Proxy Statement are filed with the
SEC or are first published, sent or given to stockholders of the Company,
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 itself and its
affiliates, acknowledges and agrees that neither it nor they 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 jointly and severally covenants to Parent
and Purchaser as follows:
2.1 VOTING OF SHARES. Stockholder hereby agrees that from the
date hereof until the termination of the Agreement pursuant to Section 4.2
(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 (or direct the record owner of its Shares
to vote) its 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
Purchaser or their nominee(s) to vote the Shares directly.
2.2 PROXY. Stockholder hereby revokes all prior proxies or powers
of attorney with respect to any of its Shares. During the Term, Stockholder
hereby constitutes and appoints Parent and Purchaser, or any nominee
designated by Parent and Purchaser, with full power of substitution and
resubstitution at any time during the Term, as its true and lawful attorney
and proxy ("Proxy"), for and in its name, place, and stead, 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 held by
Stockholder as 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 its name as stockholder (or to direct
the record owner to sign its name as stockholder) to any 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 TENDER. Stockholder hereby agrees to tender or cause to be
tendered in the Offer, prior to the Expiration Date, all Shares owned
beneficially and of record by it. Stockholder hereby acknowledges and
agrees that Parent's and Purchaser's obligation to accept for payment and
pay for such Shares in the Offer is subject to the terms and conditions set
forth in Annex A to the Merger Agreement.
2.4 RESTRICTIONS ON TRANSFER, PROXIES AND NON-INTERFERENCE.
Stockholder hereby agrees, while this Agreement is in effect, 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 Shares, (ii)
grant any proxies, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any 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.
2.5 DISCLOSURE. Stockholder hereby authorizes Parent and
Purchaser to publish and disclose in the Offer Documents and, if approval
of the Company's stockholders is required under applicable law, the Proxy
Statement (including all documents and schedules filed with the SEC), its
identity, its ownership of Company Common Stock or any other securities
issued by the Company, and the nature of its commitments, arrangements, and
understandings under this Agreement.
2.6 NO SOLICITATION. Stockholder covenants and agrees that,
during the Term, 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 Purchaser) relating to (i) any acquisition of any Shares or (ii)
any transaction that constitutes a Takeover Proposal. Stockholder further
covenants and agrees that, during the Term, it shall not participate in any
discussions or negotiations (except with Parent or Purchaser) regarding, or
furnish to any person (other than Parent or Purchaser or if required by law
or compelled by subpoena or similar legal process) any information with
respect to, or otherwise cooperate in any way with, or assist or
participate in or facilitate or encourage, any effort or attempt by any
person (other than Parent and Purchaser) 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 its agents or other representatives with any person (other
than Parent and Purchaser) with respect to any of the foregoing.
Stockholder shall notify Parent and Purchaser promptly of any specific
proposal or offer made to Stockholder relating to a Takeover Proposal, or
any substantive inquiry or contact made to Stockholder specifically
relating to a Takeover Proposal, and shall, in any such notice to Parent
and Purchaser, 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.
2.7 SEPARATE SHARES. At Parent's request, after the public
announcement of the Merger Agreement and this Agreement, Xx. Xxxxxxxxx will
recommend to the record owner of the shares referred to on Exhibit B that
such record owner execute and deliver a counterpart of this Agreement or
substantially similar agreement with respect to such separate shares.
ARTICLE III
COMPANY SECURITIES OPTION
3.1 GRANT OF OPTION. In order to induce Parent and Purchaser to
enter into the Merger Agreement, each Stockholder hereby grants to Parent
and Purchaser an irrevocable option (each such option, an "Option") to
purchase such Stockholder's Shares at a price per Share (the "Offer Price")
equal to $55.00 in cash or if a higher price is paid or to be paid by
Parent or Purchaser pursuant to the Offer or the Merger or prior to the
termination of this Agreement pursuant to Section 4.2 below, such higher
price, but excluding any price paid to any shareholder who exercises
dissenters' rights in connection with the Merger. Each Option shall be
exercisable pursuant to the terms of Section 3.2 below. If any Option is
exercised, each other Option will be exercised.
3.2 EXERCISE OF OPTION. Each Option shall become exercisable, in
whole but not in part, for all Shares subject thereto (less any such Shares
which Purchaser has accepted for payment or paid for in the Offer) at the
earlier of (x) the termination of the Merger Agreement pursuant to Sections
7.1(c)(ii) or 7.1(d)(ii) thereof prior to the Expiration Date or (y) the
Expiration Date (including any extensions thereof but not including any
subsequent offering period). If the Options became exercisable upon the
occurrence of the Expiration Date, the Options may be exercised only if
Purchaser has accepted for payment all shares of Company Common Stock
tendered and not withdrawn in the Offer. Each Option shall remain
exercisable for a period of fifteen (15) days after the date on which the
Option becomes exercisable; provided, however, that if all waiting periods
under the HSR Act or other applicable law shall have not expired or been
terminated by the end of such fifteen (15) day exercisability period, the
exercisability period shall automatically be extended to expire at the
close of business on the second business day after all such waiting periods
have expired or terminated, but in no event for more than an additional
fifteen (15) days. If the Options do not become exercisable under this
Section 3.2 due to (a) the termination or withdrawal of the Offer prior to
the Expiration Date (including all extensions thereof) for any reason other
than termination of the Merger Agreement pursuant to Sections 7.1(c)(ii) or
7.1(d)(ii) thereof, or (b) the failure of Purchaser (in the absence of any
termination or withdrawal of the Offer) to accept for payment (within the
time periods required by law and the terms of the Offer) all shares of
Company Common Stock tendered and not withdrawn in the Offer, the Options
shall be deemed to have expired upon such termination, withdrawal, or
failure. In the event that Parent or Purchaser wishes to exercise the
Options, Parent or Purchaser, prior to the expiration thereof, shall send a
written notice to each Stockholder identifying the place for the closing of
such purchase at least two (2) business days prior to such closing.
3.3 SUBSEQUENT SALE. If, prior to the earlier of (i) the
Effective Time and (ii) the date which is eighteen (18) months after the
exercise of the Options, Parent or any of its affiliates (including
Purchaser) sells (including sale by virtue of a merger) any or all of the
Shares purchased upon exercise of the Options to an unaffiliated party (a
"Subsequent Sale") at a per share price in excess of the Offer Price (the
"Subsequent Sale Price"), then Parent or its affiliate will pay to the
Stockholder from whom such Shares were purchased, within five (5) days of
receipt of payment by Parent or its affiliate for such Shares, an amount
equal to the excess of the Subsequent Sale Price over the Offer Price
multiplied by the number of Shares sold in the Subsequent Sale. If fewer
than all of the Shares so purchased are sold, Parent or its affiliate will
pay such amount to the Stockholders pro rata in proportion to the number of
Shares purchased from them respectively.
ARTICLE IV
MISCELLANEOUS
4.1 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.
4.2 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
closing of the exercise of the Options or the expiration of the Options,
whichever occurs earlier, (C) the termination of the Merger Agreement in
accordance with its terms, other than a termination pursuant to Sections
7.1(c)(ii) or 7.1(d)(ii) thereof, (D) the amendment of the Merger Agreement
without the written consent of the Stockholders that (x) provides for a
reduction in the Offer Price below $55.00; (y) changes the form of the
Offer Price to other than cash or (z) otherwise is material and adverse to
the Stockholders, and (E) December 1, 2001; provided, however, that if the
Options are exercised, Sections 1.1, 1.2 and 1.3, Article III, and Article
IV shall survive and continue in force and effect. The termination of this
Agreement shall not relieve any party hereto from any liability for any
breach of this Agreement prior to termination.
4.3 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.
4.4 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 Purchaser, to:
Berkshire Hathaway Inc.
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
with copies to:
Xxxxxx, Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: R. Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
(b) If to Stockholders, to:
Tiger Management Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy: 000-000-0000
with copies to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxx., XX
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxxxx
Telecopy: (000) 000-0000
and
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
4.5 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.
4.6 ENTIRE AGREEMENT. This Agreement 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.
4.7 ASSIGNMENT. No party may assign or delegate this Agreement or
any right, interest, or obligation hereunder, provided that Parent or
Purchaser, 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
Purchaser from liability hereunder.
4.8 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.
4.9 WAIVER OF APPRAISAL RIGHTS. Each Stockholder hereby waives
any rights of appraisal or rights to dissent from the Merger.
4.10 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.
4.11 CERTAIN EVENTS. Each Stockholder agrees that this Agreement
and the obligations hereunder shall attach to Stockholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or
otherwise. Notwithstanding any transfer of Shares, the transferor shall
remain liable for the performance of all obligations under this Agreement.
4.12 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.
4.13 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.
4.14 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.
4.15 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.
4.16 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.
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
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BX Merger Sub Inc.
By: /s/ Xxxx X. Hamburg
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Its: President
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Stockholders
/s/Xxxxxx X. Xxxxxxxxx, Xx.
-----------------------------------------------
Xxxxxx X. Xxxxxxxxx, Xx.
Tiger Management Corporation
By: /s/Xxxxxx X. Xxxxx
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Its: Treasurer
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Tiger Management L.L.C.
By: /s/Xxxxxx X. Xxxxx
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Its: Treasurer
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Tiger Performance L.L.C.
By: /s/Xxxxxx X. Xxxxx
----------------------------------------
Its: Treasurer
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