Manville Personal Injury Settlement Trust
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
December 19, 0000
Xxxxx Xxxxxxxx Xxxxxxxxxxx
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Reference is made to the Stockholder Agreement, dated as of the date
hereof (the "Stockholder Agreement"), among Berkshire Hathaway Inc., a
Delaware corporation ("Parent"), J Acquisition Corporation, a Delaware
corporation ("Acquisition Subsidiary"), and Manville Personal Injury
Settlement Trust, a New York trust (the "Stockholder"), and the Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement"),
among Xxxxx Xxxxxxxx Corporation, a Delaware corporation (the "Company"),
Parent and Acquisition Subsidiary.
Pursuant to the Stockholder Agreement, the Stockholder has agreed,
under the conditions described therein, to tender all of the Shares and any
Additional Shares (as each term is defined in the Stockholder Agreement), other
than any Shares which have been purchased by the Company in the Company Stock
Buyback (as defined in the Stockholder Agreement), into the Offer (as defined in
the Merger Agreement), and, if applicable, to vote such Shares in favor of the
adoption of the Merger Agreement and, under certain circumstances, to sell the
Subject Shares (as defined in the Stockholder Agreement) pursuant to Section 23
of the Stockholder Agreement if not tendered in the Offer. However, the
Stockholder is not a party to the Merger Agreement.
In consideration of the agreements of the Stockholder set forth herein,
the Company hereby agrees that:
1. it shall not, at any time prior to the purchase of the Shares and any
Additional Shares pursuant to the Offer or the Stockholder Agreement,
without the prior written consent of the Stockholder, take any of the
actions specified in Section 9.2 of the Merger Agreement (provided,
however, that the consent of the Stockholder shall not be unreasonably
withheld);
2. it shall not consent to the waiver of any of the conditions set forth
in Annex A to the Merger Agreement without the prior written consent of
the Stockholder; and
3. it hereby waives any rights to which it may be entitled pursuant to
Section 3.03 of the Second Amended and Restated Supplemental Agreement,
dated as of April 5, 1996, between the Stockholder and the Company in
connection with the transactions contemplated by the Merger Agreement
and the Stockholder Agreement.
In consideration of the agreements of the Company set forth herein, the
Stockholder hereby agrees that:
1. in the event that the Merger Agreement is terminated pursuant to
Section 8.1(c)(iv) thereof as a result of the Stockholder Agreement
having been terminated pursuant to Section 5(b)(iii) or 5(c)(ii)
thereof, it shall promptly (and in any event within two business days
after payment thereof by the Company) pay to the Company an amount
equal to the Termination Fee (as defined in the Merger Agreement) paid
by the Company to Parent; provided, that the Stockholder shall be
entitled to a refund thereof from the Company, if prior to the first
anniversary of the termination of the Merger Agreement (within two
business days after the occurrence of the event set forth in clause (A)
or (B)), (A) the Superior Stockholder Proposal (as defined in the
Stockholder Agreement) was available to all of the holders of shares of
Company Common Stock (as defined in the Merger Agreement) on terms
which are the same as or more favorable to such holders than those
available to the Stockholder, and 90% or more of the outstanding shares
of Company Common Stock are acquired on such terms or (B) the Company
shall have entered into an agreement to consummate or consummated an
Acquisition Proposal having a per share value to the holders of shares
of Company Common Stock greater than the Merger Consideration (as
defined in the Merger Agreement);
2. in the event that the Merger Agreement is terminated pursuant to
Section 8.1(c)(iv) thereof as a result of the Stockholder Agreement
having been terminated pursuant to Section 5(b)(ii) or 5(c)(i) thereof
and at the time of such termination a bona fide Acquisition Proposal
(other than the transactions contemplated by the Merger Agreement) was
pending, it shall promptly (and in any event within two business days
after payment therefor by the Company or its designee), pay to the
Company an amount equal to the expenses paid by the Company to Parent
pursuant to Section 9.1(d) of the Merger Agreement (the "Expenses");
provided that the Stockholder shall be entitled to a refund thereof
from the Company if prior to the first anniversary of the termination
of the Merger Agreement (within two business days after the occurrence
of the event set forth in clause (A), (B) or (C)), (A) an Acquisition
Proposal was available to all of the holders of outstanding shares of
Company Common Stock (other than the Stockholder) on terms which are
the same as or more favorable to such holders than those available to
the Stockholder, and 90% or more of the
outstanding shares of Company Common Stock are acquired on such terms,
(B) the Company shall have entered into an agreement to consummate an
Acquisition Proposal which contains terms that treat the holders of
outstanding shares of Company Common Stock (other than the Stockholder)
the same as or more favorably than the Stockholder or (C) the Company
shall have consummated an Acquisition Proposal. In addition, the
Stockholder shall pay to the Company an amount equal to the Termination
Fee paid by the Company to Parent if the Stockholder is required under
this paragraph 2 to pay the Company an amount equal to the Expenses and
the Stockholder is not entitled to a refund of the Expenses; and
3. it shall not sell any of the Shares or any Additional Shares to Parent,
Acquisition Subsidiary or their affiliates pursuant to the Stockholder
Agreement or otherwise (other than in the Offer) unless (i) Acquisition
Subsidiary shall have purchased all shares of Company Common Stock
validly tendered in the Offer and not withdrawn and (ii) the price per
share paid to the Stockholder for the Shares is not greater than the
price per share paid in the Offer to all tendering holders of shares of
Company Common Stock.
This letter agreement shall be governed and construed in accordance
with the laws of the State of New York, without giving effect to the principles
of conflicts of law thereof.
This letter agreement may not be amended, changed, supplemented, waived
or otherwise modified or terminated except upon the execution and delivery of a
written agreement executed by each of the parties hereto.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid,
void, unenforceable or against its regulatory policy, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
so long as the economic and legal substance of the transactions contemplated
hereby, taken as a whole, are not affected in a manner materially adverse to any
party hereto.
Each of the Company and the Stockholder agrees that the other party
would be irreparably damaged if for any reason the Company or the Stockholder,
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 Stockholder 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 the
matters set forth herein. The failure of any party hereto to exercise any right,
power or remedy provided under this letter agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy or
to demand such compliance.
This letter agreement is not intended to be for the benefit of, and
shall not be enforceable by, any person who or which is not a party hereto.
The parties hereto waive all right to trial by jury in any action or
proceeding to enforce or defend any rights under this Letter Agreement and any
document executed in connection herewith.
Each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any Federal court located in the Southern District of
the State of New York or any New York state court in the event any dispute
arises, out of this letter agreement or any of the transactions contemplated by
this letter agreement, (b) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any such
court and (c) agrees that such forum is not an inconvenient forum; provided,
that in each case no party shall contest the jurisdiction of any court asserting
jurisdiction in any matter relating to this letter agreement.
This letter agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which shall be considered to
constitute one and the same agreement.
[signature page follows]
Very truly yours,
MANVILLE PERSONAL INJURY
SETTLEMENT TRUST
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
Accepted and Agreed to:
XXXXX XXXXXXXX CORPORATION
By: /s/ Xxxx Xxxxxxx
Name:
Title:
