Exhibit G
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VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is entered into as of this 5th
day of April, 1999 between CENTEX HOMES, a Nevada general partnership ("Centex
Homes"), and XXXXXXX XXXXXXXXX, an individual resident in the State of Illinois
("Shareholder").
WITNESSETH:
WHEREAS, in order to induce Centex Homes to enter into that certain Sale
and Purchase Agreement, dated as of April 2, 1999 (the "Purchase Agreement"), by
and among Sundance Homes, Inc., an Illinois corporation (the "Company"),
Sundance Suburban Properties, Inc., an Illinois corporation ("SSPI"), Rembrant
Homes, Inc., an Illinois corporation ("Rembrandt"), Lockport Development, Inc.,
an Illinois corporation ("Lockport"), XxXxxxx'x Mill Development, Inc., an
Illinois corporation ("MMDI"), Xxxxxx Development, Inc., an Illinois corporation
("Xxxxxx"), SAR Development, Inc., an Illinois corporation ("SAR"), Matteson
Development, Inc., an Illinois corporation ("Matteson"), Walnut Pointe
Development, Inc., an Illinois corporation ("Walnut", along with SSPI,
Rembrandt, Lockport, MMDI, Xxxxxx, SAR, SLRB and Matteson are collectively
referred to as the "Subsidiaries"), the Shareholder is willing to enter into
this Agreement and to vote his shares ("Company Shares") of voting capital stock
of the Company owned by him, or as to which he otherwise has voting rights, in
accordance with the terms and provisions set forth herein; and
WHEREAS, capitalized terms used but not defined in this Agreement have the
respective meanings set forth in the Purchase Agreement;
NOW, THEREFORE, in consideration of the premises, the terms and provisions
set forth herein, the mutual benefits to be gained by the performance thereof
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
VOTING; TERM
SECTION 1.1. Voting. For so long as this Agreement remains in effect, the
Shareholder shall, at any meeting of the shareholders of the Company, and in any
action by written consent of the shareholders of the Company in lieu of a
meeting, vote all of the Company Shares owned by such Shareholder as of the date
of this Agreement, or as to which he otherwise has voting rights, and any
additional Company Shares acquired by such Shareholder (whether by purchase or
otherwise), or with respect to which he otherwise obtain voting rights, from
time to time after the date hereof (collectively, the "Shares") (i) in favor of
the Purchase Agreement (as the same may be amended from time to time), the
purchase by Centex Homes of the Assets of the Selling Parties listed on Schedule
1.1 to the Purchase Agreement (but not including the Excluded Assets listed on
Schedule 1.2 to the Purchase Agreement) (the "Transaction") and the other
transactions contemplated by the Purchase Agreement and (ii) against any
Acquisition Proposal or any other action or agreement that,
directly or indirectly, is inconsistent with the Purchase Agreement, the
Transaction or the other transactions contemplated by the Purchase Agreement or
that is reasonably likely (a) to impede, interfere with, delay or postpone the
Transaction or the other transactions contemplated by the Purchase Agreement,
(b) to result in a breach of any covenant, representation, warranty or any other
obligation of the Company or the Subsidiaries under the Purchase Agreement or
(c) to cause any conditions to the obligations of the parties under the Purchase
Agreement not to be fulfilled. The obligation of the Shareholder to vote the
Shares in the manner set forth in this Article I shall be unconditional;
provided, however, that such obligation shall be suspended for so long as there
shall be issued and in effect any order, writ, injunction, judgment or decree of
any federal or state court or other Governmental Authority which has the effect
of making illegal, impeding or otherwise restraining or prohibiting the
Shareholder from voting the Shares in the manner set forth herein.
SECTION 1.2. Term. Notwithstanding any provision of this Article I to the
contrary, the obligations of the Shareholder to vote the Shares in the manner
set forth in this Article I shall be rendered null, void and without effect if
(i)(a) all of the Overbid Termination Conditions shall been satisfied, (b) the
Selling Parties shall have terminated the Purchase Agreement pursuant to Section
9.1(iv)(a) thereof, and (c) Centex Homes shall have been paid the aggregate
principal amount of (as well as any interest accrued thereon) the Termination
Fee Note, (ii) if the Purchase Agreement is otherwise terminated pursuant to any
other provision of Section 9.1 or (iii) the Transaction is consummated pursuant
to the terms and conditions of the Purchase Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Shareholder represents and warrants to Centex Homes as follows:
SECTION 2.1. Authority; Binding Effect. The Shareholder has all necessary
power and authority to enter into and perform his obligations under this
Agreement. This Agreement has been duly executed and delivered by the
Shareholder and constitutes a legal, valid and binding obligation of him,
enforceable against the Shareholder in accordance with the terms hereof.
SECTION 2.2. Absence of Conflicts. The execution and delivery by the
Shareholder of this Agreement, the performance by him of his obligations
hereunder and the consummation by him of the transactions contemplated hereby
will not (i) conflict with, result in any violation or breach of, constitute a
default under, give rise to any right of termination or acceleration (with or
without notice or the lapse of time or both) pursuant to, or result in being
declared void, voidable or without further effect, any term or provision of any
material note, bond, mortgage, indenture, lease, franchise, permit, license,
contract or other instrument or document to which the Shareholder is a party or
by which his properties or assets are bound or (ii) conflict with, or result in
any violation of, any law, ordinance, statute, rule or regulation of any
Governmental Authority or of any order, writ, injunction, judgment or decree of
any court, arbitrator or Governmental Authority applicable to the Shareholder or
his respective properties or assets.
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SECTION 2.3. Governmental Consents and Filings. There is no requirement
applicable to the Shareholder to obtain any consent of, or to make or effect any
declaration, filing or registration with, any Governmental Authority for the
valid execution and delivery by the Shareholder of this Agreement, the due
performance by him of his obligations hereunder or the lawful consummation by
him of the transactions contemplated hereby.
SECTION 2.4. Title to Shares. As of the date hereof, the Shareholder is the
record and beneficial owner of the number of Shares set forth on Exhibit A
attached hereto and incorporated by reference herein. The Shares set forth on
such exhibit are the only Company Shares owned by the Shareholder. The Shares
are, or, if acquired after the date hereof, will be, owned by the Shareholder
free and clear of all Encumbrances that may affect the Shareholder's ability to
vote the Shares in accordance with the terms of this Agreement. The Shareholder
has not appointed or granted any proxy, which appointment or grant is still
effective, with respect to any of such Shares.
SECTION 2.5. Other Shares. As of the date hereof, the Shareholder has
voting rights with respect to, but not record and beneficial ownership of, the
number of Shares set forth on Exhibit B attached hereto and incorporated by
reference herein. The Shares set forth on such exhibit are the only Company
Shares which are not owned by the Shareholder, but with respect to which he
otherwise have voting rights. The Shareholder has not appointed or granted any
proxy, which appointment or grant is still effective, with respect to any of
such Shares.
ARTICLE III
COVENANTS
The Shareholder hereby covenants and agrees as follows:
SECTION 3.1. No Encumbrances on or Transfer of Shares.
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(a) Except pursuant to the terms of this Agreement or the Purchase
Agreement, for so long as this Agreement remains in effect, the Shareholder
shall not directly or indirectly sell, convey or transfer record or beneficial
ownership of any Shares by any means whatsoever to any person, without the prior
written consent of Centex Homes. Without limiting the generality of the
foregoing, for so long as this Agreement remains in effect, the Shareholder
shall not, directly or indirectly, (i) except pursuant to the terms of this
Agreement, grant any proxies or enter into any voting trust or other agreement
or arrangement with respect to the Shares or (ii) except pursuant to the terms
of the Purchase Agreement or as permitted pursuant to paragraphs (b) below,
sell, assign, transfer, encumber or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to the
direct or indirect sale, assignment, transfer, encumbrance or other disposition
of, any Shares, in each case without the prior written consent of Centex Homes.
If requested by Centex Homes, the Shareholder shall cause an appropriate legend
referring to the restrictions provided for in this Section 3.1(a) to be placed
on the certificates evidencing the Shares.
(b) Notwithstanding the provisions of paragraph (a) above, the Shareholder
may sell, assign, transfer, encumber or otherwise dispose of any Shares owned by
the Shareholder to a
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Permitted Transferee (as hereinafter defined) without the consent of Centex
Homes, but only if (i) the certificate or certificates evidencing such Shares
bear an appropriate legend referring to the restrictions provided for in this
Section 3.1, (ii) the Permitted Transferee shall have executed, as a condition
to obtaining ownership of such Shares, an appropriate document (a "Supplemental
Agreement") in which the Permitted Transferee agrees that its ownership of such
Shares shall be subject to, and that the Permitted Transferee shall comply with,
all of the terms and conditions of this Agreement (including, but not limited
to, the restrictions on the sale, assignment, transfer, encumbrance or other
disposition of Shares set forth in this Section 3.1) and that the Permitted
Transferee shall not sell, assign, transfer, encumber or otherwise dispose of
any Shares owned by it except in compliance with the provisions hereof and in
which the Permitted Transferee confirms that the representations and warranties
contained in Article II hereof are true and correct with respect to such
Permitted Transferee as of the date of the Supplemental Agreement and (iii) the
Supplemental Agreement shall have been promptly delivered to Centex Homes and
approved (as to its conformity with the requirements of this Section 3.1(b) by
it in its reasonable discretion prior to the acquisition by such Permitted
Transferee of the Shares. Centex Homes shall not unreasonably withhold or delay
its approval of any Supplemental Agreement. As used herein, the term "Permitted
Transferee" means the Shareholder named in this Agreement and any spouse or
lineal ancestor or descendant of the Shareholder, any entity the entire equity
interest in which is owned by any of the foregoing persons and any executor or
administrator of the estate of any of the foregoing persons.
SECTION 3.2. Best Efforts. Each of the parties hereto shall use its
reasonable best efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which it is a party or by which it is or may be bound, in order to
effectuate the transactions contemplated by this Agreement, to obtain all
necessary waivers, consents and approvals from, and effect all necessary
registrations and filings with, any Governmental Authorities, and to rectify any
event or circumstances which could impede the effectuation of the transactions
contemplated hereby.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Expenses. All fees and expenses incurred by any of the parties
hereto in connection with this Agreement or any of the transactions contemplated
hereby shall be borne and paid solely by the party incurring such fees and
expenses.
SECTION 4.2. Further Assurances. The Shareholder shall execute and deliver,
or cause to be executed and delivered all such other and further documents and
instruments and take all such further actions as may be reasonably necessary in
order to effectuate the transactions contemplated by this Agreement.
SECTION 4.3. Action in Shareholder Capacity Only. The Shareholder makes no
agreement or understanding herein as a director or officer of the Company. The
Shareholder is entering into this Agreement solely in his capacity as a record
and beneficial owner of the Shares, or otherwise as a
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person entitled to vote such Shares, and nothing contained herein shall limit or
affect, or impose any obligations with respect to, any actions taken by the
Shareholder in his capacity as a director or officer of the Company.
SECTION 4.4. Notices. Any notice, request, instructions or other document
to be given hereunder to any party shall be in writing delivered personally or
sent by mail, facsimile or bonded air courier, confirmed in writing, as follows:
If to Centex Homes:
00000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to:
Centex Homes
00000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Xxxxx X. Xxxxx
Centex Homes
0000 X. Xxxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Shareholder:
Sundance Homes, Inc.
00 Xxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telephone: (000)000-0000
Fax: (000)000-0000
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with copy to (which shall not constitute effective notice to the
Shareholder):
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may change its address for purposes of this Section by giving
notice of such change of address to the other party in the manner herein
provided for giving notice. Any notice to be given or served upon any party
hereto must be in writing, and shall be delivered in person to the other party,
shall be given by certified mail, return receipt requested, shall be given by
facsimile or shall be given by bonded air courier and shall be deemed to have
been given when received by the addressee; provided, however, that notice
delivered by facsimile mail with the original sent by overnight delivery shall
be deemed to have been received on the day it is faxed to the addressee.
SECTION 4.5. Amendment; Waiver. The terms and provisions of this Agreement
may be modified or amended only by a written instrument executed by each of the
parties hereto, and compliance with any term or provision hereof may be waived
only by a written instrument executed by each party entitled to the benefits of
the same. No failure to exercise any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege granted hereunder.
SECTION 4.6. Entire Agreement. This Agreement (including Exhibits A and B
hereto) constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior written or oral agreements and
understandings and all contemporaneous oral agreements and understandings among
the parties or any of them with respect to the subject matter hereof.
SECTION 4.7. Parties in Interest; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns (it being understood and agreed that nothing contained in
this Agreement is intended to confer any rights, benefits or remedies of any
kind or character on any other Person under or by reason of this Agreement). No
party may delegate any of its obligations or assign or otherwise transfer any
its rights under this Agreement without the prior written consent of each of the
other parties, except as permitted by Section 3.1(b) hereof. Any attempted or
purported assignment, delegation or other transfer by any party in violation of
this Section 4.8 shall be null and void.
SECTION 4.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois, without regard
to any principles of conflicts of laws that would result in the application of
the laws of any other jurisdiction.
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SECTION 4.9. Severability. In the event that any provision contained herein
shall be held to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of any such provision in every other
respect and the validity, legality and enforceability of the remaining
provisions contained in this Agreement shall not be in any way impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CENTEX HOMES
By: Centex Real Estate Corporation,
its managing partner
By: ___________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: President
________________________________________
Xxxxxxx Xxxxxxxxx
14578 09986 DALLAS 971417.7
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EXHIBIT A
Shares owned by the Shareholder (record and beneficial ownership): 3,537,500
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EXHIBIT B
Shares over which the Shareholder has voting rights
but of which he is not the record and beneficial owner: 0
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