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EXHIBIT 5
MANVILLE PERSONAL INJURY SETTLEMENT TRUST
000 XXXXXXX XXXX, XXXXX 000
XXXXXXX, XXX XXXX 00000
June 22, 2000
Xxxxx Xxxxxxxx Corporation
000 00xx Xxxxxx 00000
Xxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Reference is made to Manville Personal Injury Settlement Trust
Trust Voting Agreement, dated as of the date hereof (the "Trust Voting
Agreement"), between HB Merger LLC, a Delaware limited liability company (the
"Merger Company"), 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"), between Xxxxx Xxxxxxxx Corporation, a
Delaware corporation (the "Company"), and Merger Company.
Pursuant to the Trust Voting Agreement, the Stockholder has
agreed, under the conditions described therein, to vote all of the Shares (as
defined in the Trust Voting Agreement) owned of record by the Stockholder in
favor of the adoption of the Merger Agreement. 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 Effective Time (as
defined in the Merger Agreement), without the prior written
consent of the Stockholder, (i) take any of the actions
specified in Section 8.2 of the Merger Agreement (provided,
however, that the consent of the Stockholder shall not be
unreasonably withheld) other than those actions permitted
under clause 1 of the following paragraph, or (ii) permit the
Merger (as defined in the Merger Agreement) to be consummated
if the Stockholder has executed, but any of the members of
Merger Company or the Company has not executed, the
stockholders' agreement by and among the Company and the other
parties named herein referred to in Section 5.13 of the Merger
Agreement (the "Stockholders' Agreement"); and
2. 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 (i) the
issuance of shares of Class TM Preferred Stock (as
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defined in the Merger Agreement) to the Stockholder pursuant
to the Exchange Agreement (as defined in the Merger Agreement)
(ii) the conversion of Shares and Class TM Preferred Stock
thereof by the Stockholder pursuant to the terms of the Merger
Agreement and (iii) the Merger.
In consideration of the agreements of the Company set forth
herein, the Stockholder hereby agrees that:
1. it shall, at or prior to the Closing (as defined in the Merger
Agreement), execute the Stockholders' Agreement and deliver it
to the Company, it being agreed that if it fails to so execute
and deliver the Stockholders' Agreement, in addition to any
other rights the Company may otherwise have, the Company shall
be entitled to waive Merger Company's obligation to comply
with Section 5.13 of the Merger Agreement and to waive the
condition set forth in Section 6.2(e) of the Merger Agreement;
2. in the event that the Merger Agreement is terminated pursuant
to Section 7.1(b)(v) thereof as a result of the Trust Voting
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
or its designee) pay to the Company an amount equal to (x) the
Expenses (as defined in the Merger Agreement) plus (y) the
Termination Fee (as defined in the Merger Agreement) paid by
the Company or its designee to Merger Company or its designee;
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 Trust Voting Agreement) was available to all of the
holders of Shares 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 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
greater than the Common Stock Merger Consideration (as defined
in the Merger Agreement); and
3. in the event that the Merger Agreement is terminated pursuant
to (i) Section 7.1(b)(v) thereof as a result of the Trust
Voting Agreement having been terminated pursuant to Section
5(b)(ii) or 5(c)(i) thereof and at the time the Court (as
defined in the Voting Agreement) determined not to grant the
Order (as defined in the Voting Agreement) or at the time the
Order was vacated, revised, modified or amended in whole or in
part, so as to materially limit the Court Approval (as defined
in the Voting
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Agreement), an Acquisition Proposal (other than the Merger)
was pending or (ii) Section 7.1(d)(iii) thereof as a result of
action attributable solely to Stockholder or to the Trustees
of the Stockholder acting solely in their capacity as
trustees, 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 or its designee to Merger Company or its
designee; 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 (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 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
(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 or its designee to Merger Company or its
designee if the Stockholder is required under this paragraph 3
to pay the Company an amount equal to the Expenses and the
Stockholder is not entitled to a refund of the Expenses.
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.
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.
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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]
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Very truly yours,
MANVILLE PERSONAL INJURY
SETTLEMENT TRUST
By: /s/ Xxxx X. Xxxxxxx
_______________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
Accepted and Agreed to:
XXXXX XXXXXXXX CORPORATION
By: /s/ Xxxx Xxxxxxx
________________________________
Name: Xxxx Xxxxxxx
Title: Vice President, Assistant
General Counsel and
Secretary
