EXHIBIT (2)
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of October 22, 2001 (this
"Agreement"), among XXXXXXX HOMES, INC., a Delaware corporation ("Xxxxxxx") and
the record and beneficial stockholders of X.X. XXXXXX, INC., a Delaware
corporation (the "Company"), whose names appear on Schedule I (collectively, the
"Stockholders").
WITNESSETH:
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, Xxxxxxx and the Company are entering into an Agreement and Plan
of Merger, dated as of the date hereof (the "Merger Agreement"), which provides
for the merger (the "Merger") of Xxxxxxx with and into the Company and the
conversion of all the outstanding shares of Class A Common Stock and Class B
Common Stock, each with a par value of $.001 per share, of Xxxxxxx into cash and
shares of common stock, par value $.01 per share (the "Company Shares"), of the
Company;
WHEREAS, as of the date hereof, each Stockholder owns
(beneficially or of record) no less than the number of Company Shares set forth
opposite such Stockholder's name on Schedule I (all such Company Shares and any
Company Shares which may hereafter be acquired by such Stockholder prior to the
termination of this Agreement, whether upon the exercise of options or by means
of purchase, dividend, distribution or otherwise, (but not any other Company
Shares owned by such Stockholder on the date hereof but not set forth opposite
such Stockholder's name on Schedule I) being referred to herein as such
Stockholder's "Subject Shares");
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Xxxxxxx has required that the Stockholders enter into this
Voting Agreement; and
WHEREAS, in order to induce Xxxxxxx to enter into the Merger
Agreement, the Stockholders are willing to enter into this Voting Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, Xxxxxxx and each of the Stockholders, severally and not jointly,
hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES;
AND OTHER COVENANTS OF THE STOCKHOLDERS
SECTION 1.1. Voting of Shares. During the Term (as defined
below), at any meeting of the stockholders of the Company, however called, and
in any action by consent of the stockholders of the Company, each Stockholder
(a) shall appear at such meeting of the stockholders or otherwise cause the
Subject Shares such Stockholder owns beneficially or of record on the record
date of any such meeting or solicitation of consents to be counted as present
thereat for purposes of establishing a quorum and (b) shall vote its Subject
Shares (i) in favor of
the Merger and the Merger Agreement (as amended from time to time), (ii) against
(A) 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 is reasonably likely to result in
any of the conditions of the Company's obligations under the Merger Agreement
not being fulfilled and (B) any other action which could reasonably be expected
to impede, interfere with, delay, postpone or materially adversely affect the
transactions contemplated by 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 stockholders or the subject of any such
consent and in connection therewith to execute any documents which are necessary
or appropriate in order to effectuate the foregoing.
SECTION 1.2. No Inconsistent Arrangements. During the Term,
except as contemplated by his Agreement and the Merger Agreement, no Stockholder
shall (i) transfer (which term shall include any sale, assignment, gift, pledge,
hypothecation or other disposition, whether directly or indirectly by
contribution, distribution, dissolution or otherwise), or consent to any
transfer of, any or all of such Stockholder's Subject Shares or any interest
therein, or create or, except as set forth on Schedule 1.2, permit to exist any
Encumbrance (as defined below) on such Subject Shares, (ii) enter into any
contract, option or other agreement or understanding with respect to any
transfer of any or all of such Subject Shares or any interest therein, (iii)
grant any proxy, power-of-attorney or other authorization in or with respect to
such Subject Shares, (iv) deposit such Subject Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Subject
Shares, or (v) take any other action that would in any way restrict, limit or
interfere with the performance of its obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement. Notwithstanding the foregoing,
Xxxxxx X. Xxxxxx shall be permitted to transfer Subject Shares to another
Stockholder that is also a party to this Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Xxxxxxx as
follows:
SECTION 2.1. Due Authorization, Enforceability. Such
Stockholder has all requisite power and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of Stockholder. This Agreement has been duly
executed and delivered by or on behalf of such Stockholder and constitutes a
legal, valid and binding obligation of such Stockholder, enforceable against
such Stockholder in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other similar laws and except
that the availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding for such
remedy may be brought. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Stockholder is trustee
whose consent is required for the
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execution and delivery of this Agreement or the consummation by such Stockholder
of the transactions contemplated hereby.
SECTION 2.2. No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such Stockholder
will not, (i) conflict with or violate any trust agreement or other similar
documents relating to any trust of which such Stockholder is trustee, (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to such Stockholder or by which such Stockholder or any of such
Stockholder's properties 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 such Stockholder, including such Stockholder's
Subject Shares, pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party or by which such Stockholder or any of such
Stockholder's assets is bound or affected, except, in the case of clauses (ii)
and (iii), for any such breaches, defaults or other occurrences that would not
prevent or delay the performance by such Stockholder of such Stockholder's
obligations under this Agreement.
(b) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such Stockholder
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority (other than
any necessary filing under the Exchange Act), domestic or foreign, except where
the failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by such Stockholder of such Stockholder's obligations under this Agreement.
SECTION 2.3. Title to Shares. Such Stockholder is the sole
record and beneficial owner of its Subject Shares, free and clear of any pledge,
lien, security interest, mortgage, charge, claim, equity, option, proxy, voting
restriction, voting trust or agreement, understanding, arrangement, right of
first refusal, limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind ("Encumbrances"), other than as set forth on Schedule
1.2 and other than restrictions imposed by the securities laws or pursuant to
this Agreement and the Merger Agreement. Such Stockholder has the sole right and
power to vote and dispose of such Stockholder's Subject Shares.
ARTICLE III.
MISCELLANEOUS
SECTION 3.1. Definitions. Terms used but not otherwise defined
in this Agreement have the meanings ascribed to such terms in the Merger
Agreement.
SECTION 3.2. Termination. As used herein, "Term" means the
period beginning on the date hereof and ending on the date this Agreement shall
be terminated in accordance with its terms. This Agreement shall terminate and
be of no further force and effect (i) by the written
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mutual consent of the parties hereto, (ii) upon termination of the Merger
Agreement in accordance with its terms, or (iii) automatically and without any
required action of the parties hereto upon the Effective Time. No such
termination of this Agreement shall relieve any party hereto from any liability
for any breach of this Agreement prior to termination.
SECTION 3.3. Further Assurance. From time to time, at another
party's request and without consideration, 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 transaction contemplated by this Agreement.
SECTION 3.4. Certain Events. Each Stockholder agrees that this
Agreement and such Stockholder's obligations hereunder shall attach to such
Stockholder's Subject Shares and shall be binding upon any person or entity to
which legal or beneficial ownership of such Subject Shares shall pass, whether
by operation of law or otherwise, including such Stockholder's heirs, guardians,
administrators, or successors. Notwithstanding any transfer of Subject Shares,
the transferor shall remain liable for the performance of all its obligations
under this Agreement.
SECTION 3.5. No Waiver. The failure of any party hereto to
exercise any right, power, or remedy provided under this 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, 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.
SECTION 3.6. Specific Performance. Each Stockholder
acknowledges that if such Stockholder fails to perform any of its obligations
under this Agreement immediate and irreparable harm or injury would be caused to
Xxxxxxx for which money damages would not be an adequate remedy. In such event,
each Stockholder agrees that Xxxxxxx shall have the right, in addition to any
other rights it may have, to specific performance of this Agreement.
Accordingly, if Xxxxxxx should institute an action or proceeding seeking
specific enforcement of the provisions hereof, each Stockholder hereby waives
the claim or defense that Xxxxxxx, as the case may be, has an adequate remedy at
law and hereby agrees not to assert in any such action or proceeding the claim
or defense that such a remedy at law exists. Each Stockholder further agrees to
waive any requirements for the securing or posting of any bond in connection
with obtaining any such equitable relief.
SECTION 3.7. Fiduciary Duty. Nothing herein shall in any way
affect any action by any director or executive officer of the Company that is
required to be taken in order to discharge properly his fiduciary duties to the
Company.
SECTION 3.8. Notice. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been duly given or made if and when delivered personally or by overnight courier
to the parties at the following addresses or sent by electronic transmission,
with confirmation received, to the telecopy numbers specified below (or at such
other address or telecopy number for a party as shall be specified by like
notice):
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(a) If to Xxxxxxx:
Xxxxxxx Homes, Inc.
000 Xxxxxxxxxxx Xxxx., Xxxxx 000
Xx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxxxx
(b) If to a Stockholder, at the address set forth below
such Stockholder's name on Schedule I.
SECTION 3.9. Expenses. Except as otherwise expressly set forth
herein, all fees, costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such fees, costs and expenses.
SECTION 3.10. Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. When a reference is made in this
Agreement to Sections or Schedules, such reference shall be to a section or
schedule of this Agreement unless otherwise indicated. Wherever the words
"includes," "include" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
SECTION 3.11. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. 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 in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the maximum
extent possible.
SECTION 3.12. Entire Agreement; No Third-Party Beneficiaries.
This Agreement constitutes the entire agreement and supersedes any and all other
prior agreements and undertakings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof, and this Agreement is
not intended to confer upon any other person any rights or remedies hereunder.
SECTION 3.13. Assignment. This Agreement shall not be assigned
by operation of law or otherwise.
SECTION 3.14. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed entirely within that
State.
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SECTION 3.15. Jurisdiction. Each party hereby irrevocably
submits to the exclusive jurisdiction of the Court of Chancery in the State of
Delaware in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding shall be brought
only in such court (and waives any objection based on forum non conveniens or
any other objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this Section 3.15 and
shall not be deemed to be a general submission to the jurisdiction of said Court
or in the State of Delaware other than for such purposes. Each party hereto
hereby waives any right to trial by jury in connection with any such action,
suit or proceeding.
SECTION 3.16. Amendment. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
SECTION 3.17. Waiver. Any party hereto may (a) extend the time
for the performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties of the
other parties hereto contained herein or in any document delivered pursuant
hereto and (c) waive compliance by the other parties hereto with any of their
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only as against such party
and only if set forth in an instrument in writing signed by such party. The
failure of any party hereto to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
SECTION 3.18. Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which shall constitute one and the same agreement.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, Xxxxxxx and the Stockholders have caused
this Agreement to be executed as of the date first written above.
XXXXXXX HOMES, INC.
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
STOCKHOLDERS:
/s/ XXXXXX X. XXXXXX
----------------------------------------
Xxxxxx X. Xxxxxx
XXXXXX XXX XXXXXX TRUST
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Xxxxxxx X. Xxxxxx, Trustee
XXXXXX XXXXXXXXX XXXXXX TRUST
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Xxxxxxx X. Xxxxxx, Trustee
XXXXXX XXXX XXXXXX TRUST
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Xxxxxxx X. Xxxxxx, Trustee
XXXXXXX XXXXXX XXXXXX TRUST
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Xxxxxxx X. Xxxxxx, Trustee
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SCHEDULE I
Name and Address of Stockholder Total Number of Shares Owned of Record Subject Shares
------------------------------- -------------------------------------- --------------
Xxxxxx X. Xxxxxx 8,956,406 8,956,406
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Xxxxxx Xxx Xxxxxx Trust 499,995 499,995
c/o Xxxxxxx X. Xxxxxx, Trustee
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Xxxxxx Xxxxxxxxx Xxxxxx Trust 456,002 456,002
c/o Xxxxxxx X. Xxxxxx, Trustee
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Xxxxxx Xxxx Xxxxxx Trust 1,179,795 1,179,795
c/o Xxxxxxx X. Xxxxxx, Trustee
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Xxxxxxx Xxxxxx Xxxxxx Trust 1,179,795 1,179,795
c/o Xxxxxxx X. Xxxxxx, Trustee
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
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Name and Address of Stockholder Total Number of Shares Beneficially Owned Subject Shares
------------------------------- ----------------------------------------- --------------
Xxxxxx X. Xxxxxx 8,956,406 8,956,406
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Xxxxxx Xxx Xxxxxx Trust 499,995 499,995
c/o Xxxxxxx X. Xxxxxx, Trustee
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Xxxxxx Xxxxxxxxx Xxxxxx Trust 456,002 456,002
c/o Xxxxxxx X. Xxxxxx, Trustee
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Xxxxxx Xxxx Xxxxxx Trust 1,179,795 1,179,795
c/o Xxxxxxx X. Xxxxxx, Trustee
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Xxxxxxx Xxxxxx Xxxxxx Trust 1,179,795 1,179,795
c/o Xxxxxxx X. Xxxxxx, Trustee
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
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SCHEDULE 1.2
None.
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