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EXHIBIT (d)(2)
EXECUTION COPY
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STOCK VOTING AND TENDER AGREEMENT
BY AND AMONG
TECHNICAL OLYMPIC USA, INC.,
HELIOS ACQUISITION CORP.
AND THE INDIVIDUALS NAMED HEREIN
Dated as of October 12, 2000
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TABLE OF CONTENTS
Page
1. Tender of Shares..........................................................................................1
2. Provisions Concerning the Shares..........................................................................2
(a) Agreement to Vote the Shares...............................................................2
(b) Grant of Proxy.............................................................................2
(c) Other Proxies Revoked......................................................................2
3. Option Shares.............................................................................................3
4. Representations and Warranties of Each Shareholder........................................................4
(a) Authority..................................................................................4
(b) Ownership of the Shares....................................................................4
(c) Consents and Approvals; No Violations......................................................5
(d) No Finder's Fees...........................................................................5
(e) No Encumbrances............................................................................5
(f) Reliance by Parent and Acquisition.........................................................5
5. Representations and Warranties of Parent and Acquisition..................................................5
(a) Organization...............................................................................5
(b) Corporate Authorization; Validity of Agreement; Necessary Action...........................5
(c) Consents and Approvals; No Violations......................................................6
6. Covenants of each Shareholder.............................................................................6
(a) Restriction on Transfer, Proxies and Non-Interference......................................6
(b) Stop Transfer; Changes in Subject Shares...................................................6
(c) Dissenter's Rights.........................................................................7
7. Fiduciary Duties..........................................................................................7
8. Certain Other Agreements..................................................................................7
9. Miscellaneous.............................................................................................7
(a) Further Assurances.........................................................................7
(b) Entire Agreement...........................................................................7
(c) Assignment.................................................................................7
(d) Amendments and Waivers.....................................................................8
(e) Notices....................................................................................8
(f) Severability...............................................................................9
(g) Specific Performance.......................................................................9
(h) Remedies Cumulative........................................................................9
(i) No Waiver..................................................................................9
(j) No Third Party Beneficiaries...............................................................9
(k) Governing Law..............................................................................9
(l) Descriptive Headings......................................................................10
(m) Counterparts..............................................................................10
10.Termination..............................................................................................10
Schedule I
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STOCK VOTING AND TENDER AGREEMENT
This STOCK VOTING AND TENDER AGREEMENT (this "Agreement"), dated as of
October 12, 2000, by and among Technical Olympic USA, Inc., a Delaware
corporation ("Parent"), Helios Acquisition Corp., a Florida corporation and a
wholly-owned subsidiary of Parent ("Acquisition"), and the individuals listed on
Schedule I hereto (each a "Shareholder," and collectively, the "Shareholders").
WHEREAS, simultaneously with the execution and delivery of this
Agreement, Parent, Acquisition and Xxxxx Homes, Inc., a Florida corporation (the
"Company"), entered into an Agreement and Plan of Merger, dated as of the date
hereof (as may be amended from time to time, the "Merger Agreement"), pursuant
to which Acquisition (i) will make a tender offer for all of the outstanding
shares of Company Common Stock, subject to the terms and conditions of the
Merger Agreement (such offer as it may be amended from time to time as permitted
under the Merger Agreement, the "Offer"), and (ii) Acquisition will be merged
with and into the Company (the "Merger");
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement, pursuant to which the Shareholders will receive the
consideration provided for in the Merger Agreement in exchange for each share of
Company Common Stock owned by such Shareholder, each Shareholder has agreed to
enter into this Agreement; and
WHEREAS, terms defined in the Merger Agreement shall, unless this
Agreement or the context requires otherwise, have the same meanings in this
Agreement as in the Merger Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Tender of Shares.
(a) Each Shareholder hereby severally agrees to validly tender
(and not to withdraw) pursuant to and in accordance with the terms of the Offer
(provided that the Offer is not amended in a manner prohibited by the Merger
Agreement), not later than the close of business on the third Business Day after
the Offer commences, all shares of Company Common Stock owned by such
Shareholder as of the date hereof and any shares of Company Common Stock
hereafter acquired by such Shareholder (all such shares owned as of the date
hereof and all such shares hereafter acquired, the "Shares"). Each Shareholder
hereby severally acknowledges and agrees that Acquisition's obligation to accept
for payment and pay for the shares of Company Common Stock in the Offer,
including the Shares, is subject to the terms and conditions of the Offer.
(b) Each Shareholder hereby severally agrees to permit
Acquisition to publish and disclose in the Offer Documents (and any other press
release or announcement which may be issued in accordance with the terms of the
Merger Agreement) and, if approval of the shareholders of the Company is sought
or given under applicable law, the Proxy Statement or the Information Statement
(including all documents and schedules filed with the SEC) such Shareholder's
identity and intent with respect to the Shares and the nature of such
Shareholder's commitments, arrangements and understandings under this Agreement.
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(c) Each Shareholder hereby severally agrees to (i) exercise
any and all outstanding options for Company Common Stock prior to the initial
expiration date of the Offer and to validly tender (and not to withdraw)
pursuant to and in accordance with the terms of the Offer (provided that the
Offer is not amended in a manner prohibited by the Merger Agreement) in a timely
manner for acceptance by Acquisition in the Offer all Shares that are received
as a result of such exercise or (ii) execute and deliver to Parent an agreement
of the type described in clause (ii) or clause (iii) of Section 4.7 of the
Merger Agreement.
2. Provisions Concerning the Shares.
(a) Agreement to Vote the Shares. Each Shareholder hereby
agrees that during the period commencing on the date hereof and continuing until
the earlier of any termination of the Merger Agreement and the Effective Time
(such period, the "Voting Period"), at any meeting of the holders of any class
or classes of the capital stock of the Company, however called, and at any
adjournment thereof, and in connection with any written consent of the holders
of any class or classes of the capital stock of the Company, such Shareholder
shall vote (or cause to be voted) the Shares or consent to (or cause consent to
be given) with respect to the Shares (i) in favor of the Merger, and the
adoption and approval of the terms of the Merger Agreement and each of the other
transactions contemplated by the Merger Agreement and this Agreement and any
actions required or reasonably requested by Parent in furtherance thereof, (ii)
against any action, transaction or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or this
Agreement, and (iii) against any Acquisition Transaction other than the Merger
(or any other Acquisition Transaction proposed by Parent) and against any
proposed action or transaction that would prevent or delay consummation of the
Merger (or other Acquisition Transaction proposed by Parent) or is otherwise in
any material respect inconsistent therewith. Each Shareholder hereby agrees that
such Shareholder shall not enter into any agreement or understanding with any
Person the effect of which would be to violate the provisions and agreements
contained in this Section 2.
(b) Grant of Proxy. Each Shareholder hereby severally appoints
Acquisition and any designee of Acquisition, and each of them individually, such
Shareholder's proxy and attorney-in-fact pursuant to the provisions of Section
607.0722 of the FBCA, with full power of substitution and resubstitution, to
vote or act by written consent during the Voting Period with respect to the
Shares in accordance with this Section 2. This proxy is given to secure the
performance of the duties of each Shareholder under this Agreement. Each
Shareholder affirms that this proxy is coupled with an interest and shall be
irrevocable until termination of this Agreement. Each Shareholder shall take
such further action or execute such other instruments as may be necessary or
desirable to effectuate the intent of this proxy. THE AUTHORITY GRANTED
HEREUNDER (THE "PROXY") SHALL BE (i) IRREVOCABLE UNTIL THE EARLIER OF (X) THE
EFFECTIVE TIME AND (Y) THE DATE ON WHICH THIS AGREEMENT IS TERMINATED AND (ii)
DEEMED TO BE COUPLED WITH AN INTEREST SUFFICIENT IN LAW AS REQUIRED BY SECTION
607.0722 OF THE FBCA.
(c) Other Proxies Revoked. Each Shareholder represents and
warrants that any proxies heretofore given in respect of such Shareholder's
Shares are not irrevocable, and that all such proxies have been or are hereby
revoked.
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3. Option Shares.
(a) Subject to the terms and conditions set forth herein, each
Shareholder hereby grants to Parent an irrevocable option (each, an "Option,"
and collectively, the "Options") to purchase, in whole but not in part, such
Shareholder's Shares at a purchase price per share of Company Common Stock equal
to the Price Per Share in cash.
(b) Parent may exercise an Option, in whole but not in part,
at any time and from time to time, after the first to occur of (i) any event as
a result of which Parent shall be entitled to receive a termination fee pursuant
to Section 6.1(h) or the first sentence of Section 6.3(b) of the Merger
Agreement, (ii) the receipt by the Company of an Acquisition Proposal prior to
any termination of the Merger Agreement, (iii) the acquisition by any Person
(other than Parent or Acquisition) of beneficial ownership (as defined in Rule
13d-3 promulgated under the Exchange Act) of more than 20% of the outstanding
voting securities of the Company or an option or rights to acquire more than 20%
of such voting securities of the Company prior to any termination of the Merger
Agreement and (iv) the breach by the Shareholder who granted such Option of
Section 1 or Section 2 of this Agreement (the first of such events to occur, a
"Purchase Event"); provided, however, that except as provided in the last
sentence of this Section 3(b), each Option shall terminate and be of no further
force and effect upon the earliest to occur of (A) the Effective Time and (B)
(1) in the event that the Merger Agreement is terminated and a Purchase Event
pursuant to clause (i) has occurred, four months after such termination of the
Merger Agreement, (2) in the event that the Merger Agreement is terminated and
no Purchase Event has occurred, the time of such termination of the Merger
Agreement, and (3) in the event that the Merger Agreement is terminated and a
Purchase Event pursuant to clauses (ii), (iii) or (iv) shall have occurred, 12
months and one day after the termination of the Merger Agreement.
Notwithstanding the termination of the Options, Parent shall be entitled to
exercise any Option if it has given written notice of its intent to exercise
such Option in accordance with the terms hereof prior to the termination of such
Option and the termination of such Option shall not affect any rights in this
Section 3.
(c) In the event that Parent wishes to exercise an Option, it
shall send to the Shareholder who granted such Option a written notice (the date
of which being herein referred to as the "Notice Date") to that effect which
notice also specifies the total number of shares Parent will purchase pursuant
to such exercise, and a date not earlier than three Business Days nor later than
10 Business Days from the Notice Date for the closing of such purchase (the
"Option Closing Date"); provided, however, that (i) if the closing of the
purchase and sale pursuant to such Option (an "Option Closing") cannot be
consummated by reason of any applicable judgment, decree, order, law or
regulation, the period of time that otherwise would run pursuant to this
sentence shall run instead from the date on which such restriction on
consummation has expired or been terminated and (ii) without limiting the
foregoing, if prior notification to or approval of any governmental entity is
required in connection with such purchase or any other transaction contemplated
hereby, Parent and such Shareholder shall promptly file the required notice or
application for approval and shall cooperate in the expeditious filing of such
notice or application, and, in the case of any prior notification or approval
required in connection with such purchase, the period of time that otherwise
would run pursuant to this sentence shall run instead from the date on which, as
the case may be, (A) any required notification period has expired or been
terminated or (B) any required approval has been obtained, and in either event,
any requisite waiting period has expired or been terminated. The place of the
Option Closings
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shall be at the offices of Xxxxxx & Xxxxxx L.L.P., located at 2300 First City
Tower, 0000 Xxxxxx, Xxxxxxx, Xxxxx 00000.
(d) At each Option Closing, Parent (or its designee) shall pay
to the Shareholder an amount equal to the product of (x) the Price Per Share and
(y) the number of Shares being purchased from such Shareholder pursuant to the
exercise of the Option. Such payment shall be in immediately available funds by
wire transfer to a bank account designated in writing by such Shareholder.
(e) Parent hereby represents that the Shares purchased by
Parent pursuant to the Options will be acquired for investment only and not with
a view to any public distribution thereof, and Parent shall not offer to sell or
otherwise dispose of any Shares so acquired by it in violation of the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act").
(f) At each Option Closing, simultaneously with the delivery
of the amount specified in Section 3(d), each Shareholder shall deliver to
Parent (or its designee) a certificate or certificates representing its Shares
to be purchased at the Option Closing duly endorsed or with executed blank stock
power attached, which Shares shall be free and clear of all liens, claims,
charges and encumbrances of any kind whatsoever, except for such encumbrances or
proxies in favor of Parent arising hereunder.
4. Representations and Warranties of Each Shareholder. Each Shareholder
hereby severally, and not jointly, represents and warrants to Parent and
Acquisition (as to such Shareholder) as follows:
(a) Authority. Such Shareholder has all necessary power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by such Shareholder
have been duly authorized by all necessary action on the part of such
Shareholder and, assuming the due authorization, execution and delivery of this
Agreement by Parent and Acquisition, this Agreement constitutes a legal, valid
and binding obligation of such Shareholder, enforceable against such Shareholder
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or
similar laws affecting the rights and remedies of creditors generally and by
equitable principles of general application (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(b) Ownership of the Shares. Except as indicated on Schedule
I, such Shareholder is the sole beneficial owner of the Shares listed beside
such Shareholder's name on Schedule I attached hereto and such Shareholder will
be the sole beneficial owner of any Shares hereafter acquired pursuant to any
exercise of such Shareholder's options for Company Common Stock. Except as
otherwise indicated on Schedule I, such Shareholder has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Sections 1, 2 and 3 hereof, sole power of disposition, sole power of conversion
and sole power to agree to all of the matters set forth in this Agreement, in
each case with respect to all of the Shares, with no limitations, qualifications
or restrictions on such rights, subject only to applicable securities laws and
the terms of this Agreement. Except as otherwise indicated on Schedule I, such
Shareholder does not beneficially own or own of record any shares of Company
Common Stock other than such
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Shareholder's Shares listed on Schedule I. Except as set forth on Schedule I,
such Shareholder has no options for, or rights to receive, Company Common Stock.
(c) Consents and Approvals; No Violations. (i) Except as may
be required by the Exchange Act or the HSR Act, no filing with, and no permit,
authorization, consent or approval of, any governmental entity is necessary for
the execution of this Agreement by such Shareholder and the consummation by such
Shareholder of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by such Shareholder, the consummation
by such Shareholder of the transactions contemplated hereby or compliance by
such Shareholder with any of the provisions hereof shall (A) conflict with or
result in any breach of any applicable documents to which such Shareholder is a
party, (B) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, amendment or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which such Shareholder is a party or by which such
Shareholder or any of such Shareholder's properties or assets may be bound, or
(C) violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to such Shareholder or any of such Shareholder's
properties or assets, except in each case where such absence of filing or
authorization, conflict, violation, breach or default would not materially
impair the ability of such Shareholder to consummate the transactions
contemplated hereby.
(d) No Finder's Fees. Except as disclosed pursuant to the
Merger Agreement, no broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Shareholder.
(e) No Encumbrances. The Shares listed beside such
Shareholder's name on Schedule I attached hereto and the certificates
representing such Shares are now, and such Shares and any Shares hereafter
acquired at all times during the term hereof will be, held by such Shareholder,
or by a nominee or custodian for the benefit of such Shareholder, free and clear
of all liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any such encumbrances or proxies in favor of Parent or Acquisition arising
hereunder.
(f) Reliance by Parent and Acquisition. Such Shareholder
understands and acknowledges that Parent and Acquisition have entered into the
Merger Agreement in reliance upon such Shareholder's execution and delivery of
this Agreement.
5. Representations and Warranties of Parent and Acquisition. Parent and
Acquisition hereby represent and warrant to each Shareholder as of the date
hereof as follows:
(a) Organization. Each of Parent and Acquisition is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation.
(b) Corporate Authorization; Validity of Agreement; Necessary
Action. Each of Parent and Acquisition has all corporate power and authority
necessary to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by Parent and
Acquisition of this Agreement and the consummation by Parent and
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Acquisition of the transactions contemplated hereby have been duly authorized by
all necessary action on the part of Parent and Acquisition, and, assuming the
due authorization, execution and delivery of this Agreement by the Shareholders,
this Agreement constitutes a legal, valid and binding obligation of Parent and
Acquisition, enforceable against them in accordance with its terms, except as
such enforceability may be limited by bankruptcy, reorganization, fraudulent
conveyance, insolvency, moratorium or similar laws affecting the rights and
remedies of creditors generally and by equitable principles of general
application (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(c) Consents and Approvals; No Violation. Neither the
execution nor delivery of this Agreement by Parent or Acquisition nor the
consummation by Parent or Acquisition of the transactions contemplated hereby
nor compliance by Parent or Acquisition with any of the provisions hereof shall
(i) conflict with or result in any breach of any provision of the articles or
certificates of incorporation or by-laws of Parent or Acquisition, (ii) except
as may be required by the Exchange Act or the HSR Act, require any filing with,
or permit, authorization, consent or approval of, any governmental entity
(except where the failure to obtain such permits, authorizations, consents or
approvals or to make such filings would not materially impair the ability of
Parent or Acquisition to consummate the transactions contemplated hereby), (iii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
amendment, cancellation or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, guarantee, other evidence of
indebtedness, lease, license, contract, agreement or other instrument or
obligation to which Parent or Acquisition is a party or by which they or any of
their properties or assets may be bound or (iv) violate any order, writ,
injunction, decree, judgment, statute, rule or regulation applicable to Parent
or Acquisition or any of their properties or assets, except in the case of
clauses (iii) and (iv) for violations, breaches or defaults, or rights of
termination, amendment, cancellation or acceleration, which would not materially
impair the ability of Parent or Acquisition to consummate the transactions
contemplated hereby.
6. Covenants of each Shareholder. Each Shareholder covenants and agrees
as follows:
(a) Restriction on Transfer, Proxies and Non-Interference.
Except as provided in this Agreement or, as applicable, as contemplated by such
Shareholder's Employment Agreement or Section 4.7 of the Merger Agreement, such
Shareholder shall not (i) directly or indirectly, offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the Shares or any interest
therein or any or all of such Shareholder's options for Company Common Stock;
(ii) grant any proxies or powers of attorney, deposit any of the Shares into a
voting trust or enter into a voting agreement with respect to any of the Shares;
or (iii) take any action that would make any representation or warranty of such
Shareholder contained herein untrue or incorrect in any material respect or have
the effect of preventing or disabling or delaying such Shareholder from
performing such Shareholder's obligations under this Agreement.
(b) Stop Transfer; Changes in Subject Shares. Such Shareholder
agrees with, and covenants to, Parent and Acquisition that such Shareholder
shall not request that the Company register the transfer (book-entry or
otherwise) of any certificate or uncertificated
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interest representing any of the Shares or any or all of such Shareholder's
options for Company Common Stock, unless such transfer is made in compliance
with this Agreement or, as applicable, as contemplated by such Shareholder's
Employment Agreement or Section 4.7 of the Merger Agreement. In the event of a
stock dividend or distribution, or any change in any class of capital stock of
the Company by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall be deemed
to refer to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Shares
may be changed or exchanged. Such Shareholder shall be entitled to receive any
cash dividend paid by the Company and permitted under the Merger Agreement in
respect of the Shares during the term of this Agreement until the Effective
Time.
(c) Dissenter's Rights. Such Shareholder agrees not to
exercise any dissenter's rights (including, without limitation, under sections
607.1301 - 607.1320 of the FBCA) which may arise with respect to the Merger.
7. Fiduciary Duties. Each Shareholder signs this Agreement solely in
such Shareholder's capacity as a beneficial owner of the Shares and no person
executing this Agreement who is or becomes during the term hereof a director or
officer of the Company makes any agreement or understanding herein in his or her
capacity as such director or officer. Notwithstanding anything in this Agreement
to the contrary, the covenants and agreements set forth herein shall not prevent
the Shareholder or any of such Shareholder's designees serving on the Company's
Board of Directors or as any officer or employee of the Company from taking any
action while acting in the capacity of a director, officer or employee of the
Company in satisfying such Shareholder's fiduciary duties.
8. Certain Other Agreements. Each of the Shareholders agrees that it
will immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to an Acquisition Transaction with any Third Party. Such Shareholder agrees that
it will not, directly or indirectly solicit, initiate or knowingly facilitate or
encourage (including by way of furnishing or disclosing information) any inquiry
or the making of any offer or proposal by any Third Party with respect to, or
that could reasonably be expected to lead to, an Acquisition Transaction.
9. Miscellaneous.
(a) Further Assurances. From time to time, at any other
party's reasonable request and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
lawful action as may be necessary or reasonably requested to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
(b) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(c) Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party, provided that Parent and Acquisition may assign and transfer, at its sole
discretion, its rights and obligations hereunder to any of their affiliates.
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(d) Amendments and Waivers. This 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 all of the
relevant parties hereto, provided that Schedule I attached hereto may be
supplemented by Parent or Acquisition by adding the name and other relevant
information concerning any shareholder of the Company who agrees to be bound by
the terms of this Agreement without the agreement of any other party hereto, and
thereafter such added shareholder shall be treated as a "Shareholder" for all
purposes of this Agreement.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to the Shareholders: At the address set forth beside each
Shareholders name listed on Schedule I attached hereto
with copies to:
Xxxxx Homes, Inc.
000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx Xxxxxxx
and:
Xxxxxxxxx Xxxxxxx, LLP
Xxx X. Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
If to Parent or Acquisition:
Technical Olympic USA, Inc.
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
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with copies to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the aggrieved party shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) 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, and 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.
(j) No Third Party Beneficiaries. This 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.
(k) Governing Law. This Agreement shall be deemed a contract
made under, and for all purposes shall be construed in accordance with, the
internal laws of the Sate of Delaware without regard to principles of conflicts
of law, except for those provisions relating to the voting and the proxy which
shall be governed by Florida law.
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(l) Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in two or
more counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
10. Termination. Except as expressly provided in Section 3 with respect
to the Options, this Agreement and the covenants set forth herein shall
terminate upon the earlier to occur of (i) any termination of the Merger
Agreement and (ii) the Effective Time.
-10-
13
IN WITNESS WHEREOF, Parent, Acquisition and each Shareholder have
caused this Stock Voting and Tender Agreement to be duly executed as of the day
and year first above written.
HELIOS ACQUISITION CORP.
By: /s/ Xxxxxxxxxxx Stengos
--------------------------
Name: Xxxxxxxxxxx Stengos
Title: President
TECHNICAL OLYMPIC USA, INC.
By: /s/ Xxxxxxxxxxx Stengos
--------------------------
Name: Xxxxxxxxxxx Stengos
Title: President
INDIVIDUAL SHAREHOLDERS
/s/ Xxxx Xxxxxxxxxx
---------------------------
Xxxx Xxxxxxxxxx
/s/ Xxxxxx Xxxxxxxxxx
---------------------------
Xxxxxx Xxxxxxxxxx
/s/ Xxxxx Xxxxxxxxxx
---------------------------
Xxxxx Xxxxxxxxxx
/s/ Xxxxx Xxxxxxx
---------------------------
Xxxxx Xxxxxxx
-11-
14
ENGELSTEIN IRREVOCABLE
TRUST DATED
DECEMBER 29, 1992
By: /s/ Xxxx X. Xxxxxxx, Trustee
----------------------------
Xxxx X. Xxxxxxx, Trustee
By: /s/ Xxxxx Xxxxxxx, Trustee
--------------------------
Xxxxx Xxxxxxx, Trustee
ENGELSTEIN CHILDREN'S
IRREVOCABLE TRUST
DATED MARCH 15, 1995
By: /s/ Xxxx X. Xxxxxxx, Trustee
----------------------------
Xxxx X. Xxxxxxx, Trustee
By: /s/ Xxxxx Xxxxxxx, Trustee
--------------------------
Xxxxx Xxxxxxx, Trustee
ENGELSTEIN GRANDCHILDREN'S
IRREVOCABLE TRUST
DATED MARCH 15, 1995
By: /s/ Xxxx X. Xxxxxxx, Trustee
----------------------------
Xxxx X. Xxxxxxx, Trustee
By: /s/ Xxxxx Xxxxxxx, Trustee
--------------------------
Xxxxx Xxxxxxx, Trustee
-12-
15
SCHEDULE I
Number of Shares
of Company Type of Notice
Name Common Stock Ownership Address
---- ---------------- --------- -------
Xxxx Xxxxxxxxxx 2,676,312(1) Direct c/x Xxxxx Homes, Inc.
000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Xxxxxx Xxxxxxxxxx 232,468 Direct c/x Xxxxx Homes, Inc.
000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Xxxxx Xxxxxxxxxx 642,219(2) Direct c/x Xxxxx Homes, Inc.
000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Xxxxx Xxxxxxx 1,500(3) Direct c/x Xxxxx Homes, Inc.
000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Engelstein Irrevocable Trust 49,750 Direct c/x Xxxxx Homes, Inc.
dated December 29, 1992 000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Engelstein Children's Irrevocable 76,800 Direct c/x Xxxxx Homes, Inc.
Trust dated March 15, 1995 000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Engelstein Grandchildren's 64,000 Direct c/x Xxxxx Homes, Inc.
Irrevocable Trust dated March 15, 000 X.X. 00xx Xxxxxx
0000 Xxxxx 000
Xxxx Xxxxx, XX 00000
----------
(1) Does not include 280,000 shares issuable upon exercise of outstanding
options.
(2) Does not include 140,000 shares issuable upon exercise of outstanding
options.
(3) Does not include (a) 60,000 shares issuable upon exercise of outstanding
options, (b) shares held by Xx. Xxxxxxx'x wife or (c) shares held by the trusts
listed above, of which Xx. Xxxxxxx is a trustee.
