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EXHIBIT 99.3
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of October 19, 2000, is
made and entered into among Berkshire Hathaway Inc., a Delaware corporation
("Investor"), SII Acquisition, Inc., a Georgia corporation ("Merger Sub") and
each party listed under the heading "Stockholders" on the signature page hereof
(each a "Stockholder" and collectively, the "Stockholders");
WITNESSETH:
WHEREAS, as of the date hereof, each Stockholder owns the number of shares
of common stock, no par value per share ("Common Stock"), of Xxxx Industries,
Inc., a Georgia corporation (the "Company"), set forth opposite the
Stockholder's name on Exhibit A hereto (the total number of shares of Common
Stock owned by the Stockholders, and any other capital stock of the Company or
any stock option for shares of capital stock of the Company that the
Stockholders acquire, whether by means of purchase (including through the
exercise of any stock option), dividend, distribution, or otherwise, prior to
the termination of this Agreement, being collectively referred to as the
"Shares");
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company, Investor and Merger Sub are entering into an Agreement and Plan of
Merger (the "Merger Agreement") of even date herewith, which (upon the terms and
subject to the conditions set forth therein) provides for, among other things,
the merger of Merger Sub with and into the Company (the "Merger");
WHEREAS, concurrently with the execution and delivery of this Agreement,
Investor and Merger Sub and certain other parties are entering into a
Contribution and Participation Agreement (the "Contribution Agreement"), of even
date herewith, which (upon the terms and subject to the conditions set forth
therein) provides for, among other things, the investment in Merger Sub by
Investor and the holders of shares of Common Stock named therein of cash and
shares of Common Stock in exchange for an equity interest therein;
WHEREAS, as a condition to Investor's and Merger Sub's willingness to enter
into the Merger Agreement and the Contribution Agreement, Investor and Merger
Sub have requested the Stockholders to agree, and in order to induce Investor
and Merger Sub to enter into the Merger Agreement and the Contribution
Agreement, the Stockholders have agreed, to enter into this Agreement; and
WHEREAS, concurrently with the execution and delivery of this Agreement,
Investor is entering into a voting agreement with the Company (the "Investor
Voting Agreement"), pursuant to which Investor is agreeing to vote certain
shares of Common Stock which are subject to both this Agreement and the
Contribution Agreement in the same proportion as the holders of all other shares
of Common Stock voting on the approval of the Merger vote their shares of Common
Stock on such matter.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants, and agreements hereinafter set forth, the parties hereto
hereby agree as follows:
ARTICLE I
STOCKHOLDERS' REPRESENTATIONS AND WARRANTIES
Each Stockholder hereby represents and warrants to Merger Sub and Investor
as follows:
1.1 Due Organization and Authorization. Stockholder, if it is not a
natural person, is duly organized and validly existing under the laws of the
jurisdiction in which it was formed. Stockholder possesses the requisite power
and authority to execute, deliver, and perform this Agreement, to appoint Xxxxxx
X. Xxxxxxx and Xxxx X. Hamburg (or any other designee of Investor), and each of
them, as its Proxy (as defined below), and to consummate the transactions
contemplated hereby. The execution, delivery, and performance of this
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Agreement, the appointment of Xxxxxx X. Xxxxxxx and Xxxx X. Hamburg (or any
other designee of Investor), and each of them, as Stockholder's Proxy, and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite action of Stockholder. This Agreement has been duly executed
and delivered by or on behalf of Stockholder and constitutes a legal, valid, and
binding obligation of Stockholder, enforceable against Stockholder in accordance
with its terms. There is no beneficial owner of any of the Shares or other
beneficiary or holder of any other interest in any of the Shares whose consent
is required for the execution and delivery of this Agreement by Stockholder or
for the consummation by Stockholder of the transactions contemplated hereby.
1.2 No Conflicts; Required Filings and Consents. (a) The execution and
delivery of this Agreement by Stockholder do not, and the performance of this
Agreement by Stockholder will not, (i) conflict with or violate the trust
agreement or other governing instrument of Stockholder if it is not a natural
person, (ii) conflict with or violate any law applicable to Stockholder or by
which Stockholder or any of Stockholder's assets 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 Stockholder, including,
without limitation, the Shares, pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise, or other
instrument or obligation to which Stockholder is a party or by which Stockholder
or any of Stockholder's assets is bound or affected.
(b) The execution and delivery of this Agreement by Stockholder does
not, and the performance of this Agreement by Stockholder will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or
foreign, other than (i) filings under the HSR Act and any similar foreign
requirements, and (ii) any necessary filing under the Securities Exchange
Act of 1934, as amended.
1.3 Title to Shares. Except as set forth on Schedule 1.3 hereto,
Stockholder is the sole owner of the shares of Common Stock set forth opposite
Stockholder's name on Exhibit A hereto, free and clear of any pledge, lien,
security interest, mortgage, claim, proxy, voting restriction or other voting
trust, agreement, understanding, or arrangement of any kind, right of first
refusal or other limitation on disposition, adverse claim of ownership, or other
encumbrance of any kind, other than restrictions imposed by securities laws or
pursuant to this Agreement, the Merger Agreement or, if Stockholder is a party
thereto, the Contribution Agreement and the Custody Agreement (as such term is
defined in the Contribution Agreement).
1.4 Information for Proxy Statement. None of the information relating to
Stockholder and its affiliates supplied or to be supplied by or on behalf of
Stockholder or its affiliates for inclusion or incorporation by reference in the
Proxy Statement or in any other document filed with any other Governmental
Entity in connection with the transactions contemplated by this Agreement or the
Merger Agreement at the respective times filed with the SEC or such other
Governmental Entity and first published, sent or given to stockholders of the
Company and, in addition, in the case of the Proxy Statement, at the date it or
any amendment or supplement is mailed to the Company's stockholders and at the
time of the Company Stockholders Meeting, will contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
ARTICLE II
STOCKHOLDERS' COVENANTS
Each Stockholder hereby covenants to Merger Sub and Investor as follows:
2.1 Voting of Shares. Stockholder hereby agrees that from the date hereof
until the termination of the Agreement pursuant to Section 3.2 (the "Term"), at
any meeting of the stockholders of the Company however called and in any action
by written consent of the stockholders of the Company, Stockholder shall vote
its Shares (i) in favor of the Merger and the Merger Agreement, as it may be
amended from time to time, (ii) against any Takeover Proposal and against 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
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under the Merger Agreement or which is reasonably likely to result in any of the
Company's obligations under the Merger Agreement not being fulfilled, any change
in the directors of the Company (except as contemplated by the Merger
Agreement), any change in the present capitalization of the Company or any
amendment to the Company's corporate structure or business, or any other action
which could reasonably be expected to impede, interfere with, delay, postpone or
adversely affect the transactions contemplated by this Agreement or 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
shareholders or in such consent, and in connection therewith to execute any
documents which are necessary or appropriate in order to effectuate the
foregoing, including the ability for Investor or its nominee(s) to vote the
Shares directly.
2.2 Proxy. Stockholder hereby revokes all prior proxies or powers of
attorney with respect to any of its Shares. Stockholder hereby constitutes and
appoints Xxxxxx X. Xxxxxxx, Chairman and Chief Executive Officer of Investor,
and Xxxx X. Hamburg, Chief Financial Officer of Investor, in their respective
capacities as officers of Investor, and any individual who shall succeed to any
such office of Investor, and any other designee of Investor, and each of them,
with full power of substitution and resubstitution at any time during the Term,
as its true and lawful attorney and proxy ("Proxy"), for and in its name, place,
and stead, to demand that the Secretary of the Company call a special meeting of
the stockholders of the Company for the purpose of considering any matter
referred to in Section 2.1 and to vote each Share held by Stockholder as its
Proxy in respect of any such matter, at every annual, special, adjourned, or
postponed meeting of the stockholders of the Company, including the right to
sign its name (as stockholder) to any consent, certificate, or other document
relating to the Company that the law of the State of Georgia might permit or
require. THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED
WITH AN INTEREST THROUGHOUT THE TERM. Stockholder will take such further action
and execute such other documents as may be necessary to effectuate the intent of
this Section 2.2
2.3 Restrictions on Transfer, Proxies and Non-Interference. Stockholder
hereby agrees, while this Agreement is in effect, and except as contemplated
hereby (including pursuant to the Contribution Agreement and the Custody
Agreement, if Stockholder is a party thereto), not to (i) without Investor's
prior written consent, sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares, (ii) grant any proxies,
deposit any Shares into a voting trust or enter into a voting agreement with
respect to any Shares, or (iii) take any action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect
or have the effect of preventing or disabling Stockholder from performing
Stockholder's obligations under this Agreement. Stockholder further agrees that
it (a) will tender to the Company, within ten business days of the date of this
Agreement, all certificates representing such Stockholder's Shares (other than
any certificates which have been delivered to, and held by, the custodian
pursuant to the Custody Agreement) for the Company to inscribe thereupon the
following legend: "The shares of Common Stock, no par value per share, of Xxxx
Industries, Inc. (the "Company") represented by this certificate are subject to
a Voting Agreement dated as of October 19, 2000, and may not be sold or
otherwise transferred, except in accordance therewith. A copy of such Voting
Agreement is available for inspection at the principal executive office of the
Company", and (b) will, within ten business days of the date of this Agreement,
no longer hold any Shares, whether certificated or uncertificated, in "street
name" or in the name of any nominee.
2.4 Disclosure. Stockholder hereby authorizes the Company and Merger Sub
to publish and disclose in the Proxy Statement (including all documents and
schedules filed with the SEC), its identity, its ownership of Common Stock, and
the nature of its commitments, arrangements, and understandings under this
Agreement.
2.5 No Solicitation. Stockholder covenants and agrees that, during the
Term, it shall not, nor shall it authorize or permit any of its representatives
or agents to, directly or indirectly, solicit, initiate, knowingly encourage, or
take any other action designed to facilitate, any inquiries or the making of any
proposal from any person (other than from Merger Sub or Investor) relating to
(i) any acquisition of any Shares or (ii) any transaction that constitutes a
Takeover Proposal. Stockholder further covenants and agrees that, during the
Term, it shall not (and shall not permit its representatives or agents to)
participate in any discussions or
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negotiations (except with Merger Sub or Investor) regarding, or furnish to any
person (other than Merger Sub or Investor) any information with respect to, or
otherwise cooperate in any way with, or assist or participate in or facilitate
or encourage, any effort or attempt by any person (other than Merger Sub or
Investor) to make, any transaction that may constitute a Takeover Proposal.
Stockholder immediately shall cease and cause to be terminated all existing
discussions or negotiations of Stockholder and its representatives or agents
with any person (other than Merger Sub or Investor) with respect to any of the
foregoing. Stockholder shall notify Merger Sub and Investor promptly of any such
proposal or offer, or any inquiry or contact with any person with respect
thereto, of which it becomes aware and shall, in any such notice to Merger Sub
and Investor, indicate in reasonable detail the identity of the person making
such proposal, offer, inquiry, or contact and the material terms and conditions
of such proposal, offer, inquiry, or contact. Notwithstanding any provision of
this Section to the contrary, if Stockholder is a member of the Board of
Directors of the Company, Stockholder may, and if any agent or representative of
Stockholder is a member of the Board of Directors of the Company, such member of
the Board of Directors of the Company may, in his or her capacity as such a
director, take such actions, if any, as are permitted by Section 7.4 of the
Merger Agreement.
ARTICLE III
MISCELLANEOUS
3.1 Definitions. Terms used but not otherwise defined in this Agreement,
have the meanings assigned to such terms in the Merger Agreement.
3.2 Termination. This Agreement shall terminate and be of no further force
and effect (i) by the written mutual consent of the parties hereto or (ii)
automatically and without any required action of the parties hereto upon the
earlier to occur of (A) the Effective Time or (B) the termination of the Merger
Agreement in accordance with Article 8 thereof. The termination of this
Agreement shall not relieve any party hereto from any liability for any breach
of this Agreement prior to termination.
3.3 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
3.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) upon hand delivery, (ii)
upon confirmation of receipt of facsimile transmission, (iii) upon confirmed
delivery by a standard overnight courier, or (iv) after five (5) business days
if sent by registered or certified mail, postage prepaid, return receipt
requested, to the following address or to such other address that a party hereto
might later specify by like notice:
(a) If to Merger Sub or Investor, to:
Berkshire Hathaway Inc.
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
with copies to:
Xxxxxx, Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
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(b) If to the Stockholders, to:
Xxxx Industries, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx
Facsimile No.: (000) 000-0000
with copies to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx 00000
Attn: G. Xxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
3.5 Severability. In the event that any provision in this Agreement is
held invalid, illegal, or unenforceable in a jurisdiction, such provision shall
be modified or deleted as to the jurisdiction involved but only to the extent
necessary to render the same valid, legal, and enforceable. The validity,
legality, and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby nor shall the validity, legality, or
enforceability of such provision be affected thereby in any other jurisdiction.
3.6 Entire Agreement. This Agreement (along with all Exhibits and
Schedules hereto), the Merger Agreement, the Investor Voting Agreement and, if a
Stockholder is a party thereto, the Contribution Agreement and the Custody
Agreement, as each of the Merger Agreement, the Investor Voting Agreement and,
if applicable, the Contribution Agreement and the Custody Agreement, may be
amended from time to time, constitute the entire agreement among the parties
hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect thereto.
3.7 Assignment. No party may assign or delegate this Agreement or any
right, interest, or obligation hereunder, provided that Merger Sub or Investor,
in its sole discretion, may assign or delegate its rights and obligations
hereunder to any direct or indirect wholly-owned subsidiary of such entity.
3.8 No Third-Party Beneficiaries. This Agreement shall be binding upon,
inure solely to the benefit of, and be enforceable by only the parties hereto,
their respective successors, and permitted assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person,
other than the parties hereto, their respective successors, and permitted
assigns, any rights, remedies, obligations, or liabilities of any nature
whatsoever.
3.9 Waiver of Appraisal Rights. Each Stockholder hereby waives any rights
of appraisal or rights to dissent from the Merger.
3.10 Further Assurance. 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 transactions contemplated by this Agreement.
3.11 Certain Events. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise. Notwithstanding any
transfer of Shares, the transferor shall remain liable for the performance of
all obligations under this Agreement.
3.12 No Waiver. The failure of any party hereto to exercise any right,
power, or remedy provided under this Agreement or otherwise available at law or
in equity, the failure of any party hereto to insist upon compliance by any
other party hereto with its obligations hereunder, or the existence of 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.
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3.13 Specific Performance. The parties hereto acknowledge that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or otherwise
breached. Accordingly, the parties agree that an aggrieved party shall be
entitled to injunctive relief to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court having
jurisdiction, this being in addition to any other right or remedy to which such
party may be entitled under this Agreement, at law, or in equity.
3.14 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Georgia, without effect to provisions
thereof relating to conflicts of law.
3.15 Headings. The descriptive headings in this Agreement were included
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
3.16 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to
be executed in a manner sufficient to bind them as of the date first written
above.
Berkshire Hathaway Inc.
By: /s/ XXXX X. HAMBURG
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Its: Vice President
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SII Acquisition, Inc.
By: /s/ XXXX X. HAMBURG
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Its: Vice President
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Stockholders
Xxxxx Xxxx Family Trust
By: /s/ XXXXX XXXX
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Its: Trustee
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By: /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
Xxxxxx X. Xxxx Family Trust
By: /s/ XXXXXX X. XXXX
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Its: Trustee
------------------------------------
By: /s/ X. X. XXXX
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X. X. Xxxx
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Xxxxx Xxxx Schejola Family Trust
By: /s/ XXXXX XXXX SCHEJOLA
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Its: Trustee
------------------------------------
By: /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
By: /s/ R. XXXXXX XXXXXX
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R. Xxxxxx XxXxxx
By: /s/ XXXXXXX XXXX XXXXXX
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Xxxxxxx Xxxx XxXxxx
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EXHIBIT A
STOCKHOLDERS NUMBER OF SHARES OF COMMON STOCK
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Xxxxxx X. Xxxx.............................................. 6,634,348
Xxxxxx X. Xxxx Family Trust................................. 6,267,883
X.X. Xxxx................................................... 5,370,815
Shaw Family Holdings, LLC................................... 1,054,603
Xxxxx Xxxx Schejola Family Trust............................ 7,699,808
Xxxxxx X. Xxxx, Xx.......................................... 531,030
R. Xxxxxx XxXxxx............................................ 1,571,989
Xxxxxxx Xxxx XxXxxx......................................... 1,163,169
