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Exhibit 3
EXECUTION COPY
TRUST VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of June 22, 2000 (this "AGREEMENT"),
by and between HB Merger LLC, a Delaware limited liability company ("MERGER
COMPANY"), and the Manville Personal Injury Settlement Trust, a New York trust
(the "STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, concurrently herewith, HB Finance LLC, Merger Company and
Johns Manville Corporation, a Delaware corporation (the "COMPANY"), are entering
into that certain Agreement and Plan of Merger dated as of the date hereof (in
the form so entered into, the "MERGER AGREEMENT") pursuant to which and in
accordance with the terms and conditions thereof Merger Company will be merged
with and into the Company, with the Company as the Surviving Corporation (the
"MERGER");
WHEREAS, the Stockholder owns beneficially and of record 112,730,819
shares (the "SHARES") of Common Stock, par value $.01 per share, of the Company
("COMMON STOCK"); and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Merger Company has required that the Stockholder agree, and
the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
1. Provisions Concerning the Shares.
(a) The Stockholder hereby agrees that during the period
commencing on (x) the date the Federal Bankruptcy Court of the Southern District
of New York (the "COURT") has issued an order upon application of the Trustees
of the Stockholders (the "TRUSTEES") (i) approving of the Stockholder's
execution of and performance of this Agreement and the transactions contemplated
hereby; (ii) approving the Stockholder's execution and performance of the TM
Exchange Agreement, the Stockholders' Agreement, the Escrow Agreement (provided
that the Order shall not be deemed to not have been obtained if the provisions
therein regarding the separate order referred to therein shall not have been
obtained) and the Tax Matters Agreement and the transactions contemplated
thereby, including, without limitation, the Merger and the execution and
performance of the Amended Supplemental Agreement and the Trust Amendment (as
defined in the Tax Matters Agreement, and together with this Agreement, the TM
Exchange Agreement, the Stockholders' Agreement, the Escrow Agreement and the
Amended Supplemental Agreement, the "TRUST MERGER AGREEMENTS"); (iii)
discharging fully the Trustees from any and all liabilities relating to
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or arising from the execution and delivery of and performance of their
obligations under the Trust Merger Agreements and discharging fully the Trustees
from any and all liabilities relating to or arising from the consummation of the
transactions contemplated by the Trust Merger Agreements (other than the
Trustees' obligations to the other parties under the Trust Merger Agreements),
(iv) approving the transfer of all assets of the grantor trust portion of the
Trust that would constitute Qualified Payments (as defined in Section 468B(d) of
the Code) (as defined in the Tax Matters Agreement) to the Designated Settlement
Fund (as defined in the Tax Matters Agreement) immediately following the receipt
of such amount (and from time to time thereafter as Qualified Payments are
received as provided in Section 2.6 of the Tax Matters Agreement), all in a form
reasonably acceptable to the Stockholder, which order shall be in full force and
effect (the "COURT APPROVAL"); or (y) if upon its review of objections raised to
the issuance of the Court Approval, the Stockholder believes in good faith the
Court Approval should be a Final Order (as defined in Section 2.6 of the Tax
Matters Agreement), then the date the Court Approval becomes a Final Order (the
"Final Court Approval"), and continuing until this Agreement terminates pursuant
to Section 5 hereof, at any meeting of the holders of shares of Common Stock,
however called, the Stockholder shall vote all of the Shares and any additional
shares of Common Stock hereafter acquired and owned of record by the Stockholder
at the time of the Special Meeting (the "Additional Shares"), (i) in favor of
the adoption of the Merger Agreement and the amendment to the Company's amended
and restated certificate of incorporation as contemplated thereby, (ii) against
any proposal to the stockholders of the Company which would be reasonably likely
to prevent the consummation of the Merger and (iii) against any Acquisition
Proposal other than the Merger.
(b) The Stockholder shall not enter into any agreement or
understanding with any Person the effect of which would be inconsistent or
violative of the provisions of this Agreement; provided, however, that this
subsection (b) shall not affect any of the rights of the Stockholder otherwise
expressly provided herein.
(c) For purposes of this Agreement:
"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing; without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" within the
meaning of Section 13(d)(3) of the Exchange Act.
(d) In the event of a stock dividend or distribution, or any
change in the shares of Common Stock by reason of any stock dividend, stock
split, recapitalization, reclassification, combination, exchange of shares,
merger or the like, the terms "SHARES" and "ADDITIONAL SHARES" as used in this
Agreement shall be deemed to refer to and include the Shares and Additional
Shares as well as all such stock dividends and distributions and any shares or
other securities into which or for which any or all of
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such shares may be converted, changed or exchanged, to the extent that any such
securities have the right to vote generally in the election of directors.
2. Representations and Warranties.
(a) Stockholder Representations and Warranties. As of the date
hereof, the Stockholder hereby represents and warrants to Merger Company
as follows:
(i) Ownership of Shares. The Stockholder is the
Beneficial Owner of all of the Shares. On the date hereof, the
Shares constitute all of the shares of Common Stock of the Company
owned of record and Beneficially Owned by the Stockholder. Subject
to the terms of the Supplemental Agreement, the Stockholder has sole
voting power and sole power to issue instructions with respect to
the matters set forth in Section 1 hereof, sole power of disposition
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
to applicable securities laws).
(ii) Power; Binding Agreement. The Stockholder has the
legal capacity and power and, subject to obtaining the Court
Approval, authority to enter into and perform all of its obligations
under this Agreement. This Agreement has been duly and validly
authorized and executed and delivered by the Stockholder and
constitutes a valid and binding agreement of the Stockholder,
enforceable against the Stockholder in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity). There is
no beneficiary or holder of a voting trust certificate or other
interest of any trust of which the Stockholder is settlor or trustee
or, except for the Court, any other Person whose consent is required
for the execution and delivery of this Agreement or the consummation
by the Stockholder of the transactions contemplated hereby.
(iii) No Conflicts. (A) Except for filings under the HSR
Act, if any, the Court Approval and filings under the Exchange Act,
no filing or registration with, notification to, authorization,
permit, consent or approval of, any court, legislative, executive or
regulatory authority or agency is necessary for the execution of
this Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby and (B) none of
the execution and delivery of this Agreement by the Stockholder, the
consummation by the Stockholder of the transactions contemplated
hereby or compliance by the Stockholder
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with any of the provisions hereof will (i) 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 third party right of
termination, amendment, cancellation, material modification,
creation of a Lien pursuant to, or acceleration) under any of the
terms, conditions or provisions of any declaration of trust, note,
bond, mortgage, guarantee, indenture, security or pledge agreement,
voting agreement, stockholders' agreement or voting trust, license,
contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which the Stockholder is a
party or by which the Stockholder or any of the Stockholder's
properties or assets may be bound, or (ii) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to the Stockholder or any of the Stockholder's properties
or assets, except in any such case where such violation, breach,
default or right would not be reasonably likely to be materially
adverse to the Stockholder or prevent or materially delay the
Stockholder from the fulfillment of its obligations hereunder.
(iv) No Broker. Except for Goldman, Sachs & Co., no
broker, finder, investment banker, financial adviser or other Person
is entitled to any commission, broker's fee, finder's fee, adviser's
fee or similar fee in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of
the Stockholder, and Merger Company shall not be responsible for any
such fees and related expenses to be paid to Goldman, Sachs & Co.
based upon arrangements made by or on behalf of the Stockholder. The
Stockholder is solely responsible for the fees and expenses of
Goldman, Sachs & Co. pursuant to any agreement between the Trust and
Goldman, Sachs & Co.
(v) Opinion. The Stockholder has received the oral
opinion of Goldman, Sachs & Co., dated the date hereof, to the
effect that the Common Stock Merger Consideration and the Class TM
Merger Consideration to be received by the Stockholder pursuant to
the Merger Agreement is fair to the Stockholder from a financial
point of view.
(b) Merger Company Representations and Warranties. As of
the date hereof Merger Company represents and warrants to the Trust
as follows:
(i) Common Stock Outstanding. Assuming
consummation of the Merger as contemplated by the Merger Agreement,
Schedule I attached hereto sets forth the percentage equity
ownership of the Surviving Corporation that the members of Merger
Company, the Trust, Management and the other shareholders of the
Surviving Corporation will own immediately following the Closing,
based on the equity participation of Management as set forth
therein.
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(ii) Power; Binding Agreement. Merger Company has
the legal capacity, power and authority to enter into and perform
all of its obligations under this Agreement. This Agreement has been
duly and validly authorized, executed and delivered by Merger
Company and constitutes a valid and binding agreement of Merger
Company, enforceable against Merger Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law
or in equity). Except for the consent of its members which has been
obtained, there is no Person whose consent is required for the
execution and delivery of this Agreement or the consummation by
Merger Company of the transactions contemplated hereby.
(iii) No Conflicts. (A) Except for filings under the HSR
Act and filings under the Exchange Act, no filing or registration
with, notification to, authorization, permit, consent or approval
of, any court, legislative, executive or regulatory authority or
agency is necessary for the execution of this Agreement by Merger
Company and the consummation by Merger Company of the transactions
contemplated hereby and (B) none of the execution and delivery of
this Agreement by Merger Company, the consummation by Merger Company
of the transactions contemplated hereby or compliance by Merger
Company with any of the provisions hereof will (i) 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 third party
right of termination, amendment, cancellation, material
modification, creation of a Lien pursuant to, or acceleration) under
any of the terms, conditions or provisions of any declaration of
trust, note, bond, mortgage, guarantee, indenture, security or
pledge agreement, voting agreement, stockholders' agreement or
voting trust, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any
kind to which Merger Company is a party or by which Merger Company
or any of Merger Company's properties or assets may be bound, or
(ii) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to Merger Company or any of
Merger Company's properties or assets.
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3. No Solicitation.
(a) Until this Agreement terminates, the Stockholder agrees
that it shall not, and shall instruct the Trustees and the Stockholder's
officers, investment bankers, attorneys, accountants, financial advisors,
agents and other representatives not to, (i) initiate, solicit, encourage
or knowingly facilitate any Acquisition Proposal or (ii) except as
permitted below, engage in negotiations or discussions with, or furnish
any non-public information or data to, any third party relating to any
Acquisition Proposal (other than the transactions contemplated by the
Merger Agreement. Notwithstanding anything to the contrary contained in
this Agreement, prior to the receipt of the Court Approval and subject to
the provisions of Section 3(b) and (c), the Stockholder (i) may
participate in negotiations or discussions (including, as a part thereof,
any counterproposal) with or furnish information or data to a third party
if either (A) the Board of Directors of the Company had participated in
such negotiations or discussions or furnished such information or data in
accordance with and subject to the conditions contained in Section 5.2 of
the Merger Agreement or (B) the Trustees determine in good faith (x) that
a third party has made a Superior Stockholder Proposal (as defined below)
after the date hereof or an Acquisition Proposal that the Trustees, after
receiving the advice of its financial advisors, conclude would be
reasonably likely to constitute a Superior Stockholder Proposal (and any
such proposal was not solicited by the Stockholder, any Trustee or any of
their respective affiliates or agents at the explicit or implicit
direction of the Stockholder or the Trustee) or (y) after consultation
with independent counsel, that failure to participate in such negotiations
or discussions or to furnish such information or data would be reasonably
likely to constitute a breach of the Trustees' fiduciary duties under
applicable law; and (ii) shall be permitted to request from any Person
making an Acquisition Proposal such information as may be necessary for
the Trustees to inform themselves as to the material terms of the
Acquisition Proposal. Immediately after the execution and delivery of this
Agreement, the Stockholder and the Trustees will, and will instruct the
Stockholder's employees, officers, investment bankers, attorneys,
accountants and other agents to, immediately cease and terminate any
existing activities, discussions or negotiations with any parties
conducted prior to the date hereof with respect to any possible
Acquisition Proposal. The Stockholder agrees that it will take the
necessary steps to promptly inform its officers, trustees, investment
bankers, attorneys, accountants, financial advisors, agents or other
representatives involved in the transactions contemplated by this
Agreement of the obligations undertaken in this Section 3(a).
(b) In addition to the obligations of the Stockholder set
forth in paragraph (a) above, the Stockholder shall advise Merger Company
orally and in writing by the end of the next Business Day, but in no event
more than 36 hours after its receipt, of any written request for
information or of any Acquisition Proposal and the material terms and
conditions of such request or Acquisition Proposal and the identity of the
Person making any such request or Acquisition Proposal and any
determination by the Trustees that an Acquisition Proposal is a
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Superior Stockholder Proposal. The Stockholder will keep Merger Company
reasonably informed as to the status and material terms and conditions of
any such request or Acquisition Proposal. Notwithstanding the foregoing,
the Stockholder shall not be in violation of the provisions of this
paragraph (b) if the Company shall have provided Merger Company with the
same information contemplated by this paragraph in the same timely manner.
The term "Superior Stockholder Proposal" shall mean any bonafide proposal,
which was not solicited by the Stockholder or any Trustee or their
respective affiliates or agents at the explicit or implicit direction of
the Stockholder or Trustee, to enter into an Acquisition Proposal made by
a third party on terms and conditions which the Trustees determine in
their good faith, after receipt of the advice of the Stockholder's
financial advisors, to be more favorable to the Stockholder from a
financial point of view than the transactions contemplated by the Merger
Agreement (taking account of all of the terms thereof, including price,
likelihood of financing being available and expected timing of
consummation).
(c) If the Stockholder is entitled to engage in negotiations
or discussions with, or furnish any information or data to, any third
party on the terms contemplated in Section 3(a), the Trustees and the
Stockholder may, prior to receipt of the Court Approval, or, if
applicable, the Final Court Approval, (i) withhold the vote of the
Stockholder in favor of adoption of the Merger Agreement and the amendment
to the Company's amended and restated certificate of incorporation as
contemplated thereby, (ii) approve of, or propose publicly to approve of,
any Acquisition Proposal or (iii) cause the Stockholder to enter into any
letter of intent, agreement in principle, acquisition agreement or other
similar agreement related to any Acquisition Proposal. The Trustees and
the Stockholder may only take the actions described in clauses (i), (ii)
and (iii) of this subparagraph, however, if the Trustees determine in good
faith, that they have received a Superior Stockholder Proposal and this
Agreement has terminated in accordance with Section 5, including, if
applicable, following the expiration of the five Business Day period
referred to in Section 5(b)(iii).
4. Restriction on Transfer; Proxies; Non-Interference; Stop
Transfers; etc.
(a) The Stockholder shall not, directly or indirectly, during
the period commencing on the date hereof and continuing until this
Agreement terminates: (i) except for the conversion of certain Shares into
Class TM Preferred Stock at the TM Closing on the terms and conditions
specified in the TM Exchange Agreement, offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, or grant or
enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, any or all of the
Shares or Additional Shares or any interest therein, or (ii) except as
contemplated by this Agreement or except in connection with an annual
meeting of the holders of shares of Common Stock, grant any proxies or
powers of attorney, deposit any of the Shares or Additional Shares into a
voting trust or
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enter into a voting agreement with respect to any of the Shares or
Additional Shares.
(b) Without limiting the generality of Section 4(a) above, the
Stockholder agrees with, and covenants to, Merger Company that the
Stockholder shall not, except with respect to the conversion of certain
Shares into Class TM Preferred Stock at the TM Closing, during the period
set forth in Section 4(a), request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing the Shares or Additional Shares, unless such transfer is made
in compliance with this Agreement.
(c) Upon the terms and subject to the conditions herein
provided, the Stockholder agrees to use its commercially reasonable
efforts to take, or cause to be taken, all action and to do, or cause to
be done, all things reasonably necessary, proper or advisable under
applicable laws and regulations (i) to obtain the Court Approval and the
Final Court Approval, if applicable, and to promptly pursue the Court
Approval by making all reasonably necessary motions and filings, including
motions and filings made in response to any third party filings made in
opposition to the Court Approval, (ii) to promptly oppose any attempt of
which it has knowledge to have the Court Approval vacated, reversed or
modified or amended, in whole or in part, so as to materially limit the
Court Approval unless the Stockholder shall be entitled to take the
actions set forth in Section 3(c) thereof; it being understood that
nothing set forth in this clause (ii) shall affect the Stockholder's
rights under Section 5(b) hereof and (iii) to obtain the orders
contemplated in Section 1.1 of the Escrow Agreement. The Stockholder will
furnish to the Merger Company copies of all motions and filings made by
the Stockholder with the Court, or any other information supplied by the
Stockholder to a Governmental Entity in connection with this Agreement and
the transactions contemplated hereby.
(d) On or prior to the Closing Date, the Stockholder shall
execute and deliver to the Company the Stockholders' Agreement, in the
form attached to the Merger Agreement as Exhibit G.
5. Termination; Effect of Termination.
(a) This Agreement shall terminate automatically in the event
that either (i) the Merger Agreement is terminated in accordance with the
terms thereof, upon such termination, or (ii) the Merger is consummated,
upon the Effective Time.
(b) This Agreement shall terminate at the election of the
Stockholder (i) if, prior to the receipt of Court Approval, the board of
directors of the Company modifies or withdraws its recommendation of the
Merger and the Merger Agreement in accordance with the terms of the Merger
Agreement, (ii) if the Court fails to issue the Court Approval after a
notice and hearing thereon or the Court Approval is vacated, reversed or
modified or amended, in whole or in
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part, so as to materially limit the Court Approval or, if applicable, does
not become a Final Court Approval, or (iii) if, prior to receipt of Court
Approval, the Trustees authorize the Stockholder to enter into a binding
agreement with respect to Superior Stockholder Proposal and the
Stockholder has notified Merger Company in writing that it intends to
enter into such an agreement and terminate this Agreement pursuant to this
clause 5(b)(iii), attaching the most current version of such agreement to
such notice, and during the five Business Day period after the
Stockholder's notice, the representatives of Trustees shall have
negotiated with Merger Company regarding the terms and conditions of a
revised offer by Merger Company and if representatives of the Trustees
shall have concluded, after considering any revised offer made by Merger
Company during such period, that any Superior Stockholder Proposal giving
rise to the Stockholder's notice, as then amended, continues to be a
Superior Stockholder Proposal. The Stockholder agrees (x) that it will not
enter into a binding agreement referred to in clause (iii) above until at
least five Business Days after it has provided the notice to Merger
Company required by this Section 5(b) and (y) to notify Merger Company
promptly if the Trustees determine not to enter into a binding agreement
with respect to the Superior Stockholder Proposal as to which notification
was given.
(c) This Agreement shall terminate at the election of Merger Company
(i) if the Court fails to issue the Court Approval after a notice and
hearing thereon, or the Court Approval is vacated, reversed or modified or
amended, in whole or in part, so as to materially limit the Court Approval
or, if applicable, fails to become a Final Court Approval, or (ii) if a
binding written agreement with respect to a Superior Stockholder Proposal
is entered into by the Stockholder.
(d) Notwithstanding anything to the contrary herein no termination
of this Agreement shall relieve any party of liability for a breach hereof
prior to termination.
6. Further Assurances. From time to time, at the other party's
request and without further consideration, the Stockholder and Merger Company
consistent with this Agreement shall execute and deliver such additional
documents and take all such further lawful action as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
7. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersede all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
8. Certain Events. The Stockholder agrees that this Agreement and
the obligations hereunder, including the voting obligations described in Section
1, shall attach to the Shares and any additional shares of Common Stock acquired
after the date hereof and shall be binding upon any Person to which legal or
beneficial ownership of any of such shares shall pass,
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whether by operation of law or otherwise, including, without limitation, the
Stockholder's administrators, trustees or successors. Notwithstanding any
transfer of any of such shares, the transferor shall remain liable for the
performance of all obligations of the transferor under this Agreement.
9. Assignment. Neither this Agreement nor any of the rights,
interest or obligations hereunder shall be assigned by any party hereto (whether
by operation of law or otherwise) without the prior written consent of the other
party; provided that the Merger Company shall be permitted to assign its rights
hereunder to a wholly owned Subsidiary of the Merger Company without the consent
of the Stockholder. All covenants and agreements contained in this Agreement by
or on behalf of the parties hereto shall be binding on and inure to the benefit
of the respective successors and permitted assigns of the parties hereto.
10. Amendments, Waivers, Etc. 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 each of the
parties hereto.
11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or when delivered by hand or (c) the expiration of five
Business Days after the day when mailed in the United States by certified or
registered mail, postage prepaid, addressed at the following addresses (or at
such other address for a party as shall be specified by like notice):
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(a) if to the Stockholder, to:
Manville Personal Injury Settlement Trust
143 Bedford Road, Suite 200
Katonah, New York 10536
Fax: (914) 767-0377
Attention: Chairman and Managing Trustee
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Tel: (212) 558-4000
Fax: (212) 558-3588
Attention: Benjamin F. Stapleton, Esq.
And
(b) if to Merger Company, to:
c/o Hicks, Muse, Tate & Furst
Incorporated
200 Crescent Court
Suite 1600
Dallas, Texas 75201
Telephone: (214) 740-7300
Fax: (214) 720-7888
Attention: Jack Furst
with copies to:
Weil, Gotshal & Manges LLP
100 Crescent Court
Suite 1300
Dallas, Texas 75201
Telephone: (214) 746-7700
Fax: (214) 746-7777
Attention: Glenn D. West, Esq.
12. Severability. 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.
13. Specific Performance. The Stockholder recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause Merger Company to sustain damages for which it would
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not have an adequate remedy at law for money damages, and therefore the
Stockholder agrees that in the event of any such breach Merger Company 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 Merger Company may be entitled, at law or in equity.
14. 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.
15. 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, 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.
16. No Third Party Beneficiaries. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement. Without limiting the foregoing, no direct or indirect
holder of any equity interests or securities of either party hereto (whether
such holder is a limited or general partner, member, stockholder or otherwise),
nor any affiliate of any party hereto, nor any director, officer, employee,
representative, agent or other controlling person of each of the parties hereto
and their respective affiliates shall have any liability or obligation arising
under this Agreement or the transactions contemplated hereby.
17. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
18. WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS AGREEMENT AND ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH.
19. Headings. The descriptive headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
20. Capitalized Terms. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Merger Agreement.
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21. Submission to Jurisdiction. Each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of any Federal court
located in the State of Delaware or any Delaware state court in the event any
dispute arises, out of this Agreement or any of the transactions contemplated by
this 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 Agreement.
22. Counterparts. This 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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IN WITNESS WHEREOF, Merger Company and the Stockholder have executed
and delivered this Agreement as of the day and year first above written.
HB MERGER LLC
By: /s/Andrew Rosen
Name: Andrew Rosen
Title: Vice President and Assistant
Secretary
MANVILLE PERSONAL INJURY
SETTLEMENT TRUST,
by its Trustee(s):
/s/Robert A. Falise
-------------------------------------------
Name: Robert A. Falise
/s/Louis Klein, Jr.
-------------------------------------------
Name: Louis Klein, Jr.
/s/Frank J. Macchiarola
-------------------------------------------
Name: Frank J. Macchiarola
/s/Christian E. Markey, Jr.
-------------------------------------------
Name: Christian E. Markey, Jr.
14
