EXHIBIT 2.3
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 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
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 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.
(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.
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 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 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 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, 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):
(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 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.
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]
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
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Name: Robert A. Falise
/s/ Louis Klein, Jr.
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Name: Louis Klein, Jr.
/s/ Frank J. Macchiarola
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Name: Frank J. Macchiarola
/s/ Christian E. Markey, Jr.
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Name: Christian E. Markey, Jr.
Schedule I
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Equity Ownership of Surviving Corporation
