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EXHIBIT 9.1
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of April
30, 2001, is made by and among Xxx Xxxx Corporation, a Delaware corporation
("Xxx Xxxx"), and those persons listed on the signature pages here (each a
"Stockholder" and collectively, the "Stockholders"). Capitalized terms used but
not defined herein shall have the meanings set forth in the Merger Agreement (as
defined below).
WHEREAS, concurrently herewith, Xxx Xxxx, Pulte Corporation, a
Michigan corporation ("Pulte"), and Pulte Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of Pulte ("Merger Sub"), are entering
into an Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement"), pursuant to which Merger Sub will be merged with and into Xxx Xxxx
(the "Merger").
WHEREAS, the Merger is subject to certain conditions,
including the approval of the Pulte Meeting Matters by holders of a majority of
the shares of common stock, par value $.01 per share, of Pulte (the "Pulte
Common Stock") attending the Pulte Merger Stockholders Meeting and entitled to
vote thereon.
WHEREAS, each Stockholder is the record and beneficial owner
of the shares of Pulte Common Stock set forth opposite such Stockholder's name
on the signature pages hereto (such shares owned by such Stockholder as of the
date hereof, together with any additional shares of capital stock of Pulte owned
by such Stockholder after the hereof, the "Shares").
WHEREAS, as a condition to Xxx Xxxx'x willingness to enter
into the Merger Agreement, and as an inducement for Xxx Xxxx to do so, the
Stockholders have agreed for the benefit of Xxx Xxxx as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration given to each party hereto, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
1. Agreement to Vote.
1.1 Pulte Meeting Matters. Subject to Section 2, each
Stockholder hereby agrees that, during the time this Agreement is in effect, at
any meeting of the stockholders of Pulte, however called, such Stockholder shall
(a) vote the Shares in
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favor of the Pulte Meeting Matters, (b) vote the Shares against any action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of Pulte under the Merger
Agreement, and (c) vote the Shares against any Pulte Acquisition Transactions
(other than the Merger and the other transactions contemplated by the Merger
Agreement). Stockholders hereby revoke any proxy previously granted by them with
respect to the Shares. For purposes of Sections 1.1 and 1.2, the Stockholders
agree to direct, to the fullest extent permitted, the voting of any Plan Shares
(as defined in Section 3.1(a)) consistent with the provisions of Sections 1.1
and 1.2.
1.2 Director Nominees. Each Stockholder hereby agrees that at
the next annual meeting of the stockholders of Pulte for the election of
directors such Stockholder shall vote the Shares in favor of, or give written
consent for, the election of the Director Nominees (as defined in the Merger
Agreement) to the Pulte Board of Directors nominated in accordance with the
provisions of Section 4.11 of the Merger Agreement.
1.3 No Inconsistent Arrangements. Each Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Merger Agreement, it shall not (a) transfer (which term shall include, without
limitation, any sale, gift, pledge, hypothecation, or other disposition)
("Transfer"), or consent to any Transfer of, any or all of the Shares or any
interest therein, other than gifts to donees who agree to be bound by the terms
of this Agreement, (b) except with Xxx Xxxx, enter into any contract, option or
other agreement or understanding with respect to any Transfer of any or all of
the Shares or any interest therein (other than Transfers permitted by Section
1.3(a)), (c) grant any proxy, power-of-attorney or other authorization in or
with respect to the Shares, (d) deposit any Shares into a voting trust or enter
into a voting agreement or arrangement with respect to the Shares or (e) take
any other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated hereby
or by the Merger Agreement or which would make any representation or warranty of
such Stockholder hereunder untrue or incorrect.
1.4 No Solicitation. Each Stockholder hereby agrees that it
shall not, and shall not permit or authorize any of its affiliates,
representatives or agents to, directly or indirectly, encourage, solicit,
explore, participate in or initiate discussions or negotiations with, or provide
or disclose any information to, any corporation, partnership, person or other
entity or group (other than Xxx Xxxx or any of its affiliates or
representatives) concerning any Pulte Acquisition Transaction or enter into any
agreement, arrangement or understanding requiring Pulte to abandon, terminate or
fail to consummate the Merger or any other transactions contemplated
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hereby or by the Merger Agreement. Each Stockholder will immediately cease any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any Pulte Acquisition Transaction.
1.5 Reasonable Best Efforts. Each Stockholder shall promptly
consult with Xxx Xxxx and use reasonable best efforts to provide any necessary
information and material with respect to all filings made by such Stockholder
with any Governmental Entity in connection with this Agreement and the Merger
Agreement and the transactions contemplated hereby and thereby.
2. Expiration. Sections 1.1 through 1.5 of this Agreement and
Stockholders' obligations thereunder shall terminate on the earlier of (a) the
termination of the Merger Agreement in accordance with its terms and (b) the
Effective Time, provided, however, that if the Effective Time shall occur, then
Sections 1.2 and 1.5 shall terminate immediately after the next annual meeting
of Pulte stockholders for the election of directors.
3. Representation and Warranties of Stockholders. Each
Stockholder hereby represents and warrants to Xxx Xxxx as follows:
(1) Ownership of Shares. On the date hereof, the Shares are
owned of record and beneficially by Stockholder and, on the date hereof, the
Shares constitute all of the shares of Pulte Common Stock owned of record or
beneficially by Stockholder other than shares of Pulte Common Stock subject to
issuance upon the exercise of options held by the Stockholders and the
Stockholders' share of Pulte Common Stock held by the Pulte Corporation Common
Stock Fund or the Pulte Home Corporation Investment Savings Plan (the "Plan
Shares"). Each Stockholder has good and valid title to the Shares, free and
clear of any lien, charge, encumbrance or claim of whatever nature. Stockholder
has sole voting power and sole power of disposition with respect to the Shares,
with no restrictions on Stockholder's rights of disposition pertaining thereto,
subject to applicable federal and state securities laws (including Rules 144 and
145).
(2) Power; Binding Agreement. Stockholder has the legal
capacity, power and authority to enter into and perform all of its obligations
under this Agreement. The execution, delivery and performance of this Agreement
by Stockholder will not violate any other agreement to which Stockholder is a
party including, without limitation, any voting agreement, stockholders
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder and constitutes a valid and binding agreement of
Stockholders, enforceable against Stockholder in accordance with its terms.
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(3) No Conflicts. Other than in connection with or in
compliance with the provisions of the Exchange Act, no authorization, consent or
approval of, or filing with, any court or any public body or authority is
necessary for the consummation by Stockholder of the transactions contemplated
by this Agreement. The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not constitute a
breach, violation or default (or any event which, with notice or lapse of time
or both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of determination or
acceleration under, or result in the creation of any lien, encumbrance, pledge,
charge or claim upon any of the properties or assets of Stockholder under any
note, bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument to which Stockholder is a party or by which its properties or
assets are bound which would reasonably be expected to materially restrict or
hinder the performance of Stockholder's actions hereunder.
(4) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of Stockholder.
(5) Information. Stockholder understands and acknowledges that
Xxx Xxxx has been conducting a due diligence investigation of Pulte and may have
information which is material regarding Pulte and its financial performance and
prospects and which is not publicly disclosed. Stockholder agrees that it shall
not take any action against Xxx Xxxx in respect of such information.
(6) Chapters 7A and 7B. Pulte is not subject to Chapter 7A and
Chapter 7B of the Michigan Business Corporation Act.
4. Additional Shares. Each Stockholder hereby agrees, while
this Agreement is in effect, to promptly notify Xxx Xxxx of the number of any
new Shares acquired by Stockholder, if any, after the date hereof.
5. Further Assurances. From time to time, at the request of
one party hereto and without further consideration, the other party shall
execute and deliver such additional documents and take all such further action
as may be reasonably necessary or desirable in connection with the performance
of its obligations hereunder.
6. Miscellaneous.
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1.6 Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and (b) may not be assigned by operation of law or otherwise.
1.7 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
1.8 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by hand
delivery, telegram, telex or facsimile or by any courier service, such as
Federal Express, providing proof of delivery. All communications hereunder shall
be delivered to the respective parties at the following addresses:
If to Stockholders:
Xxxxxxx X. Xxxxx
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP
2290 First National Building
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
If to Xxx Xxxx:
Xxx Xxxx Corporation
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
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Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
If to the Directors Nominees (after the Effective Time), at the address
listed for such Director Nominees on the books of Pulte:
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
1.9 Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof. Each Stockholder and Xxx Xxxx irrevocably submits
to the exclusive jurisdiction of any Delaware state or federal court sitting in
the State of Delaware in any action arising out of or relating to this
Agreement, hereby irrevocably agrees that all claims in respect of such action
may be heard and determined in such Delaware state or federal court, and hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding and the
right to trial by jury.
1.10 Specific Performance. Each Stockholder recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other to sustain damages for which it would not
have an adequate remedy at law, and each Stockholder agrees that in the event of
any such breach Xxx Xxxx, in the case of Section 1.1, and the Director Nominees,
in the case of Section 1.2, shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
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1.11 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
1.12 Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
1.13 Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
1.14 No Agency. Nothing herein shall be deemed create any
agency or partnership relationship between the parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
XXX XXXX CORPORATION
By: /s/ XxXxx X. Xxxxxxxx Xx
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Name: XxXxx X. Xxxxxxxx Xx
Title: Chief Executive Officer
850,442 shares of /s/ Xxxxxxx X. Xxxxx
Pulte Common Stock -------------------------------------------
XXXXXXX X. XXXXX
2,282,400 shares of XXXXXXX X. XXXXX TRUST
Pulte Common Stock u/a/d January 26, 1990, as amended
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Trustee
7,273,061 shares of XXXX X. XXXXX MARITAL TRUST
Pulte Common Stock u/a/d January 26, 1990
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Trustee
103,846 shares of XXXXXXX X. XXXXX GRANTOR
Pulte Common Stock RETAINED ANNUITY TRUST
u/a/d March 8, 2000
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Trustee
