VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into as of
January 29, 2002, between Beazer Homes USA, Inc., a Delaware corporation
("Parent") and the undersigned stockholder ("Holder") of Crossmann Communities,
Inc., an Indiana corporation (the "Company"). Capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in that certain
Agreement and Plan of Merger dated as of even date herewith by and among Parent,
Beazer Homes Investment Corp., a Delaware corporation ("Merger Sub"), and the
Company (the "Merger Agreement").
W I T N E S S E T H
WHEREAS, on the date hereof, Holder is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act," such ownership referred to herein as "Beneficial")) of such number of
shares of the outstanding common stock, no par value per share, of the Company
(the "Common Stock") as is indicated on the final page of this Agreement (the
"Shares");
WHEREAS, concurrently with the execution and delivery of this Agreement,
Parent and Merger Sub are executing the Merger Agreement which provides for,
among other things, the merger of the Company with and into Merger Sub to form
the Surviving Corporation;
WHEREAS, Parent and Merger Sub are executing the Merger Agreement in
reliance upon the execution and delivery of this Agreement by Holder; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Merger Sub have requested that Holder agree, and in order
to induce Parent and Merger Sub to enter into the Merger Agreement, Holder has
agreed, to vote the shares as set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:
1. Voting of Shares / Election.
(a) At any time prior to the Expiration Date (as defined below), at every
meeting of the stockholders of the Company called with respect to any of the
following, and at every adjournment thereof, and on every action or approval by
written consent of the stockholders of the Company with respect to any of the
following, Holder shall, notwithstanding the recommendation of the Board of
Directors of the Company, vote the Shares and any New Shares, as defined below,
(i) in favor of approval of the Merger Agreement and the Merger and any matter
that could reasonably be expected to facilitate the Merger, (ii) against any
proposal for any recapitalization, merger, sale of assets or other business
combination (other than the Merger) between the Company and any person or entity
other than Parent, including but not limited to a Superior Proposal, and (iii)
against any other action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or which could result in any of the
conditions to the Company's obligations under the Merger Agreement not being
fulfilled. This Agreement is intended to bind Holder as a stockholder of the
Company only with respect to the specific matters set forth herein. Nothing
herein shall prevent Holder from taking any action, or omitting to take any
action, as a member of the Board of Directors of the Company required so as to
comply with Holder's fiduciary duties as a director of the Company, as
determined by Holder in good faith after consultation with and advice from
outside counsel to the Company.
(b) Upon receipt of the Form of Election as provided in the Merger
Agreement, Holder agrees to make a Base Election with respect to the Shares and
any New Shares (as defined in Section 2(b)) pursuant to the terms of the Merger
Agreement and the Form of Election.
2. Agreement to Retain Shares.
(a) Transfer and Encumbrance. Holder agrees not to transfer (except as may
be specifically required by court order or permitted pursuant to the terms of
paragraph ▇ ▇▇▇▇▇▇▇▇▇), ▇▇▇▇, ▇▇▇▇▇▇▇▇, pledge (except in connection with a bona
fide loan transaction, provided that any pledgee agrees not to transfer, sell,
exchange, pledge or otherwise dispose of or encumber the Shares or any New
Shares (as defined in Section 2(b)) prior to the Expiration Date and also agrees
to be subject to the Proxy (as defined in Section 3)) or otherwise dispose of or
encumber the Shares or any New Shares, or to make any offer or agreement
relating thereto, at any time prior to the Expiration Date. Notwithstanding the
foregoing, Holder may transfer the Shares or any New Shares to a member of
Holder's immediate family or to a trust or other entity created by Holder for
tax or estate planning purposes, provided that any such transferee agrees to
assume the obligations of Holder hereunder with respect to any Shares or New
Shares so transferred. As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) the Effective Time, and (ii) the date of termination of
the Merger Agreement in accordance with its terms.
(b) New Shares. Holder agrees that any shares of capital stock of the
Company that Holder purchases or to which Holder otherwise acquires Beneficial
ownership after the date of this Agreement and prior to the Expiration Date
("New Shares") shall be subject to the terms and conditions of this Agreement to
the same extent as if they constituted Shares.
3. Irrevocable Proxy. Concurrently with the execution of this Agreement and
expressly coupled with the other rights of Parent set forth herein, Holder
agrees to deliver to Parent a proxy in the form attached hereto as Exhibit A
(the "Proxy"), which shall be deemed coupled with an interest and irrevocable to
the extent provided in the Indiana Business Corporation Law, covering the total
number of Shares and New Shares Beneficially Owned or as to which Beneficial
ownership is acquired by Holder set forth therein. The parties hereto
acknowledge and agree that the Proxy shall be automatically revoked on the
Expiration Date without further action on the part of any of the parties.
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4. Representations, Warranties and Covenants of Holder. Holder hereby
represents, warrants and covenants to Parent that Holder: (i) is the Beneficial
owner of the Shares, which at the date of this Agreement and at all times up
until the Expiration Date will be free and clear of any Liens, claims, options
(or any other commitments obligating Holder to sell or otherwise dispose of the
Shares), charges or other encumbrances, including any restrictions on Holder's
right to vote the Shares, (ii) does not Beneficially own any shares of capital
stock of the Company other than the Shares (excluding shares as to which Holder
currently disclaims Beneficial ownership in accordance with applicable law); and
(iii) has full power and authority to make, enter into and carry out the terms
of this Agreement and the Proxy.
5. Additional Documents. Holder hereby covenants and agrees to execute and
deliver any additional documents necessary, in the reasonable opinion of Parent,
to carry out the purpose and intent of this Agreement.
6. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
7. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or
waived with the written consent of the parties or their respective permitted
successors and assigns. Any amendment or waiver effected in accordance with this
Section 7(a) shall be binding upon the parties and their respective successors
and assigns. Except as set forth in Section 2(a), neither party may assign this
Agreement without the prior written consent of the other party.
(b) Governing Law. This Agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of law.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(d) Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
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(e) Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient upon receipt, when delivered personally
or by courier, overnight delivery service or confirmed facsimile, or forty-eight
(48) hours after being deposited in the regular mail as certified or registered
mail (airmail if sent internationally) with postage prepaid, if such notice is
addressed to the party to be notified at such party's address or facsimile
number as set forth below, or as subsequently modified by written notice.
(f) Severability. If one or more provisions of this Agreement are held to
be unenforceable or invalid under applicable law (i) such provision shall be
excluded from this Agreement, but only to the extent of such unenforceability or
invalidity, (ii) the balance of the Agreement shall be interpreted as if such
provision were so excluded and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.
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The parties have caused this Agreement to be duly executed on the date
first above written.
PARENT
BEAZER HOMES USA, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(print)
Title: President & CEO
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Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HOLDER
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Holder's Address for Notice
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Shares Beneficially Owned:
Class of Shares Number
Common Stock 1,928,186
SIGNATURE PAGE TO VOTING AGREEMENT
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EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
CROSSMANN COMMUNITIES, INC.
The undersigned stockholder of Crossmann Communities, Inc., an Indiana
corporation ("the Company"), hereby irrevocably (to the full extent permitted by
Section 23-1-30-3 of the Indiana Business Corporation Law) appoints ▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, executive officers and members of the Board of
Directors of Beazer Homes USA, Inc., a Delaware corporation ("Parent"), and each
of them, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to vote and exercise all
voting and related rights (to the full extent that the undersigned is entitled
to do so) with respect to all of the shares of capital stock of the Company that
now are or hereafter may be beneficially owned (pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) by the undersigned, and any and all
other shares or securities of the Company issued or issuable in respect thereof
on or after the date hereof (collectively, the "Shares"), in accordance with the
terms of this Proxy. The Shares beneficially owned (pursuant to Rule 13d-3 under
the Securities Exchange Act of 1934, as amended) by the undersigned stockholder
of the Company as of the date of this Proxy are listed on the final page of this
Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the extent permitted by Section 23-1-30-3 of
the Indiana Business Corporation Law) until the Expiration Date (as defined
below) and is granted pursuant to that certain Voting Agreement of even date
herewith, by and among Parent and the undersigned stockholder (the "Voting
Agreement"), and is granted in consideration of Parent entering into that
certain Agreement and Plan of Merger, of even date herewith, by and among the
Company, Parent and Beazer Homes Investment Corp., a Delaware corporation
("Merger Sub") and wholly owned subsidiary of Parent (the "Merger Agreement").
The Merger Agreement provides for the merger of the Company with and into Merger
Sub (the "Merger"). As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) such date and time as the Merger shall become effective
in accordance with the terms and provisions of the Merger Agreement and (ii) the
date of termination of the Merger Agreement in accordance with its terms.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents, and the right to exercise any applicable dissenter's rights), at every
annual, special or adjourned meeting of the stockholders of the Company and in
every written consent in lieu of such meeting (i) in favor of approval of the
Merger and the Merger Agreement and in favor of any matter that could reasonably
be expected to facilitate the Merger, (ii) against any proposal for any
recapitalization, merger, sale of assets or other business combination (other
than the Merger) between the Company and any person or entity other than Parent
and (iii) against any other action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or which could result in any of the
conditions to the Company's obligations under the Merger Agreement not being
fulfilled. The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned stockholder may vote
the Shares on all other matters.
In discharging its powers under this Proxy, the attorneys and proxies named
herein may rely upon advice of counsel to Parent, and any vote made or action
taken by the Proxy in reliance upon such advice of counsel shall be deemed to
have been made in good faith by the Proxy.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the extent provided in Section 23-1-30-3 of
the Indiana Business Corporation Law) until the Expiration Date, and coupled
with an interest as set forth in the Voting Agreement.
Dated: January 29, 2002
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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(Signature of Holder)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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(Print Name of Holder)
Shares beneficially owned:
Class of Shares Number
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