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EXHIBIT C
[EXECUTION COPY]
VOTING AGREEMENT
This VOTING AGREEMENT, entered into as of December 4, 1996
(the "Agreement"), between CENTEX REAL ESTATE CORPORATION, a Nevada corporation
("CREC"), and ▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ LIMITED PARTNERSHIP, an
Arizona limited partnership (collectively, the "Shareholder Parties"),
W I T N E S S E T H:
WHEREAS, in order to induce CREC to enter into an Agreement
and Plan of Merger, dated the date hereof (the "Merger Agreement"), with MFH
Holding Company, a Nevada corporation, MFH Acquisition Company, an Arizona
corporation, Cavco Industries, Inc., an Arizona corporation (the "Company"), and
the Shareholder Parties, each of the Shareholder Parties is willing to enter
into this Agreement and to vote the shares ("Company Shares") of Common Stock,
par value $.05 per share, of the Company owned by it in accordance with the
terms and provisions set forth herein;
WHEREAS, concurrently with the execution and delivery hereof,
and as a further inducement to CREC to enter into the Merger Agreement, the
Shareholder Parties are entering into a Stock Purchase Agreement, dated the date
hereof (the "Stock Purchase Agreement"), with CREC, pursuant to which the
Shareholder Parties have agreed to sell an aggregate of 1,047,288 Company Shares
(the "Aggregate Subject Shares") owned by them to CREC in the event that the
Merger Agreement is terminated under the circumstances described therein; and
WHEREAS, capitalized terms used but not defined in this
Agreement have the respective meanings set forth in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises, the terms
and provisions set forth herein, the mutual benefits to be gained by the
performance thereof and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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ARTICLE I
VOTING
SECTION 1.1. Agreement to Vote. For so long as this Agreement
remains in effect, each Shareholder Party shall, at any meeting of the
shareholders of the Company (including, but not limited to, the Special
Meeting), and in any action by written consent of the shareholders of the
Company in lieu of a meeting, vote all of the Company Shares owned by such
Shareholder Party as of the date of this Agreement and any additional Company
Shares acquired by such Shareholder Party (whether by purchase or otherwise)
from time to time after the date hereof (collectively, the "Shares") (i) in
favor of the Merger Agreement (as the same may be amended from time to time) and
the Merger and the other transactions contemplated by the Merger Agreement and
(ii) against any Acquisition Proposal or any other action or agreement that,
directly or indirectly, is inconsistent with the Merger Agreement or the
transactions contemplated thereby or that is reasonably likely (a) to impede,
interfere with, delay or postpone the Merger or the other transactions
contemplated by the Merger Agreement, (b) to result in a breach of any covenant,
representation, warranty or any other obligation of Company under the Merger
Agreement or (c) to cause any conditions to the obligations of the parties under
the Merger Agreement not to be fulfilled. The obligation of each Shareholder
Party to vote the Shares owned by it in the manner set forth in this Section 1.1
shall be unconditional; provided, however, that such obligation shall be
suspended for so long as there shall be issued and in effect any order, writ,
injunction, judgment or decree of any federal or state court or other
Governmental Authority which has the effect of making illegal, impeding or
otherwise restraining or prohibiting such Shareholder Party from voting the
Shares owned by it in the manner set forth herein.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Shareholder Parties jointly and severally represent and
warrant to CREC as follows:
SECTION 2.1. Authority; Binding Effect. Each Shareholder Party
has all necessary power and authority to enter into and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby. In
the case of any Shareholder Party that is a partnership, the execution and
delivery of this Agreement by such Shareholder Party have been duly and validly
authorized by all necessary partnership
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action on the part of such Shareholder Party and all necessary action on the
part of its partners, and no other proceedings or actions on the part of or with
respect to such Shareholder Party or its partners are necessary to authorize
this Agreement, the performance by such Shareholder Party of its obligations
hereunder or the consummation by such Shareholder Party of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by each
Shareholder Party and constitutes a legal, valid and binding obligation of each
of them, enforceable against each Shareholder Party in accordance with the terms
hereof.
SECTION 2.2. Absence of Conflicts. The execution and delivery
by the Shareholder Parties of this Agreement, the performance by them of their
obligations hereunder and the consummation by them of the transactions
contemplated hereby will not (i) in the case of a Shareholder Party that is a
partnership, conflict with, or result in any violation or breach of, any
provision of the partnership agreement of such Shareholder Party or the Charter,
Bylaws or other constitutive instruments of any of its partners, (ii) conflict
with, result in any violation or breach of, constitute a default under, give
rise to any right of termination or acceleration (with or without notice or the
lapse of time or both) pursuant to, or result in being declared void, voidable
or without further effect, any term or provision of any material note, bond,
mortgage, indenture, lease, franchise, permit, license, Contract or other
instrument or document to which the any of the Shareholder Parties is a party or
by which its properties or assets are bound or (iii) conflict with, or result in
any violation of, any law, ordinance, statute, rule or regulation of any
Governmental Authority or of any order, writ, injunction, judgment or decree of
any court, arbitrator or Governmental Authority applicable to the Shareholder
Parties or their respective properties or assets.
SECTION 2.3. Governmental Consents and Filings. There is no
requirement applicable to any of the Shareholder Parties to obtain any Consent
of, or to make or effect any declaration, filing or registration with, any
Governmental Authority for the valid execution and delivery by the Shareholder
Parties of this Agreement, the due performance by them of their obligations
hereunder or the lawful consummation by them of the transactions contemplated
hereby, except for any filings required to be made by the Shareholder Parties in
connection with this Agreement pursuant to Section 13(d) of the Exchange Act and
the rules and regulations promulgated by the Commission thereunder.
SECTION 2.4. Title to Shares. As of the date hereof, each
Shareholder Party is the record and beneficial owner of the number of Shares set
forth opposite the name of such Shareholder Party on Exhibit A. The Shares set
forth opposite the name of each Shareholder Party on such exhibit are the only
Company Shares owned by such Shareholder Party. The Shares are, or, if acquired
after the date hereof, will be, owned by
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the Shareholder Parties free and clear of all Encumbrances, except for those
provided for under the express terms of this Agreement, the Merger Agreement and
the Stock Purchase Agreement. The Shareholder Parties have not appointed or
granted any proxy, which appointment or grant is still effective, with respect
to any of the Shares.
ARTICLE III
COVENANTS
Each of the Shareholder Parties hereby covenants and agrees as
follows:
SECTION 3.1. No Encumbrances on or Transfer of Shares.
(a) Except pursuant to the terms of this Agreement, the Merger
Agreement or the Stock Purchase Agreement, for so long as this Agreement remains
in effect, no Shareholder Party shall directly or indirectly sell, convey or
transfer record or beneficial ownership of any Shares by any means whatsoever to
any Person, without the prior written consent of CREC. Without limiting the
generality of the foregoing, for so long as this Agreement remains in effect, no
Shareholder Party shall, directly or indirectly, (i) except pursuant to the
terms of this Agreement, grant any proxies or enter into any voting trust or
other agreement or arrangement with respect to the Shares or (ii) except
pursuant to the terms of the Merger Agreement or the Stock Purchase Agreement or
as permitted pursuant to paragraph (b) below, sell, assign, transfer, encumber
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the direct or indirect sale, assignment,
transfer, encumbrance or other disposition of, any Shares, in each case without
the prior written consent of CREC. If requested by CREC, the Shareholder Parties
shall cause an appropriate legend referring to the restrictions provided for in
this Section 3.1(a) to be placed on the certificates evidencing the Shares.
(b) Notwithstanding the provisions of paragraph (a) above, a
Shareholder Party may sell, assign, transfer, encumber or otherwise dispose of
any Shares owned by such Shareholder to a Permitted Transferee (as hereinafter
defined) without the consent of CREC, but only if (i) the certificate or
certificates evidencing such Shares bear an appropriate legend referring to the
restrictions provided for in this Section 3.1 and (ii) the Permitted Transferee
shall have executed, as a condition to obtaining ownership of such Shares, an
appropriate document (a "Supplemental Agreement") in which the Permitted
Transferee agrees that its ownership of such Shares shall be subject to, and
that the Permitted Transferee shall comply with, all of the terms and conditions
of this Agreement (including, but not limited to, the restrictions on the sale,
assignment, transfer,
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encumbrance or other disposition of Shares set forth in this Section 3.1) and
that the Permitted Transferee shall not sell, assign, transfer, encumber or
otherwise dispose of any Shares owned by it except in compliance with the
provisions hereof and in which the Permitted Transferee confirms that the
representations and warranties contained in Article II are true and correct with
respect to such Permitted Transferee as of the date of the Supplemental
Agreement and (iii) the Supplemental Agreement shall have been promptly
delivered to CREC and approved (as to its conformity with the requirements of
this Section 3.1(b)) by it in its reasonable discretion prior to the acquisition
by such Permitted Transferee of the Shares. CREC shall not unreasonably withhold
or delay its approval of any Supplemental Agreement. As used herein, (i) the
term "Permitted Transferee" means, with respect to a Shareholder Party, any
person that is a Shareholder Party named in this Agreement and any spouse or
lineal ancestor or descendant of any such Shareholder Party, any entity the
entire equity interest in which is owned by any of the foregoing persons, any
Qualified ▇▇▇▇▇▇ Trust and any executor or administrator of the estate of any of
the foregoing persons and (ii) the term "Qualified ▇▇▇▇▇▇ Trust" means any trust
of which the sole trustees are persons who are named as Shareholder Parties in
this Agreement or any spouse or lineal ancestor or descendant of any such
Shareholder Party and the sole beneficiaries of which are any of the foregoing
persons or any charity designated from time to time by the grantors or trustees
of such trust.
SECTION 3.2. Best Efforts. Each of the parties hereto shall
use its reasonable best efforts to take, or cause to be taken, all action and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations and which may be required under any agreements,
Contracts, commitments, instruments, understandings, arrangements or
restrictions of any kind to which it is a party or by which it is or may be
bound, in order to effectuate the transactions contemplated by this Agreement,
to obtain all necessary waivers, Consents and approvals from, and effect all
necessary registrations and filings with, any Governmental Authorities, and to
rectify any event or circumstances which could impede the effectuation of the
transactions contemplated hereby.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Expenses. All fees and expenses incurred by any
of the parties hereto in connection with this Agreement or any of the
transactions contemplated hereby shall be borne and paid solely by the party
incurring such fees and expenses.
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SECTION 4.2. Further Assurances. Each of the Shareholder
Parties shall execute and deliver, or cause to be executed and delivered, at the
expense of CREC, all such other and further documents and instruments and take
all such further actions as may be reasonably necessary in order to effectuate
the transactions contemplated by this Agreement.
SECTION 4.3. Action in Shareholder Capacity Only. Each of the
Shareholder Parties makes no agreement or understanding herein as a director or
officer of Company. Each of the Shareholder Parties is entering into this
Agreement solely in his, her or its capacity as a record and beneficial owner of
Shares, and nothing contained herein shall limit or affect, or impose any
obligations with respect to, any actions taken by a Shareholder Party in his,
her or its capacity as a director or officer of Company.
SECTION 4.4. Termination. This Agreement shall terminate on
the earliest of (i) the Effective Time of the Merger, (ii) the consummation of
the purchase by CREC of the Aggregate Subject Shares pursuant to the Stock
Purchase Agreement, (iii) the failure or refusal of CREC to consummate the
purchase of the Aggregate Subject Shares pursuant to the Stock Purchase
Agreement for a period of more than ten days after the Closing Date (as defined
in the Stock Purchase Agreement) in accordance with Section 1.3 of the Stock
Purchase Agreement or (iv) one year from the date of this Agreement.
SECTION 4.5. Notices. All notices and other communications
hereunder shall be in writing and shall be given by delivery in person, by
registered or certified mail (return receipt requested and with postage prepaid
thereon) or by cable, telex or facsimile transmission to the parties at their
respective addresses set forth in Section 11.3 of the Merger Agreement (or at
such other address as any party shall have furnished to the others in accordance
with the terms of this Section 4.5). All notices and other communications
hereunder that are addressed as provided in or pursuant to this Section 4.5
shall be deemed duly and validly given (a) if delivered in person, upon
delivery, (b) if delivered by registered or certified mail (return receipt
requested and with postage paid thereon), 72 hours after being placed in a
depository of the United States mails and (c) if delivered by cable, telex or
facsimile transmission, upon transmission thereof and receipt of the appropriate
answerback.
SECTION 4.6. Amendment; Waiver. The terms and provisions of
this Agreement may be modified or amended only by a written instrument executed
by each of the parties hereto, and compliance with any term or provision hereof
may be waived only by a written instrument executed by each party entitled to
the benefits of the same. No failure to exercise any right, power or privilege
hereunder shall operate as a waiver thereof,
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nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege granted
hereunder.
SECTION 4.7. Entire Agreement. This Agreement (including the
Exhibit hereto) constitutes the entire agreement among the parties with respect
to the subject matter hereof and supersedes all prior written or oral agreements
and understandings and all contemporaneous oral agreements and understandings
among the parties or any of them with respect to the subject matter hereof.
SECTION 4.8. Parties in Interest; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns (it being understood and agreed that nothing
contained in this Agreement is intended to confer any rights, benefits or
remedies of any kind or character on any other Person under or by reason of this
Agreement). No party may delegate any of its obligations or assign or otherwise
transfer any its rights under this Agreement without the prior written consent
of each of the other parties. Any attempted or purported assignment, delegation
or other transfer by any party in violation of this Section 4.8 shall be null
and void.
SECTION 4.9. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Texas, without
regard to any principles of conflicts of laws that would result in the
application of the laws of any other jurisdiction.
SECTION 4.10. Severability. In the event that any provision
contained herein shall be held to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of any such provision in
every other respect and the validity, legality and enforceability of the
remaining provisions contained in this Agreement shall not be in any way
impaired thereby.
SECTION 4.11. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed by the Shareholder Parties in accordance with
the terms hereof. Accordingly, the parties agree that CREC shall be entitled to
injunctive relief to prevent breaches of the terms of this Agreement and to
specific performance of the terms hereof, in addition to any other remedy now or
hereafter available at law or in equity, or otherwise.
SECTION 4.12. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
CENTEX REAL ESTATE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman of the Board
/s/ ▇▇ ▇. ▇▇▇▇▇▇
________________________________________
▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ LIMITED PARTNERSHIP
By: THE 1994 ALSONS TRUST, created
February 9, 1994, general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Independent Trustee
By: /s/ ▇▇ ▇. ▇▇▇▇▇▇
__________________________________________
▇▇ ▇. ▇▇▇▇▇▇,
Family Trustee
By: ▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇▇ TRUST,
created August 24, 1989, general partner
By: /s/ ▇▇ ▇. ▇▇▇▇▇▇
__________________________________________
▇▇ ▇. ▇▇▇▇▇▇,
Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Trustee
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EXHIBIT A
(to Voting Agreement)
COMPANY SHARES
OWNED BY THE SHAREHOLDER PARTIES
NUMBER
SHAREHOLDER PARTIES OF SHARES
------------------- ---------
▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 180,729
▇▇▇▇▇ Limited Partnership 1,650,000
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Total 1,830,729
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