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VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of February 16, 2000,
among LMM Family Partnership, L.P., a Delaware limited partnership ("LMM"),
Leonard Miller, an individual ("LMiller"), and Stuart Miller, an individual
("SMiller", and together with LMM and LMiller, the "Miller Entities") and U.S.
Home Corporation, a Delaware corporation (the "Company").
WHEREAS, Lennar Corporation ("Lennar"), LEN Acquisition Corporation
("Acquisition") and the Company propose to enter into a Plan and Agreement of
Merger dated as of the date hereof (as the same may be amended, supplemented or
modified in accordance with its terms, the "Merger Agreement") providing for the
merger of the Company into Acquisition (the "Merger");
WHEREAS, the Miller Entities collectively own in the aggregate
9,818,861 shares of Class B Common Stock, par value $0.10 per share, of Lennar
(the "Lennar Class B Stock") and 73,894 shares of common stock, par value $0.10
per share, of Lennar (the "Lennar Common Stock"); those shares of Lennar Class B
Stock and Lennar Common Stock, as they may be adjusted by any stock dividend,
stock split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by Lennar,
are referred to in this Agreement as the "Miller Shares";
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Company has requested that the Miller Entities enter into this
Agreement.
NOW THEREFORE, to induce the Company to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the mutual covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE MILLER ENTITIES
1.1 LMM represents and warrants to the Company as follows:
(a) Authority. It is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of Delaware. It has
all power and authority necessary to enable it to enter into this Agreement and
to carry out the transactions contemplated by this Agreement. This Agreement has
been duly and validly authorized, executed and delivered by it and constitutes
its legal, valid and binding obligation, enforceable against it in accordance
with its terms.
(b) Non-Contravention. Neither the execution and delivery of this Agreement
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nor consummation of the transactions contemplated by this Agreement or by any
document to be delivered in accordance with this Agreement will violate, result
in a breach of, or constitute a default (or an event which, with notice or lapse
of time or both would constitute a default) under, its limited partnership
agreement, any agreement or instrument to which it is a party or by which it is
bound, any law, or any order, rule or regulation of any court or governmental
agency or other regulatory organization having jurisdiction over it.
(c) Approvals and Consents. No governmental filings, authorizations,
approvals or consents, or other governmental action is required for the
execution and delivery of this Agreement by it, the performance by it of its
obligations under this Agreement or the consummation by it of the transactions
contemplated by this Agreement.
1.2 Each of LMiller and SMiller represents and warrants to the Company as
follows:
(a) Authority. Each of LMiller and SMiller has full capacity and authority
to enter into this Agreement and to carry out the transactions contemplated by
this Agreement. This Agreement has been duly executed and delivered by each of
LMiller and SMiller and constitutes a legal, valid and binding obligation each
of LMiller and SMiller enforceable against each of LMiller and SMiller in
accordance with its terms. The representations and warranties in Section 1.1 are
true and correct.
(b) Non-Contravention. Neither the execution and delivery of this Agreement
nor consummation of the transactions contemplated by this Agreement or by any
document to be delivered in accordance with this Agreement will violate, result
in a breach of, or constitute a default (or an event which, with notice or lapse
of time or both would constitute a default) under, any agreement or instrument
to which LMiller or SMiller is a party or by which LMiller or SMiller is bound,
any law, or any order, rule or regulation of any court or governmental agency or
other regulatory organization having jurisdiction over LMiller or SMiller.
(c) Approvals and Consents. No governmental filings, authorizations,
approvals or consents, or other governmental action is necessary or required for
the execution and delivery of this Agreement by LMiller or SMiller, the
performance by LMiller or SMiller of LMiller's or SMiller's obligations under
this Agreement or the consummation of the transactions contemplated hereby.
1.3 Each of the Miller Entities represents and warrants to the Company that
(a) the Miller Shares constitute more than 98% of the outstanding shares of
Lennar Class B Stock and have more than 50% of the voting power of all the
outstanding stock of Lennar of all classes; (b) the Miller Entities own the
Miller Shares, free and clear of any liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements which would in any
way restrict or impair the Miller Entities' right to vote the Miller Shares in
their sole discretion or could require the Miller Entities to sell or transfer
any of the Miller Shares (whether upon default
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on a loan or otherwise) before the Effective Time; (c) the Miller Entities have
the sole voting power and sole power to issue instructions with respect to the
Miller Shares and (d) the obligations of the Miller Entities hereunder shall
survive the death, disability or incapacity of LMiller and SMiller.
1.4 The Company hereby represents and warrants to the Miller Entities as
follows:
(a) Authority. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Company has all power and authority necessary to enable it to enter into this
Agreement and to carry out the transactions contemplated by this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
(b) Non-Contravention. Neither the execution and delivery of this Agreement
by the Company nor the consummation of the transactions contemplated by this
Agreement will violate, result in a breach of, or constitute a default (or an
event which, with notice or lapse of time or both would constitute a default)
under, the certificate of incorporation or by-laws of the Company.
(c) Approvals and Consents. No governmental filings, authorizations,
approvals or consents, or other governmental action is required for the
execution and delivery of this Agreement by the Company, the performance by the
Company of its obligations under this Agreement or the consummation by the
Company of the transactions contemplated by this Agreement.
ARTICLE II
COVENANTS OF THE MILLER ENTITIES
Each of the Miller Entities hereby covenants and agrees as to itself with
the Company as follows:
2.1 Vote for Merger. At any meeting of stockholders of Lennar called to
vote upon the Merger and the Merger Agreement or any of the transactions
contemplated thereby, or at any adjournment or postponement thereof or in any
other circumstances upon which a vote, consent or other approval with respect to
the Merger and the Merger Agreement is sought, each Miller Entity shall vote (or
cause to be voted) all of the outstanding Miller Shares owned by it or him in
favor of the Merger, the adoption by Lennar of the Merger Agreement, other
matters relating to the approval of the terms of the Merger Agreement and each
of the other transactions contemplated by the Merger Agreement.
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2.2 Vote Against Alternative Proposals. Prior to the Effective Time (as
defined in the Merger Agreement), at any meeting of stockholders of Lennar or at
any adjournment or postponement thereof or in any other circumstances upon which
the Miller Entity's vote, consent or other approval is sought, each Miller
Entity shall vote (or cause to be voted) all of the outstanding Miller Shares
owned by it or him against (i) any change in the persons who constitute the
Board of Directors of Lennar (other than changes made pursuant to the terms of
this Agreement, the Merger Agreement or any other documents delivered by any
party pursuant to this Agreement or the Merger Agreement) or (ii) any change in
the present capitalization of Lennar or any amendment of Lennar's certificate of
incorporation or by-laws or other proposal or transaction involving Lennar or
any of its subsidiaries, if in the case of clause (i) or (ii) such transaction,
change, amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of the
other transactions contemplated by the Merger Agreement or would reasonably be
likely to result in any of the conditions to Lennar's obligations under the
Merger Agreement not being fulfilled.
2.3 Transfers. Until the Effective Time, no Miller Entity will (i) sell,
transfer, pledge, assign or otherwise dispose of, or enter into any contract,
option or other arrangement with respect to the sale, transfer, pledge,
assignment or other disposition of, any Miller Shares to any person, or (ii)
enter into any voting arrangement, whether by proxy, voting arrangement, voting
agreement or otherwise, other than for the purpose of voting the Miller Shares
as required by this Agreement.
2.4 Vote for Company Nominees. If the Merger is authorized by the Lennar
stockholders at the Lennar stockholders' meeting at which the Merger is
considered (or at any adjournment or postponement thereof, as the case may be),
the Miller Entities shall, prior to the Effective Time, vote (or cause to be
voted) all of the equity securities (as defined in Rule 3a11-1 under the
Securities Exchange Act of 1934, as amended) of Lennar owned by them in favor
of, and shall use their best efforts to cause: (i) an increase in the size of
Lennar's Board of Directors by four members (the "Increase"); and (ii) the
election of each of Robert J. Strudler, Isaac Heimbinder and two other persons
designated in writing by the Company (collectively, the "Company Nominees") to
Lennar's Board of Directors to fill the vacancies on Lennar's Board of Directors
created by the Increase. The election of the Company Nominees will be effective
at the Effective Time of the Merger.
2.5 Company Common Stock. Between the date hereof and the Effective Time of
the Merger, the Miller Entities shall not purchase shares of common stock, par
value $.01 per share, of the Company ("Company Common Stock") if the purchase
would cause the Miller Entities, Lennar and Lennar's subsidiaries to own in the
aggregate more than 5% of the Company Common Stock which is then outstanding.
2.6 The covenants and agreements contained in this Article II shall be of
no further force or effect in the event the Merger Agreement is terminated in
accordance with its terms.
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The covenants and agreements contained in this Article II shall survive the
Merger and after the Merger shall be binding upon and inure to the benefit of
the Company Nominees.
ARTICLE III
GENERAL PROVISIONS
3.1 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring the expense.
3.2 Entire Agreement. This Agreement, the Merger Agreement and the
documents to be delivered in accordance with this Agreement and the Merger
Agreement contain the entire agreement among the parties relating to the
transactions which are the subject of this Agreement and all prior negotiations,
understandings and agreements among the parties with regard to the subject
matter of this Agreement are superseded by this Agreement and the Merger
Agreement, and there are no representations, warranties, understandings or
agreements concerning the transactions which are the subject of this Agreement
or those other documents other than those expressly set forth in this Agreement
and the Merger Agreement. The Company Nominees are intended third party
beneficiaries of this Agreement and may enforce this Agreement.
3.3 Captions. The captions of the articles and paragraphs of this Agreement
are for reference only, and do not affect the meaning or interpretation of this
Agreement.
3.4 Prohibition Against Assignment. Neither this Agreement nor any right or
obligations of any party under it may be assigned (except that after the Merger,
this Agreement shall be binding upon and inure to the benefit of the surviving
corporation of the Merger).
3.5 Notices and Other Communications. Any notice or other communication
under this Agreement must be in writing and will be deemed given when delivered
in person or sent by facsimile (with proof of receipt at the number to which it
is required to be sent), or on the third business day after the day on which
mailed by first class mail from within the United States of America, to the
following addresses (or such other address as may be specified after the date of
this Agreement by the party to which the notice or communication is sent):
If to the Company:
U.S. Home Corporation
10707 Clay Road
Houston, Texas 77041
Attention: Robert J. Strudler
Facsimile No.: (713) 877-2335
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with a copy to:
Stephen C. Koval, Esq.
Kaye, Scholer, Fierman, Hays & Handler, LLP
New York, New York 10019
Facsimile No.: (212) 836-8689
If to any Miller Entity:
Leonard Miller
700 Northwest 107th Avenue
Miami, Florida 33172
Facsimile No.: (305) 227-7115
with a copy to:
David W. Bernstein, Esq.
Clifford Chance Rogers & Wells
200 Park Avenue, 52nd Floor
New York, New York 10166
Facsimile No.: (212) 878-8375
3.6 Governing Law. This Agreement will be governed by, and construed under,
the substantive laws of the State of Delaware.
3.7 Amendments. Prior to the Effective Time (as defined in the Merger
Agreement), this Agreement may be amended only by a document in writing signed
by the Company and each Miller Entity; after the Effective Time, this Agreement
may be amended only by a document in writing signed by each Miller Entity and
each Company Nominee.
3.8 Counterparts. This Agreement may be executed in two or more
counterparts, some of which may contain the signatures of some, but not all, the
parties. Each of those counterparts will be deemed an original, but all of them
together will constitute one and the same agreement.
3.9 Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under any present or future law, and if the rights or
obligations of any party hereto under this Agreement will not be materially and
adversely affected thereby, (i) such provision will be fully severable, (ii)
this Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (iii) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom and (iv) in lieu of such
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illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
3.10 Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
State of Delaware or in a Delaware state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to the personal jurisdiction of any Federal
court located in the State of Delaware or any Delaware state court in any action
or proceeding relating to or arising out of this Agreement or any of the
transactions contemplated hereby, (ii) agrees that such party will not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, (iii) agrees that such parties will not seek to
change the venue of any such action or proceeding or otherwise to move any such
action or proceeding to another court, whether because of inconvenience of the
forum or otherwise (provided that nothing in this Section will prevent a party
from removing an action or proceeding from a Delaware state court to a Federal
Court located in the State of Delaware), (iv) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the State
of Delaware or a Delaware state court and (v) waives any right to trial by jury
with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
1.10
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
signed by its officer thereunto duly authorized as of the date in the first
paragraph of this Agreement.
U.S. HOME CORPORATION
By: /s/ Robert J. Strudler
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Name:
Title:
LMM FAMILY PARTNERSHIP, L.P.
By: LMM Family Corp., its general partner
By: /s/ Leonard Miller
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Name: Leonard Miller
Title: President
Leonard Miller
/s/ Leonard Miller
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Stuart Miller
/s/ Stuart A. Miller
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