Exhibit 2.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of
September 30, 2008 (this “ Agreement
”), among Walter Industries, Inc., a Delaware
corporation (“ Walter ”), JWH Holding
Company, LLC, a Delaware limited liability company (“
JWH ”), and each of the stockholders of Hanover
Capital Mortgage Holdings, Inc., a Maryland corporation
(“ Hanover ”), signatory hereto (each, a
“ Stockholder ” and, collectively, the
“ Stockholders ”), and, solely for the
purposes of Section 5.2 hereof, Hanover.
W I T N E S S E T
H:
WHEREAS, concurrently with the
execution of this Agreement, Walter, JWH, and Hanover are entering
into an Agreement and Plan of Merger, dated as of the date hereof
(as amended, supplemented, restated or otherwise modified from time
to time, the “ Merger Agreement ”)
pursuant to which, among other things, JWH will merge into Hanover
(the “ Merger ”), the separate existence
of JWH shall cease and Hanover shall continue as the surviving
corporation (the “ Surviving Corporation
”) and, except as otherwise provided in the Merger Agreement,
shares of common stock of Hanover, par value $0.01 per share (the
“ Common Stock ”), issued and outstanding
immediately prior to the Effective Time shall be combined into
fully paid and non-assessable shares of common stock of the
Surviving Corporation, par value $0.01 per share (the “
Surviving Corporation Common Stock ”), at the
rate specified in the Merger Agreement.
WHEREAS, as a condition and
inducement to Walter and JWH entering into the Merger Agreement,
Walter and JWH have required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement and perform
the covenants and obligations with respect to the Covered Shares
(as hereinafter defined) set forth herein.
NOW THEREFORE, in consideration of
the foregoing and the mutual representations, warranties, covenants
and agreements herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
GENERAL
1.1. Defined
Terms . The following capitalized terms, as used in this
Agreement, shall have the meanings set forth below.
Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed thereto in the Merger Agreement.
“ Beneficial
Ownership ” by a Person of any securities includes
ownership by any Person who, directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise,
has or shares (i) voting power which includes the power to
vote, or to direct the voting of, such security; and/or
(ii) investment power which includes the power to dispose, or
to direct the disposition, of such security; and shall otherwise be
interpreted in accordance with the term “beneficial
ownership” as defined in Rule 13d-3 adopted by
the
Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended;
provided that for purposes of determining Beneficial
Ownership, a Person shall be deemed to be the Beneficial Owner of
any securities which may be acquired by such Person pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise (irrespective of whether the right to acquire such
securities is exercisable immediately or only after the passage of
time, including the passage of time in excess of 60 days, the
satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing). The terms “
Beneficially Own ” and “
Beneficially Owned ” shall have a correlative
meaning.
“ Covered Shares
” means, with respect to each Stockholder, such
Stockholder’s Existing Shares, together with any shares of
Common Stock or other voting stock of Hanover and any securities
convertible into or exercisable or exchangeable for shares of
Common Stock or other voting stock of Hanover, in each case that
such Stockholder acquires Beneficial Ownership of on or after the
date hereof.
“ Encumbrance
” means any security interest, pledge, mortgage, lien
(statutory or other), charge, option to purchase, lease or other
right to acquire any interest or any claim, restriction, covenant,
title defect, hypothecation, assignment, deposit arrangement or
other encumbrance of any kind or any preference, priority or other
security agreement or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title
retention agreement).
“ Existing
Shares ” means, with respect to each Stockholder, any
shares of Common Stock Beneficially Owned or owned of record by
such Stockholder.
“ Person ”
means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity,
or any group comprised of two or more of the foregoing.
“
Representatives ” means the officers,
directors, employees, agents, advisors and Affiliates of a
Person.
“ Transfer
” means, directly or indirectly, to sell, transfer, assign,
pledge, encumber, hypothecate or similarly dispose of (by merger,
by testamentary disposition, by operation of law or otherwise),
either voluntarily or involuntarily, or to enter into any contract,
option or other arrangement or understanding with respect to the
sale, transfer, assignment, pledge, Encumbrance, hypothecation or
similar disposition of (by merger, by testamentary disposition, by
operation of law or otherwise).
ARTICLE II
VOTING
2.1. Agreement to
Vote . At the Hanover Stockholders Meeting or any other
meeting of the Hanover Stockholders, however called, including any
adjournment or postponement thereof,
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or in connection with any written
consent of the Hanover Stockholders, each Stockholder shall, in
each case to the fullest extent that such Stockholder’s
Covered Shares are entitled to vote thereon or consent
thereto:
(a)
appear at each such meeting or otherwise cause the Covered Shares
to be duly counted as present thereat for purposes of calculating a
quorum; and
(b)
vote (or cause to be voted), in person or by proxy, or deliver (or
cause to be delivered) a written consent covering, all of such
Stockholder’s Covered Shares (i) in favor of proposals
to approve (w) the Merger Agreement and the Merger and the
other transactions contemplated by the Merger Agreement, including
the amendment and restatement of the Charter as set forth in the
Amended and Restated Charter and the Merger Share Issuance,
(x) the Exchange Share Issuance, (y) the Plan Amendment
and (z) any other action reasonably requested by Walter in
furtherance of any of the foregoing; (ii) against any action,
proposal, transaction or agreement that would reasonably be
expected to result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of
Hanover contained in the Merger Agreement, or of any Stockholder
contained in this Agreement; and (iii) against any Hanover
Acquisition Proposal or any other action, agreement or transaction
that is intended, or could reasonably be expected, to materially
impede, interfere with, delay, postpone, discourage or adversely
affect the Merger or any of the other transactions contemplated by
the Merger Agreement or this Agreement or the performance by such
Stockholder of its obligations under this Agreement, including,
without limitation: (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business
combination involving Hanover or its Subsidiaries (other than the
Merger); (B) a sale, lease or transfer of a material amount of
assets of Hanover or any of its Subsidiaries or a reorganization,
recapitalization or liquidation of Hanover or any of its
Subsidiaries except as contemplated by the Merger Agreement;
(C) an election of new members to the board of directors of
Hanover, other than nominees for election as directors of Hanover
who are serving as directors of Hanover on the date of this
Agreement, who are nominated by Hanover’s Board of Directors
or who are expressly contemplated by the Merger Agreement in
connection with the consummation of the Merger; (D) any
material change in the present capitalization or dividend policy of
Hanover or any amendment or other change to Hanover’s charter
or Bylaws, except as specified in the Amended and Restated Charter
and the Amended and Restated Bylaws or if approved by Walter in
writing; or (E) any other material change in Hanover’s
corporate structure or business except as contemplated by the
Merger Agreement.
2.2. No Inconsistent
Agreements . Each Stockholder hereby represents,
warrants, covenants and agrees that, except for this Agreement,
such Stockholder (a) has not entered into, and shall not enter
into at any time while this Agreement remains in effect, any voting
agreement or voting trust with respect to such Stockholder’s
Covered Shares and (b) has not granted, and shall not grant at
any time while this Agreement remains in effect, a proxy, consent
or power of attorney with respect to such Stockholder’s
Covered Shares that is inconsistent with this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
3.1. Representations
and Warranties of the Stockholders . Each Stockholder
hereby severally, and not jointly, represents and warrants to
Walter and JWH as follows:
(a)
Organization; Authorization; Validity of Agreement; Necessary
Action . Such Stockholder has the legal capacity and all
requisite power and authority to enter into this Agreement, to
perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been
duly executed and delivered by each Stockholder and, assuming this
Agreement constitutes a valid and binding obligation of Walter and
JWH, constitutes a valid and binding obligation of such
Stockholder, enforceable against it in accordance with its terms,
except as enforcement may be limited by general principles of
equity, whether applied in a court of law or a court of equity, and
by bankruptcy, insolvency and similar laws affecting
creditors’ rights and remedies generally.
(b)
Ownership . Such Stockholder Beneficially Owns or is
the record holder of the number of Existing Shares set forth below
its name on the signature page hereto, and such
Stockholder’s Existing Shares are, and all of
such
