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EXHIBIT 2.8
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as of August
24, 2001, among Career Holdings, Inc., a Delaware corporation ("Parent"), CB
Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent
("Merger Sub"), XxxxXxxxxx.XXX, Inc., a Georgia corporation (the "Company"), and
the undersigned stockholder of the Company (the "Stockholder").
WHEREAS, Parent, Merger Sub and the Company propose to enter
into an Agreement and Plan of Merger dated as of even date herewith (as the same
may be amended or supplemented, the "Merger Agreement") to provide for the
making of a cash tender offer (as such offer may be amended from time to time,
the "Offer") by Merger Sub for any and all shares of common stock, par value
$0.01 per share, of the Company (the "Common Stock") at the Offer Price (as
defined in the Merger Agreement) and the merger of the Company and Merger Sub
(the "Merger");
WHEREAS, the Stockholder legally and/or beneficially owns that
number of shares of Common Stock appearing on the signature page hereof (such
shares, 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 the Company (each, an
"Adjustment Event") being referred to herein as the "Subject Shares"). For
purposes of this Agreement, Subject Shares shall not be deemed to include stock
options, warrants or other derivative securities, unless such stock options,
warrants or other derivative securities are exercised for shares of Common
Stock, in which case such shares of Common Stock shall become Subject Shares;
and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that the Stockholder
enter into this Agreement;
NOW, THEREFORE, to induce Parent and Merger Sub to enter into,
and in consideration of their entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES. The Stockholder
hereby represents and warrants to Parent and Merger Sub as follows:
(a) Authority. The Stockholder has all requisite power
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Stockholder and constitutes a
valid and binding obligation of the Stockholder enforceable in
accordance with its terms. The execution and delivery of this
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Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not,
conflict with, result in any violation of or default (with or without
notice or lapse of time or both) under, any provision of any trust
agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise,
license, judgment, order, notice, decree, statute, law, ordinance, rule
or regulation applicable to the Stockholder or to the Stockholder's
property or assets. Except for the expiration or termination of the
waiting period under the HSR Act and informational filings with the
SEC, no consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality,
domestic, foreign or supranational, is required by or with respect to
the Stockholder in connection with the execution and delivery of this
Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.
(b) The Shares. The Stockholder has good and marketable
title to the Subject Shares, free and clear of any claims, liens,
encumbrances and security interests whatsoever. The Stockholder owns no
shares of Common Stock other than the Subject Shares.
2. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER
SUB. Parent and Merger Sub hereby represent and warrant to the Stockholder that
each of Parent and Merger Sub has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Parent and Merger Sub,
and the consummation of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of Parent and Merger
Sub. This Agreement has been duly executed and delivered by Parent and Merger
Sub and constitutes a valid and binding obligation of Parent and Merger Sub
enforceable in accordance with its terms.
3. COVENANTS OF THE STOCKHOLDER. From and after the date
hereof through and including the termination of this Agreement, the Stockholder
agrees as follows:
(a) At any meeting of stockholders of the Company called
to vote upon the Merger and the Merger Agreement or at any adjournment
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, the Stockholder shall vote (or cause to be voted) the Subject
Shares (over which the Stockholder has sole voting power) in favor of
the Merger, the approval of the Merger Agreement and the approval of
the terms thereof and each of the other transactions contemplated by
the Merger Agreement, provided that the terms of the Merger Agreement
shall not have been amended to adversely affect the Stockholder.
(b) At any meeting of stockholders of the Company or at
any adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, the
Stockholder shall vote (or cause to
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be voted) the Subject Shares (over which the Stockholder has sole
voting power) against (i) any merger agreement or merger (other than
the Merger Agreement and the Merger), consolidation, combination, sale
of substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company or any other Acquisition
Proposal or (ii) any amendment of the Company's articles of
incorporation or by-laws or other proposal or transaction involving the
Company or any of its subsidiaries, which 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.
(c) The Stockholder hereby agrees that, except as
contemplated by this Agreement and the Merger Agreement, the
Stockholder shall not (i) sell, transfer, pledge, assign or otherwise
dispose of (including by gift) or enter into any contract, option or
other arrangement (including any profit sharing arrangement) with
respect to the sale, transfer, pledge, assignment or other disposition
of (collectively, "Transfer"), or consent to or permit any Transfer of,
any or all of the Subject Shares or any interest therein or (ii) grant
any proxy, power-of-attorney or other authorization in or with respect
to the Subject Shares. Nothing in this Agreement shall prevent the
conversion of the Subject Shares into other property in accordance with
a statutory merger or share exchange or restrict in any manner the
Stockholder's right to transfer or alienate such property.
(d) The Stockholder acknowledges that it is bound by the
provisions of Section 7.1 of the Merger Agreement and shall not, nor
shall the Stockholder permit any investment banker, attorney or other
adviser or representative of the Stockholder to, (i) directly or
indirectly solicit, initiate or encourage the submission of any
Acquisition Proposal or (ii) directly or indirectly participate in any
discussions or negotiations regarding, or furnish to any person any
information with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Acquisition Proposal, unless and
solely to the extent expressly permitted under Section 7.1 of the
Merger Agreement.
(e) Stockholder hereby agrees to validly tender pursuant
to and in accordance with the terms of the Offer, as soon as
practicable after commencement but in no event later than the then
scheduled expiration date of the Offer, all of the Subject Shares by
physical delivery of the certificates therefor (if such Subject Shares
are certificated in the name of Stockholder), and not to withdraw such
Subject Shares, except following a termination of the Offer pursuant to
its terms. If such Subject Shares are currently held in the name of a
broker or other nominee, Stockholder shall instruct the broker or
nominee to deliver the securities by a book-entry transfer or other
customary electronic means for delivery of securities in connection
with a tender offer. Stockholder hereby authorizes Parent and Merger
Sub to publish and disclose in the Offer Documents and, if approval of
the Company's stockholders is required under applicable law, the Proxy
Statement (including all documents and schedules filed with the SEC)
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Stockholder's identity and ownership of the Subject Shares and the
nature of Stockholder's commitments, arrangements and understandings
under this Agreement.
(f) Grant of Irrevocable Proxy; Appointment of Proxy. (i)
The Stockholder hereby irrevocably grants to, and appoints, Xxxxxx X.
XxXxxxxx and Xxxxx X. Xxxxxx or either of them, in their respective
capacities as officers of Parent, and any individual who shall
hereafter succeed to any such office of Parent, and each of them
individually, the Stockholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of the
Stockholder, to vote the Subject Shares (over which the Stockholder has
sole voting power) in favor of adoption of the Merger Agreement and
otherwise as contemplated by Section 3(b).
(ii) The Stockholder represents that any proxies
heretofore given in respect of the Shares are not irrevocable,
and that any such proxies are hereby revoked.
(iii) The Stockholder understands and acknowledges
that Parent is entering into the Merger Agreement in reliance
upon the Stockholder's execution and delivery of this
Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 3(f) is given in connection
with the execution of the Merger Agreement, and that such
irrevocable proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. The
Stockholder hereby further affirms that the irrevocable proxy
is coupled with an interest and may under no circumstances be
revoked. The Stockholder hereby ratifies and confirms all that
such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. Such irrevocable proxy is executed and intended
to be irrevocable in accordance with Georgia law.
(g) Waiver of Appraisal Rights. The Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger
that the Stockholder may have.
4. FURTHER ASSURANCES. The Stockholder will, from time
to time, execute and deliver, or cause to be executed and delivered, such
additional or further transfers, assignments, endorsements, consents and other
instruments as Parent or Merger Sub may reasonably request for the purpose of
effectively carrying out the transactions contemplated by this Agreement.
5. SHARES SUBJECT TO PLEDGE. The parties hereto
acknowledge that the Subject Shares owned by the Stockholder are, on the date
hereof, held in pledge by First Union National Bank, as Administrative Agent, as
security for certain credit that has been extended to the Stockholder and its
affiliates. The Stockholder hereby represents and warrants to Parent and Merger
Sub that the Stockholder has the right to remove the Subject Shares from such
pledge, that the Stockholder has exercised that right by giving
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the required notice to such Administrative Agent, and that such Administrative
Agent has acknowledged that the Subject Shares are being released from such
pledge and returned to the Stockholder. Notwithstanding anything contained
herein to the contrary, the parties hereto agree that: (1) the Stockholder shall
not be deemed to be in violation of the provisions of Sections 1(a), 1(b) or
3(c) hereof by reason of the pledge arrangement described above in favor of such
Administrative Agent; and (2) the Stockholder shall obtain the return of the
Subject Shares to the Stockholder as soon as reasonably possible. The
Stockholder will use reasonable commercial efforts to ensure that the rights of
the pledgee of the Subject Shares shall not interfere with the rights of Merger
Sub and Parent under this Agreement.
6. ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties without the prior written consent of the other parties, except that
Merger Sub may assign, in its sole discretion, any or all of its rights,
interests and obligations hereunder to Parent or to any direct or indirect
wholly owned subsidiary of Parent. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns and, in the case of the
Stockholder, the heirs, executors and administrators of the Stockholder.
7. TERMINATION. Notwithstanding any other provision of
this Agreement, this Agreement (including without limitation the irrevocable
proxy contained herein) shall terminate upon the earlier of (i) the Effective
Time or (ii) a valid termination of the Merger Agreement.
8. GENERAL PROVISIONS.
(a) Expenses. Except as otherwise expressly provided in
the Merger Agreement, each party hereto shall pay its own expenses
incurred in connection with this Agreement.
(b) 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 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 hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy
to which they are entitled at law or in equity. Each party hereby
irrevocably submits to the exclusive jurisdiction of the United States
District Court for the District of Delaware in any action, suit or
proceeding arising in connection with this Agreement and agrees that
any such action, suit or proceeding shall be brought only in such
courts (and waives any objection based on forum non conveniens or any
other objection to venue therein). Each party hereto waives any right
to a trial by jury in connection with any such action, suit or
proceeding.
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(c) Notice. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given and
made if in writing and if served by personal delivery upon the party
for whom it is intended or if sent by telex or telecopier (and also
confirmed in writing) to the person at the address set forth below, or
such other address as may be designated in writing hereafter, in the
same manner, by such person:
(i) if to Parent or Merger Sub, to:
c/o CareerBuilder, Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxx and Xxxx LLP
00000 Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Telecopy No. (000) 000-0000
(ii) if to the Stockholder, to:
with a copy to:
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxx
Telecopy No. (000) 000-0000
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(iii) if to the Company, to:
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telecopy No.
with a copy to:
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxx
Telecopy No. (000) 000-0000
(d) Parties in Interest. This Agreement shall inure to
the benefit of and be binding upon the parties named herein and their
respective successors and assigns. Nothing in this Agreement, expressed
or implied, is intended to confer upon any person other than Parent,
Merger Sub or the Stockholder, or their permitted successors or
assigns, any rights or remedies under or by reason of this Agreement.
(e) Entire Agreement; Amendments. This Agreement contains
the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings, oral or written, with respect to such
transactions. This Agreement may not be changed, amended or modified
orally, but only by an agreement in writing signed by the party against
whom any waiver, change, amendment, modification or discharge may be
sought.
(f) Headings. The section headings herein are for
convenience only and shall not affect the construction of this
Agreement.
(g) Counterparts. This Agreement may be executed in one
or more counterparts, each of which, when executed, shall be deemed to
be an original and all of which together shall constitute one and the
same document.
(h) Governing Law. Except to the extent required to be
governed by the provisions of the Georgia Business Corporation Code,
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.
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(i) Capitalized Terms. Capitalized terms not otherwise
defined in this Agreement shall have the meanings set forth in the
Merger Agreement.
(j) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so
long as the economic and legal substance of the transactions
contemplated hereby are not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated by this
Agreement may be consummated as originally contemplated to the fullest
extent possible.
9. NO LIMITATIONS ON ACTIONS OF THE STOCKHOLDER AS A
DIRECTOR. Notwithstanding anything to the contrary in this Agreement, nothing in
this Agreement is intended or shall be construed to require the Stockholder to
take or in any way limit any action that the Stockholder may take in his
capacity as an officer or director of the Company, including without limitation
the discharge of the Stockholder's fiduciary duties as a director and/or officer
of the Company.
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IN WITNESS WHEREOF, each of Parent, Merger Sub and the
Company has caused this Agreement to be signed by its officer thereunto duly
authorized and the Stockholder has duly signed this Agreement, all as of the
date first written above.
CAREER HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
CB MERGER SUB, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
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STOCKHOLDER
ITC Holding Company, Inc.
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
Senior Vice President
Number of shares of Common Stock owned by the
Stockholder on the date hereof:
5,083,333
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