Exhibit (d)(7)
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as of August 24,
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2001, among Career Holdings, Inc., a Delaware corporation ("Parent"), CB
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Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent
("Merger Sub"), XxxxXxxxxx.XXX, Inc., a Georgia corporation (the "Company"), and
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the undersigned stockholder of the Company (the "Stockholder").
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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
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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
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$0.01 per share, of the Company (the "Common Stock") at the Offer Price (as
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defined in the Merger Agreement) and the merger of the Company and Merger Sub
(the "Merger");
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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
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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
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represents and warrants to Parent and Merger Sub as follows:
(a) Authority. The Stockholder has all requisite power and
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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 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
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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.
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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
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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 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
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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) 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
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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
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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
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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
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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. Assignment. Neither this Agreement nor any of the
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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.
6. Termination. Notwithstanding any other provision of
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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.
7. General Provisions.
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(a) Expenses. Except as otherwise expressly provided in
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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
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irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed
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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.
(c) Notice. All notices, requests, demands and other
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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:
c/o the Company
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
with a copy to:
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Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxx
Telecopy No. (000) 000-0000
(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
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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
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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
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convenience only and shall not affect the construction of this
Agreement.
(g) Counterparts. This Agreement may be executed in one
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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.
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(h) Governing Law. Except to the extent required to be
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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.
(i) Capitalized Terms. Capitalized terms not otherwise
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defined in this Agreement shall have the meanings set forth in the
Merger Agreement.
(j) Severability. If any term or other provision of this
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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.
8. No Limitations on Actions of the Stockholder as a Director.
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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 and Merger Sub 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
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Name: Xxxxx Xxxxxx
Title: Vice President
XXXXXXXXXX.XXX, INC.
By: /s/ XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
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STOCKHOLDER
/s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Number of shares of Common Stock
owned by the Stockholder on the date
hereof:
32,000
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