Exhibit (d)(5)
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as of August 24, 2001,
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among Career Holdings, Inc., a Delaware corporation ("Parent"), CB Merger Sub,
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Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger
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Sub"), XxxxXxxxxx.XXX, Inc., a Georgia corporation (the "Company"), and the
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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 making of a
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cash tender offer (as such offer may be amended from time to time, the "Offer")
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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
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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")
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being referred to herein as the "Subject Shares"). For purposes of this
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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
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and warrants to Parent and Merger Sub as follows:
(a) Authority. The Stockholder has all requisite power and authority
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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 the
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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
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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
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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 waives any
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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,
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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 rights, interests
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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 this Agreement,
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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 the Merger
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Agreement, each party hereto shall pay its own expenses incurred in
connection with this Agreement.
(b) Specific Performance. The parties hereto agree that irreparable
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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 communications
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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 the benefit of
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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
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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
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shall not affect the construction of this Agreement.
(g) Counterparts. This Agreement may be executed in one or more
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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 governed by the
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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 defined in this
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Agreement shall have the meanings set forth in the Merger Agreement.
(j) Severability. If any term or other provision of this Agreement is
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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/ XXXXXX X. XXXXXXXXX, XX.
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Name: Xxxxxx X. Xxxxxxxxx, Xx.
Number of shares of Common Stock owned by the
Stockholder on the date hereof:
34,100
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