Exhibit (c)(5)
SHAREHOLDERS AGREEMENT
AGREEMENT, dated as of November 19, 1997, among HFS Incorporated, a
Delaware corporation ("Parent"), HJ Acquisition Corp., a Virginia corporation
and a wholly owned subsidiary of Parent (the "Purchaser"), and the shareholder
identified on the signature page hereof (the "Shareholder").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, the Purchaser and Xxxxxxx Xxxxxx Inc., a Virginia corporation
(the "Company"), have entered into an Agreement and Plan of Merger (as such
agreement may hereafter be amended from time to time, the "Merger Agreement"),
pursuant to which the Purchaser will be merged with and into the Company (the
"Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company desire
that as soon as practicable (and not later than five business days) after the
announcement of the execution of the Merger Agreement, the Purchaser shall
commence a cash tender offer (the "Offer") to purchase at a price of $68.00 per
share all outstanding shares of Common Stock (as defined in Section 1 hereof) of
the Company, including all of the Shares (as defined in Section 2 hereof)
beneficially owned by the Shareholder; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Shareholder agree, and the Shareholder
has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of
the same securities by the same holder, securities Beneficially Owned by a
Person shall include securities Beneficially Owned by all other Persons with
whom such Person would constitute a "group" as within the meaning of Section
13(d)(3) of the Exchange Act.
(b) "Common Stock" shall mean at any time the Common Stock, $.02 par
value, of the Company.
(c) "Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
(d) Capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement.
2. TENDER OF SHARES.
(a) In order to induce Parent and the Purchaser to enter into the
Merger Agreement, the Shareholder hereby agrees to validly tender (or cause the
record owner of such shares to validly tender), and not to withdraw, pursuant to
and in accordance with the terms of the Offer, not later than the fifteenth
business day after commencement of the Offer pursuant to Section 1.1 of the
Merger Agreement and Rule 14d-2 under the Exchange Act, the number of shares of
Common Stock set forth opposite the Shareholder's name on Schedule I hereto (the
"Existing Shares"), all of which are Beneficially Owned by the Shareholder, and
any shares of Common Stock acquired by the Shareholder in any capacity after the
date hereof and prior to the termination of this Agreement by means of purchase,
dividend, distribution or in any other way (such shares of Common Stock,
together with the Existing Shares, the "Shares"). The Shareholder hereby
acknowledges and agrees that Parent's and the Purchaser's obligation to accept
for payment and pay for the Shares in the Offer, including the Shares
Beneficially Owned by
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the Shareholder, is subject to the terms and conditions of the Offer.
(b) The Shareholder hereby permits Parent and the Purchaser to
publish and disclose in the Offer Documents and, if approval of the Company's
shareholders is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the SEC) its identity and ownership of
the Shares and the nature of its commitments, arrangements and understandings
under this Agreement.
3. ADDITIONAL AGREEMENTS.
(a) VOTING AGREEMENT. The Shareholder shall, at any meeting of the
holders of Common Stock, however called, or in connection with any written
consent of the holders of Common Stock, vote (or cause to be voted) the Shares
(if any) then held of record or Beneficially Owned by the Shareholder, (i) in
favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof; and (ii) against any Acquisition Proposal and
against any action or agreement that would impede, frustrate, prevent or nullify
this Agreement, or result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or which would result in any of the conditions set
forth in Annex A to the Merger Agreement or set forth in Article VI of the
Merger Agreement not being fulfilled.
(b) NO INCONSISTENT ARRANGEMENTS. The Shareholder hereby covenants
and agrees that, except as contemplated by this Agreement and the Merger
Agreement, it shall not (i) transfer (which term shall include, without
limitation, any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of the Shares or any interest therein, (ii) enter into
any contract, option or other agreement or understanding with respect to any
transfer of any or all of the Shares or any interest therein, (iii) grant any
proxy, power-of-attorney or other authorization in or with respect to the
Shares, (iv) deposit the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the
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Shares or (v) take any other action that would in any way restrict, limit or
interfere with the performance of its obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement.
(c) GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
(i) The Shareholder hereby irrevocably grants to, and appoints,
Parent and Xxxxx X. Xxxxxxx and Xxxxxxx 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 held by such individuals with Parent, and
each of them individually, the Shareholder's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of the
Shareholder, to vote the Shares, or grant a consent or approval in respect of
the Shares in favor of the Transactions and against any Acquisition Proposal.
(ii) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(iii) The Shareholder understands and acknowledges that Parent and
the Purchaser are entering into the Merger Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder hereby
affirms that the irrevocable proxy set forth in this Section 3(c) 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 Shareholder under
this Agreement. The Shareholder hereby further affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be revoked.
The Shareholder 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 the provisions of
Section 13.1-663(D) of the Virginia Stock Corporation Act.
(d) NO SOLICITATION. The Shareholder hereby agrees, in its capacity
as a shareholder of the Company, that neither the Shareholder nor any of its
subsidiaries or affiliates shall (and the Shareholder shall cause its
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officers, directors, partners, employees, representatives and agents, including,
but not limited to, investment bankers, attorneys and accountants, not to),
directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group (other than Parent,
any of its affiliates or representatives) concerning any Acquisition Proposal.
The Shareholder will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any
Acquisition Proposal. The Shareholder will immediately communicate to Parent
the terms of any proposal, discussion, negotiation or inquiry (and will disclose
any written materials received by the Shareholder in connection with such
proposal, discussion, negotiation or inquiry) and the identity of the party
making such proposal or inquiry which it may receive in respect of any such
transaction. Any action taken by the Company or any member of the Board of
Directors of the Company in accordance with Section 5.4(b) of the Merger
Agreement shall be deemed not to violate this Section 3(d).
(e) BEST EFFORTS. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement
and the Merger Agreement. Each party shall promptly consult with the other and
provide any necessary information and material with respect to all filings made
by such party with any Governmental Entity in connection with this Agreement and
the Merger Agreement and the transactions contemplated hereby and thereby.
4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The
Shareholder hereby represents and warrants to Parent and the Purchaser as
follows:
(a) OWNERSHIP OF SHARES. The Shareholder is the record and
Beneficial Owner of the Existing Shares, as set forth on Schedule I. On the
date hereof, the Existing Shares constitute all of the Shares owned of record or
Beneficially Owned by the Shareholder. The Shareholder has sole voting power
and sole power to issue
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instructions with respect to the matters set forth in Sections 2, 3 and 4
hereof, sole power of disposition and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of the Existing
Shares with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this Agreement.
(b) POWER; BINDING AGREEMENT. The Shareholder has the power
(corporate, partnership or other) and authority to enter into and perform all of
its obligations under this Agreement. The execution, delivery and performance
of this Agreement by the Shareholder will not violate any other agreement to
which the Shareholder is a party including, without limitation, any voting
agreement, proxy arrangement, pledge agreement, shareholders agreement or voting
trust. This Agreement has been duly and validly executed and delivered by the
Shareholder and constitutes a valid and binding agreement of the Shareholder,
enforceable against the Shareholder in accordance with its terms. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which the Shareholder is a trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by the Shareholder
of the transactions contemplated hereby.
(c) NO CONFLICTS. Except for filings under the HSR Act and the
Exchange Act (i) no filing with, and no permit, authorization, consent or
approval of, any Governmental Entity is necessary for the execution of this
Agreement by the Shareholder and the consummation by the Shareholder of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by the Shareholder, the consummation by the Shareholder of the
transactions contemplated hereby or compliance by the Shareholder with any of
the provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to the Shareholder, (B) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any
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kind to which the Shareholder is a party or by which the Shareholder or any of
its properties or assets may be bound, or (C) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable to
the Shareholder or any of its properties or assets.
(d) NO ENCUMBRANCES. Except as permitted by this Agreement, the
Existing Shares and the certificates representing the Existing Shares are now,
and at all times during the term hereof will be, held by the Shareholder, or by
a nominee or custodian for the benefit of the Shareholder, free and clear of all
Encumbrances, proxies, voting trusts or agreements, understandings or
arrangements or any other rights whatsoever, except for any such Encumbrances or
proxies arising hereunder.
(e) NO FINDER'S FEES. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Shareholder.
(f) RELIANCE BY PARENT. The Shareholder understands and acknowledges
that Parent and the Purchaser are entering into the Merger Agreement in reliance
upon the Shareholder's execution and delivery of this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF PARENT AND THE PURCHASER. Each
of Parent and the Purchaser hereby represents and warrants to the Shareholder as
follows:
(a) POWER; BINDING AGREEMENT. Parent and the Purchaser each has the
corporate power and authority to enter into and perform all of its obligations
under this Agreement. The execution, delivery and performance of this Agreement
by each of Parent and the Purchaser will not violate any other agreement to
which either of them is a party. This Agreement has been duly and validly
executed and delivered by each of Parent and the Purchaser and constitutes a
valid and binding agreement of each of Parent and the Purchaser, enforceable
against each of Parent and the Purchaser in accordance with its terms.
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(b) NO CONFLICTS. Except for filings under the HSR Act and the
Exchange Act, (i) no filing with, and no permit, authorization, consent or
approval of, any Governmental Entity is necessary for the execution of this
Agreement by each of Parent and the Purchaser and the consummation by each of
Parent and the Purchaser of the transactions contemplated hereby and (ii) none
of the execution and delivery of this Agreement by each of Parent and the
Purchaser, the consummation by each of Parent and the Purchaser of the
transactions contemplated hereby or compliance by each of Parent and the
Purchaser with any of the provisions hereof shall (A) conflict with or result in
any breach of any organizational documents applicable to either of Parent or the
Purchaser, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
either of Parent or the Purchaser is a party or by which either of Parent or the
Purchaser or any of their properties or assets may be bound, or (C) violate any
order, writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to either of Parent or the Purchaser or any of their properties or
assets.
6. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
7. STOP TRANSFER. The Shareholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, unless such transfer is
made in compliance with this Agreement. In the event of a stock dividend or
distribution, or any change in the Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall refer to and include the Shares as well as all such stock
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dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
8. TERMINATION. The covenants, agreements and proxy contained
herein with respect to the Shares shall terminate upon the termination of the
Merger Agreement in accordance with its terms.
9. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) BINDING AGREEMENT. This Agreement and the obligations hereunder
shall attach to the Shares and shall be binding upon any person or entity to
which legal or beneficial ownership of the Shares shall pass, whether by
operation of law or otherwise, including, without limitation, the Shareholder's
administrators or successors. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations of the
transferor under this Agreement.
(c) ASSIGNMENT. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other parties hereto,
provided that Parent or the Purchaser may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of Parent, but no such assignment shall relieve Parent or the
Purchaser of its obligations hereunder if such assignee does not perform such
obligations provided, further, that nothing herein shall limit the right of
Parent to effect the consummation of its merger with and into CUC International
("CUC") pursuant to the Agreement and Plan of Merger, dated as of May 27, 1997,
between CUC and Parent.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
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(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy (with a
confirmation copy sent for next day delivery via courier service, such as
Federal Express), or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to the Shareholder, to the address set forth on Schedule I hereto.
If to Parent
or the
Purchaser: HFS Incorporated
0 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Copy to: Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) SEVERABILITY. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed,
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construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been contained
herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore in the event
of any such breach the aggrieved party shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be entitled, at
law or in equity.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(k) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof; PROVIDED, however, that the laws of the
respective jurisdictions of incorporation of each of the parties shall govern
the relative rights, obligations, powers, duties and other internal affairs of
such party and its board of directors.
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(l) WAIVER OF JURY TRIAL. Each party hereto hereby waives any right
to a trial by jury in connection with any action, suit or proceeding brought in
connection with this Agreement.
(m) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(n) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Parent and the Purchaser have caused this
Agreement to be duly executed as of the day and year first above written.
HFS INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman and Chief Financial Officer
HJ ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman and Chief Financial Officer
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IN WITNESS WHEREOF, the Shareholder has caused this Agreement to be
duly executed as of the day and year first above written.
SHAREHOLDER
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
Schedule I
Number of Shares Beneficially Owned
Direct Stock
Address of Shareholder Ownership Options
---------------------- --------- -------
0000 Xx. Xxxx Xxxxx
Xxxxxxxxx, XX 00000 -0- 10,000(1)
2,000 of these shares are exercisable within 60 days.
