EXHIBIT d(2)
AGREEMENT TO TENDER
THIS AGREEMENT TO TENDER (the "AGREEMENT") is entered into as of
November 2, 2001, by and among CVG Investment LLC ("CVGI"), a Delaware Limited
Liability Company, GV Investment LLC ("GVI"), a Delaware Limited Liability
Company, Three Cities Fund III, L.P. ("TCF"), a Delaware Limited Partnership and
Xxxxxx Equity Investors III, L.P., a Delaware limited partnership ("TEI", and
together with CVGI, GVI and TCF, the "Shareholders," or each a "SHAREHOLDER")
and Classic Vacation Group, Inc. (the "COMPANY"), a New York corporation.
RECITALS
A. CVGI and the Company are entering into a Note Purchase Agreement of
even date herewith (the "NPA") which provides for (subject to the conditions set
forth therein) the purchase by CVGI from the Company of certain 7.5% Convertible
Senior Subordinated Notes due December 31, 2006 and 7.5% Exchangeable Senior
Subordinated Notes due December 31, 2006 (collectively, the "NOTES").
B. TCF and TEI own or will own substantially all of the membership
interests of CVGI. In addition, TCF and TEI own, respectively, 386,300 and
9,599,749 shares of Company Common Stock (respectively, the "TCF SHARES" and the
"TEI SHARES" and, collectively, the "SHAREHOLDER SHARES").
C. GVI owns certain 9% Convertible Notes due July 1, 2007 of the
Company, which notes are convertible into shares of the Company's Common Stock
(the "GVI CONVERSION SHARES" and, (but only to the extent that GVI has
previously converted such notes into shares of Common Stock of the Company)
collectively with the Shareholder Shares, the "COMMITTED SHARES")).
D. In connection with the financing transaction consummated under the
NPA, paragraph 6.1 of the NPA contemplates that a company formed by CVGI
("ACQUISITION") will make a tender offer for all of the shares of Company Common
Stock which neither CVGI nor Acquisition owns (the "ACQUISITION TENDER OFFER").
Paragraph 2.3(b) of the NPA contemplates that the Company may terminate the NPA
under paragraph 8.2 thereof in order to facilitate a "PREFERRED TRANSACTION" (as
defined in, and which satisfies all the criteria therefor set forth in clauses
(ii)(x), (y) and (z) of paragraph 2.3(b) of, the NPA).
E. To the extent that any such Preferred Transaction includes a merger
or tender offer involving the purchase (for cash or stock) at a value not less
than $0.15 per share (or such other price as is the "Tender Offer Price" as
defined in the NPA) described in paragraph 6.1 of the NPA), the Shareholders
agree, pursuant to paragraph 2.3(b) of the NPA and the terms of this Agreement,
to sell or tender the Committed Shares into such Preferred Transaction.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. CERTAIN DEFINITIONS
Capitalized terms not otherwise defined herein shall have the meanings
given to them in the NPA. For purposes of this Agreement:
(a) "COMPANY COMMON STOCK" shall mean the common stock of the Company.
(b) "EFFECTIVE DATE" means the earlier of (i) the date that the NPA is
terminated under paragraph 8.2(a) thereof, or (ii) the date that the Company
provides notice of termination of the NPA effective upon consummation of a
Preferred Transaction pursuant to a definitive agreement that provides for
termination of the NPA and the payment of principal and accrued interest on all
outstanding Notes upon the earlier of December 31, 2001, and the consummation of
such Preferred Transaction.
(c) "ENCUMBRANCE" means any mortgage, lien, pledge, encumbrance,
security interest, deed of trust, option, encroachment, reservation, order,
decree, judgment, condition, restriction, charge, or claim of any kind.
(d) "EXPIRATION DATE" shall mean December 31, 2001, unless
documentation for a Preferred Transaction has been executed on or prior to
December 31, 2001, in which case, it shall mean the closing date of such
Preferred Transaction, not later than March 1, 2002; provided that if the
Company fails to pay in full the principal and accrued interest with regard to
all of the outstanding Notes when they become due and payable as provided in
paragraph 8.2 of the NPA, then the Expiration Date shall be deemed to occur on
the date such failure first occurs.
(e) Shareholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Shareholder is the: (i) record owner of such
security; or (ii) "beneficial owner" (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934) of such security.
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(f) "PERSON" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental entity.
(g) "SUBJECT SECURITIES" shall mean: (i) all shares of Company Common
Stock Owned by the Shareholder as of the date of this Agreement (comprised of
the Shareholder Shares and the Committed Shares); and (ii) all shares of Company
Common Stock of which Shareholder acquires Ownership during the period from the
date of this Agreement through the Expiration Date.
(h) A Person shall be deemed to have effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein; or (iii) reduces such Person's beneficial ownership interest
in or risk relating to any such security.
(i) "TRANSACTION EXPIRATION DATE" means, for any specific Preferred
Transaction, the date on which (i) if such Preferred Transaction includes a
tender offer, the Company's Board of Directors (a) recommends, or votes to
recommend, that the shareholders not tender their shares in response to such
tender offer, or (b) recommends, or votes to recommend, that the shareholders
vote or tender their shares in favor of another transaction, and (ii) if such
Preferred Transaction does not include a tender offer, the Company's Board of
Directors recommends, or votes to recommend, that the shareholders vote against
the Preferred Transaction, or (b) recommends, or votes to recommend, that the
shareholders vote or tender their shares in favor of another transaction.
SECTION 2. TENDER AND VOTING OF SHARES
2.1. AGREEMENT.
(a) Each Shareholder agrees that, from and after the Effective Date
until the Expiration Date (or for any specific Preferred Transaction, the
Transaction Expiration Date for such Preferred Transaction, if earlier),
pursuant to and in accordance with the terms of any Preferred Transaction, such
Shareholder shall tender, or cause to be tendered the Subject Securities or
otherwise sell or exchange the Subject Securities in connection with such
Preferred Transaction for the same consideration and otherwise on the same terms
as those on which the public holders of the Company Common Stock sell or
exchange their Company Common Stock in such Preferred Transaction as provided
below and agrees that, during the period that this Section 2.1(a) is
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effective for such Preferred Transaction, it will not withdraw or permit the
withdrawal of the tender of the Subject Securities, if applicable.
(b) If such Preferred Transaction includes a tender offer (the
"OFFER"), on or prior to the last day for tendering shares pursuant to the terms
of the Offer (so long as the Transaction Expiration Date for such Preferred
Transaction has not occurred), such Shareholder shall (x) deliver to the
depository designated in the Offer (i) a letter of transmittal with respect to
the Subject Securities complying with the terms of the Offer, (ii) certificates
representing the Subject Securities and (iii) all other documents or instruments
required to be delivered pursuant to the terms of the Offer, and/or (y) instruct
its broker or such other Person who is the holder of record of any Subject
Securities beneficially owned by each Shareholder to timely tender such Subject
Securities pursuant to the terms and conditions of the Offer.
(c) If such Preferred Transaction does not include a tender offer, each
Shareholder shall (so long as the Transaction Expiration Date for such Preferred
Transaction has not occurred) (x) deliver the Subject Securities in compliance
with the terms of the merger agreement or other documentation relating to or
governing such Preferred Transaction, including (i) any certificates
representing the Subject Securities and (ii) all other documents or instruments
required to be delivered pursuant to the terms of the Preferred Transaction,
and/or (y) instruct its broker or such other Person who is the holder of record
of any Subject Securities beneficially owned by each Shareholder to promptly
deliver such Subject Securities pursuant to the terms and conditions of the
documentation relating to or governing the Preferred Transaction.
2.2. VOTING. Each Shareholder agrees that from and after the Effective
Date until the Expiration Date (or for any specific Preferred Transaction, the
Transaction Expiration Date for such Preferred Transaction, if earlier), at any
meeting of shareholders of the Company, however called, and in any action by
written consent of the shareholders of the Company, such Shareholder shall vote
the Subject Securities or cause the Subject Securities to be voted (to the
extent such securities are entitled to be voted) in favor of any Preferred
Transaction.
SECTION 3. TRANSFER OF SUBJECT SECURITIES
3.1. TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Shareholder agrees that, during the period from the date of this Agreement
through the Expiration Date, except to the extent that such act or occurrence
would not adversely affect such Shareholder's ability to perform its obligations
under Section 2 of this Agreement, Shareholder shall not (i) cause or permit any
Transfer of any of the Subject Securities to be effected (other than pursuant to
any Preferred Transaction); (ii) tender any of the Subject
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Securities to any Person (other than pursuant to any Preferred Transaction) or
(iii) create or permit to exist any Encumbrance with respect to any Subject
Securities (other than Encumbrances which do not affect the right to tender such
Subject Securities pursuant to the Offer or Preferred Transaction and
Encumbrances which do not affect, directly or indirectly, the right of the
acquiror in a Preferred Transaction or its designee to vote the Subject
Securities as provided herein).
3.2. TRANSFER OF VOTING RIGHTS. Shareholder agrees that, during the
period from the date of this Agreement through the Expiration Date and except as
expressly contemplated in this Agreement, and except to the extent that such act
or occurrence would not adversely affect such Shareholder's ability to satisfy
its obligations under Section 2 of this Agreement, Shareholder shall ensure
that: (a) none of the Subject Securities are deposited into a voting trust; (b)
other than the Proxy, no proxy, power-of-attorney or other authorization is
granted, and no voting agreement or similar agreement is entered into, with
respect to any of the Subject Securities, (c) no sale, Transfer, pledge,
hypothecation, assignment or other disposal (including by gift), or consent to
or permission of any such action with respect to Subject Securities is
undertaken or completed, and (d) no other action that would in any way restrict,
limit or interfere with the performance of Shareholder's obligations hereunder
is undertaken or completed.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Each Shareholder, as to itself only, hereby represents and warrants to
Company as follows:
4.1. AUTHORIZATION, ETC. Shareholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Agreement and
the Proxy and to perform its obligations hereunder and thereunder. This
Agreement has been duly executed and delivered by Shareholder and constitutes a
legal, valid and binding obligation of Shareholder, enforceable against
Shareholder in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
4.2. NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Agreement by Shareholder does
not, and the execution of the Proxy and the performance of this Agreement by
Shareholder will not: (i) conflict with or violate any law, rule, regulation,
order, decree or judgment applicable to Shareholder or by which it or any of its
properties is or may be bound or affected; or (ii) result in or
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constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any Encumbrance or
restriction on any of the Subject Securities pursuant to, any contract to which
Shareholder is a party or by which Shareholder or any of its properties is or
may be bound or affected.
(b) The execution, delivery and performance of this Agreement by
Shareholder do not require any consent or approval of any Person.
4.3. TITLE TO SECURITIES. As of the date of this Agreement: (a)
Shareholder holds of record (free and clear of any Encumbrances or restrictions)
the number of outstanding shares of Company Common Stock set forth under the
heading "Shares Held of Record" on the signature page hereof; (b) Shareholder
holds (free and clear of any Encumbrances or restrictions) the options, warrants
and other rights to acquire shares of Company Common Stock set forth under the
heading "Options, Warrants and Other Rights" on the signature page hereof; (c)
Shareholder Owns the additional securities of the Company set forth under the
heading "Additional Securities Beneficially Owned" on the signature page hereof;
and (d) Shareholder does not directly or indirectly Own any shares of Company
Common Stock or other securities of the Company, or any option, warrant or other
right to acquire (by purchase, conversion or otherwise) any shares of Company
Common Stock or other securities of the Company, other than the shares and
options, warrants and other rights set forth on the signature page hereof.
SECTION 5. MISCELLANEOUS
5.1. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Shareholder in
this Agreement shall survive until the Expiration Date.
5.2. [RESERVED]
5.3. NOTICES. Any notice or other communication required or permitted
to be delivered to any party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received when actually delivered (by
hand, by registered mail, by courier or express delivery service or by
facsimile) to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
parties hereto); provided, however, that a written notice delivered via
facsimile shall be deemed delivered only if at the time of, or shortly after,
such facsimile transmission the party giving the notice confirms by telephone
the actual receipt by the other party of such facsimile transmission:
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IF TO THE COMPANY:
Classic Vacation Group, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
with a copy to:
X. Xxxxx Xxxx
Xxxxx & Xxxxxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile No.: (000) 000-0000
IF TO CVGI OR TCF:
CVG Investment LLC
c/o Three Cities Research, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: J. Xxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxxx
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
IF TO GVI:
CVG Investment LLC
c/o Three Cities Research, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: J. Xxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxxx
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Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
IF TO TEI:
c/x Xxxxxx Capital Partners
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxx
Xxxxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Facsimile No.: (000) 000-0000
5.4. [RESERVED]
5.5. SEVERABILITY. If any provision of this Agreement or any part of
any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Agreement. Each
provision of this Agreement is separable from every other provision of this
Agreement, and each part of each provision of this Agreement is separable from
every other part of such provision.
5.6. ENTIRE AGREEMENT. This Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision
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of this Agreement shall be binding upon either party unless made in writing and
signed by all parties.
5.7. ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither
this Agreement nor any of the interests or obligations hereunder may be assigned
or delegated by Shareholder or Company without the prior written consent of the
non-assigning party, and any attempted or purported assignment or delegation of
any of such interests or obligations shall be void. Subject to the preceding
sentence, this Agreement shall be binding upon, and inure to the benefit of,
Shareholder and its heirs, estate, executors, personal representatives,
successors and assigns (as the case may be), and shall be binding upon, and
inure to the benefit of, Company and its successors and assigns. Without
limiting any of the restrictions set forth in Section 3 or elsewhere in this
Agreement, this Agreement shall be binding upon any Person to whom any Subject
Securities are Transferred. Nothing in this Agreement is intended to confer on
any Person (other than Company and its successors and assigns) any rights or
remedies of any nature.
5.8. SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any provision of this Agreement was, or is, not
performed in accordance with its specific terms or was, or is, otherwise
breached. Shareholder agrees that, in the event of any breach or threatened
breach by Shareholder of any covenant or obligation contained in this Agreement,
Company shall be entitled (in addition to any other remedy that may be available
to it, including monetary damages) to (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or
obligation, and (b) an injunction restraining such breach or threatened breach.
Shareholder further agrees that neither Company nor any other Person shall be
required to obtain, furnish or post any bond or similar instrument in connection
with or as a condition to obtaining any remedy referred to in this Section 5.8,
and Shareholder irrevocably waives any right he may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
5.9. NON-EXCLUSIVITY. The rights and remedies of Company under this
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Company under this Agreement, and the
obligations and liabilities of Shareholder under this Agreement, are in addition
to their respective rights, remedies, obligations and liabilities under common
law requirements and under all applicable statutes, rules and regulations.
Nothing in this Agreement shall limit any of Shareholder's obligations, or the
rights or remedies of Company, under any agreement between Company and
Shareholder; and nothing in any such
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agreement shall limit any of Shareholder's obligations, or any of the rights or
remedies of Company, under this Agreement.
5.10. GOVERNING LAW. This Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware.
5.11. COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Signatures transmitted by facsimile shall be binding and acceptable
if originally executed copies are delivered to all other parties by overnight
courier within three days of the date of this Agreement.
5.12. CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
5.13. WAIVER. No failure on the part of Company to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
Company in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Company shall not be deemed to have waived any claim
available to Company arising out of this Agreement, or any power, right,
privilege or remedy of Company under this Agreement, unless the waiver of such
claim, power, right, privilege or remedy is expressly set forth in a written
instrument duly executed and delivered on behalf of Company; and any such waiver
shall not be applicable or have any effect except in the specific instance in
which it is given.
5.14. CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall include masculine
and feminine genders.
(b) The parties agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including," and
variations thereof, shall not be deemed to be terms of
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limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this Agreement to
"Sections" and "Exhibits" are intended to refer to Sections of this Agreement
and Exhibits to this Agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, Company and each Shareholder have caused this
Agreement to be executed as of the date first written above.
COMPANY:
CLASSIC VACATION GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
SHAREHOLDERS:
CVG INVESTMENT LLC
By: /s/ Xxxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Secretary, Treasurer
SHARES HELD OF RECORD: 0
-----------------
OPTIONS WARRANTS AND OTHER RIGHTS : 0
-----------------
ADDITIONAL SECURITIES BENEFICIALLY OWNED: 0
-----------------
GV INVESTMENT LLC
By: /s/ Xxxxxxxx Xxxxx
--------------------------------------
Name:
Title:
SHARES HELD OF RECORD: 386,300
-----------------
OPTIONS WARRANTS AND OTHER RIGHTS: 5,868,925
-----------------
ADDITIONAL SECURITIES BENEFICIALLY OWNED: 0
-----------------
THREE CITIES FUND III, L.P.
By: /s/ Xxxxxx xx Xxxxx
---------------------------------------
Name: Xxxxxx xx Xxxxx
Title: Managing Member
SHARES HELD OF RECORD: 0
-----------------
OPTIONS WARRANTS AND OTHER RIGHTS: 0
-----------------
ADDITIONAL SECURITIES BENEFICIALLY OWNED: 6,255,225
-----------------
XXXXXX EQUITY INVESTORS III, L.P.
By: TC Equity Partners L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
SHARES HELD OF RECORD: 9,599,749
-----------------
OPTIONS WARRANTS AND OTHER RIGHTS: 0
-----------------
ADDITIONAL SECURITIES BENEFICIALLY OWNED: 0
-----------------
