Exhibit 9.1
AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT
This AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT (this
"Amendment"), dated as of November 8, 1999, is entered into by and among RNYC
Holdings Limited, a Gibraltar corporation, ("Principal Stockholder"),
Congregation Beit Xxxxxx (solely as beneficiary of a life estate of Owned Shares
(as defined below) beneficially owned by Principal Stockholder) (together with
Principal Stockholder, the "Stockholder"), Saban S.A., a Panamanian corporation
("Stockholder Parent"), Xx. Xxxxxx X. Xxxxx ("Xx. Xxxxx"), HSBC Holdings plc, an
English public limited company ("Parent"), HSBC North America Inc., a Delaware
corporation ("US Holdco") and, solely for the purposes of Section 3, Section
4(b), Section 4(e), Section 7 and Section 8 of this Amendment and Section 12,
Section 15 and Section 16 of the Agreement (as defined below), Republic New York
Corporation, a Maryland corporation (the "Company").
WHEREAS, the Stockholder, Stockholder Parent, Xx. Xxxxx and
Parent entered into that certain Stockholders Agreement, dated as of May 10,
1999 (the "Original Agreement" and, as amended by this Amendment, the
"Agreement"); and
WHEREAS, simultaneously with the execution of this Amendment,
Parent, RNYC Merger Corporation, a Maryland corporation ("Merger Sub"), Safra
Republic Holdings, S.A., a societe anonyme organized under the laws of
Luxembourg ("SRH"), and the Company, are entering into Amendment No. 1 (the
"Merger Agreement Amendment") to that certain Transaction Agreement and Plan of
Merger, dated as May 10, 1999 (the "Original Merger Agreement" and, as amended
by the Merger Agreement Amendment and the Joinder Agreement (as defined in the
Merger Agreement Amendment), the "Merger Agreement") among Parent, the Company
and SRH; and
WHEREAS, the Merger Agreement provides for, among other
things, the merger of RNYC Merger Corporation, a Maryland Corporation and a
wholly owned subsidiary of US Holdco, with and into the Company; and
WHEREAS, as an inducement and a condition to their entering
into the Merger Agreement Amendment and incurring the obligations set forth in
the Merger Agreement, Parent has required that Stockholder, Stockholder Parent
and Xx. Xxxxx (individually, a "Stockholder Party" and collectively, the
"Stockholder Parties") and the Company enter into this Amendment; and
WHEREAS, as an inducement and a condition to its entering into
the Merger Agreement Amendment and incurring the obligations set forth in the
Merger Agreement, Parent has required the Principal Stockholder to enter into
the Merger Consideration Adjustment Agreement with Parent and US Holdco in the
form attached hereto as Exhibit A and incorporated by reference herein (the
"Adjustment Agreement"); and
WHEREAS, although none of the parties hereto believes, or has
any reason to believe, that any of the Company and the Stockholder Parties is
obligated to enter into this Amendment or, in the case of the Principal
Stockholder, the Adjustment Agreement or effect the Share Transfer (as defined
below) or has any obligation or liability to any Person in connection
with the
Princeton Note Matter (as defined in the Merger Agreement Amendment), the
Company and the Stockholder Parties are agreeing to enter into this Amendment
and, in the case of the Principal Stockholder, the Adjustment Agreement and to
effect the Share Transfer in order to facilitate consummation of the Merger and
the Offer;
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements contained
herein and in the Merger Agreement, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Certain Definitions. Capitalized terms used but not defined
in this Amendment or the Original Agreement are used in this Amendment with the
meanings given to such terms in the Merger Agreement.
2. Clarification of Obligations. The parties acknowledge and
agree that all references to the "Merger Agreement", the "Merger" and the
"Offer" in the Original Agreement shall be deemed to refer to the Merger
Agreement as amended pursuant to the Joinder Agreement and the Merger Agreement
Amendment and to the terms of the Merger and the Offer as provided for in the
Merger Agreement as so amended. For the avoidance of doubt, the obligations of
the parties provided in the Original Agreement shall apply to the Agreement as
amended by this Amendment.
3. Joinder of US Holdco and the Company. US Holdco and the
Company each hereby agrees to become a party to, and to satisfy all of the
covenants and obligations provided with respect to it in, the Agreement, as if
US Holdco and the Company were each an original party thereto. Parent,
Stockholder, Stockholder Parent and Xx. Xxxxx hereby consent to the joinder of
US Holdco and the Company to the Agreement in accordance with the terms hereof.
4. Amendments to Original Agreement. (a) The definition of
"Proposed Business Combination" in Section 1 of the Original Agreement shall be
deleted in its entirety and the following substituted therefor:
"Proposed Business Combination" means the
transactions contemplated by the Merger Agreement and Section
15 below.
(b) The following definition is added:
"Amendment" means Amendment No. 1 to this Agreement
dated as of November 8, 1999.
(c) Section 5(a) of the Original Agreement shall be deleted in
its entirety and the following substituted therefor:
(a) Stockholder agrees that any additional shares of
Common Stock acquired by it or over which it acquires
Beneficial Ownership, whether pursuant to existing stock
option agreements, warrants or otherwise, shall be subject to
the provisions of this Agreement except Section 15 below.
Stockholder Parent and Xx. Xxxxx each agree that if it or he
should acquire record or Beneficial Ownership of any shares of
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Common Stock, the term Stockholder shall be deemed to be
modified to include it or him, as the case may be.
(d) Section 7 of the Original Agreement shall be deleted in
its entirety and the following substituted therefor:
7. Covenant of Stockholder Parties. Each Stockholder
Party agrees that it will take all action necessary to (i)
permit (a) the Transferred Shares (as defined below) to be
transferred pursuant to Section 15 and the remaining Owned
Shares to be acquired in the Merger and (b) the voting of the
Owned Shares in accordance with the terms of this Agreement
and (ii) prevent creditors in respect of any pledge of Owned
Shares from exercising their rights under such pledge.
(e) The following Sections 15 and 16 shall be added to the
Original Agreement:
15. Transfer of 6,250,000 Owned Shares. (a) Upon the
terms and subject to the conditions of this Agreement, in
order to effect a reduction of $450 million in the aggregate
consideration to be received by the Principal Stockholder in
the Merger, after the Merger Agreement and the Merger have
been approved at the Company Meeting and immediately prior to
the Effective Time, and subject to the conditions set forth
below in this Section 15, the Principal Stockholder shall
convey, transfer and assign to US Holdco without consideration
other than Parent's and Merger Sub's entering into the Merger
Agreement Amendment and the Amendment, and US Holdco shall
accept and receive, 6,250,000 shares of Common Stock (the
"Transferred Shares") free of any liens, claims, options,
proxies, voting agreements, security interests and
encumbrances whatsoever (the "Share Transfer"). At the Closing
(as defined in the Merger Agreement), the Stockholder shall
deliver, or cause to be delivered, to US Holdco certificates
for the Transferred Shares, duly endorsed or together with
duly executed stock powers sufficient to transfer ownership of
the Transferred Shares to US Holdco. The Company shall use all
reasonable efforts to effect the transfer of the Transferred
Shares to US Holdco on the Company's stock transfer books
immediately prior to the Effective Time and to take all other
reasonable action to register the transfer of the Transferred
Shares to US Holdco. For the avoidance of doubt, it is agreed
for the purposes of Section 1.4(a) of the Merger Agreement,
that the Transferred Shares will be owned by US Holdco at the
Effective Time.
(b) Conditions Precedent and Subsequent. (i) The
respective obligations of each of the Principal Stockholder,
the Parent and US Holdco to effect the Share Transfer shall be
subject to the satisfaction or waiver in accordance with the
terms of the Merger Agreement of all of the conditions (other
than the condition set forth in Section 8.2(h) of the Merger
Agreement) set forth in Sections 8.1, 8.2 and 8.3 of the
Merger
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Agreement and to the parties' intent to consummate the
Merger immediately following the Share Transfer.
(ii) The obligation of Principal Stockholder to
effect the Share Transfer shall be further subject to receipt
of (x) a certificate signed on behalf of the Parent by its
Group Financial Director and on behalf of Merger Sub by an
executive officer pursuant to which Parent and Merger Sub
acknowledge satisfaction or irrevocable waiver of the
conditions (other than the condition set forth in Section
8.2(h) of the Merger Agreement) set forth in Sections 8.1 and
8.2 of the Merger Agreement and (y) a certificate signed on
behalf of the Company by its Chief Executive Officer and on
behalf of SRH by its Chief Executive Officer pursuant to which
the Company and SRH acknowledge satisfaction or irrevocable
waiver of the conditions set forth in Sections 8.1 and 8.3 of
the Merger Agreement.
(iii) In the event the Merger is not consummated as
contemplated by Section 15(b)(i), the Share Transfer shall be
voided and the Transferred Shares shall be returned to the
Principal Stockholder.
16. Indemnification of Xx. Xxxxx. The Company hereby
agrees to, and Parent hereby agrees from and after the
Effective Time to cause the Successor Corporation to,
indemnify, defend and hold harmless, to the fullest extent
permitted by the MGCL, Xx. Xxxxx in connection with the
Princeton Note Matter in the manner and to the same extent as
officers and directors of the Company are entitled to
indemnification pursuant to the currently existing articles of
incorporation and bylaws of the Company and the Merger
Agreement; provided, that nothing in this Section 16 shall be
deemed to limit the obligations of the Principal Stockholder
under Section 15 or of any of the Stockholder Parties under
the Adjustment Agreement, and under no circumstances shall
Parent, the Company, the Successor Corporation or any of their
respective Subsidiaries or affiliates be required to
indemnify, defend or hold harmless any of the Stockholder
Parties or any other Person with respect to the obligations of
the Principal Stockholder under Section 15 or of any of the
Stockholder Parties under the Adjustment Agreement.
5. Representations, Warranties and Covenants of Stockholder
Parties. Each Stockholder Party hereby represents and warrants to, and agrees
with, Parent and US Holdco as follows (it being understood that the
representations and warranties made by Congregation Beit Xxxxxx are made
severally and only with respect to the Owned Shares held by it):
(a) Such Stockholder Party has all necessary power and authority and legal
capacity to execute and deliver this Amendment and perform its or his
obligations under the Agreement. No other proceedings or actions on the part of
such Stockholder Party are necessary to authorize the execution, delivery or
performance of the Agreement or the consummation of the transactions
contemplated hereby.
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(b) This Amendment has been duly and validly executed and delivered by such
Stockholder Party and constitutes the valid and binding agreement of such
Stockholder Party, enforceable against such Stockholder Party in accordance with
its terms except (i) to the extent limited by applicable bankruptcy, insolvency
or similar laws affecting creditors' rights and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The Stockholder Parties are the sole Beneficial Owners of the Owned Shares.
The Stockholder has good and marketable title to all of the Owned Shares, free
and clear of all liens, claims, options, proxies, voting agreements and security
interests, except for (x) liens, claims, options, proxies, voting agreements and
security interests and (y) pledges of Owned Shares previously disclosed to
Parent, in each case, that would not have a material adverse effect on the
ability of the Stockholder Parent to perform its obligations under the Agreement
or prevent the Stockholder from conveying, transferring and assigning the
Transferred Shares to Merger Sub in accordance with the terms of the Agreement.
The Owned Shares constitute all of the capital stock of the Company Beneficially
Owned by any of the Stockholder Parties and none of the Stockholder Parties or
its or his Affiliates is the Beneficial Owner of, or has any right to acquire
(whether currently upon lapse of time, following the satisfaction of any
conditions, upon the occurrence of any event or any combination of the
foregoing) any shares of Common Stock or any securities convertible into or
exchangeable or exercisable for shares of Common Stock.
(d) Stockholder Parent has sole Beneficial Ownership, free and clear of all
liens, claims, options, proxies, voting agreements and security interests, of
all outstanding capital stock of Stockholder. Xx. Xxxxx has Beneficial Ownership
of all of the outstanding capital stock of Stockholder Parent. No other Person
has any right to acquire (whether currently, upon lapse of time, following
satisfaction of any conditions, upon the occurrence of any event, or any
combination of the foregoing) Beneficial Ownership of, any capital stock of
Stockholder or Stockholder Parent or any securities convertible into or
exchangeable or exercisable for shares of any such capital stock.
(e) Neither the execution and delivery of this Amendment by any Stockholder
Party nor the consummation of the transactions contemplated by the Agreement
will (i) conflict with, result in any violation of, require any consent under or
constitute a default (whether with notice or lapse of time or both) by such
Stockholder Party under such Stockholder Party's constituent documents (in the
case of the Stockholder and Stockholder Parent) or any mortgage, bond,
indenture, agreement, instrument or obligation to which such Stockholder Party
is a party or by which such Stockholder Party or by which any of the Owned
Shares are bound; (ii) violate any judgment, order, injunction, decree or award
of any court, administrative agency or governmental body that is binding on such
Stockholder Party; or (iii) constitute a violation by such Stockholder Party of
any law or regulation of any jurisdiction, in each case except for violations,
conflicts or defaults that would not have a material adverse effect on the
ability of any Stockholder Party to perform its obligations under the Agreement.
(f) Each Stockholder Party understands and acknowledges that Parent is entering
into this Amendment in reliance upon the execution, delivery and performance by
the Company and SRH of the Merger Agreement Amendment.
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6. Representations and Warranties of Parent and US Holdco. (a)
Parent represents and warrants to the Stockholder Parties that Parent and US
Holdco have full corporate power and authority to execute and deliver this
Amendment and to perform their respective obligations hereunder. The execution,
delivery and performance of this Amendment by Parent and US Holdco will not
constitute a violation of, conflict with or result in a default under, (i) any
contract, understanding or arrangement to which Parent or US Holdco is a party
or by which it is bound or requires the consent of any other Person or any party
pursuant thereto, (ii) any judgment, decree or order applicable to Parent or US
Holdco, or (iii) assuming that the consents and approvals referred to in Section
4.4 of the Merger Agreement are duly obtained, any law, rule or regulation of
any jurisdiction, in each case except for violations, conflicts or defaults that
would not have a material adverse effect on the ability of the Parent or US
Holdco to perform its obligations under the Agreement; and this Amendment
constitutes a legal, valid and binding agreement on the part of Parent and US
Holdco, enforceable against Parent and US Holdco in accordance with its terms,
except as such enforceability may be limited by principles applicable to
creditors' rights generally or governing the availability of equitable relief.
The execution and delivery by Parent and US Holdco of this Amendment and the
consummation by Parent and US Holdco of the transactions contemplated hereby
have been duly and validly authorized by the Board of Directors of Parent and US
Holdco, respectively, and no other corporate proceedings on the part of Parent
or US Holdco are necessary to authorize this Amendment or to consummate the
transactions contemplated hereby. This Amendment has been duly and validly
executed and delivered by Parent and US Holdco.
(b) Each of Parent and US Holdco understands and acknowledges
that the Company and the Stockholder Parties are entering into this Amendment in
reliance upon the execution, delivery and performance by the Parent and Merger
Sub of the Merger Agreement Amendment.
7. Representations and Warranties of the Company. The Company
hereby represents and warrants to, and agrees with, Parent and US Holdco as
follows:
(a) The Company has full corporate power and authority to
execute and deliver this Amendment and to consummate the transactions
contemplated by the Agreement. The execution and delivery of this Amendment and
the consummation of the transactions contemplated by the Agreement have been
duly and validly approved by the Board of Directors of the Company prior to the
date hereof, and such approval is in full force and effect. No other corporate
proceedings on the part of the Company are necessary to approve the Agreement
and to consummate the transactions contemplated thereby. This Amendment has been
duly and validly executed and delivered by the Company and (assuming due
authorization, execution and delivery by Parent, US Holdco and the Stockholder
Parties) constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms. In addition, the Board of
Directors of the Company has taken all requisite action such that the freezeout,
special shareholder voting and other requirements imposed by Sections 3-601
through 3-604 and 3-701 through 3-709 of the MGCL, and the provisions of any
other applicable "freezeout", "fair price", "moratorium", "control share
acquisition" or other similar anti-takeover statute or regulation enacted under
state, federal or foreign laws, are not applicable to the transfer of the
Transferred Shares to US Holdco or the other transactions contemplated by the
Agreement.
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(b) Neither the execution and delivery of this Amendment by
the Company, nor the compliance by the Company with any of the terms or
provisions of the Agreement, will (i) violate any provision of the articles of
incorporation or bylaws of the Company or any of its Subsidiaries or (ii)
assuming that the consents and approvals referred to in Section 3.4 of the
Merger Agreement are duly obtained, violate any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction applicable to the
Company or any of its Subsidiaries or any of their respective properties or
assets, or violate, conflict with, result in a breach of any provision of or the
loss of any benefit under, constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, result in the
termination of or a right of termination or cancellation under, accelerate the
performance required by or rights or obligations under, or result in the
creation of any Lien (or have any of such results or effects, upon notice or
lapse of time, or both) upon any of the respective properties or assets of the
Company or any of its Subsidiaries under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement, contract, or other instrument or obligation to which the
Company or any of its Subsidiaries is a party, or by which they or any of their
respective properties, assets or business activities may be bound or affected.
(c) The Company understands and acknowledges that Parent and
US Holdco are entering into this Amendment in reliance upon the execution,
delivery and performance by the Company and SRH of the Merger Agreement
Amendment.
8. Miscellaneous.
(a) The Agreement (including this Amendment) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
other than the Merger Agreement, the Option Agreement, and the Confidentiality
Agreement; provided that Section 5 of the Confidentiality Agreement shall not
affect the representations and warranties of any party hereto.
(b) EXCEPT TO THE EXTENT THAT MANDATORY PROVISIONS OF THE
MARYLAND GENERAL CORPORATION LAW ARE APPLICABLE, THIS AMENDMENT SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
(c) This Amendment 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 instrument.
(d) Except as specifically amended hereby, the Original
Agreement shall continue in full force and effect in accordance with the
provisions thereof in existence on the date hereof. Unless the context otherwise
requires, after the date hereof, any reference to the Original Agreement shall
mean the Original Agreement as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
RNYC HOLDINGS LIMITED HSBC HOLDINGS PLC
By:_______________________ By: /s/ Xxxxx X. Xxxx
----------------------
Name: Name: Xxxxx X. Xxxx
Title: Title: Authorised Signatory
By: /s/ Xxxxxx X. Xxxxxxxxx III
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx III
Title: Attorney-In-Fact HSBC NORTH AMERICA INC.
CONGREGATION BEIT XXXXXX
By: /s/ Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxx --------------------------
------------------------- Name: Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxx Title: President
SABAN S.A. REPUBLIC NEW YORK CORPORATION
By:_______________________ By: /s/ Xxx X. Xxxxxxx
Name: -----------------------
Title: Name: Xxx X. Xxxxxxx
Title: Chairman and
Chief Executive
Officer
By: /s/ Xxxxxx X. Xxxxxxxxx III
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx III
Title: Attorney-In-Fact
XXXXXX X. XXXXX
By: /s/ Xxxxxx X. Xxxxxxxxx III
--------------------------------
Xxxxxx X. Xxxxxxxxx III
Attorney-In-Fact
