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EXHIBIT 10(z)
SHAREHOLDERS' AGREEMENT
This Shareholders' Agreement is made as of this 30th day of
May, 1997 by XXXXXXX X. XXXXXX, individually ("Xxxxxx") and THE XXXXXXX X.
XXXXXX FAMILY LIMITED PARTNERSHIP (the "Partnership" and together with Xxxxxx,
the "Glazers") in favor of XXXXXX CORPORATION, a Delaware corporation (the
"Company").
R E C I T A L S:
WHEREAS, as of the date of this Agreement, the Partnership
owns of record and beneficially 10,408,717 shares of the Company's common
stock, par value of $.25 per share ("Common Stock"), representing approximately
35.2% of the outstanding Common Stock; and
WHEREAS, the Company's Board of Directors approved a stock
repurchase program under which the Company may acquire up to 7.5 million of its
issued and outstanding shares of Common Stock provided that prior to commencing
any such purchases, the Company enters into an agreement with the Glazers
whereby the Glazers make certain representations and covenants with respect to
any "going private transaction" involving the Company;
P R O V I S I O N S:
NOW, THEREFORE, in consideration of the foregoing recitals and
other good and valid consideration, the Glazers, intending to be legally bound,
hereby agree in favor of the Company as follows:
1. DEFINED TERMS. As used herein, the following terms
shall have the definitions given thereto:
a. "Xxxxxx Group" means the Glazers and any corporation,
person, partnership, trust or other entity in which the Glazers and/or their
affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) own 50% or more of the equity securities that
are entitled to vote in the election of directors or persons holding similar
positions.
b. "Going Private Transaction" means any "Rule 13e-3
Transaction" as defined in Rule 13e-3 under the Exchange Act (or any successor
regulation) with respect to the Company or any other action which causes the
Common Stock to cease to be public traded.
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c. "Independent Investment Banker" means a nationally
recognized investment banking firm which neither (i) has an existing or
proposed client relationship with any member of the Xxxxxx Group, nor had such
a relationship during the one-year period prior to the retention of such firm
by the Special Committee to render an opinion as contemplated by Paragraph 3,
nor (ii) has received fees aggregating more than $200,000 in the five years
immediately prior to such retention from any one or more members of the Xxxxxx
Group.
2. NO CURRENT INTENTION TO ENGAGE IN GOING PRIVATE
TRANSACTION. The Glazers each represent and warrant that neither they nor any
other member of the Xxxxxx Group intends or contemplates engaging or causing
the Company to engage in a Going Private Transaction.
3. RESTRICTIONS ON FUTURE GOING PRIVATE TRANSACTIONS.
Except as permitted under Paragraph 4 below, the Glazers each agree that they
will not, and they will cause each other member of the Xxxxxx Group not to,
engage, directly or indirectly, or cause the Company to engage, directly or
indirectly, in any Going Private Transaction, except on terms approved, prior
to the initiation of such transaction, by a special committee (the "Special
Committee") of disinterested directors of the Company who are not affiliates or
associates (as defined in Rule 12b-2 under the Exchange Act) of, and are
otherwise independent of, any member of the Xxxxxx Group, and determined by an
Independent Investment Banker engaged by the Special Committee to be fair to the
Company's stockholders (other than the Glazers) from a financial point of view.
4. CERTAIN EXCEPTIONS. Notwithstanding any other
provision of this Agreement, the restrictions of Section 3 shall not apply to:
a. any all-cash tender offer by any member of the Xxxxxx
Group for any and all shares of the Common Stock not already owned by members
of the Xxxxxx Group made in response to a tender offer (a "Third-Party Offer")
by any person, entity or group (other than a member of and without any
solicitation, promotion, arrangement or assistance by any member of the Xxxxxx
Group) for any outstanding equity securities of the Company if after
consummation of such Third-Party Offer, such person, entity or group, together
with all persons and entities controlling, controlled by or under common
control or in a group with it, would, if shares are purchased pursuant to such
Third-Party Offer, own 35% or more of the Company's outstanding voting
securities, provided that (i) the member of the Xxxxxx Group making such tender
offer determines in good faith that the person, entity or group making the
Third-Party Offer has the capability to consummate such offer and that the
Third-Party Offer is likely to be successful unless there is an offer that is
financially more favorable to the holders of Common Stock, (ii) the price per
share under the tender offer made by the member of the Xxxxxx Group is higher
than the price per share under the Third-Party Offer and (iii) there is not in
effect any recommendation by the Board of Directors of the Company that the
stockholders of the Company accept the Third-Party Offer; or
(b) a merger of the Company with or into a member of the
Xxxxxx Group occurring within one year following the consummation of a tender
offer by a member of the Xxxxxx Group referred to in, and permitted by, clause
(a) of this Paragraph 4 as a result of which members
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of the Xxxxxx Group become the beneficial owner of not less than 75% of the
outstanding shares of Common Stock, provided that (i) the consideration offered
to unaffiliated stockholders in such merger is all cash and is at least equal
to the highest consideration offered in such tender offer, and (ii) the
intention to effect such a merger was appropriately disclosed in such tender
offer.
5. TERMINATION. This Agreement shall terminate and be
of no further effect at such time (if any) as members of the Xxxxxx Group
beneficially own less than 14.9% of the Company's outstanding voting
securities.
6. JURISDICTION. The Glazers and Company irrevocably
agree that any legal action or proceeding against him or it, as the case may
be, with respect to this Agreement and any transactions contemplated hereby may
be brought in the courts of the State of Delaware, or of the United States of
America for the District of Delaware, and by execution and delivery of this
Agreement, the Glazers and Company each irrevocably submits to the jurisdiction
of each such court and irrevocably designates, appoints and empowers the
Secretary of State of the State of Delaware to receive for and on its behalf
service of process in the State of Delaware, and further irrevocably consents
to the service of process outside of the territorial jurisdiction of such
courts by mailing copies by registered United States mail, postage prepaid, to
its address specified in this Agreement.
7. ENTIRE AGREEMENT; AMENDMENT. This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and may be amended only by an instrument in writing
executed by each of the parties hereto. Any right of a party to this Agreement
may be waived only by a written waiver duly executed by such party. The
failure of any party to this Agreement to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of such rights.
8. BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of the heirs, executors, administrators, successors
and permitted assigns of the Glazers and Company. To the extent that this
Agreement imposes obligations on affiliates of the Glazers that are not parties
hereto, the Glazers shall cause such affiliates to comply with each such
obligation. This Agreement is not assignable by any party hereto without the
prior written consent of the other party.
9. NO THIRD-PARTY BENEFICIARIES. Nothing contained in
this Agreement is intended or shall be deemed to create any benefit for any
person who is not a party to this Agreement.
10. SEVERABILITY. This invalidity or unenforceability of
any term or provisions of this Agreement, or of this Agreement as to any
affiliate of the Glazers, shall not affect the validity or enforceability of
this remaining provisions of this Agreement or the validity or enforceability
of this Agreement against the Glazers or any other affiliate of the Glazers.
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11. HEADINGS. Section headings are inserted solely for
convenience of reference, do not form part of this Agreement, are not intended
to limit the subject matter of any section hereof, and are to be disregarded in
interpreting this Agreement.
12. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, excluding
such laws that direct the application of the laws of any other jurisdiction.
13. NOTICES. Any notices, demands, requests or other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been sufficiently given if sent by telecopy or by
registered or certified mail, postage prepaid, addressed as follows:
If to Company, to:
Xxxxxx Xxx Xxxxxxxxx
Executive Vice President and
General Counsel
Xxxxxx Corporation
0000 Xx. Xxxxx Xxxxx
Xxxxx 000
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
If to the Glazers, to:
Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
and
Xxxxx Xxxxxx
00 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
or to such other addresses as shall be furnished by like notice by such party.
14. COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of the date first written above.
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
THE XXXXXXX X. XXXXXX FAMILY LIMITED
PARTNERSHIP
By: General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
XXXXXX CORPORATION
By: /s/ Xxxxxx X. xxx Xxxxxxxxx III
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Xxxxxx X. xxx Xxxxxxxxx III
Executive Vice President and
General Counsel
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