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EXHIBIT 5
IRREVOCABLE PROXY AGREEMENT
THIS IRREVOCABLE PROXY AGREEMENT (the "Agreement"), dated as of
November 25, 1997, made by and between BUDGET GROUP, INC., a Delaware
corporation ("Budget"), and the undersigned shareholder ("Shareholder") of
Cruise America, Inc., a Florida corporation ("Company");
W I T N E S S E T H:
WHEREAS, Company, Budget and CA Acquisition Corporation, a Florida
corporation and a direct or indirect wholly owned subsidiary of Budget ("Sub"),
are contemporaneously herewith entering into a Merger Agreement dated of even
date herewith (the "Merger Agreement"), which provides, among other things, upon
the terms and subject to the conditions thereof, for the merger of Sub with and
into Company (the "Merger") in which each share of Common Stock of Company, par
value $.01 per share (the "Shares"), would be converted into the right to
receive shares of the Class A Common Stock of Budget as set forth in Section 1.2
to the Merger Agreement and Company would become a direct or indirect wholly
owned subsidiary of Budget;
WHEREAS, Shareholder is the owner of Shares, including the Shares set
forth opposite his name on Exhibit A hereto, and desires to enter into this
Agreement in order to induce Budget to enter into the Merger Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Budget has requested that Shareholder agree, and Shareholder hereby
agrees, to grant Budget an irrevocable proxy with respect to Shareholder's
Shares (as defined below) in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger Agreement.
2. SHAREHOLDER'S SHARES. For all purposes of this Agreement, the
term "Shareholder's Shares" shall include the Shares set forth on Exhibit A and
any other Shares of which Shareholder currently has beneficial ownership or
obtains beneficial ownership during the term of this Agreement and shall further
include any securities issued or exchanged with respect to such Shareholder's
Shares upon any recapitalization, reclassification, merger, consolidation,
spin-off, partial or complete liquidation, stock dividend, split-up or
combination of the securities of Company or any other change in Company's
capital structure.
3. REVOCATION OF PROXIES; GRANT OF PROXY. Shareholder hereby
revokes any and all previous proxies with respect to Shareholder's Shares.
Subject to the terms and conditions hereof, Shareholder hereby appoints Budget,
with full power of substitution, as proxy holder to
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represent and to vote Shareholder's Shares in favor of the Merger Agreement and
the Merger (including with respect to any procedural matters related thereto),
at any meeting (whether special or annual, and whether or not adjourned) or by
written action of the shareholders of Company. THE AUTHORITY GRANTED HEREUNDER
(THE "PROXY") SHALL BE IRREVOCABLE UNTIL THE TERMINATION DATE AND DEEMED TO BE
COUPLED WITH AN INTEREST SUFFICIENT IN LAW AS REQUIRED BY SECTION 607.0722(5) OF
THE FLORIDA BUSINESS CORPORATION ACT. The Proxy shall be effective until the
earlier of the consummation of the Merger or the termination of the Merger
Agreement in accordance with its terms (the "Termination Date").
4. ACQUISITION PROPOSALS. Unless and until the Merger Agreement
shall have been terminated by either party pursuant to the terms thereof,
Shareholder will not (and will cause its subsidiaries, affiliates, officers,
directors and employees and any investment banker, attorney, accountant or any
other agent retained by such Shareholder not to), directly or indirectly
solicit, initiate or encourage the submission of any Acquisition Proposal.
Shareholder shall (i) promptly advise Budget orally and in writing of (A) the
receipt by it (or any of the other entities or persons referred to above) after
the date hereof of any Acquisition Proposal, or any inquiry which could
reasonably be expected to lead to any Acquisition Proposal, (B) the material
terms and conditions of such Acquisition Proposal or inquiry, and (C) the
identity of the person or entity making any such Acquisition Proposal or
inquiry, and (ii) keep Budget reasonably informed of the status and details of
any such Acquisition Proposal or inquiry.
5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Shareholder
hereby represents and warrants to Budget as follows:
(a) Shareholder has all necessary power, capacity and
authority to enter into this Agreement and is the sole beneficial owner of
Shareholder's Shares. Shareholder has good and valid title to Shareholder's
Shares, free and clear of any and all claims, liens, charges, pledges,
assessments, options, equities, encumbrances and security interests whatsoever,
except for the bona fide pledge of 100,000 Shares pursuant to a pledge agreement
in which Shareholder has retained the voting power over the Shares. Except as
specifically provided by this Agreement, none of Shareholder's Shares is subject
to any proxy, voting trust or other agreement or arrangement with respect to the
voting of Shareholder's Shares. Shareholder's Shares are validly issued and
outstanding, fully paid and non-assessable with no personal liability attaching
to the ownership thereof.
(b) This Agreement has been duly authorized, executed and
delivered by Shareholder and constitutes the valid and binding agreement of
Shareholder, enforceable against Shareholder in accordance with its terms.
(c) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not,
with or without the passing of time or the giving of notice or both, violate or
conflict with, constitute a breach of or default under, result in the loss of
any benefit under, or permit the acceleration of or entitle any person to
accelerate any obligation under or pursuant to, any contract, commitment,
agreement,
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understanding, mortgage, lien, lease, instrument, order, award, judgment or
decree to which Shareholder is a party or by which he or any of his assets or
Shareholder's Shares are bound or subject.
(d) Neither the execution and delivery of this Agreement,
nor the performance by Shareholder of Shareholder's obligations hereunder, will
violate any provision of law applicable to Shareholder.
(e) No investment banker, broker or finder is entitled to
any commission or fee in respect of this Agreement or the Merger Agreement based
upon any arrangement or agreement made by or on behalf of Shareholder.
(f) The Proxy granted hereunder is legal, valid and
effective and will confer upon the designated proxy or its substitute all of the
voting power of Shareholder's Shares under law and Company's Articles of
Incorporation and Bylaws with respect to the matters specified in Section 3
hereof until the Termination Date.
6. COVENANTS OF SHAREHOLDER.
(a) Shareholder hereby covenants and agrees with Budget
that, until the Termination Date, except pursuant to the Merger, Shareholder
will not directly or indirectly, (i) grant any proxies or enter into any voting
trust or other agreement or arrangement with respect to the voting of any
Shares, or (ii) except for the sale, transfer, assignment or other disposition
of no more than 20,000 Shares in the aggregate after the date hereof and prior
to the period commencing 30 days before the Effective Time, acquire or sell,
assign, transfer, pledge, encumber or otherwise dispose of any Shares, or enter
into any contract, option or other arrangement or understanding with respect to
the direct or indirect acquisition or sale, assignment, transfer, pledge,
encumbrance or other disposition of any Shares.
(b) Shareholder has executed this Agreement in his
capacity as a Shareholder of Company and not in his capacity as an officer or
director of Company. Without limiting the foregoing, nothing herein shall limit
or affect any actions taken by Shareholder in his capacity as an officer or
director of Company in exercising Company's rights under the Merger Agreement.
7. REMEDIES. The parties hereto agree that if for any reason
Budget or Shareholder shall have failed to perform their respective obligations
under this Agreement, then any party hereto seeking to enforce this Agreement
against such non-performing party shall be entitled to specific performance and
injunctive and other equitable relief, and the parties hereto further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief. This provision
is without prejudice to any other rights that either party hereto may have
against the other party hereto for any failure to perform its obligations under
this Agreement.
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8. MISCELLANEOUS.
(a) This Agreement shall not be assignable by
Shareholder. This Agreement shall be binding upon Shareholder and Shareholder's
heirs, successors and assigns by will or by the laws of descent.
(b) This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by each of the parties hereto.
(c) All costs and expenses (including legal fees)
incurred in connection with this Agreement shall be paid by the party incurring
such expense.
(d) From time to time, and without further consideration,
each party will execute and deliver to the other such documents and take such
action as the other may reasonably request in order to consummate more
effectively the terms of this Agreement.
(e) All authority herein conferred or agreed to be
conferred by Shareholder shall survive Shareholder's death or incapacity. This
Agreement constitutes the sole understanding of the parties hereto with respect
to the subject matter hereof; provided, however, that this provision is not
intended to abrogate any other written agreement between or among the parties
executed with or after this Agreement or any written agreement pertaining to
another subject matter.
(f) All notices, requests, consents and other
communications hereunder shall be in writing and delivered personally or by
telecopy transmission or sent by registered or certified mail or by any express
mail service, postage or fees prepaid, addressed as follows:
(i) If to Budget:
Budget Group, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Executive Vice President, General Counsel and
Secretary
Telefax No.: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. C. Xxxxxxx Xxxxxx
Telefax No.: (000) 000-0000
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(ii) If to Shareholder to:
Xxxxxx X. Xxxxxxx, Xx.
c/o Cruise America, Inc.
00 Xxxx Xxxxxxx Xxxxxx
Xxxx, Xxxxxxx 00000
Telefax No.: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx,
P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
(g) THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF FLORIDA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
(h) This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(i) The headings contained herein are for convenience of
reference only and shall not affect the meaning or interpretation hereof.
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IN WITNESS WHEREOF, Budget and Shareholder have caused this Agreement
to be signed as of the date first above written.
BUDGET GROUP, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Executive Vice President
SHAREHOLDER:
/s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
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EXHIBIT A
Shares
of
Shareholder Common Stock
----------- ------------
Xxxxxx X. Xxxxxxx, Xx.
custodian for Alana Xxxxxxx
Xxxxxxx 2,600
Xxxxxx X. Xxxxxxx, Xx.
custodian for Xxxxxxxx Xxxxx
Xxxxxxx 2,600
Xxxxxx X. Xxxxxxx, Xx.
trustee - Xxxxxxx Xxxxxx Xxxxxxx
Irrevocable Trust for the benefit of
Xxxxxxxx Xxxxx Xxxxxxx 800
Xxxxxx X. Xxxxxxx, Xx.
trustee for the Xxxxxxx X.
Xxxxxxx Irrevocable Trust for
the benefit of Xxxxxx Xxxxxxxxx
Xxxxxxx 2,500
Xxxxxx X. Xxxxxxx, Xx.
trustee for the Xxxxxxx X.
Xxxxxxx Irrevocable Trust for
the benefit of Xxxxxx Xxxxxxx XX 2,500
Xxxxxx X. Xxxxxxx, Xx.
trustee for the Xxxxxxx X.
Xxxxxxx Irrevocable Trust for
the benefit of Xxxxxxx Xxxx
Xxxxxxx 2,500
Xxxxxx X. Xxxxxxx, Xx. 226,956
Xxxxxx X. Xxxxxxx, Xx. 3,500
Xxxxxx X. Xxxxxxx, Xx. 3,900
Xxxxxx X. Xxxxxxx, Xx.
custodian for Xxxxxx X.
Xxxxxxx III 2,600
Xxxxxx X. Xxxxxxx, Xx.
custodian for Xxxxxxx X.
Xxxxxxx 2,600
Xxxxx Xxxxxxx 7,400
Xxxxxx X. Xxxxxxx, Xx.
(XXX) 2,800
TOTAL 263,256
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