STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of May 10, 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") and Xx. Xxxxxx X. Xxxxx
("Xx. Xxxxx") and HSBC Holdings plc, an English public limited company
("Parent").
WHEREAS, simultaneously with the execution of this Agreement, Parent, Safra
Republic Holdings, S.A., a societe anonyme organized under the laws of
Luxembourg ("SRH"), and Republic New York Corporation, a Maryland corporation
(the "Company"), are entering into a Transaction Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement") providing, among other
things, for the merger of a wholly owned subsidiary of Parent ("Sub") with and
into the Company (the "Merger"); and
WHEREAS, as of the date hereof, Stockholder is the Beneficial Owner (as
defined below) of, and has the sole right to vote and dispose of, 31,044,228
shares of common stock, par value $5.00 per share ("Common Stock"), of the
Company (the "Owned Shares"); and
WHEREAS, as of the date hereof, Stockholder Parent is the Beneficial Owner
of, and has the sole right to vote and dispose of, 14,699,124 shares of common
stock, $5.00 par value (the "SRH Stock"), of SRH (the "Owned SRH Shares"); and
WHEREAS, in the Merger Agreement Parent has agreed, subject to the
conditions set forth therein, to make an offer to purchase for cash all of the
shares of SRH Stock not owned by the Company; and
WHEREAS, as an inducement and a condition to their entering into the Merger
Agreement and incurring the obligations set forth therein, Parent has required
that Stockholder, Stockholder Parent and Xx. Xxxxx (individually, a "Stockholder
Party" and collectively, the "Stockholder Parties") enter into this Agreement;
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
Agreement are used in this Agreement with the meanings given to such terms in
the Merger Agreement. In addition, for purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified. For
purposes of this Agreement, with respect to any Stockholder Party, "Affiliate"
shall not include the Company and the Persons that directly, or indirectly
through one or more intermediaries, are controlled by the Company.
"Beneficially Owned" or "Beneficial Ownership" with respect to any
securities means having beneficial ownership of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act, disregarding the phrase "within
60 days" in paragraph (d)(1)(i) thereof), 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 Affiliates
of such Person and all other Persons with whom such Person would constitute a
"Group" within the meaning of Section 13(d) of the Exchange Act and the rules
promulgated thereunder.
"Beneficial Owner" with respect to any securities means a Person which has
Beneficial Ownership of such securities.
"Person" means an individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization or other
entity.
"Proposed Business Combination" means the transactions contemplated by the
Merger Agreement.
"Transfer" means, with respect to a security, the sale, transfer, pledge,
hypothecation, encumbrance, assignment or disposition of such security or the
Beneficial Ownership thereof, the offer to make such a sale, transfer or other
disposition, and each option, agreement, arrangement or understanding, whether
or not in writing, to effect any of the foregoing. As a verb, "Transfer" shall
have a correlative meaning.
2. No Disposition or Solicitation.
(a) During the term of this Agreement, Stockholder agrees that except as
contemplated by this Agreement, it will not Transfer or agree to Transfer any
Common Stock Beneficially Owned by it other than with Parent's prior written
consent, or grant any proxy or power-of-attorney with respect to any such Common
Stock other than pursuant to this Agreement.
(b) During the term of this Agreement, Stockholder Parent agrees that
except as contemplated by this Agreement, it will not Transfer or agree to
Transfer any SRH Stock Beneficially Owned by it other than with Parent's prior
written consent, or grant any proxy or power-of-attorney with respect to any
such SRH Stock other than pursuant to this Agreement.
(c) Each Stockholder Party agrees, that from and after the date hereof,
except as contemplated by this Agreement, it or he and their respective
Affiliates and representatives, will not directly or indirectly solicit,
initiate, or encourage any inquiries or proposals from, discuss or negotiate
with, or provide any non-public information to, any Person relating to, or
otherwise facilitate any tender or exchange offer, proposal for a merger,
consolidation or other business combination involving the Company, SRH or any of
their respective subsidiaries or any proposal or offer to acquire in any manner
a substantial equity interest in, or a substantial portion of the assets of, the
Company or SRH or any of their respective subsidiaries other than the Proposed
Business Combination (an "Alternative Transaction").
(d) Each Stockholder Party agrees that unless required by applicable law,
neither it nor any of its Affiliates shall make any press release, public
announcement or other communication with respect to the business or affairs of
the Company, SRH, this Agreement, or Parent, including this Agreement, the
Merger Agreement and the Option Agreement and the transactions contemplated
hereby and thereby, without the prior written consent of Parent.
(e) Stockholder agrees that it will not issue any shares of capital stock
to any Person. Stockholder Parent agrees that it will not Transfer or agree to
Transfer any capital stock of the Stockholder, and that it will take all action
necessary to cause the Stockholder to timely comply with all its obligations
under this Agreement.
(f) Stockholder Parent agrees that it will not issue any shares of capital
stock to any Person. Xx. Xxxxx agrees that he will not Transfer or agree to
Transfer any stock of Stockholder Parent except as may result from the laws of
descent and distribution (any such transfer to be subject to Section 13(d)
hereof) and that he will take all action necessary to cause each of Stockholder
Parent and Stockholder to timely comply with all of its obligations under this
Agreement.
3. Stockholder Vote; Offer.
(a) Stockholder agrees that, unless this Agreement has been terminated in
accordance with its terms, (i) at such time as the Company conducts a meeting of
or otherwise seeks a vote or consent of its stockholders for the purpose of
approving the Merger Agreement and the Merger (such meeting or any adjournment
thereof, or such consent process, the "Company Meeting"), it will vote, or
provide a consent with respect to, all Common Stock (including the Owned Shares)
then Beneficially Owned by Stockholder in favor of the Merger Agreement and the
Merger and (ii) it will (at any meeting of stockholders) vote its shares of
Common Stock (including the Owned Shares) against, and it will not consent to,
any Alternative Transaction or any action that would materially delay, prevent
or frustrate the transactions contemplated by the Merger Agreement.
Without limiting the foregoing, it is understood that the obligations under
clause (i) above shall remain applicable in respect of each meeting of
stockholders of the Company duly called for the purpose of approving the Merger
Agreement and the Merger regardless of the position of the Company's Board as to
the Merger at the time of such meeting, and that the obligations under clause
(ii) above shall continue as set forth in Section 11.
(b) Stockholder Parent agrees that, unless this Agreement has been
terminated in accordance with its terms, at such time as Parent or Parent's
designee makes the Offer as contemplated by the Merger Agreement Stockholder
Parent will, within 10 business days after commencement of the Offer, duly
tender all of the shares of SRH Stock then owned by it into the Offer, in
accordance with the terms thereof, and will not subsequently withdraw such
tender, provided that Stockholder Parent may withdraw such tender if the Merger
Agreement has been terminated in accordance with its terms.
4. Reasonable Efforts to Cooperate. Each Stockholder Party will (a) use all
reasonable efforts to cooperate with the Company, SRH, Parent and Sub in
connection with the transactions contemplated by the Merger Agreement, (b)
promptly take such actions as are necessary or appropriate to consummate such
transactions, and (c) provide any information reasonably requested by the
Company, SRH, Parent and Sub for any regulatory application or filing made or
approval sought for such transactions (including filings with the Securities and
Exchange Commission).
5. Additional Stock.
(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. Stockholder Parent and Xx. Xxxxx each agree that
if it or he should acquire record or Beneficial Ownership of any shares of
Common Stock, the term Stockholder shall be deemed to be modified to include it
or him, as the case may be.
(b) Stockholder Parent agrees that any additional shares of SRH 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. Stockholder and Xx. Xxxxx. each agree that if
it or he should acquire record or beneficial ownership over any shares of SRH
Stock, the term Stockholder Parent shall be deemed to be modified to include it
or him, as the case may be.
6. Irrevocable Proxy.
(a) (i) In furtherance of the agreements contained in Section 3(a) of this
Agreement, the Stockholder hereby irrevocably (to the extent set forth herein)
grants to, and appoints, Parent and JRH Bond, Group Chairman of Parent, XX
Xxxxxxx, Group Chief Executive Officer of Parent, and XX Xxxxx, Group Finance
Director of Parent, in their respective capacities as officers of Parent, and
any individual who shall hereafter succeed to any such office of Parent, and
each of them individually, Stockholder's proxy and attorney-if-fact (with full
power of substitution), for and in the name, place and stead of Stockholder, to
vote all shares of Common Stock beneficially owned by Stockholder, or grant a
consent or approval in respect of such shares, or execute and deliver a proxy to
vote such shares, (x) in favor of the Merger and the Merger Agreement and
approval of the terms thereof and each of the other transactions contemplated by
the Merger Agreement and (y) against any Alternative Transaction or any other
matter referred to in Section 3(a)(ii) hereof, in each case to the extent the
Stockholders Parties are required to so vote under Section 3.
(ii) The Stockholder represents and warrants to Parent and Sub that any
proxies heretofore given in respect of its Owned Shares are not irrevocable, and
that any such proxies are hereby revoked.
(iii) The Stockholder hereby affirms that the irrevocable proxy set forth
in this Section 6(a) is given in connection with, and in consideration of, the
execution of the Merger Agreement by Parent, and that such irrevocable proxy is
given to secure the performance of the duties of the Stockholder under this
Agreement. The Stockholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked. Such
Stockholder 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 2-507 of the Maryland General Corporation Law. The proxy granted in this
Section 6(a) shall remain valid until terminated pursuant to Section 12 hereof.
(b) The irrevocable proxy granted pursuant to Section 6(a) shall
automatically terminate and be revoked upon termination of this Agreement in
accordance with its terms.
7. Covenant of Stockholder Parties. Each Stockholder Party agrees that it
will take all action necessary to (i) permit (a) the 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.
8. Representations, Warranties and Covenants of Stockholder Parties. Each
Stockholder Party hereby represents and warrants to, and agrees with, Parent and
Sub 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 Agreement and perform its or his
obligations hereunder. No other proceedings or actions on the part of such
Stockholder Party are necessary to authorize the execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby.
(b) This Agreement 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) (i) 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 this
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.
(ii) The Stockholder Parties (other than the Stockholder) are the sole
Beneficial Owners of the Owned SRH Shares, free and clear of all liens, claims,
options, proxies, voting agreements and security interests, except for liens,
claims, options, proxies, voting agreements and security interests that would
not have a material adverse effect on the ability of the Stockholder Parent to
perform its obligations under this Agreement. The Owned SRH Shares constitute
all of the capital stock of SRH 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 SRH Stock or any
securities convertible into or exchangeable or exercisable for shares of SRH
Stock.
(d) Stockholder Parent has sole Beneficial Ownership, free and clear of all
liens, claims, options, proxies, voting agreements and security interests, of
(i) all outstanding capital stock of Stockholder and (ii) 14,699,124 shares of
SRH Stock, representing approximately 20% of the shares of SRH Stock
outstanding. 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 Agreement by any Stockholder
Party nor the consummation of the transactions contemplated hereby 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 or the Owned SRH 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 this Agreement.
(f) Each Stockholder Party understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon such Stockholder Party's
execution, delivery and performance of this Agreement. Each of the Stockholder
and the Stockholder Parent acknowledges that its irrevocable proxy set forth in
Section 6(a) is granted in consideration of the execution and delivery of the
Merger Agreement by Parent.
9. Representations and Warranties of Parent and Sub. Parent represents and
warrants to the Stockholder Parties that Parent has full corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by Parent
will not constitute a violation of, conflict with or result in a default under,
(i) any contract, understanding or arrangement to which Parent 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
(iii) 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 to perform its obligations under this Agreement;
and this Agreement constitutes a legal, valid and binding agreement on the part
of Parent, enforceable against Parent 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 of this Agreement and the consummation by Parent of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Parent and no other corporate proceedings on the part of
Parent are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Parent.
10. Non-Competition. (a) Solely as an inducement to Parent's and Sub's
entering into the Merger Agreement and for no other consideration, Xx. Xxxxx
agrees not to engage in any aspect of a Covered Business (as hereinafter
defined) other than on behalf of the Company, SRH, the Successor Corporation or
any of their respective Subsidiaries for the period of time commencing on the
Closing Date and ending on the seventh anniversary of the Closing Date;
provided, however, that if after such seventh anniversary of the Closing Date,
Xx. Xxxxx shall found, establish, invest (other than as contemplated by clause
(b)(i) and clause (c) below) in any Competitor, Parent shall have the right, but
not the obligation, to invest in such Competitor on a 50/50 basis with Xx. Xxxxx
pursuant to an agreement among shareholders containing buy/sell arrangements
which would permit one party to purchase the interest of the other upon
termination of the co-ownership.
(b) Xx. Xxxxx shall be deemed to be engaging in a Covered Business if he:
(i) directly or indirectly, individually or through another Person,
whether or not for compensation, participates in the ownership, management,
operation or control of any Competitor (as hereinafter defined) or is
employed by or performs consulting services for any Competitor; provided,
that nothing herein shall be deemed to prevent Xx. Xxxxx from having record
or Beneficial Ownership of less than 5% (including shares or other
securities underlying options or other convertible securities, stock
appreciation rights, phantom stock or similar rights, whether or not
currently exercisable) of any publicly-traded company unless such ownership
is accompanied by an employment, consulting or similar arrangement pursuant
to which he participates in the management, operation or control of such
company;
(ii) directly or indirectly, individually or through another Person,
solicits any Person who was a customer or prospective customer of the
Company, SRH, the Successor Corporation or any of their respective
Subsidiaries at any time prior to the Effective Time with a view to
inducing such customer or prospective customer to enter into an agreement
or otherwise do business with any Competitor with respect to a Covered
Business, or attempts directly or indirectly to induce any such customer or
prospective customer to terminate its relationship with the Company, SRH,
the Successor Corporation or any of their respective Subsidiaries or to not
enter into a relationship with the Company, SRH, the Successor Corporation
or any of their respective Subsidiaries, as the case may be;
(iii) directly or indirectly, individually or through another Person
releases any customer or prospect lists of the Company, SRH, the Successor
Corporation or any of their respective Subsidiaries, or any other documents
or other information (whether or not such information is in writing)
proprietary to the Company, SRH or any of their respective Subsidiaries or
any customer of the Company, SRH, the Successor Corporation or any of their
respective Subsidiaries, or otherwise confidential or non-public, to any
Person, except with the prior written consent of the Company, SRH, the
Surviving Corporation or any of their respective Subsidiaries or as may be
required pursuant to the order of a court of competent jurisdiction; or
(iv) offers, directly or indirectly, individually or through another
Person, employment to any employee of the Company, SRH, the Successor
Corporation or any of their respective Subsidiaries or directly or
indirectly attempts to induce any such employee to leave the employ of the
Company, SRH, the Successor Corporation or any of their respective
Subsidiaries or aids or assists any other Person in doing so; provided that
nothing herein shall be deemed to prevent Xx. Xxxxx from employing,
directly or indirectly, any of the individuals separately agreed to in
writing by the Parent and Xx. Xxxxx.
(c) For purposes of Section 10(a) and Section 10(b):
(i) A "Covered Business" is the provision of banking, brokerage,
trading or other financial services in which the Company, SRH or any of
their respective Subsidiaries is engaged on the Closing Date. For purposes
of this Agreement, "Covered Business" shall not include any of the
following activities, and Xx. Xxxxx shall not be deemed to be engaging in a
Covered Business if he engages, directly or indirectly, solely in any one
or more of the following activities:
(A) managing and investing assets beneficially owned, directly or
indirectly, by Xx. Xxxxx or members of his immediate family;
(B) managing or investing assets beneficially owned by any other
Person and providing related advisory services provided that:
(I) any such Person will directly or indirectly be or represent
ultimately an investor which is a natural person and not any form of
mutual fund, unit trust or other fund held publicly;
(II) the number of such ultimate investors shall not exceed one
hundred (100);
(III) any such arrangements will be "private," in that the
availability of any such services will not be advertised or publicized
in any form whatsoever and will remain confidential;
(IV) any assets managed and invested as permitted by this clause
(B) will be managed and invested together with the assets managed and
invested as permitted by clause (A) above, as pooled and joint
investments (or arrangements similar to pooled and joint investments)
("pooled investments") on the basis that of such pooled investments,
the assets managed and invested pursuant to clause (A) above will
constitute a majority in aggregate value of the pooled investments and
the aggregated value of the assets managed as pooled investments
(including those managed pursuant to clause (A) above), without taking
account of investment results, does not exceed $5 billion;
(V) Xx. Xxxxx does not accept for management pursuant to this
clause (B), assets or the proceeds of assets that, to the best
knowledge of Xx. Xxxxx were removed from accounts managed by the
Company, SRH or any of their respective Subsidiaries; and
(VI) the Company, SRH or one or more of their Subsidiaries will
act as custodian (in accordance with their standard fees) for
investments and/or liquid funds included in the pooled investments
referred to in subclause (IV) above;
(C) ownership of any securities beneficially owned by Xx. Xxxxx on the
date of this Agreement and any business activities that Xx. Xxxxx or his
Affiliates are engaged or participating in on the date of this Agreement
(other than business activities conducted by or through the Company, SRH or
any of their respective Subsidiaries) to the extent Xx. Xxxxx or his
affiliates are engaged or participating in such business activities on the
date of this Agreement.
(ii) A "Competitor" is any Person which engages in any Covered
Business.
(d) Xx. Xxxxx hereby agrees that:
(i) Each of the covenants contained in Section 10(b)(i)-(iv) hereof
shall be construed as a separate covenant.
(ii) If any provision of this Section 10 or portion hereof is so
broad, in scope or duration, so as to be unenforceable, such provision or
portion hereof shall be interpreted to be only so broad as is enforceable.
(e) Xx. Xxxxx agrees to deliver promptly to Parent, upon the request of
Parent, the Company, SRH or the Surviving Corporation following the Effective
Time, all documents (and all copies thereof, in written, electronic or any other
form whatsoever) relating to the business of the Company, SRH, the Surviving
Corporation or any of their respective Subsidiaries, and all property associated
therewith, which he may then possess or have under his control.
(f) The parties hereto hereby declare that it is impossible to measure in
money the damages which will accrue to Parent, the Company and SRH by reason of
a failure by Xx. Xxxxx to perform any of his obligations under this Section 10.
Accordingly, if Parent, the Company, SRH, the Surviving Corporation or any of
their respective Subsidiaries institutes any action or proceeding to enforce the
provisions hereof, to the extent permitted by applicable law, Xx. Xxxxx hereby
waives the claim or defense that Parent, the Company, SRH, the Surviving
Corporation or any of their respective Subsidiaries has an adequate remedy at
law, and Xx. Xxxxx will not argue in any such action or proceeding the claim or
defense that any such remedy at law exists. Parent acknowledges that family
members and associates of Xx. Xxxxx are engaged in activities that constitute
Covered Business and that from time to time Xx. Xxxxx may have discussions with,
including providing advice to, such persons with respect to such activities.
Parent agrees that such discussions are not restricted by this Section 10 so
long as Xx. Xxxxx does not participate in the active management of these
business activities. In addition, Section 10 shall not restrict any social and
informal discussions in which Xx. Xxxxx engages with any person regarding the
banking business.
(g) The restrictions in this Section 10 shall be in addition to any
restrictions imposed on Xx. Xxxxx by statute or at common law or otherwise.
(h) Notwithstanding Section 11 hereof, the provisions of this Section 10
shall survive the Effective Time of the Merger.
11. Termination. Except as provided in Section 10(h), this Agreement, and
all rights and obligations of the parties hereunder, shall terminate on the
earlier of (a) the Effective Time of the Merger pursuant to the Merger Agreement
and (b) the date upon which the Merger Agreement is terminated in accordance
with its terms; provided that, in the case of the termination of this Agreement
upon the happening of the event described in clause (b) above, the obligations
of the Stockholder under Section 3(a)(ii) and the proxy granted pursuant to
Section 6(a)(i), but solely for use as described in clause (y) thereof (to the
extent such proxy relates to the voting obligation under Section 3(a)(ii), shall
not terminate, but shall remain in effect, until the date that is six months
after such termination if (x) a proposal for an Alternative Transaction shall
have been made prior to such termination and (y) the Merger Agreement is
terminated in accordance with its terms pursuant to Section 9.1(e) or (f) of the
Merger Agreement or by Parent pursuant to 9.1(d) of the Merger Agreement;
provided, however, that the term of this Agreement shall be extended by a period
of days equal to the duration of any temporary or permanent order, writ or
injuction issued by a court of competent jurisdiction that invalidates, impedes
or enjoins the operation or enforcement of this Agreement, the Merger Agreement
or any agreement contemplated hereby or thereby or entered into in connection
herewith or therewith.
12. Miscellaneous.
(a) This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all other prior agreements
and understandings, both written and oral, among all the parties hereto with
respect to the transfer or voting of shares of Common Stock or SRH Stock.
(b) Each Stockholder Party agrees that this Agreement and the respective
rights and obligations of such Stockholder Party hereunder shall attach to any
shares of Common Stock and any shares of SRH Stock, and any securities
convertible into such shares, that may become Beneficially Owned by such
Stockholder Party.
(c) Except as otherwise provided in this Agreement, all costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses.
(d) This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties and their respective successors,
personal or legal representatives, executors, administrators, heirs,
distributees, devisees, legatees and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any party (whether by operation of law or otherwise) without the
prior written consent of the other parties; provided, that Parent may assign any
or all rights under this Agreement to Sub or any other Subsidiary. Nothing in
this Agreement, express or implied, is intended to or shall confer upon any
other Person any rights, benefits or remedies of any nature whatsoever under or
by reason of this Agreement.
(e) This Agreement may not be amended, changed, supplemented, or otherwise
modified or terminated, except upon the execution and delivery of a written
agreement executed by the parties hereto; provided, that Parent may waive
compliance by any other party with any representation, agreement or condition
otherwise required to be complied with by any other party under this Agreement
or release any other party from its obligations under this Agreement, but any
such waiver or release shall be effective only if in writing executed by Parent.
(f) All notices and other communications hereunder shall be in writing and
shall be deemed given upon (a) transmitter's confirmation of a receipt of a
facsimile transmission, (b) confirmed delivery by a standard overnight carrier
or when delivered by hand or (c) the expiration of five business days after the
day when mailed by certified or registered mail, postage prepaid, addressed at
the address for such party set forth below.
(i) If to a Stockholder Party, to such Stockholder Party at the
address set forth beside its name on Schedule A hereto with a copy to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, III
(ii) If to Parent, to:
HSBC Holdings plc
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: 000-00-000-000-0000
Attention: Group Company Secretary
With a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx
or to such other address or facsimile number as the Person to whom notice is
given shall have previously furnished to the others in writing in the manner set
forth above.
(g) Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without affecting the validity or
enforceability of the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
(h) Each Stockholder Party acknowledges and agrees that in the event of any
breach of this Agreement, Parent would be irreparably and immediately harmed and
could not be made whole by monetary damages. It is accordingly agreed that (a)
each Stockholder Party will waive, in any action for specific performance, the
defense of adequacy of a remedy at law, and (b) Parent shall be entitled, in
addition to any other remedy to which it may be entitled at law or in equity, to
compel specific performance of this Agreement.
(i) 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. 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) EXCEPT TO THE EXTENT THAT MANDATORY PROVISIONS OF THE MARYLAND GENERAL
CORPORATION LAW ARE APPLICABLE, THIS AGREEMENT 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.
(k) 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. "Include," "includes," and "including" shall
be deemed to be followed by "without limitation" whether or not they are in fact
followed by such words or words of like import.
(l) 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 instrument.
(m) Any suit, action or proceeding seeking to enforce any provision of, or
based on any matter arising out of or in connection with, this Agreement may be
brought in any federal court located in the State of New York or any New York
state court, and each of the parties hereby consents to the non-exclusive
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient form. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 12(f)
shall be deemed effective service of process on such party.
13. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director or officer of the Company or SRH makes
any agreement or understanding herein in his capacity as such director or
officer. Each Stockholder Party signs solely in his capacity as the record
holder and beneficial owner of the Owned Shares or the Owned SRH Shares, as the
case may be, and nothing herein shall limit or affect any actions taken by a
Stockholder Party in his capacity as an officer of director of the Company or
SRH to the extent specifically permitted by the Merger Agreement.
14. Further Assurances. From time to time, at Parent's request and without
further consideration, each Stockholder Party 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.
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
By: /s/ C. G. Xxxxxx Xxxxx
----------------------
Name: C. G. Xxxxxx Xxxxx
Title: Director
By: /s/ Xxxx Xxxx
----------------------
Name: Xxxx Xxxx
Title: Director
CONGREGATION BEIT XXXXXX
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
SABAN S.A.
By: /s/ C. G. Xxxxxx Xxxxx
----------------------
Name: X. Xxxxx
Title: Director
By: /s/ Xxxx Xxxx
----------------------
Name: Xxxx Xxxx
Title: Director
XXXXXX X. XXXXX
By: /s/ Xxxxxx X. Xxxxx
----------------------
Xxxxxx X. XXXXX
HSBC HOLDINGS PLC
By: /s/ Xxxxx X. Xxxx
----------------------
Name: Xxxxx X. Xxxx
Title: Authorised Signatory
SCHEDULE A
----------
STOCKHOLDER PARTIES
-------------------
NAME ADDRESS
---- -------
RNYC Holdings Limited
Fax:
Attention:
Congregation Beit Xxxxxx
Fax:
Attention:
Saban S.A.
Fax:
Attention:
Xxxxxx X. Xxxxx
Fax:
