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Exhibit 7.4
[Execution Copy]
STOCKHOLDER AGREEMENT
This Stockholder Agreement (this "Agreement") dated as of July
2, 2000 is between Circle International Group, Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxx (the "Stockholder").
RECITALS
WHEREAS, EGL, Inc., a Texas corporation ("Parent"), EGL
Delaware I, Inc., a Delaware corporation and a direct, wholly owned subsidiary
of Parent ("Merger Sub"), and the Company, are entering into an Agreement and
Plan of Merger dated as of the date hereof (as amended from time to time
pursuant thereto, the "Merger Agreement");
WHEREAS, the Stockholder is the record and beneficial owner of
11,663,638 shares of common stock, par value $.001 per share, of Parent (the
"Parent Common Stock," and such shares of Parent Common Stock, together with any
shares of capital stock of Parent acquired by such Stockholder after the date
hereof and during the term of this Agreement, being collectively referred to
herein as such Stockholder's "Shares");
WHEREAS, as a condition to the willingness of the Company to
enter into the Merger Agreement, and as an inducement to it to do so, the
Stockholder has agreed for the benefit of the Company as set forth in this
Agreement; and
WHEREAS, the Board of Directors of Parent has approved the
Stockholder's entering into this Agreement, the form of this Agreement and the
transactions contemplated hereby;
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereby agree as follows (terms defined in the Merger Agreement and used
but not defined herein having the meanings assigned to such terms in the Merger
Agreement):
ARTICLE 1
COVENANTS OF THE STOCKHOLDER
The Stockholder hereby covenants as follows:
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Section 1.1 Agreement to Vote. At any meeting of the
stockholders of Parent held prior to the earlier of (a) the Effective Time of
the Merger and (b) the close of business on the date 45 days after the
termination of the Merger Agreement, provided such date shall be extended (but
in no event beyond May 15, 2001) if a Parent Acquisition Proposal is pending
until the close of business on the third business day after the Stockholder
gives the Company notice of the consummation, withdrawal or termination of the
Parent Acquisition Proposal if at such time no other Parent Acquisition Proposal
is pending (such earlier time being herein referred to as the "Voting
Termination Date"), however called, and at every adjournment or postponement
thereof prior to the Voting Termination Date, or in connection with any written
consent of the stockholders of Parent given prior to the Voting Termination
Date, such Stockholder shall vote or cause to be voted such Stockholder's Shares
(together with (a) any additional shares of capital stock of Parent or any
securities or other property that the Stockholder is or becomes entitled to
receive from Parent by reason of being a record holder of such number of Shares,
(b) any capital stock, securities or other property into which any such number
of Shares shall have been or shall be converted or changed, whether by amendment
to the Articles of Incorporation of Parent, merger, consolidation,
reorganization, capital change or otherwise, (c) any additional Parent Common
Stock acquired by the Stockholder as the result of the Stockholder's exercising
an option, warrant or other right to acquire shares of capital stock from Parent
issued with respect to such number of Shares (all of the foregoing hereinafter
collectively referred to as such Stockholder's "Additional Shares")) in favor of
the approval of the Merger and each of the other transactions contemplated by
the Merger Agreement and in favor of the approval and adoption of the Merger
Agreement and any actions required in furtherance hereof and thereof. Such
Stockholder shall not enter into any agreement or understanding with any person
prior to the Voting Termination Date, directly or indirectly, to vote, grant any
proxy or give instructions with respect to the voting of such Stockholder's
Shares (and any Additional Shares) in any manner inconsistent with the preceding
sentence.
Section 1.2 Proxies and Voting Agreements. Such Stockholder
hereby revokes any and all previous proxies granted with respect to matters set
forth in Section 1.1. Prior to the Voting Termination Date, such Stockholder
shall not, directly or indirectly, except as contemplated hereby, grant any
proxies or powers of attorney with respect to matters set forth in Section 1.1,
deposit any of such Stockholder's Shares (or any Additional Shares) or enter
into a voting agreement with respect to any of such shares.
Section 1.3 No Solicitation.
(a) From and after the date hereof until the Voting
Termination Date, such Stockholder will not, and will not authorize or permit
any of its officers, directors, employees, agents or representatives
(collectively, "Stockholder Representatives") to, or upon becoming aware of it
will stop such person from continuing to, directly or indirectly, solicit,
initiate or encourage (including by way of furnishing material non-public
information), or take any action designed to facilitate, directly or indirectly,
any inquiry, proposal or offer (including, without limitation, any proposal or
offer to Parent's stockholders) with respect to a Parent Acquisition Proposal or
cooperate
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with or assist, participate or engage in any substantive discussions or
negotiations concerning a Parent Acquisition Proposal.
(b) Such Stockholder shall immediately cease and cause to be
terminated any existing negotiations with any parties conducted heretofore by
such Stockholder or any Stockholder Representatives with respect to any Parent
Acquisition Proposal.
(c) Prior to the Voting Termination Date, such Stockholder
will promptly notify the Company orally and in writing of any requests for
information made to such Stockholder or any Stockholder Representative or the
receipt of any Parent Acquisition Proposal made to such Stockholder or any
Stockholder Representative or any inquiry with respect to (including, without
limitation, any inquiry as to Parent's willingness or ability to entertain
offers, proposals or engage in discussions or negotiations), or which could
reasonably be expected to lead to, a Parent Acquisition Proposal, including the
identity of the person or group engaging in such discussions or negotiations,
requesting such information or making such Parent Acquisition Proposal, and the
material terms and conditions of any Parent Acquisition Proposal.
(d) Prior to the Voting Termination Date, such Stockholder
shall not enter into any agreement with any person or group that provides for,
or in any way facilitates, a Parent Acquisition Proposal.
(e) The provisions of this Section 1.3 do not prohibit any
Stockholder or Stockholder Representative who also serves in the capacity of
officer, director, employee, agent or other representative of Parent from taking
actions in such other capacity to the extent permitted by Section 7.4 of the
Merger Agreement.
Section 1.4 Other Actions. Prior to the Voting Termination
Date, such Stockholder shall not take any action that would in any way restrict,
limit, impede or interfere with the performance of its obligations hereunder or
the transactions contemplated hereby or by the Merger Agreement.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF THE STOCKHOLDER
The Stockholder represents, warrants and covenants to the
Company that:
Section 2.1 Ownership. Such Stockholder is as of the date
hereof the beneficial and record owner of such Stockholder's Shares, such
Stockholder has the sole right to vote such Stockholder's Shares and there are
no restrictions on rights of disposition or other lien, pledge, security
interest, charge or other encumbrance or restriction pertaining to such
Stockholder's Shares. None of such Stockholder's Shares is subject to any voting
trust or other agreement, arrangement
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or restriction with respect to the voting of the such Stockholder's Shares, and
no proxy, power of attorney or other authorization has been granted with respect
to any of such Stockholder's Shares.
Section 2.2 Authority and Non-Contravention. Such Stockholder
has the right, power and authority, and such Stockholder has been duly
authorized by all necessary action (including consultation, approval or other
action by or with any other person), to execute, deliver and perform this
Agreement and consummate the transactions contemplated hereby. Such actions by
such Stockholder (a) require no action by or in respect of, or filing with, any
governmental or regulatory authority with respect to such Stockholder, and (b)
do not and will not contravene or constitute default under any provision of
applicable law or regulation or any agreement, judgment, injunction, order,
decree or other instrument binding on such Stockholder or result in the
imposition of any lien, pledge, security interest, charge or other encumbrance
or restriction on any of such Stockholder's Shares (other than as provided in
this Agreement with respect to such Stockholder's Shares).
Section 2.3 Binding Effect. This Agreement has been duly
executed and delivered by such Stockholder and is the valid and binding
agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
generally and by equitable principles to which the remedies of specific
performance and injunctive and similar forms of relief are subject.
Section 2.4 Total Shares. Except for 40,000 shares of Parent
Common Stock owned by the Xxxxx X. Xxxxx Foundation, such Stockholder's Shares
are the only shares of capital stock of Parent owned beneficially or of record
as of the date hereof by such Stockholder, and such Stockholder does not have
any option to purchase or right to subscribe for or otherwise acquire any
securities of Parent (except for options outstanding under Parent Stock Option
Plans) and has no other interest in or voting rights with respect to any other
securities of Parent.
Section 2.5 Finder's Fees. No investment banker, broker or
finder is entitled to a commission or fee from the Company, Parent or Merger Sub
in respect of this Agreement based upon any arrangement or agreement made by or
on behalf of such Stockholder, except as otherwise provided in the Merger
Agreement.
Section 2.6 Reasonable Efforts. Prior to the Voting
Termination Date, such Stockholder shall use reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the Company and Parent in doing, all things necessary, proper
or advisable to consummate and make effective the Merger and the other
transactions contemplated by the Merger Agreement and this Agreement.
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ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company represents, warrants and covenants to the
Stockholder that:
Section 3.1 Corporate Power and Authority. The Company has all
requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution, delivery and performance by
the Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company.
Section 3.2 Binding Effect. This Agreement has been duly
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally and by equitable
principles to which the remedies of specific performance and injunctive and
similar forms of relief are subject.
ARTICLE 4
GENERAL PROVISIONS
Section 4.1 Expenses; Attorneys' Fees. Each party hereto shall
pay its own expenses incident to preparing for, entering into and carrying out
this Agreement and the consummation of the transactions contemplated hereby. If
any action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees, costs and necessary disbursements, in addition to any other relief to
which such party may be entitled.
Section 4.2 Further Assurances. From time to time, at the
request of any other party, each party shall execute and deliver or cause to be
executed and delivered such additional documents and instruments and take all
such further action as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
Section 4.3 Notices. Any notice required to be given hereunder
shall be sufficient if in writing, and sent by facsimile transmission or by
courier service (with confirmation of receipt or proof of service), hand
delivery or certified or registered mail (return receipt requested and
first-class postage prepaid), addressed as follows:
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(a) if to the Company:
Xxxxx Xxxxxx
Chairman and Chief Executive Officer
Circle International Group, Inc.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxx, Esq.
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
Old Federal Reserve Bank Building
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
(b) if to the Stockholder:
Xxxxx X. Xxxxx
0000 Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
with a copy to:
Xxxx X. Xxxxxx, Esq.
Xxxxx Xxxxx L.L.P.
Xxx Xxxxx Xxxxx
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated or personally delivered or three business days after so mailed.
Section 4.4 Assignment; Binding Effect; Benefit. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is
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intended to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement. The
Stockholder agrees that this Agreement and the obligations hereunder shall
attach to the Shares beneficially owned by such Stockholder and shall be binding
upon any person to which legal or beneficial ownership of such shares shall
pass, whether by operation of law or otherwise.
Section 4.5 Entire Agreement. This Agreement and any documents
delivered by the parties in connection herewith constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto.
Section 4.6 Amendments. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
Section 4.7 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without
regard to its rules of conflict of laws.
Section 4.8 Counterparts. This Agreement may be executed by
the parties hereto 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. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all of the
parties hereto.
Section 4.9 Headings. Headings of the Articles and Sections of
this Agreement are for the convenience of the parties only, and shall be given
no substantive or interpretative effect whatsoever.
Section 4.10 Interpretation. Unless the context otherwise
requires, words describing the singular number shall include the plural and vice
versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa.
Section 4.11 Waivers. Except as provided in this Agreement, no
action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 4.12 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
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and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement 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.
Section 4.13 Enforcement of Agreement. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with its specific
terms or was otherwise breached. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company and the Stockholder have
caused this Agreement to be duly executed as of the day and year first above
written.
CIRCLE INTERNATIONAL GROUP, INC.
By: /s/Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Chairman and Chief Executive Officer
STOCKHOLDER
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
