Exhibit (d)(9)
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as of August 24, 2001,
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among Career Holdings, Inc., a Delaware corporation ("Parent"), CB Merger Sub,
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Inc., a Delaware corporation and a wholly owned subsidiary of Parent
("Merger Sub"), XxxxXxxxxx.XXX, Inc., a Georgia corporation (the "Company"), and
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the undersigned stockholder of the Company (the "Stockholder").
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WHEREAS, Parent, Merger Sub and the Company propose to enter into an
Agreement and Plan of Merger dated as of even date herewith (as the same may be
amended or supplemented, the "Merger Agreement") to provide for the
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making of a cash tender offer (as such offer may be amended from time to time,
the "Offer") by Merger Sub for any and all shares of common stock, par value
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$0.01 per share, of the Company (the "Common Stock") at the Offer Price (as
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defined in the Merger Agreement) and the merger of the Company and Merger Sub
(the "Merger");
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WHEREAS, the Stockholder legally and/or beneficially owns that number
of shares of Common Stock appearing on the signature page hereof (such shares,
as they may be adjusted by any stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation, reorganization
or other change or transaction of or by the Company (each, an
"Adjustment Event") being referred to herein as the "Subject Shares"). For
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purposes of this Agreement, Subject Shares shall not be deemed to include stock
options, warrants or other derivative securities, unless such stock options,
warrants or other derivative securities are exercised for shares of Common
Stock, in which case such shares of Common Stock shall become Subject Shares;
and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Merger Sub have requested that the Stockholder enter into
this Agreement;
NOW, THEREFORE, to induce Parent and Merger Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Representations and Warranties. The Stockholder hereby represents
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and warrants to Parent and Merger Sub as follows:
(a) Authority. The Stockholder has all requisite power and authority
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to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed
and delivered by the Stockholder and constitutes a valid and binding
obligation of the Stockholder enforceable in accordance with its terms.
The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance
with the terms hereof will not, conflict with, result in any violation
of or default (with or without notice or lapse of time or both) under,
any provision of any trust agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable
to the Stockholder or to the Stockholder's property or assets. Except
for the expiration or termination of the waiting period under the HSR
Act and informational filings with the SEC, no consent, approval,
order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic, foreign or
supranational, is required by or with respect to the Stockholder in
connection with the execution and delivery of this Agreement or the
consummation by the Stockholder of the transactions contemplated
hereby.
(b) The Shares. The Stockholder has good and marketable title to
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the Subject Shares, free and clear of any claims, liens, encumbrances
and security interests whatsoever. The Stockholder owns no shares of
Common Stock other than the Subject Shares.
2. Representations and Warranties of Parent and Merger Sub. Parent
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and Merger Sub hereby represent and warrant to the Stockholder that each of
Parent and Merger Sub has all requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Parent and Merger Sub, and the
consummation of the transactions contemplated hereby, have been duly authorized
by all necessary corporate action on the part of Parent and Merger Sub. This
Agreement has been duly executed and delivered by Parent and Merger Sub and
constitutes a valid and binding obligation of Parent and Merger Sub enforceable
in accordance with its terms.
3. Covenants of the Stockholder. From and after the date hereof
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through and including the termination of this Agreement, the Stockholder agrees
as follows:
(a) At any meeting of stockholders of the Company called to vote
upon the Merger and the Merger Agreement or at any adjournment thereof
or in any other circumstances upon which a vote, consent or other
approval with respect to the Merger and the Merger Agreement is
sought, the Stockholder shall vote (or cause to be voted) the Subject
Shares (over which the Stockholder has sole voting power) in favor of
the Merger, the approval of the Merger Agreement and the approval of
the terms thereof and each of the other transactions contemplated by
the Merger Agreement, provided that the terms of the Merger Agreement
shall not have been amended to adversely affect the Stockholder.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares (over
which the Stockholder has sole voting power) against (i) any merger
agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or winding
up of or by the Company or any other Acquisition Proposal or (ii) any
amendment of the Company's articles of incorporation or by-laws or
other proposal or
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transaction involving the Company or any of its subsidiaries, which amendment or
other proposal or transaction would in any manner impede, frustrate, prevent or
nullify the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement.
(c) The Stockholder hereby agrees that, except as contemplated by this
Agreement and the Merger Agreement, the Stockholder shall not (i) sell,
transfer, pledge, assign or otherwise dispose of (including by gift) or enter
into any contract, option or other arrangement (including any profit sharing
arrangement) with respect to the sale, transfer, pledge, assignment or other
disposition of (collectively, "Transfer"), or consent to or permit any Transfer
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of, any or all of the Subject Shares or any interest therein or (ii) grant any
proxy, power-of-attorney or other authorization in or with respect to the
Subject Shares. Nothing in this Agreement shall prevent the conversion of the
Subject Shares into other property in accordance with a statutory merger or
share exchange or restrict in any manner the Stockholder's right to transfer or
alienate such property.
(d) The Stockholder acknowledges that it is bound by the provisions of
Section 7.1 of the Merger Agreement and shall not, nor shall the Stockholder
permit any investment banker, attorney or other adviser or representative of the
Stockholder to, (i) directly or indirectly solicit, initiate or encourage the
submission of any Acquisition Proposal or (ii) directly or indirectly
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any Acquisition Proposal, unless and solely to the
extent expressly permitted under Section 7.1 of the Merger Agreement.
(e) Stockholder hereby agrees to validly tender pursuant to and in
accordance with the terms of the Offer, as soon as practicable after
commencement but in no event later than the then scheduled expiration date of
the Offer, all of the Subject Shares by physical delivery of the certificates
therefor (if such Subject Shares are certificated in the name of Stockholder),
and not to withdraw such Subject Shares, except following a termination of the
Offer pursuant to its terms. If such Subject Shares are currently held in the
name of a broker or other nominee, Stockholder shall instruct the broker or
nominee to deliver the securities by a book-entry transfer or other customary
electronic means for delivery of securities in connection with a tender offer.
Stockholder hereby authorizes Parent and Merger Sub to publish and disclose in
the Offer Documents and, if approval of the Company's stockholders is required
under applicable law, the Proxy Statement (including all documents and schedules
filed with the SEC) Stockholder's identity and ownership of the Subject Shares
and the nature of Stockholder's commitments, arrangements and understandings
under this Agreement.
(f) Grant of Irrevocable Proxy; Appointment of Proxy. (i) The Stockholder
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hereby irrevocably grants to, and appoints, Xxxxxx X. XxXxxxxx and Xxxxx X.
Xxxxxx or either of them, 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, the Stockholder's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of the
Stockholder, to vote the Subject Shares (over which the
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Stockholder has sole voting power) in favor of adoption of the Merger
Agreement and otherwise as contemplated by Section 3(b).
(ii) The Stockholder represents that any proxies heretofore
given in respect of the Shares are not irrevocable, and that
any such proxies are hereby revoked.
(iii) The Stockholder understands and acknowledges that Parent
is entering into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Agreement. The
Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 3(f) is given in connection with the
execution of the Merger Agreement, 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. The
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 Georgia law.
(g) Waiver of Appraisal Rights. The Stockholder hereby
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waives any rights of appraisal or rights to dissent from the Merger
that the Stockholder may have.
4. Further Assurances. The Stockholder will, from time to time,
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execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
Parent or Merger Sub may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
5. Assignment. Neither this Agreement nor any of the rights,
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interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Merger Sub
may assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to Parent or to any direct or indirect wholly owned
subsidiary of Parent. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns and, in the case of the Stockholder, the
heirs, executors and administrators of the Stockholder.
6. Termination. Notwithstanding any other provision of this
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Agreement, this Agreement (including without limitation the irrevocable proxy
contained herein) shall terminate upon the earlier of (i) the Effective Time or
(ii) a valid termination of the Merger Agreement.
7. General Provisions.
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(a) Expenses. Except as otherwise expressly provided in the
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Merger Agreement, each party hereto shall pay its own expenses incurred
in connection with this Agreement.
(b) Specific Performance. The parties hereto agree that
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irreparable damage would occur in the event that any of the provisions
of this Agreement were not performed
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in accordance with their specific terms or were 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 in any court of
the United States or any state thereof having jurisdiction, this being
in addition to any other remedy to which they are entitled at law or
in equity. Each party hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court for the District of
Delaware in any action, suit or proceeding arising in connection with
this Agreement and agrees that any such action, suit or proceeding
shall be brought only in such courts (and waives any objection based
on forum non conveniens or any other objection to venue therein). Each
party hereto waives any right to a trial by jury in connection with
any such action, suit or proceeding.
(c) Notice. All notices, requests, demands and other
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communications hereunder shall be deemed to have been duly given and
made if in writing and if served by personal delivery upon the party
for whom it is intended or if sent by telex or telecopier (and also
confirmed in writing) to the person at the address set forth below, or
such other address as may be designated in writing hereafter, in the
same manner, by such person:
(i) if to Parent or Merger Sub, to:
c/o CareerBuilder, Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxx and Xxxx LLP
00000 Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Telecopy No. (000) 000-0000
(ii) if to the Stockholder, to:
c/o the Company
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
with a copy to:
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Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxx
Telecopy No. (000) 000-0000
(iii) if to the Company, to:
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telecopy No.
with a copy to:
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxx
Telecopy No. (000) 000-0000
(d) Parties in Interest. This Agreement shall inure to the
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benefit of and be binding upon the parties named herein and their
respective successors and assigns. Nothing in this Agreement,
expressed or implied, is intended to confer upon any person other than
Parent, Merger Sub or the Stockholder, or their permitted successors
or assigns, any rights or remedies under or by reason of this
Agreement.
(e) Entire Agreement; Amendments. This Agreement contains the
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entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings, oral or written, with respect to such
transactions. This Agreement may not be changed, amended or modified
orally, but only by an agreement in writing signed by the party
against whom any waiver, change, amendment, modification or discharge
may be sought.
(f) Headings. The section headings herein are for convenience
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only and shall not affect the construction of this Agreement.
(g) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which, when executed, shall be deemed to be an
original and all of which together shall constitute one and the same
document.
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(h) Governing Law. Except to the extent required to be
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governed by the provisions of the Georgia Business Corporation
Code, this Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
(i) Capitalized Terms. Capitalized terms not otherwise defined
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in this Agreement shall have the meanings set forth in
the Merger Agreement.
(j) Severability. If any term or other provision of this
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Agreement is invalid, illegal or incapable of being enforced by
any rule of law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic and legal substance of
the transactions contemplated hereby are not affected in any
manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable
of being enforced, the parties shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated by this Agreement may be
consummated as originally contemplated to the fullest extent
possible.
8. No Limitations on Actions of the Stockholder as a Director.
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Notwithstanding anything to the contrary in this Agreement, nothing in
this Agreement is intended or shall be construed to require the Stockholder to
take or in any way limit any action that the Stockholder may take in his
capacity as an officer or director of the Company, including without limitation
the discharge of the Stockholder's fiduciary duties as a director and/or officer
of the Company.
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IN WITNESS WHEREOF, each of Parent and Merger Sub has caused this
Agreement to be signed by its officer thereunto duly authorized and the
Stockholder has duly signed this Agreement, all as of the date first written
above.
CAREER HOLDINGS, INC.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Vice President
CB MERGER SUB, INC.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Vice President
XXXXXXXXXX.XXX, INC.
By: /s/ XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
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