SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT dated as of June 5, 2000 (this "AGREEMENT"),
among The Thomson Corporation, a corporation incorporated under the law of
Ontario ("PARENT"), Marquee Acquisition Corporation, a Michigan corporation and
a wholly owned subsidiary of Parent ("PURCHASER") and each of the parties
identified on Schedule A hereto (each, a "SHAREHOLDER" and, collectively, the
"SHAREHOLDERS"), as individual shareholders of Primark Corporation, a Michigan
corporation (the "COMPANY"),
W I T N E S S E T H:
WHEREAS, concurrently with the execution of this Agreement, Parent and
Purchaser are entering into an Agreement and Plan of Merger dated as of the date
hereof (the "MERGER AGREEMENT"; capitalized terms used and not otherwise defined
herein shall have the respective meanings assigned to them in the Merger
Agreement), with the Company, pursuant to which (i) Purchaser will commence the
Offer and, (ii) following consummation of the Offer, Purchaser shall merge with
and into the Company;
WHEREAS, each Shareholder is the record or beneficial owner of the
number of shares of Common Stock, no par value, of the Company (the "COMMON
STOCK") and options to purchase Common Stock (collectively, the "SHARES") set
forth on Schedule A hereto;
WHEREAS, as a condition to entering into the Merger Agreement and
incurring the obligations set forth therein, including the Offer, Parent and
Purchaser have required that the Shareholders enter into this Agreement; and
WHEREAS, the Shareholders believe that it is in the best interests of
the Company and its shareholders to induce Parent and Purchaser to enter into
the Merger Agreement and, therefore, the Shareholders are willing to enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
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ARTICLE I
TENDER OF SHARES; OPTIONS
SECTION 1.01. TENDER OF SHARES. Subject to dispositions permitted under
Section 5.01, each Shareholder, severally but not jointly, agrees that, as soon
as practicable following commencement of the Offer, such Shareholder shall
tender or cause to be tendered all of his respective shares of Common Stock
pursuant to and in accordance with the terms of the Offer, and shall not
withdraw such shares of Common Stock from the Offer unless the Offer is
terminated. Each Shareholder, severally but not jointly, acknowledges and agrees
that Purchaser's obligation to accept for payment the Shares in the Offer,
including any Shares tendered by such Shareholder, is subject to the terms and
conditions of the Offer.
SECTION 1.02. OPTIONS. Each Shareholder, severally but not jointly,
agrees to the cancellation of each outstanding option to purchase shares of
Common Stock of the Company held by such Shareholder, in exchange for the
consideration described in Section 3.07 of the Merger Agreement.
ARTICLE II
VOTING AGREEMENT
SECTION 2.01. VOTING AGREEMENT. Each Shareholder, severally but not
jointly, hereby agrees that, from and after the date hereof and until the
termination of the Merger Agreement, at any meeting of the shareholders of the
Company, however called, and in any action by consent of the shareholders of the
Company, such Shareholder shall vote (or cause to be voted) such Shareholder's
Shares (i) in favor of the approval and adoption of the Merger Agreement, the
Merger and all the transactions contemplated by the Merger Agreement and this
Agreement and otherwise in such manner as may be necessary to consummate the
Merger; (ii) except as otherwise agreed to in writing by Parent, against any
action, proposal, agreement or transaction that would result in a material
breach of any covenant, obligation, agreement, representation or warranty of the
Company under the Merger Agreement (whether or not theretofore terminated) or of
the Shareholder contained in this Agreement; and (iii) against any action,
agreement or transaction that would materially delay or impair the ability of
the Company to consummate the transactions provided for in the Merger Agreement
or any Acquisition Proposal.
SECTION 2.02. IRREVOCABLE PROXY. Each Shareholder hereby irrevocably
appoints Parent and each of its officers as such Shareholder's attorney, agent
and proxy, with full power of substitution, to vote and otherwise act (by
written consent or otherwise) with respect to such Shareholder's Shares at any
meeting of shareholders of the Company (whether annual or special and whether or
not an adjourned or postponed meeting) or by written consent in lieu of any such
meeting or otherwise, on the matters and in the manner specified in Section
2.01. THIS
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PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO
THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY
PERSON TO WHOM A SHAREHOLDER MAY TRANSFER ANY OF HIS OR HER SHARES IN BREACH OF
THIS AGREEMENT. Each Shareholder hereby revokes all other proxies and powers of
attorney with respect to such Shareholder's Shares that may have heretofore been
appointed or granted (the "Irrevocable Proxy"), and no subsequent proxy or power
of attorney shall be given or written consent executed (and if given or
executed, shall not be effective) by any Shareholder with respect thereto. All
authority herein conferred or agreed to be conferred shall survive the death or
incapacity of any Shareholder and the termination of the Irrevocable Proxy and
any obligation of the Shareholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of such Shareholder.
SECTION 2.03. CONFLICTS. In the case of any Shareholder who is an
officer or director of the Company, no provision of this Agreement, including
Section 5.02 hereof, shall prevent or interfere with such Shareholder's
performance of his or her obligations, if any, solely in his or her capacity as
an officer or director of the Company, including, without limitation, in the
case of a director of the Company, the fulfillment of his or her fiduciary
duties, and in no event shall such performance constitute a breach of this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder, severally but not jointly, hereby represents and
warrants to Parent and Purchaser as follows:
SECTION 3.01. LEGAL CAPACITY. Such Shareholder has all legal capacity
to enter into this Agreement, to carry out his or her obligations hereunder and
to consummate the transactions contemplated hereby.
SECTION 3.02. AUTHORITY RELATIVE TO THIS AGREEMENT. Such Shareholder
has all necessary right, power and authority to execute and deliver this
Agreement, to perform such Shareholder's obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Shareholder and constitutes a legal, valid and
binding obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms, except that (i) such enforcement may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, affecting creditors' rights generally, 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.
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SECTION 3.03. NO CONFLICT. (a) The execution and delivery of this
Agreement by such Shareholder do not, and the performance of this Agreement by
such Shareholder shall not, (i) to the knowledge of such Shareholder, conflict
with or violate any Law applicable to such Shareholder (in his or her capacity
as a Shareholder) or by which the Shares owned by such Shareholder are bound or
affected or (ii) result in any breach of, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or encumbrance on any of the Shares owned by
such Shareholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Shareholder is a party or by which such Shareholder or the Shares
owned by such Shareholder are bound or affected, except for any such conflicts,
violations, breaches, defaults or other occurrences that would not prevent or
materially delay consummation of the transactions contemplated by this Agreement
or otherwise prevent or materially delay such Shareholder from performing its
material obligations under this Agreement.
(b) To the knowledge of such Shareholder, the execution and delivery of
this Agreement by such Shareholder do not, and the performance of this Agreement
by such Shareholder shall not, require any consent, approval, authorization or
permit of, or filing with or notification to, any Governmental Authority, except
(i) for applicable requirements, if any, of the Exchange Act and the HSR Act,
and (ii) where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or
materially delay consummation of the transactions contemplated by this
Agreement, or otherwise prevent such Shareholder from performing its material
obligations under this Agreement.
SECTION 3.04. TITLE TO THE SHARES. As of the date hereof, such
Shareholder is the record or beneficial owner of, and has good and unencumbered
title (except as set forth in Schedule A) to, the number of Shares set forth
beneath such Shareholder's name on Schedule A hereto. Such Shares are all the
securities of the Company owned, either of record or beneficially, by such
Shareholder and such Shareholder does not have any option or other right to
acquire any other securities of the Company. The Shares owned by such
Shareholder are owned free and clear of all Liens, other than any Liens created
by this Agreement. Except as provided in this Agreement, such Shareholder has
not appointed or granted any proxy, which appointment or grant is still
effective, with respect to the Shares owned by such Shareholder.
SECTION 3.06. INTERMEDIARY FEES. No investment banker, broker, finder
or other intermediary is, or shall be, entitled to a fee or commission from
Parent, Purchaser or the Company in respect of this Agreement based on any
arrangement or agreement made by or on behalf of such Shareholder.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser hereby, jointly and severally, represent and
warrant to each Shareholder as follows:
SECTION 4.01. CORPORATE ORGANIZATION. Each of Parent and Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has the requisite corporate power
and authority and all necessary governmental approvals to own, lease and operate
its properties and to carry on its business as it is now being conducted, except
where the failure to be so organized, existing or in good standing or to have
such power, authority and governmental approvals would not prevent or materially
delay consummation of the transactions contemplated by this Agreement or
otherwise prevent or materially delay Parent or Purchaser from performing their
respective obligations under this Agreement.
SECTION 4.02. AUTHORITY RELATIVE TO THIS AGREEMENT. Each of Parent and
Purchaser has all necessary corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement by Parent and Purchaser and the performance by Parent
and Purchaser of their obligations hereunder have been duly and validly
authorized by all necessary corporate action and no other corporate proceedings
on the part of Parent or Purchaser is necessary to authorize this Agreement.
This Agreement has been duly and validly executed and delivered by Parent and
Purchaser and, assuming due authorization, execution and delivery by the
Shareholders, constitutes a legal, valid and binding obligation of each of
Parent and Purchaser enforceable against each of Parent and Purchaser in
accordance with its terms.
SECTION 4.03. NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The
execution and delivery of this Agreement by Parent and Purchaser do not, and the
performance of this Agreement by Parent and Purchaser shall not, (i) conflict
with or violate the certificate of incorporation or by-laws or equivalent
organizational documents of Parent or Purchaser and (ii) conflict with or
violate any Law applicable to Parent or Purchaser, except any such conflicts or
violations that would not prevent or materially delay consummation of the
transactions contemplated by this Agreement or otherwise prevent or materially
delay Parent or Purchaser from performing its obligations under this Agreement.
(b) The execution and delivery of this Agreement by Parent and
Purchaser do not, and the performance of this Agreement by Parent and Purchaser
shall not, require any consent, approval, authorization or permit of, or filing
with, or notification to, any Governmental Authority, except (i) for applicable
requirements, if any, of the Exchange Act and the HSR Act, and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or materially delay
consummation of the
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transactions contemplated by this Agreement or otherwise prevent Parent or
Purchaser from performing their material obligations under this Agreement.
ARTICLE V
COVENANTS OF THE SHAREHOLDERS
SECTION 5.01. NO DISPOSITION OR ENCUMBRANCE OF SHARES. Each
Shareholder, severally but not jointly, hereby agrees that, except as
contemplated by this Agreement, such Shareholder shall not (i) sell, transfer,
tender, pledge, assign, contribute to the capital of any entity, hypothecate,
give or otherwise dispose of, grant a proxy or power of attorney with respect
to, deposit into any voting trust, enter into any voting agreement, or create or
permit to exist any Liens of any nature whatsoever with respect to, any of such
Shareholder's Shares (or agree or consent to, or offer to do, any of the
foregoing) other than the making of bona fine gifts of Shares in an aggregate
amount of not more than 10,000 Shares per Shareholder, (ii) other than as
contemplated by this Agreement, take any action that would make any
representation or warranty of such Shareholder herein untrue or incorrect in any
material respect or have the effect of preventing or disabling such Shareholder
from performing such Shareholder's material obligations hereunder or (iii)
directly or indirectly, initiate, solicit or encourage any person to take
actions that could reasonably be expected to lead to the occurrence of any of
the foregoing.
SECTION 5.02. NO SOLICITATION OF TRANSACTIONS. Subject to Section 2.03
hereof, each Shareholder, severally and not jointly, agrees that between the
date of this Agreement and the date of termination of the Merger Agreement, such
Shareholder shall not, directly or indirectly, solicit, initiate, facilitate,
including by furnishing any information to any person, or encourage the
submission of any Acquisition Proposalor any proposal that may reasonably be
expected to lead to, an Acquisition Proposal.
SECTION 5.03. FURTHER ACTION; REASONABLE BEST EFFORTS. Upon the terms
and subject to the conditions hereof, Parent, Purchaser and each Shareholder
shall use their reasonable best efforts to take, or cause to be taken, all
appropriate action, and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective this Agreement.
SECTION 5.04. DISCLOSURE. Each Shareholder agrees to permit Parent and
Purchaser to publish and disclose in the Offer Documents and the Proxy Statement
and related filings under the securities laws such Shareholder's identity and
ownership of Shares and the nature of his or her commitments, arrangements and
understandings under this Agreement.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. TERMINATION. Each Shareholder's obligation hereunder to
tender, and not withdraw, their Shares pursuant to the Offer shall terminate on
the expiration date of the Offer. The remaining provisions of this Agreement
shall terminate, and no party shall have any rights or obligations hereunder and
this Agreement shall become null and void and have no further effect upon the
earliest of (i) the effective time of the Merger and (ii) the termination of the
Merger Agreement. Nothing in this Section 7.01 shall relieve any party of
liability for any willful breach of this Agreement. Parent and Purchaser
acknowledge that, in the event of termination of this Agreement, Shareholders
shall no longer have the obligation to tender, and may withdraw, their Shares.
SECTION 6.02. ADJUSTMENTS. (a) In the event of (i) any increase or
decrease or other change in the Shares by reason of stock dividend, stock split,
recapitalization, combination, exchange of shares or the like or (ii) a
Shareholder becomes the beneficial owner of any additional Shares or other
securities of the Company, then the terms of this Agreement, including the term
"Shares" as defined herein, shall apply to the shares of capital stock and other
securities of the Company held by such Shareholder immediately following the
effectiveness of the events described in clause (i) or such Shareholder becoming
the beneficial owner thereof pursuant to clause (ii).
(b) Each Shareholder hereby agrees, while this Agreement is in effect,
to promptly notify Parent and Purchaser of the number of any new Shares acquired
by such Shareholder, if any, after the date hereof.
SECTION 6.03. AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed by all the parties hereto.
SECTION 6.04. WAIVER. Any party to this Agreement may (i) extend the
time for the performance of any obligation or other act of any other party
hereto, (ii) waive any inaccuracy in the representations and warranties of
another party contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement of another party contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
SECTION 6.05. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy,
or by registered or certified mail (postage prepaid, return receipt requested)
to the Parent or Purchaser specified below, or specified (in the case of each
Shareholder) adjacent to each Shareholder's name in Schedule A:
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if to Parent or Purchaser:
The Thomson Corporation
Metro Center, Xxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
SECTION 8.05. SEVERABILITY. If any term or other provision of this
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 or legal
substance of the transactions contemplated by this Agreement is 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 hereto 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
be consummated as originally contemplated to the fullest extent possible.
SECTION 8.06. FURTHER ASSURANCES. Each Shareholder, Parent and
Purchaser shall execute and deliver all such further documents and instruments
and take all such further action as may be reasonably necessary in order to
consummate the transactions contemplated hereby.
SECTION 8.07. ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise, except that Parent and Purchaser may assign all
or any of their rights and obligations hereunder to any affiliate of Parent,
PROVIDED that no such assignment shall relieve Parent or Purchaser of its
obligations hereunder if such assignee does not perform such obligations.
SECTION 8.08. PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
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SECTION 8.09. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 8.10. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in any state or federal court sitting in the County of New York. The
parties hereto hereby (i) submit to the exclusive jurisdiction of any state or
federal court sitting in The County of New York for the purpose of any Action
arising out of or relating to this Agreement brought by any party hereto, and
(ii) waive, and agree not to assert by way of motion, defense, or otherwise, in
any such Action, any claim that it is not subject personally to the jurisdiction
of the above-named courts, that its property is exempt or immune from attachment
or execution, that the Action is brought in an inconvenient forum, that the
venue of the Action is improper, or that this Agreement may not be enforced in
or by any of the above-named courts.
SECTION 8.11. WAIVER OF JURY TRIAL. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable law any right it may have
to a trial by jury with respect to any actions or proceedings directly or
indirectly arising out of, under or in connection with this Agreement.
SECTION 8.12. EXPENSES. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, or, in the case of legal
expenses of the Shareholders, by the Company (it being understood that the
Shareholders have not retained their own counsel but have utilized the services
of the Company's outside counsel).
SECTION 8.13. HEADINGS. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 8.14. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
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Name:
THE THOMSON CORPORATION
By
--------------------
Name:
Title:
MARQUEE ACQUISITION CORPORATION
By
--------------------
Name:
Title:
SCHEDULE A
NAME COMMON STOCK STOCK OPTIONS
---- ------------ -------------
Xxxxxx X. Xxxxxxxx 965,870 shares of which 40,605 shares 1,481,000
Primark Corporation are pledged to Primark to secure a
0000 Xxxxxx Xxxxxx loan made by it in the principal
Suite 4300N amount of $378,441.00
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx 131,897 shares 184,000
Primark Corporation of which 13,000 shares are pledged to
0000 Xxxxxx Xxxxxx Primark to secure a loan made by it in
Suite 4300N the principal amount of $216,647.22
Xxxxxxx, XX 00000
Primark Corporation 142,871 shares 226,500
0000 Xxxxxx Xxxxxx of which 26,931 shares are pledged to
Suite 4300N Primark to secure a loan made by it in
Xxxxxxx, XX 00000 the principal amount of $393,771.52
