1
Exhibit (c)(2)
SHAREHOLDER AND VOTING AGREEMENT
by and among
XXXX HOLD CO., LTD.,
N.A.J. CO., LTD.
and
CERTAIN SHAREHOLDERS OF AMWAY JAPAN LIMITED
dated as of
November 15, 1999
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TABLE OF CONTENTS
PAGE
I. ACTIONS AGREED TO............................................................................................-2-
1.1 Agreement to Take Action..............................................................-2-
1.2 Negotiation of Merger Agreement.......................................................-2-
II. REPRESENTATIONS AND WARRANTIES..............................................................................-2-
2.1 Representations and Warranties of the Principal Shareholders..........................-2-
2.2 Representations and Warranties of Parent..............................................-3-
2.3 Representations and Warranties of Purchaser...........................................-3-
III. CERTAIN COVENANTS OF PRINCIPAL SHAREHOLDERS................................................................-4-
3.1 Restriction on Transfer of Principal Shares;
Proxies and Noninterference...........................................................-4-
IV. CERTAIN COVENANTS OF PARENT AND PURCHASER...................................................................-4-
4.1 Restriction on Transfer of Non-Tendered Shares,
Proxies and Noninterference -4-
4.2 Cooperation...........................................................................-5-
V. MISCELLANEOUS................................................................................................-5-
5.1 Amendment; Termination................................................................-5-
5.2 Extension; Waiver.....................................................................-5-
5.3 Governing Law.........................................................................-5-
5.4 Notices...............................................................................-5-
5.5 Assignment............................................................................-6-
5.6 Further Assurances....................................................................-6-
5.7 Enforcement...........................................................................-6-
5.8 Severability..........................................................................-7-
5.9 Counterparts..........................................................................-7-
5.10 Headings..............................................................................-7-
5.11 Third Party Beneficiary...............................................................-7-
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SHAREHOLDER AND VOTING AGREEMENT
This SHAREHOLDER AND VOTING AGREEMENT, dated as of November 15, 1999
(this "Agreement"), is made and entered into among XXXX Hold Co., Ltd., a Nevada
limited partnership ("Parent"), N.A.J. Co., Ltd., a joint stock corporation
organized under the laws of Japan and wholly owned subsidiary of Parent
("Purchaser"), and each of the shareholders whose name is set forth on Schedule
A hereto (each, a "Principal Shareholder" and, collectively, the "Principal
Shareholders"). Except as otherwise defined herein, terms used herein with
initial capital letters have the respective meanings ascribed thereto in the
Tender Offer Agreement (as defined below).
RECITALS:
WHEREAS, Parent, Purchaser and Amway Japan Limited, a joint stock
corporation organized under the laws of Japan (the "Company"), propose to enter
into a Tender Offer Agreement, dated as of November 15, 1999 (the "Tender Offer
Agreement"), pursuant to which Purchaser will conduct a tender offer (the
"Offer") for all of the Company's Common Stock and ADSs;
WHEREAS, the Tender Offer Agreement contemplates that, following
consummation of the Offer, the Company and Purchaser will enter into a merger
agreement (the "Merger Agreement") pursuant to which the Company will merge with
and into Purchaser (the "Merger");
WHEREAS, as of the date hereof, each Principal Shareholder beneficially
owns and is entitled to dispose of (or to direct the disposition of) and to vote
(or to direct the voting of) the number of shares, no par value, of the Company,
set forth opposite such Principal Shareholder's name on Schedule A hereto
(collectively, the "Principal Shares");
WHEREAS, the Principal Shareholders have informed Purchaser that they
will not tender their Principal Shares in response to the Offer (other than a
portion of the Principal Shares owned by one of the charitable foundations
established by certain of the Principal Shareholders ("Foundation Tendered
Shares")), but the Principal Shareholders will transfer that portion of their
Principal Shares, as indicated on Schedule A, including any Principal Shares not
tendered by the charitable foundation in response to the Offer ("Offer
Non-Tendered Shares"), to Parent or Purchaser contemporaneously with the
consummation of the Offer and, no later than immediately prior to the
effectiveness of the Merger, the Principal Shareholders will transfer to Parent
the Shares that were not transferred to Parent or Purchaser contemporaneously
with the consummation of the Offer (the "Merger Non-Tendered Shares" and,
together with the Offer Non-Tendered Shares, the "Non-Tendered Shares"). It
being understood that Parent may transfer any Non-Tendered Shares to Purchaser;
WHEREAS, following the Offer and the transfer of the Offer Non-Tendered
Shares to Parent, Parent will beneficially own and be entitled to dispose of (or
to direct the disposition of)
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and to vote Shares representing in excess of two-thirds of the outstanding
Shares of the Company;
WHEREAS, all or a portion of the funds required to pay the Offer Price
will be borrowed by Purchaser pursuant to a Credit Agreement among Purchaser,
Parent, Apple Hold Co., L.P., New AAP Limited, the lenders parties thereto (the
"Lender Parties") and Xxxxxx Guaranty Trust Company of New York, Tokyo Branch,
as agent (the "Agent", and together with the Lender Parties, the "Banks");
WHEREAS, as a condition and inducement to their willingness to enter
into the Tender Offer Agreement, the Company and Purchaser have requested, and
as a condition to the agreement of the Banks to fund the Offer Price, the Banks
have requested, that Parent agree, and Parent has agreed, to enter into this
Agreement; and
WHEREAS, as a condition and inducement to their willingness to enter
into the Tender Offer Agreement, the Parent and Purchaser have requested, and as
a condition to the agreement of the Banks to fund the Offer Price, the Banks
have requested, that each Principal Shareholder agree, and each Principal
Shareholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
I. ACTIONS AGREED TO
1.1 AGREEMENT TO TAKE ACTION. Each Principal Shareholder agrees to take
all commercially reasonable efforts to cause the Company and Purchaser to enter
into the Merger Agreement and to effect the Merger. Purchaser agrees, as soon as
practicable following consummation of the Offer and following the execution and
delivery of the Merger Agreement, to take all steps necessary to duly call, give
notice of, convene and hold a meeting of its shareholders for approval or
adoption of the Merger Agreement and the Merger. In furtherance thereof, at any
meeting of the shareholders of the Company or Purchaser called to consider and
vote upon the adoption or approval of the Merger Agreement and the Merger (and
at any and all postponements and adjournments thereof), each Principal
Shareholder will vote, and the Principal Shareholders will cause Parent to vote,
Parent hereby agrees to vote, Parent will cause Purchaser to vote, and Purchaser
hereby agrees to vote, all of the Merger Non-Tendered Shares and the Offer
Non-Tendered Shares, as the case may be, and all shares of capital stock of
Purchaser, in favor of the adoption or approval of the Merger Agreement and the
Merger and in favor of any other matter necessary or appropriate for the
consummation of the transactions contemplated by the Merger Agreement that is
considered and voted upon at any such shareholders' meeting.
1.2 NEGOTIATION OF MERGER AGREEMENT. The parties agree to negotiate the
terms of the Merger Agreement in good faith.
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II. REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL SHAREHOLDERS. Each
Principal Shareholder, severally and not jointly, represents and warrants to
Parent, Purchaser and the Banks as of the date hereof and as of the closing date
for the Merger (the "Closing Date"), as follows:
(a) EXECUTION AND DELIVERY. Such Principal Shareholder has all
requisite power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. In the case of each Principal Shareholder that
is not a natural person, the execution and delivery of this Agreement by such
Principal Shareholder and the consummation by such Principal Shareholder of the
transactions contemplated hereby have been duly authorized by all necessary
action, if any, on the part of such Principal Shareholder. This Agreement has
been duly and validly executed and delivered by such Principal Shareholder.
(b) OWNERSHIP OF SHARES. Such Principal Shareholder is the
sole holder of record and beneficial owner of such number of Principal Shares
set forth opposite its, his or her name on SCHEDULE A and holds good, valid and
marketable title to such Principal Shares and will hold such title at the date
or dates such Principal Shareholders transfer their Principal Shares to Parent.
2.2 REPRESENTATIONS AND WARRANTIES OF PARENT. Parent represents and
warrants to Purchaser and the Principal Shareholders, as of the date hereof and
as of the Closing Date, as follows:
(a) ORGANIZATION. Parent is a U.S. limited partnership duly
organized, validly existing and in good standing under the laws of Nevada.
(b) AUTHORITY RELATIVE TO THIS AGREEMENT. Parent has all
requisite limited partnership power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby on the part of Parent have been duly and validly authorized
by the general partner of Parent and no other limited partnership 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.
(c) CONSENT AND APPROVALS; NO VIOLATION. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby and the performance by Parent of its obligations hereunder
will not:
(i) conflict with any provision of the certificate of
formation of Parent; or
(ii) require on the part of Parent any consent,
approval, order, authorization or permit of, or registration, filing or
notification to, any Governmental Authority or any third party.
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2.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents
and warrants to Parent and the Principal Shareholders, as of the date hereof and
as of the Closing Date, as follows:
(a) ORGANIZATION. Purchaser is a company duly incorporated and
is validly existing as a corporation under the laws of Japan.
(b) POWER AND AUTHORITY. Purchaser has full corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby on the part of
Purchaser have been duly and validly authorized by its board of directors and
its sole shareholder and no other corporate proceedings on the part of Purchaser
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby, subject, in the case of the Merger, to the authorization,
approval, execution and delivery of the Merger Agreement and the approval of the
Merger Agreement and the Merger by the requisite vote of Purchaser's
shareholders. This Agreement has been duly and validly executed and delivered by
Purchaser.
(c) CONSENT AND APPROVALS; NO VIOLATION. The execution and
delivery by Purchaser of this Agreement does not, and the consummation of the
transactions contemplated hereby and the performance by Purchaser of its
obligations hereunder will not:
(i) conflict with or violate any provision of
Purchaser's Articles of Incorporation; or
(ii) require on the part of Purchaser any consent,
approval, order, authorization or permit of, or registration, filing or
notification to, any Governmental Authority, except for (i) the exemptive relief
and no-action position obtained from the SEC in that certain letter dated
November 4, 1999, from the SEC in connection with the Offer, (ii) the filing by
Purchaser with the SEC of such reports under the Exchange Act as may be required
in connection with the Tender Offer Agreement (including, without limitation,
the Schedule 14D-1 and the Schedule 13E-3), and the transactions contemplated
thereby, (iii) the filing by Purchaser of the Registration Statement with the
DKLFB in connection with the Offer, (iv) the filing of a securities notification
on the approval of the Merger Agreement by the requisite vote of Purchaser's
shareholders with the DKLFB, (v) such additional actions, registrations or
filings as would be required in connection with the Merger and (vi) such
additional actions, registrations or filings which, if not taken or made, would
not, singly or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, the earnings, business affairs or business
prospects of Purchaser or the transactions contemplated by this Agreement.
III. CERTAIN COVENANTS OF PRINCIPAL SHAREHOLDERS
3.1 RESTRICTION ON TRANSFER OF PRINCIPAL SHARES; PROXIES AND
NONINTERFERENCE. Each Principal Shareholder hereby agrees that it will not,
directly or indirectly: (A) except as otherwise contemplated by this Agreement
or the Tender Offer Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale,
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transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Principal Shares or any other Shares it may at anytime own
(collectively, "Company Shares"); (B) except pursuant to the terms of this
Agreement, grant any proxies or powers of attorney, deposit any Company Shares
into a voting trust or enter into a voting agreement with respect to any Company
Shares; or (C) take any action that would reasonably be expected to make any
representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of such Principal Shareholder to perform its
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
IV. CERTAIN COVENANTS OF PARENT AND PURCHASER
4.1 RESTRICTION ON TRANSFER OF NON-TENDERED SHARES, PROXIES AND
NONINTERFERENCE. Each of Parent and Purchaser hereby agrees that it will not,
directly or indirectly: (A) except as otherwise contemplated by this Agreement
or the Tender Offer Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Non-Tendered Shares or any other Shares it may
at anytime own (collectively, "Parent Shares" or "Purchaser Shares"); (B) except
pursuant to the terms of this Agreement, grant any proxies or powers of
attorney, deposit any Parent Shares or Purchaser Shares, as the case may be,
into a voting trust or enter into a voting agreement with respect to any Parent
Shares or Purchaser Shares, as the case may be; or (C) take any action that
would reasonably be expected to make any representation or warranty contained
herein untrue or incorrect or have the effect of impairing the ability of Parent
or Purchaser to perform its obligations under this Agreement or preventing or
delaying the consummation of any of the transactions contemplated hereby.
4.2 COOPERATION. Each of Parent and Purchaser will cooperate fully with
the parties hereto in connection with their respective reasonable best efforts
to fulfill the conditions to (a) the Offer set forth in Article I to the Tender
Offer Agreement and (b) the Merger set forth in Article II of the Tender Offer
Agreement.
V. MISCELLANEOUS
5.1 AMENDMENT; TERMINATION. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto. This
Agreement will terminate upon the date the Tender Offer Agreement is terminated
in accordance with its terms or, if the Offer is consummated, upon the date the
Merger Agreement is terminated in accordance with its terms. In the event of
termination of this Agreement pursuant to this Section 5.1, this Agreement,
except as to these transactions already consummated, will become null and void
and of no effect with no liability on the part of any party hereto; provided,
however, that no such termination will relieve any party hereto from any
liability for any breach of this Agreement arising under applicable law.
5.2 EXTENSION; WAIVER. Any agreement on the part of a party to waive
any provision of this Agreement, or to extend the time for any performance
hereunder, will be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise will not constitute a waiver of
such rights.
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5.3 GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York and the parties hereby
irrevocably submit to the non-exclusive jurisdiction of such courts of competent
jurisdiction of the State of New York in New York County, the City of New York
or in the United States District Court for the Southern District of New York.
5.4 NOTICES. All notices and other communications hereunder shall
comply with the notice provisions of the Tender Offer Agreement. In addition,
all notices to the Principal Shareholders shall be sent to the following
parties:
Amway Corporation
0000 Xxxxxx Xxxxxx Xxxx
Xxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxx_xxxxxxx@xxxxx.xxx
with copies to (for those Principal Shareholders
listed on SCHEDULE A as the "XxXxx Family"):
Xxxxxxx Xxxxxx & Xxxxx
Worldwide Plaza
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxxxx.xxx
with copies to (for those Principal Shareholders
listed on SCHEDULE A as the "Xxx Xxxxx Family"
and "Other"):
Xxxxx & Xxxxxxx
Columbia Square
000 Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx-Xxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxxxx@xxxxx.xxx
5.5 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any party hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. 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.
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5.6 FURTHER ASSURANCES. Each of the Principal Shareholders and Parent
will execute and deliver such other documents and instruments and take such
further actions as may be necessary or appropriate or as may be reasonably
requested by Purchaser, in order to ensure that Purchaser receives the full
benefit of this Agreement.
5.7 ENFORCEMENT. Irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement, this
being in addition to any other remedy to which they are entitled at law or in
equity.
5.8 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
5.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same instrument and
will become effective when one or more counterparts have been signed by any
party and delivered to the other parties.
5.10 HEADINGS. The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
5.11 THIRD PARTY BENEFICIARY. Except for the Banks, this Agreement is
not intended to confer upon any person other than the parties hereto any rights
or remedies hereunder. The Banks shall have the same rights and remedies
available to the parties to this Agreement as if the Banks were a party hereto.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
XXXX HOLD CO., LTD:
By: AP New Co., LLC, as general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager for General Partner
N.A.J. CO., LTD.
By: /s/ Xxxxxxxx X. Call
-------------------------------
Name: Xxxxxxxx X. Call
Title: Attorney-in-Fact
PRINCIPAL SHAREHOLDERS:
XXX XXX XXXXX TRUST
By: /s/ Xxx Xxx Xxxxx
-------------------------------
Name: Xxx Xxx Xxxxx
Title: Trustee
JAPAN HCI, INC.
By: /s/ Xxx Xxx Xxxxx
-------------------------------
Name: Xxx Xxx Xxxxx
Title: Chief Executive Officer,
President, Treasurer
XXX AND XXXXX XXX XXXXX FOUNDATION
By: /s/ Xxx Xxx Xxxxx
-------------------------------
Name: Xxx Xxx Xxxxx
Title: President
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XXXXXXX & XXXXX XXXXX FOUNDATION
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President, Secretary
RDV (AJL) HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
HDV (AJL) HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
RDV GRIT HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
HDV GRIT HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
RDV CAPITAL MANAGEMENT, X.X. XX
By: RDV Corporation, as general partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: /s/ Xxxxx Xxxxxxxx
Title: President
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XXX XXXXX INSTITUTE
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Trustee
By: /s/ Xxxxx Xxx Xxxxx
-------------------------------
Name: Xxxxx Xxx Xxxxx
Title: Trustee
XXX XXXXX RESEARCH INSTITUTE
By: /s/ Xxxxx Xxx Xxxxx
-------------------------------
Name: Xxxxx Xxx Xxxxx
Title: Trustee
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Trustee
XXX XXXXX EDUCATION INSTITUTE
By: /s/ Xxxxx X. Xxx Xxxxx
------------------------------
Name: Xxxxx X. Xxx Xxxxx
Title: Trustee
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Trustee
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SCHEDULE A
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NUMBER OF MERGER NON- FOUNDATION
SHAREHOLDER PRINCIPAL TENDERED TENDERED
SHARES OWNED SHARES SHARES
-----------------------------------------------------------------------------------------------------------------------
X. XXX XXXXX FAMILY
-----------------------------------------------------------------------------------------------------------------------
Xxx Xxx Xxxxx Trust *27,614,311
-----------------------------------------------------------------------------------------------------------------------
Japan HCI, Inc. 25,787,300
-----------------------------------------------------------------------------------------------------------------------
Xxx and Xxxxx Xxx Xxxxx Foundation 1,987,000
-----------------------------------------------------------------------------------------------------------------------
II. XXXXX FAMILY
-----------------------------------------------------------------------------------------------------------------------
Xxxxxxx & Xxxxx XxXxx Foundation 2,070,300 550,000
-----------------------------------------------------------------------------------------------------------------------
RDV (AJL) Holdings, Inc. 24,868,000 4,500,000
-----------------------------------------------------------------------------------------------------------------------
HDV (AJL) Holdings, Inc. 20,510,000
-----------------------------------------------------------------------------------------------------------------------
RDV Grit Holdings, Inc. 2,396,800
-----------------------------------------------------------------------------------------------------------------------
HDV Grit Holdings, Inc. *1,550,011
-----------------------------------------------------------------------------------------------------------------------
RDV Capital Management, X.X. XX 2,296,000
-----------------------------------------------------------------------------------------------------------------------
III. OTHER
-----------------------------------------------------------------------------------------------------------------------
Xxx Xxxxx Institute 536,000
-----------------------------------------------------------------------------------------------------------------------
Xxx Xxxxx Research Institute 48,600
-----------------------------------------------------------------------------------------------------------------------
Xxx Xxxxx Education Institute 48,700
-----------------------------------------------------------------------------------------------------------------------
TOTAL 110,263,022 4,500,000 550,000
-----------------------------------------------------------------------------------------------------------------------
* Includes 11 shares that are held in ADS form at Michigan National Bank.
