EXHIBIT 9
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of
May 10, 1999, is entered into by and among RNYC Holdings Limited, a Gibraltar
corporation, ("Principal Stockholder"), Congregation Beit Xxxxxx (solely as
beneficiary of a life estate of Owned Shares (as defined below) beneficially
owned by Principal Stockholder) (together with Principal Stockholder, the
"Stockholder"), Saban S.A., a Panamanian corporation ("Stockholder Parent") and
Xx. Xxxxxx X. Xxxxx ("Xx. Xxxxx") and HSBC Holdings plc, an English public
limited company ("Parent").
WHEREAS, simultaneously with the execution of this Agreement,
Parent, Safra Republic Holdings, S.A., a societe anonyme organized under the
laws of Luxembourg ("SRH"), and Republic New York Corporation, a Maryland
corporation (the "Company"), are entering into a Transaction Agreement and Plan
of Merger, dated as of the date hereof (the "Merger Agreement") providing, among
other things, for the merger of a wholly owned subsidiary of Parent ("Sub") with
and into the Company (the "Merger"); and
WHEREAS, as of the date hereof, Stockholder is the Beneficial
Owner (as defined below) of, and has the sole right to vote and dispose of,
31,044,228 shares of common stock, par value $5.00 per share ("Common Stock"),
of the Company (the "Owned Shares"); and
WHEREAS, as of the date hereof, Stockholder Parent is the
Beneficial Owner of, and has the sole right to vote and dispose of, 14,699,124
shares of common stock, $5.00 par value (the "SRH Stock"), of SRH (the "Owned
SRH Shares"); and
WHEREAS, in the Merger Agreement Parent has agreed, subject to
the conditions set forth therein, to make an offer to purchase for cash all of
the shares of SRH Stock not owned by the Company; and
WHEREAS, as an inducement and a condition to their entering
into the Merger Agreement and incurring the obligations set forth therein,
Parent has required that Stockholder, Stockholder Parent and Xx. Xxxxx
(individually, a "Stockholder Party" and collectively, the
"Stockholder Parties") enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements contained
herein and in the Merger Agreement, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used but not defined in this Agreement
are used in this Agreement with the meanings given to such terms in the Merger
Agreement. In addition, for purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified. For purposes of this Agreement, with respect to any Stockholder
Party, "AFFILIATE" shall not include the Company and the Persons that directly,
or indirectly through one or more intermediaries, are controlled by the Company.
"Beneficially Owned" or "Beneficial Ownership" with respect to
any securities means having beneficial ownership of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act, disregarding the
phrase "within 60 days" in paragraph (d)(1)(i) thereof), including pursuant to
any agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all Affiliates of such Person and all other Persons with whom such Person would
constitute a "Group" within the meaning of Section 13(d) of the Exchange Act and
the rules promulgated thereunder.
"Beneficial Owner" with respect to any securities means a
Person which has Beneficial Ownership of such securities.
"Person" means an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
"Proposed Business Combination" means the transactions
contemplated by the Merger Agreement.
"Transfer" means, with respect to a security, the sale,
transfer, pledge, hypothecation, encumbrance, assignment or disposition of such
security or the Beneficial Ownership thereof, the offer to make such a sale,
transfer or other disposition, and each option, agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing. As a
verb, "Transfer" shall have a correlative meaning.
2. NO DISPOSITION OR SOLICITATION.
(a) During the term of this Agreement, Stockholder agrees
that except as contemplated by this Agreement, it will not Transfer or agree
to Transfer any Common Stock Beneficially Owned by it other than with Parent's
prior written consent, or grant any proxy or power-of-attorney with respect
to any such Common Stock other than pursuant to this Agreement.
(b) During the term of this Agreement, Stockholder Parent
agrees that except as contemplated by this Agreement, it will not Transfer
or agree to Transfer any SRH Stock Beneficially Owned by it other than with
Parent's prior written consent, or grant any proxy or power-of-attorney with
respect to any such SRH Stock other than pursuant to this Agreement.
(c) Each Stockholder Party agrees, that from and after the
date hereof, except as contemplated by this Agreement, it or he and their
respective Affiliates and representatives, will not directly or indirectly
solicit, initiate, or encourage any inquiries or proposals from, discuss or
negotiate with, or
provide any non-public information to, any Person relating to, or otherwise
facilitate any tender or exchange offer, proposal for a merger,
consolidation or other business combination involving the Company, SRH or
any of their respective subsidiaries or any proposal or offer to acquire in
any manner a substantial equity interest in, or a substantial portion of
the assets of, the Company or SRH or any of their respective subsidiaries
other than the Proposed Business Combination (an "Alternative
Transaction").
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(d) Each Stockholder Party agrees that unless required
by applicable law, neither it nor any of its Affiliates shall make any press
release, public announcement or other communication with respect to the
business or affairs of the Company, SRH, this Agreement, or Parent,
including this Agreement, the Merger Agreement and the Option Agreement
and the transactions contemplated hereby and thereby, without the prior
written consent of Parent.
(e) Stockholder agrees that it will not issue any shares
of
capital stock to any Person. Stockholder Parent agrees that it will not
Transfer or agree to Transfer any capital stock of the Stockholder, and
that it will take all action necessary to cause the Stockholder to timely
comply with all its obligations under this Agreement.
(f) Stockholder Parent agrees that it will not issue any
shares of capital stock to any Person. Xx. Xxxxx agrees that he will not
Transfer
or agree to Transfer any stock of Stockholder Parent except as may result
from the
laws of descent and distribution (any such transfer to be subject to Section
13(d) hereof) and that he will take all action necessary to cause each of
Stockholder Parent and Stockholder to timely comply with all of its
obligations under this Agreement.
3. STOCKHOLDER VOTE; OFFER.
(a) Stockholder agrees that, unless this Agreement has
been terminated in accordance with its terms, (i) at such time as the
Company conducts a meeting of or otherwise seeks a vote or consent of its
stockholders for the purpose of approving the Merger Agreement and the Merger
(such meeting or any adjournment thereof, or such consent process, the
"Company
Meeting"),it will vote, or provide a consent with respect to, all Common
Stock (including the Owned Shares) then Beneficially Owned by Stockholder
in favor of the Merger Agreement and the Merger and (ii) it will (at any
meeting of stockholders) vote its shares of Common Stock (including the
Owned Shares) against, and it will not consent to, any Alternative
Transaction or any action that would materially delay, prevent or frustrate
the transactions contemplated by the Merger Agreement.
Without limiting the foregoing, it is understood that the
obligations under clause (i) above shall remain applicable in respect of each
meeting of stockholders of the Company duly called for the purpose of approving
the Merger Agreement and the Merger regardless of the position of the Company's
Board as to the Merger at the time of such meeting, and that the obligations
under clause (ii) above shall continue as set forth in Section 11.
(b) Stockholder Parent agrees that, unless this Agreement
has
been terminated in accordance with its terms, at such time as Parent or
Parent's
designee makes the Offer as contemplated by the Merger Agreement Stockholder
Parent will, within 10 business days after commencement of the Offer, duly
tender
all of the shares of SRH Stock then owned by it into the Offer, in
accordance with the terms thereof, and will not subsequently withdraw such
tender, PROVIDED that Stockholder Parent may withdraw such tender if the
Merger Agreement has been terminated in accordance with its terms.
4. REASONABLE EFFORTS TO COOPERATE. Each Stockholder
Party will (a) use all reasonable efforts to cooperate with the Company, SRH,
Parent and Sub in connection with the
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transactions contemplated by the Merger Agreement, (b) promptly take such
actions as are necessary or appropriate to consummate such transactions, and (c)
provide any information reasonably requested by the Company, SRH, Parent and Sub
for any regulatory application or filing made or approval sought for such
transactions (including filings with the Securities and Exchange Commission).
5. ADDITIONAL STOCK.
(a) Stockholder agrees that any additional shares of Common
Stock acquired by it or over which it acquires Beneficial Ownership, whether
pursuant to existing stock option agreements, warrants or otherwise, shall
be subject to the provisions of this Agreement. Stockholder Parent and Xx.
Xxxxx each agree that if it or he should acquire record or Beneficial
Ownership of any shares of Common Stock, the term Stockholder shall be deemed
to be modified to include it or him, as the case may be.
(b) Stockholder Parent agrees that any additional shares of SRH Stock acquired
by it or over which it acquires Beneficial Ownership, whether pursuant to
existing stock option agreements, warrants or otherwise, shall be subject to the
provisions of this Agreement. Stockholder and Xx. Xxxxx. each agree that if it
or he should acquire record or beneficial ownership over any shares of SRH
Stock, the term Stockholder Parent shall be deemed to be modified to include it
or him, as the case may be.
6. IRREVOCABLE PROXY.
(a) (i) In furtherance of the agreements contained in
Section 3(a) of this Agreement, the Stockholder hereby irrevocably (to the
extent set forth herein) grants to, and appoints, Parent and JRH Bond, Group
Chairman of Parent, XX Xxxxxxx, Group Chief Executive Officer of Parent, and
XX Xxxxx, Group Finance Director of Parent, in their respective capacities as
officers of Parent, and any individual who shall hereafter succeed to any
such
office of Parent, and each of them individually, Stockholder's proxy and
attorney-if-fact (with full power of substitution), for and in the name, place
and stead of Stockholder, to vote all shares of Common Stock beneficially
owned
by Stockholder, or grant a consent or approval in respect of such shares, or
execute and deliver a proxy to vote such shares, (x) in favor of the Merger
and the Merger Agreement and approval of the terms thereof and each of the
other transactions contemplated by the Merger Agreement and (y) against any
Alternative Transaction or any other matter referred to in Section 3(a)(ii)
hereof, in each case to the extent the Stockholders Parties are required to so
vote under Section 3.
(ii) The Stockholder represents and warrants to
Parent and Sub that any proxies heretofore given in respect of its Owned Shares
are not irrevocable, and that any such proxies are hereby revoked.
(iii) The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 6(a) is given in connection with, and in
consideration of, the execution of the Merger Agreement by Parent, and that
such irrevocable proxy is given to secure the performance of the duties of
the Stockholder under this Agreement. The Stockholder hereby further affirms
that the irrevocable proxy is coupled with an interest and may under no
circumstances be
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revoked. Such Stockholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in accordance
with the provisions of Section 2-507 of the Maryland General Corporation Law.
The proxy granted in this Section 6(a) shall remain valid until terminated
pursuant to Section 12 hereof.
(b) The irrevocable proxy granted pursuant to Section 6(a)
shall automatically terminate and be revoked upon termination of this Agreement
in accordance with its terms.
7. COVENANT OF STOCKHOLDER PARTIES. Each Stockholder Party
agrees that it will take all action necessary to (i) permit (a) the Owned
Shares to be acquired in the Merger and (b) the voting of the Owned Shares in
accordance with the terms of this Agreement and (ii) prevent creditors in
respect of any pledge of Owned Shares from exercising their rights under such
pledge.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
STOCKHOLDER PARTIES. Each Stockholder Party hereby represents and warrants to,
and agrees with, Parent and Sub as follows (it being understood that the
representations and warranties made by Congregation Beit Xxxxxx are made
severally and only with respect to the Owned Shares held by it):
(a) Such Stockholder Party has all necessary power and
authority and legal capacity to execute and deliver this Agreement and
perform its or his obligations hereunder. No other proceedings or
actions
on the part of such Stockholder Party are necessary to authorize the
execution, delivery or performance of this Agreement or the
consummation
of the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and
delivered by such Stockholder Party and constitutes the valid and binding
agreement of such Stockholder Party, enforceable against such Stockholder Party
in accordance with its terms except (i) to the extent limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(c) (i) The Stockholder Parties are the sole Beneficial
Owners of the Owned Shares. The Stockholder has good and marketable title
to all of the Owned Shares, free and clear of all liens, claims, options,
proxies, voting agreements and security interests, except for (x) liens,
claims, options, proxies, voting agreements and security interests and
(y) pledges of Owned Shares previously disclosed to Parent, in each case,
that would not have a material adverse effect on the ability of the Stockholder
Parent to perform its obligations under this Agreement. The Owned Shares
constitute all of the capital stock of the Company Beneficially Owned by any
of the Stockholder Parties and none of the Stockholder Parties or its or his
Affiliates is the Beneficial Owner of, or has any right to acquire (whether
currently upon lapse of time, following the satisfaction of any conditions,
upon the occurrence of any event or any combination of the
foregoing) any shares of Common Stock or any securities convertible
into or exchangeable or exercisable for shares of Common Stock.
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(ii) The Stockholder Parties (other than the
Stockholder)
are the sole Beneficial Owners of the Owned SRH Shares, free and clear of all
liens, claims, options, proxies, voting agreements and security interests,
except for liens, claims, options, proxies, voting agreements and security
interests that would not have a material adverse effect on the ability of the
Stockholder Parent to perform its obligations under this Agreement. The
Owned
SRH Shares constitute all of the capital stock of SRH Beneficially Owned by
any of the Stockholder Parties and none of the Stockholder Parties or its
or
his Affiliates is the Beneficial Owner of, or has any right to acquire
(whether
currently, upon lapse of time, following the satisfaction of any
conditions,
upon the occurrence of any event or any combination of the foregoing) any
shares of SRH Stock or any securities convertible into or exchangeable or
exercisable for shares of SRH Stock.
(d) Stockholder Parent has sole Beneficial Ownership,
free
and clear of all liens, claims, options, proxies, voting agreements and
security interests, of (i) all outstanding capital stock of Stockholder and
(ii) 14,699,124 shares of SRH Stock, representing approximately 20% of
the shares of SRH Stock outstanding. Xx. Xxxxx has Beneficial Ownership
of all of the outstanding capital stock of Stockholder Parent. No other
Person has any right to acquire (whether currently, upon lapse of time,
following satisfaction of any conditions, upon the occurrence of any
event, or any combination of the foregoing) Beneficial Ownership of, any
capital stock of Stockholder or Stockholder Parent or any securities
convertible into or exchangeable or exercisable for shares of any such
capital stock.
(e) Neither the execution and delivery of this Agreement
by any Stockholder Party nor the consummation of the transactions
contemplated hereby will (i) conflict with, result in any violation of,
require any consent under or constitute a default (whether with notice
or lapse of time or both) by such Stockholder Party under such Stockholder
Party's
constituent documents (in the case of the Stockholder and Stockholder
Parent) or any mortgage, bond, indenture, agreement, instrument or
obligation to which such Stockholder Party is a party or by which such
Stockholder Party or by which any of the Owned Shares or the Owned SRH
Shares
are bound; (ii) violate any judgment, order, injunction, decree or award
of any court, administrative agency or governmental body that is binding on
such
Stockholder Party; or (iii) constitute a violation by such Stockholder Party
of any law or regulation of any jurisdiction, in each case except for
violations,
conflicts or defaults that would not have a material adverse effect on the
ability of any Stockholder Party to perform its obligations under this
Agreement.
(f) Each Stockholder Party understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon such Stockholder
Party's execution, delivery and performance of this Agreement. Each of the
Stockholder and the Stockholder Parent acknowledges that its irrevocable
proxy
set forth in Section 6(a) is granted in consideration of the execution and
delivery of the Merger Agreement by Parent.
9. REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB.
Parent
represents and warrants to the Stockholder Parties that Parent has full
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution, delivery and performance
of this Agreement by Parent will not constitute a violation of, conflict with
or result in a default under, (i) any contract, understanding or arrangement
to
which Parent is a party or by which it is bound or requires the consent
of any
other Person or any party pursuant
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thereto, (ii) any judgment, decree or order applicable to Parent, or (iii) any
law, rule or regulation of any jurisdiction, in each case except for violations,
conflicts or defaults that would not have a material adverse effect on the
ability of the Parent to perform its obligations under this Agreement; and this
Agreement constitutes a legal, valid and binding agreement on the part of
Parent, enforceable against Parent in accordance with its terms, except as such
enforceability may be limited by principles applicable to creditors' rights
generally or governing the availability of equitable relief. The execution and
delivery by Parent of this Agreement and the consummation by Parent of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Parent and no other corporate proceedings on the part of
Parent are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Parent.
10. NON-COMPETITION. (a) Solely as an inducement to Parent's
and Sub's entering into the Merger Agreement and for no other consideration,
Xx. Xxxxx agrees not to engage in any aspect of a Covered Business (as
hereinafter defined) other than on behalf of the Company, SRH, the Successor
Corporation or any of their respective Subsidiaries for the period of time
commencing on the Closing Date and ending on the seventh anniversary of the
Closing Date; provided, however, that if after such seventh anniversary
of the Closing Date, Xx. Xxxxx shall found, establish, invest (other than as
contemplated by clause (b)(i) and clause (c) below) in any Competitor,
arent shall have the right, but not the obligation, to invest in such
Competitor on a 50/50 basis with Xx. Xxxxx pursuant to an agreement among
shareholders containing buy/sell arrangements which would permit one party
to purchase the interest of the other upon termination of the
co-ownership.
(b) Xx. Xxxxx shall be deemed to be engaging in a Covered
Business if he:
(i) directly or indirectly, individually or through
another Person, whether or not for compensation, participates in the
ownership, management, operation or control of any Competitor (as
hereinafter defined) or is employed by or performs consulting services
for any Competitor; PROVIDED, that nothing herein shall be deemed to
prevent Xx. Xxxxx from having record or Beneficial Ownership of less
than 5% (including shares or other securities underlying options or
other convertible securities, stock appreciation rights, phantom stock
or similar rights, whether or not currently exercisable) of any
publicly-traded company unless such ownership is accompanied by an
employment, consulting or similar arrangement pursuant to which he
participates in the management, operation or control of such company;
(ii) directly or indirectly, individually or through
another Person, solicits any Person who was a customer or prospective
customer of the Company, SRH, the Successor Corporation or any of their
respective Subsidiaries at any time prior to the Effective Time with a
view to inducing such customer or prospective customer to enter into an
agreement or otherwise do business with any Competitor with respect to
a Covered Business, or attempts directly or indirectly to induce any
such customer or prospective customer to terminate its relationship
with the Company, SRH, the Successor Corporation or any of their
respective Subsidiaries or to not enter into a relationship with
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the Company, SRH, the Successor Corporation or any of their respective
Subsidiaries, as the case may be;
(iii) directly or indirectly, individually or through
another Person releases any customer or prospect lists of the
Company, SRH, the Successor Corporation or any of their
respective Subsidiaries, or any other documents or other
information (whether or not such information is in writing)
proprietary to the Company, SRH or any of their respective
Subsidiaries or any customer of the Company, SRH, the Successor
Corporation or any of their respective Subsidiaries, or otherwise
confidential or non-public, to any Person, except with the prior
written consent of the Company, SRH, the Surviving Corporation or any
of their respective Subsidiaries or as may be required pursuant to the
order of a court of competent jurisdiction; or
(iv) offers, directly or indirectly, individually or
through another Person, employment to any employee of the Company, SRH,
the Successor Corporation or any of their respective Subsidiaries or
directly or indirectly attempts to induce any such employee to leave
the employ of the Company, SRH, the Successor Corporation or any of
their respective Subsidiaries or aids or assists any other Person in
doing so; PROVIDED that nothing herein shall be deemed to prevent Xx.
Xxxxx from employing, directly or indirectly, any of the individuals
separately agreed to in writing by the Parent and Xx.
Xxxxx.
(c) For purposes of Section 10(a) and Section 10(b):
(i) A "COVERED BUSINESS" is the provision of banking,
brokerage, trading or other financial services in which the Company,
SRH or any of their respective Subsidiaries is engaged on the Closing
Date. For purposes of this Agreement, "Covered Business" shall not
include any of the following activities, and Xx. Xxxxx shall not be
deemed to be engaging in a Covered Business if he engages, directly or
indirectly, solely in any one or more of the following activities:
(A) managing and investing assets beneficially owned, directly
or indirectly, by Xx. Xxxxx or members of his immediate family;
(B) managing or investing assets beneficially owned by any
other Person and providing related advisory services PROVIDED THAT:
(I) any such Person will directly or indirectly be or
represent ultimately an investor which is a natural person and
not any form of mutual fund, unit trust or other fund held
publicly;
(II) the number of such ultimate investors shall not
exceed one hundred (100);
(III) any such arrangements will be "private," in
that the availability of any such services will not be
advertised or publicized in any form whatsoever and will
remain confidential;
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(IV) any assets managed and invested as permitted by
this clause (B) will be managed and invested together with the
assets managed and invested as permitted by clause (A) above,
as pooled and joint investments (or arrangements similar to
pooled and joint investments) ("pooled investments") on the
basis that of such pooled investments, the assets managed and
invested pursuant to clause (A) above will constitute a
majority in aggregate value of the pooled investments and the
aggregated value of the assets managed as pooled investments
(including those managed pursuant to clause (A) above),
without taking account of investment results, does not exceed
$5 billion;
(V) Xx. Xxxxx does not accept for management pursuant
to this clause (B), assets or the proceeds of assets that, to
the best knowledge of Xx. Xxxxx were removed from accounts
managed by the Company, SRH or any of their respective
Subsidiaries; and
(VI) the Company, SRH or one or more of their
Subsidiaries will act as custodian (in accordance with their
standard fees) for investments and/or liquid funds included in
the pooled investments referred to in subclause (IV) above;
(C) ownership of any securities beneficially owned by Xx.
Xxxxx on the date of this Agreement and any business activities that
Xx. Xxxxx or his Affiliates are engaged or participating in on the date
of this Agreement (other than business activities conducted by or
through the Company, SRH or any of their respective Subsidiaries) to
the extent Xx. Xxxxx or his affiliates are engaged or participating in
such business activities on the date of this Agreement.
(ii) A "Competitor" is any Person which engages in
any Covered Business.
(d) Xx. Xxxxx hereby agrees that:
(i) Each of the covenants contained in Section
10(b)(i)-(iv) hereof shall be construed as a separate covenant.
(ii) If any provision of this Section 10 or portion
hereof is so broad, in scope or duration, so as to be unenforceable,
such provision or portion hereof shall be interpreted to be only so
broad as is enforceable.
(e) Xx. Xxxxx agrees to deliver promptly to Parent, upon the
request of Parent, the Company, SRH or the Surviving Corporation following the
Effective Time, all documents (and all copies thereof, in written, electronic or
any other form whatsoever) relating to the business of the Company, SRH, the
Surviving Corporation or any of their respective Subsidiaries, and all property
associated therewith, which he may then possess or have under his control.
(f) The parties hereto hereby declare that it is impossible to
measure in money the damages which will accrue to Parent, the Company and SRH by
reason of a failure by Xx. Xxxxx to perform any of his obligations under this
Section 10. Accordingly, if Parent, the
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Company, SRH, the Surviving Corporation
or any of their respective Subsidiaries institutes any action or proceeding to
enforce the provisions hereof, to the extent permitted by applicable law, Xx.
Xxxxx hereby waives the claim or defense that Parent, the Company, SRH, the
Surviving Corporation or any of their respective Subsidiaries has an adequate
remedy at law, and Xx. Xxxxx will not argue in any such action or proceeding the
claim or defense that any such remedy at law exists. Parent acknowledges that
family members and associates of Xx. Xxxxx are engaged in activities that
constitute Covered Business and that from time to time Xx. Xxxxx may have
discussions with, including providing advice to, such persons with respect to
such activities. Parent agrees that such discussions are not restricted by this
Section 10 so long as Xx. Xxxxx does not participate in the active management of
these business activities. In addition, Section 10 shall not restrict any social
and informal discussions in which Xx.
Xxxxx engages with any person regarding the banking business.
(g) The restrictions in this Section 10 shall be in
addition to any restrictions imposed on Xx. Xxxxx by statute or at common
law or otherwise.
(h) Notwithstanding Section 11 hereof, the provisions of
this Section 10 shall survive the Effective Time of the Merger.
11. TERMINATION. Except as provided in Section 10(h), this
Agreement, and all rights and obligations of the parties hereunder, shall
terminate on the earlier of (a) the Effective Time of the Merger pursuant to
the Merger Agreement and (b) the date upon which the Merger Agreement is
terminated in accordance with its terms; provided that, in the case of the
termination of this Agreement upon the happening of the event described in
clause (b) above, the obligations of the Stockholder under Section 3(a)
(ii) and the proxy granted pursuant to Section 6(a)(i), but solely for use
as described in clause (y) thereof (to the extent such proxy relates to the
voting obligation under Section 3(a)(ii), shall not terminate, but shall
remain in effect, until the date that is six months after such termination
if (x) a proposal for an Alternative Transaction shall have been made prior
to such termination and (y) the Merger Agreement is terminated in
accordance
with its terms pursuant to Section 9.1(e) or (f) of the Merger Agreement or
by Parent pursuant to 9.1(d) of the Merger Agreement; provided, however,
that the term of this Agreement shall be extended by a period of days
equal to the duration of any temporary or permanent order, writ or injuction
issued by a court of competent jurisdiction that invalidates, impedes or enjoins
the operation or enforcement of this Agreement, the Merger Agreement or any
agreement contemplated hereby or thereby or entered into in connection herewith
or therewith.
12. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes
all other prior agreements and understandings, both written and oral,
among all the parties hereto with respect to the transfer or voting of
shares of Common Stock or SRH Stock.
(b) Each Stockholder Party agrees that this Agreement and
the respective rights and obligations of such Stockholder Party hereunder
shall attach to any shares of Common Stock and any shares of SRH Stock, and
any securities convertible into such shares, that may become Beneficially
Owned by such Stockholder Party.
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(c) Except as otherwise provided in this Agreement,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
(d) This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties and their respective
successors, personal or legal representatives, executors, administrators,
heirs,
distributees, devisees, legatees and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any party (whether by operation of law or otherwise) without
the prior written consent of the other parties; provided, that Parent may
assign
any or all rights under this Agreement to Sub or any other Subsidiary. Nothing
in this Agreement, express or implied, is intended to or shall confer upon
any other Person any rights, benefits or remedies of any nature
whatsoever under or by reason of this Agreement.
(e) This Agreement may not be amended, changed,
supplemented, or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties
hereto; PROVIDED, that Parent may waive compliance by any other party with
any representation, agreement or condition otherwise required to be complied
with by any other party under this Agreement or release any other party from
its obligations under this Agreement, but any such waiver or release shall
be effective only if in writing executed by Parent.
(f) All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or when delivered by hand or (c) the expiration of five
business days after the day when mailed by certified or registered mail,
postage prepaid, addressed at the address for such party set forth below.
(i) If to a Stockholder Party, to such Stockholder
Party at the address set forth beside its name on Schedule A hereto with a
copy to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, III
(ii) If to Parent, to:
HSBC Holdings plc
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: 000-00-000-000-0000
Attention: Group Company Secretary
With a copy to:
11
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx
or to such other address or facsimile number as the Person to whom notice is
given shall have previously furnished to the others in writing in the manner set
forth above.
(g) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without
affecting the validity or enforceability of the remaining provisions
hereof. Any such prohibition or unenforceability in any
jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
If any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
(h) Each Stockholder Party acknowledges and agrees that in
in the event of any breach of this Agreement, Parent would be irreparably and
immediately harmed and could not be made whole by monetary damages. It is
accordingly agreed that (a) each Stockholder Party will waive, in any action
for specific performance, the defense of adequacy of a remedy at law, and
(b) Parent shall be entitled, in addition to any other remedy to which it
may be
entitled at law or in equity, to compel specific performance of this Agreement.
(i) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall
be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or
otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder,
and any custom
or practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or
other right,
power or remedy or to demand such compliance.
(j) EXCEPT TO THE EXTENT THAT MANDATORY PROVISIONS OF THE
MARYLAND GENERAL CORPORATION LAW ARE APPLICABLE, THIS AGREEMENT SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
(k) The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to
affect
the meaning or interpretation of this Agreement. "Include," "includes," and
"including" shall be deemed to be followed by "without limitation" whether or
not
they are in fact followed by such words or words of like import.
12
(l) This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same instrument.
(m) Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement may be brought in any federal court located in the State of New York
or any New York state court, and each of the parties hereby consents to the
non-exclusive jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
in any such court or that any such suit, action or proceeding which is brought
in any such court has been brought in an inconvenient form. Process in any such
suit, action or proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court. Without limiting
the foregoing, each party agrees that service of process on such party as
provided in Section 12(f) shall be deemed effective service of process on such
party.
13. STOCKHOLDER CAPACITY. No person executing this
Agreement
who is or becomes during the term hereof a director or officer of the
Company
or SRH makes any agreement or understanding herein in his capacity as such
director or officer. Each Stockholder Party signs solely in his capacity as
the record holder and beneficial owner of the Owned Shares or the Owned
SRH Shares, as the case may be, and nothing herein shall limit or affect any
actions taken by a Stockholder Party in his capacity as an officer of
director
of the Company or SRH to the extent specifically permitted by the Merger
Agreement.
14. FURTHER ASSURANCES. From time to time, at Parent's
request and without further consideration, each Stockholder Party shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in
the most expeditious manner practicable, the transactions contemplated by
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first above written.
RNYC HOLDINGS LIMITED
By: /s/ C. G. XXXXXX XXXXX
--------------------------
Name: C. G. Xxxxxx Xxxxx
Title: Director
By: /s/ XXXX XXXX
--------------------------
Name: Xxxx Xxxx
Title: Director
CONGREGATION BEIT XXXXXX
By: /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
SABAN S.A.
By: /s/ C. G. XXXXXX XXXXX
--------------------------
Name: X. Xxxxx
Title: Director
By: /s/ XXXX XXXX
--------------------------
Name: Xxxx Xxxx
Title: Director
XXXXXX X. XXXXX
By: /s/ XXXXXX X. XXXXX
-----------------------
Xxxxxx X. XXXXX
HSBC HOLDINGS PLC
By: /s/ XXXXX X. XXXX
-----------------------------
Name: Xxxxx X. Xxxx
Title: Authorised Signatory
SCHEDULE A
-----------
STOCKHOLDER PARTIES
-------------------
NAME ADDRESS
------ -------
RNYC Holdings Limited
Fax:
Attention:
Congregation Beit Xxxxxx
Fax:
Attention:
Saban S.A.
Fax:
Attention:
Xxxxxx X. Xxxxx
Fax:
