AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT
This AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT (this "Amendment"), dated as
of November 8, 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"), Xx. Xxxxxx X. Xxxxx ("Xx. Xxxxx"), HSBC Holdings plc, an
English public limited company ("Parent"), HSBC North America Inc., a Delaware
corporation ("US Holdco") and, solely for the purposes of Section 3, Section
4(b), Section 4(e), Section 7 and Section 8 of this Amendment and Section 12,
Section 15 and Section 16 of the Agreement (as defined below), Republic New York
Corporation, a Maryland corporation (the "Company").
WHEREAS, the Stockholder, Stockholder Parent, Xx. Xxxxx and Parent entered
into that certain Stockholders Agreement, dated as of May 10, 1999 (the
"Original Agreement" and, as amended by this Amendment, the "Agreement"); and
WHEREAS, simultaneously with the execution of this Amendment, Parent, RNYC
Merger Corporation, a Maryland corporation ("Merger Sub"), Safra Republic
Holdings, S.A., a societe anonyme organized under the laws of Luxembourg
("SRH"), and the Company, are entering into Amendment No. 1 (the "Merger
Agreement Amendment") to that certain Transaction Agreement and Plan of Merger,
dated as May 10, 1999 (the "Original Merger Agreement" and, as amended by the
Merger Agreement Amendment and the Joinder Agreement (as defined in the Merger
Agreement Amendment), the "Merger Agreement") among Parent, the Company and SRH;
and
WHEREAS, the Merger Agreement provides for, among other things, the merger
of RNYC Merger Corporation, a Maryland Corporation and a wholly owned subsidiary
of US Holdco, with and into the Company; and
WHEREAS, as an inducement and a condition to their entering into the Merger
Agreement Amendment and incurring the obligations set forth in the Merger
Agreement, Parent has required that Stockholder, Stockholder Parent and Xx.
Xxxxx (individually, a "Stockholder Party" and collectively, the "Stockholder
Parties") and the Company enter into this Amendment; and
WHEREAS, as an inducement and a condition to its entering into the Merger
Agreement Amendment and incurring the obligations set forth in the Merger
Agreement, Parent has required the Principal Stockholder to enter into the
Merger Consideration Adjustment Agreement with Parent and US Holdco in the form
attached hereto as Exhibit A and incorporated by reference herein (the
"Adjustment Agreement"); and
WHEREAS, although none of the parties hereto believes, or has any reason to
believe, that any of the Company and the Stockholder Parties is obligated to
enter into this Amendment or, in the case of the Principal Stockholder, the
Adjustment Agreement or effect the Share Transfer (as defined below) or has any
obligation or liability to any Person in connection with the Princeton Note
Matter (as defined in the Merger Agreement Amendment), the Company and the
Stockholder Parties are agreeing to enter into this Amendment and, in the case
of the Principal Stockholder, the Adjustment Agreement and to effect the Share
Transfer in order to facilitate consummation of the Merger and the Offer;
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
Amendment or the Original Agreement are used in this Amendment with the meanings
given to such terms in the Merger Agreement.
2. Clarification of Obligations. The parties acknowledge and agree that all
references to the "Merger Agreement", the "Merger" and the "Offer" in the
Original Agreement shall be deemed to refer to the Merger Agreement as amended
pursuant to the Joinder Agreement and the Merger Agreement Amendment and to the
terms of the Merger and the Offer as provided for in the Merger Agreement as so
amended. For the avoidance of doubt, the obligations of the parties provided in
the Original Agreement shall apply to the Agreement as amended by this
Amendment.
3. Joinder of US Holdco and the Company. US Holdco and the Company each
hereby agrees to become a party to, and to satisfy all of the covenants and
obligations provided with respect to it in, the Agreement, as if US Holdco and
the Company were each an original party thereto. Parent, Stockholder,
Stockholder Parent and Xx. Xxxxx hereby consent to the joinder of US Holdco and
the Company to the Agreement in accordance with the terms hereof.
4. Amendments to Original Agreement. (a) The definition of "Proposed
Business Combination" in Section 1 of the Original Agreement shall be deleted in
its entirety and the following substituted therefor:
"Proposed Business Combination" means the transactions contemplated by
the Merger Agreement and Section 15 below.
(b) The following definition is added:
"Amendment" means Amendment No. 1 to this Agreement dated as of
November 8, 1999.
(c) Section 5(a) of the Original Agreement shall be deleted in its entirety
and the following substituted therefor:
(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 except Section 15 below.
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.
(d) Section 7 of the Original Agreement shall be deleted in its entirety
and the following substituted therefor:
7. Covenant of Stockholder Parties. Each Stockholder Party agrees that it
will take all action necessary to (i) permit (a) the Transferred Shares (as
defined below) to be transferred pursuant to Section 15 and the remaining 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.
(e) The following Sections 15 and 16 shall be added to the Original
Agreement:
15. Transfer of 6,250,000 Owned Shares. (a) Upon the terms and subject to
the conditions of this Agreement, in order to effect a reduction of $450 million
in the aggregate consideration to be received by the Principal Stockholder in
the Merger, after the Merger Agreement and the Merger have been approved at the
Company Meeting and immediately prior to the Effective Time, and subject to the
conditions set forth below in this Section 15, the Principal Stockholder shall
convey, transfer and assign to US Holdco without consideration other than
Parent's and Merger Sub's entering into the Merger Agreement Amendment and the
Amendment, and US Holdco shall accept and receive, 6,250,000 shares of Common
Stock (the "Transferred Shares") free of any liens, claims, options, proxies,
voting agreements, security interests and encumbrances whatsoever (the "Share
Transfer"). At the Closing (as defined in the Merger Agreement), the Stockholder
shall deliver, or cause to be delivered, to US Holdco certificates for the
Transferred Shares, duly endorsed or together with duly executed stock powers
sufficient to transfer ownership of the Transferred Shares to US Holdco. The
Company shall use all reasonable efforts to effect the transfer of the
Transferred Shares to US Holdco on the Company's stock transfer books
immediately prior to the Effective Time and to take all other reasonable action
to register the transfer of the Transferred Shares to US Holdco. For the
avoidance of doubt, it is agreed for the purposes of Section 1.4(a) of the
Merger Agreement, that the Transferred Shares will be owned by US Holdco at the
Effective Time.
(b) Conditions Precedent and Subsequent. (i) The respective
obligations of each of the Principal Stockholder, the Parent and US Holdco
to effect the Share Transfer shall be subject to the satisfaction or waiver
in accordance with the terms of the Merger Agreement of all of the
conditions (other than the condition set forth in Section 8.2(h) of the
Merger Agreement) set forth in Sections 8.1, 8.2 and 8.3 of the Merger
Agreement and to the parties' intent to consummate the Merger immediately
following the Share Transfer.
(ii) The obligation of Principal Stockholder to effect the Share
Transfer shall be further subject to receipt of (x) a certificate
signed on behalf of the Parent by its Group Financial Director and on
behalf of Merger Sub by an executive officer pursuant to which Parent
and Merger Sub acknowledge satisfaction or irrevocable waiver of the
conditions (other than the condition set forth in Section 8.2(h) of
the Merger Agreement) set forth in Sections 8.1 and 8.2 of the Merger
Agreement and (y) a certificate signed on behalf of the Company by its
Chief Executive Officer and on behalf of SRH by its Chief Executive
Officer pursuant to which the Company and SRH acknowledge satisfaction
or irrevocable waiver of the conditions set forth in Sections 8.1 and
8.3 of the Merger Agreement.
(iii) In the event the Merger is not consummated as contemplated
by Section 15(b)(i), the Share Transfer shall be voided and the
Transferred Shares shall be returned to the Principal Stockholder.
16. Indemnification of Xx. Xxxxx. The Company hereby agrees to, and Parent
hereby agrees from and after the Effective Time to cause the Successor
Corporation to, indemnify, defend and hold harmless, to the fullest extent
permitted by the MGCL, Xx. Xxxxx in connection with the Princeton Note Matter in
the manner and to the same extent as officers and directors of the Company are
entitled to indemnification pursuant to the currently existing articles of
incorporation and bylaws of the Company and the Merger Agreement; provided, that
nothing in this Section 16 shall be deemed to limit the obligations of the
Principal Stockholder under Section 15 or of any of the Stockholder Parties
under the Adjustment Agreement, and under no circumstances shall Parent, the
Company, the Successor Corporation or any of their respective Subsidiaries or
affiliates be required to indemnify, defend or hold harmless any of the
Stockholder Parties or any other Person with respect to the obligations of the
Principal Stockholder under Section 15 or of any of the Stockholder Parties
under the Adjustment Agreement.
5. Representations, Warranties and Covenants of Stockholder Parties. Each
Stockholder Party hereby represents and warrants to, and agrees with, Parent and
US Holdco 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 Amendment and perform its or his
obligations under the Agreement. No other proceedings or actions on the part of
such Stockholder Party are necessary to authorize the execution, delivery or
performance of the Agreement or the consummation of the transactions
contemplated hereby.
(b) This Amendment 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) 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 the Agreement
or prevent the Stockholder from conveying, transferring and assigning the
Transferred Shares to Merger Sub in accordance with the terms of the 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.
(d) Stockholder Parent has sole Beneficial Ownership, free and clear of all
liens, claims, options, proxies, voting agreements and security interests, of
all outstanding capital stock of Stockholder. 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 Amendment by any Stockholder
Party nor the consummation of the transactions contemplated by the Agreement
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 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 the Agreement.
(f) Each Stockholder Party understands and acknowledges that Parent is entering
into this Amendment in reliance upon the execution, delivery and performance by
the Company and SRH of the Merger Agreement Amendment.
6. Representations and Warranties of Parent and US Holdco. (a) Parent
represents and warrants to the Stockholder Parties that Parent and US Holdco
have full corporate power and authority to execute and deliver this Amendment
and to perform their respective obligations hereunder. The execution, delivery
and performance of this Amendment by Parent and US Holdco will not constitute a
violation of, conflict with or result in a default under, (i) any contract,
understanding or arrangement to which Parent or US Holdco is a party or by which
it is bound or requires the consent of any other Person or any party pursuant
thereto, (ii) any judgment, decree or order applicable to Parent or US Holdco,
or (iii) assuming that the consents and approvals referred to in Section 4.4 of
the Merger Agreement are duly obtained, 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 or US
Holdco to perform its obligations under the Agreement; and this Amendment
constitutes a legal, valid and binding agreement on the part of Parent and US
Holdco, enforceable against Parent and US Holdco 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 and US Holdco of this Amendment and the
consummation by Parent and US Holdco of the transactions contemplated hereby
have been duly and validly authorized by the Board of Directors of Parent and US
Holdco, respectively, and no other corporate proceedings on the part of Parent
or US Holdco are necessary to authorize this Amendment or to consummate the
transactions contemplated hereby. This Amendment has been duly and validly
executed and delivered by Parent and US Holdco.
(b) Each of Parent and US Holdco understands and acknowledges that the
Company and the Stockholder Parties are entering into this Amendment in reliance
upon the execution, delivery and performance by the Parent and Merger Sub of the
Merger Agreement Amendment.
7. Representations and Warranties of the Company. The Company hereby
represents and warrants to, and agrees with, Parent and US Holdco as follows:
(a) The Company has full corporate power and authority to execute and
deliver this Amendment and to consummate the transactions contemplated by the
Agreement. The execution and delivery of this Amendment and the consummation of
the transactions contemplated by the Agreement have been duly and validly
approved by the Board of Directors of the Company prior to the date hereof, and
such approval is in full force and effect. No other corporate proceedings on the
part of the Company are necessary to approve the Agreement and to consummate the
transactions contemplated thereby. This Amendment has been duly and validly
executed and delivered by the Company and (assuming due authorization, execution
and delivery by Parent, US Holdco and the Stockholder Parties) constitutes a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms. In addition, the Board of Directors of the Company
has taken all requisite action such that the freezeout, special shareholder
voting and other requirements imposed by Sections 3-601 through 3-604 and 3-701
through 3-709 of the MGCL, and the provisions of any other applicable
"freezeout", "fair price", "moratorium", "control share acquisition" or other
similar anti-takeover statute or regulation enacted under state, federal or
foreign laws, are not applicable to the transfer of the Transferred Shares to US
Holdco or the other transactions contemplated by the Agreement.
(b) Neither the execution and delivery of this Amendment by the Company,
nor the compliance by the Company with any of the terms or provisions of the
Agreement, will (i) violate any provision of the articles of incorporation or
bylaws of the Company or any of its Subsidiaries or (ii) assuming that the
consents and approvals referred to in Section 3.4 of the Merger Agreement are
duly obtained, violate any statute, code, ordinance, rule, regulation, judgment,
order, writ, decree or injunction applicable to the Company or any of its
Subsidiaries or any of their respective properties or assets, or violate,
conflict with, result in a breach of any provision of or the loss of any benefit
under, constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, result in the termination of or a right
of termination or cancellation under, accelerate the performance required by or
rights or obligations under, or result in the creation of any Lien (or have any
of such results or effects, upon notice or lapse of time, or both) upon any of
the respective properties or assets of the Company or any of its Subsidiaries
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement, contract, or other
instrument or obligation to which the Company or any of its Subsidiaries is a
party, or by which they or any of their respective properties, assets or
business activities may be bound or affected.
(c) The Company understands and acknowledges that Parent and US Holdco are
entering into this Amendment in reliance upon the execution, delivery and
performance by the Company and SRH of the Merger Agreement Amendment.
8. Miscellaneous.
(a) The Agreement (including this Amendment) constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof other than
the Merger Agreement, the Option Agreement, and the Confidentiality Agreement;
provided that Section 5 of the Confidentiality Agreement shall not affect the
representations and warranties of any party hereto.
(b) EXCEPT TO THE EXTENT THAT MANDATORY PROVISIONS OF THE MARYLAND GENERAL
CORPORATION LAW ARE APPLICABLE, THIS AMENDMENT 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.
(c) This Amendment 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.
(d) Except as specifically amended hereby, the Original Agreement shall
continue in full force and effect in accordance with the provisions thereof in
existence on the date hereof. Unless the context otherwise requires, after the
date hereof, any reference to the Original Agreement shall mean the Original
Agreement as amended hereby.
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 HSBC HOLDINGS PLC
By: _____________________________ By: ________________________
Name: Name: Xxxxx X. Xxxx
Title: Title: Authorised Signatory
By: _____________________________
Name:
Title: HSBC NORTH AMERICA INC.
CONGREGATION BEIT XXXXXX
By: ________________________
Name: Xxxxxx X. Xxxxxxx
By: _____________________________ Title: President
Name: Xxxxxx X. Xxxxxx
SABAN S.A. REPUBLIC NEW YORK CORPORATION
By: _____________________________ By: __________________________
Name: Name: Xxx X. Xxxxxxx
Title: Title: Chairman and
Chief Executive Officer
By: _____________________________
Name:
Title:
XXXXXX X. XXXXX
By: _____________________________
