Exhibit 10(2)
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT (this "Agreement") dated as of February 17,
1997 is by and among Marriott International, Inc., a Delaware corporation
("PARENT"), and Diamant Hotel Investments N.V., a Netherlands Antilles
corporation ("SHAREHOLDER").
W I T N E S S E T H:
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WHEREAS, simultaneously with the execution of this Agreement, Parent
and Renaissance Hotel Group N.V., a Netherlands corporation (the "COMPANY"),
have entered into an Acquisition Agreement (as such Acquisition Agreement may
hereafter be amended from time to time, the "ACQUISITION AGREEMENT"), pursuant
to which Parent has agreed, among other things, to commence a cash tender offer
(as such tender offer may hereafter be amended from time to time, the "OFFER")
to purchase all shares of common stock of the Company (the "COMPANY COMMON
STOCK");
WHEREAS, as of the date hereof, Shareholder is the record and
beneficial owner of, and has the sole right to vote and dispose of, 16,368,000
shares of Company Common Stock;
WHEREAS, as an inducement and a condition to its entering into the
Acquisition Agreement and incurring the obligations set forth therein, including
the Offer, Parent has required that Shareholder 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 Acquisition Agreement, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Certain Definitions. Capitalized terms used and not defined
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herein have the respective meanings ascribed to them in the Acquisition
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 Shareholder, "AFFILIATE" shall not
include the Company and the Persons that directly, or indirectly through one or
more intermediaries, are controlled by the Company.
"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities means having "BENEFICIAL OWNERSHIP" of such securities (as determined
pursuant to Rule
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13d-3 under the Exchange Act), including pursuant to any agreement, arrangement
or understanding, whether or not in writing.
"OWNED SHARES" means the shares of Company Common Stock owned by
Shareholder on the date hereof, together with any other shares of Company Common
Stock, or any other securities of the Company entitled, or which may be
entitled, to vote generally in the election of directors and any securities
convertible into or exercisable or exchangeable for such securities (whether or
not subject to contingencies with respect to any matter or proposal submitted
for the vote or consent of shareholders of the Company) now or hereafter
Beneficially Owned by Shareholder.
"PERSON" means an individual, corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity.
"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. Tender of Shares. Shareholder hereby agrees to tender (or to
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cause the record owner thereof to tender), pursuant to and in accordance with
the terms of the Offer, all Owned Shares. Shareholder hereby acknowledges and
agrees that Parent's obligation to accept for payment and pay for shares of
Company Common Stock in the Offer, including any Owned Shares tendered by
Shareholder, is subject to the terms and conditions of the Offer. The parties
agree that Shareholder will, for all Owned Shares tendered by Shareholder in the
offer and accepted for payment and paid for by Parent, receive the same per
share consideration paid to other shareholders who have tendered into the Offer.
3. Voting of Owned Shares. Shareholder hereby agrees that during
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the period commencing on the date hereof and continuing until the earlier of
(x) the consummation of the Offer and (y) termination of the Option Period (as
hereinafter defined) (such period being referred to as the "VOTING PERIOD"), at
any meeting (whether annual or special, and whether or not an adjourned or
postponed meeting) of the Company's shareholders, however called, or in
connection with any written consent of the Company's shareholders, subject to
the absence of a preliminary or permanent injunction or other final order by any
United States federal, state or foreign court barring such action, Shareholder
shall vote (or cause to be voted) all Owned Shares: (i) in favor of the Offer,
the execution and delivery by the Company of the Acquisition Agreement and the
approval and acceptance of the Offer and the terms thereof and each of the other
actions contemplated by the Acquisition Agreement and this Agreement and any
actions required in furtherance thereof and hereof; (ii) against any action or
agreement that would (A) result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the
Acquisition
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Agreement or of Shareholder under this Agreement or (B) impede, interfere with,
delay, postpone, or adversely affect the Offer or the transactions contemplated
thereby or hereby; and (iii) except as otherwise agreed to in writing in advance
by Parent, against the following actions (other than the Offer and the
transactions contemplated by the Acquisition Agreement and this Agreement): (A)
any extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or any of its subsidiaries
(including any Alternative Transaction); (B) any sale, lease or transfer of a
substantial portion of the assets or business of the Company or its
subsidiaries, or reorganization, restructuring, recapitalization, special
dividend, dissolution or liquidation of the Company or its subsidiaries; or (C)
any change in the present capitalization of the Company including any proposal
to sell any equity interest in the Company or any of its subsidiaries.
Shareholder shall not enter into any agreement, arrangement or understanding
with any Person the effect of which would be inconsistent or violative of the
provisions and agreements contained in this Section 3.
4. Restrictions on Transfer, Proxies; No Solicitation.
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(a) Shareholder shall not, until the termination of the Option Period,
directly or indirectly: (i) except as provided in Sections 2 and 5
hereof, Transfer (including the Transfer of any securities of an Affiliate which
is the record holder of Owned Shares if, as the result of such Transfer, such
Person would cease to be an Affiliate of Shareholder) to any Person any or all
Owned Shares; (ii) grant any proxies or powers of attorney, deposit any Owned
Shares into a voting trust or enter into a voting agreement, understanding or
arrangement with respect to such Owned Shares; or (iii) take any action that
would make any representation or warranty of Shareholder contained herein untrue
or incorrect or would result in a breach by Shareholder of its obligations under
this Agreement or a breach by the Company of its obligations under the
Acquisition Agreement.
(b) Until the termination of the Option Period, Shareholder shall
not, and shall cause its Representatives not to, directly or indirectly,
(i) initiate, solicit or encourage, or take any action to facilitate the making
of, any offer or proposal which constitutes or is reasonably likely to lead to
any Alternative Transaction or any inquiry with respect thereto, or (ii) in the
event of an unsolicited Alternative Transaction Proposal, engage in negotiations
or discussions with, or provide any information or data to, any Person (other
than Parent, any of its Affiliates or representatives) relating to any
Alternative Transaction. Shareholder agrees to notify Parent orally and in
writing of any such offers, proposals, inquires relating to the purchase or
acquisition by any Person of any Owned Shares (including without limitation the
terms and conditions thereof and the identity of the Person making it), within
24 hours of the receipt thereof. Shareholder shall, and shall cause its
Representatives to, immediately cease and cause to be terminated all existing
activities, discussions and negotiations, if any, with any parties conducted
heretofore with respect to any Alternative Transaction relating to the Company,
other than discussions or negotiations with Parent and its Affiliates.
(c) During the Voting Period, Shareholder will not, directly or
indirectly, make any public comment, statement or communication, or take any
action
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that would otherwise require any public disclosure by Shareholder, Parent or any
other Person, concerning the Offer and the other transactions contemplated by
the Acquisition Agreement and this Agreement except for any disclosure
(i) concerning the status of Shareholder as a party to such agreements, the
terms thereof, and its beneficial ownership of Shares required pursuant to
Section 13(d) of the Exchange Act or (ii) required in the Schedule 14D-9 or
otherwise by applicable law.
5. The Option.
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(a) Grant of Option. Shareholder hereby grants to Parent an exclusive
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and irrevocable option (the "OPTION") to purchase, during the period and subject
to the conditions set forth in this Section 5, all Owned Shares at the exercise
price specified in Section 5(b) hereof.
(b) Exercise Price. The exercise price for each Owned Share (the "PER
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SHARE EXERCISE PRICE") with respect to which the Option is exercised shall be
$30.00.
(c) Exercise of Option. The Option may be exercised by Parent or any
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holder of the Option at any time during the period (the "OPTION PERIOD"), from
and after the occurrence of a Trigger Event (as defined below) and prior to the
six-month anniversary of such Trigger Event by sending a written notice (a
"NOTICE OF EXERCISE") to Shareholder at the address specified for notice
pursuant to Section 12(f), specifying (i) the location (which shall be in
Washington, D.C.), date and time for the closing (the "CLOSING") of such
purchase (which date shall be no later than 60 business days and no earlier than
two business days after the date such notice is given, and in no event earlier
than the date on or by which the condition specified in Section 5(e)(i) has been
satisfied or waived) and (ii) the Per Share Exercise Price. Parent shall have
the right to revoke or cancel a Notice of Exercise or to postpone the Closing at
any time prior to such Closing, and no such revocation, cancellation or
postponement shall cause the Option to terminate or become unenforceable, and
Parent's rights under this Agreement shall remain in full force and effect.
"TRIGGER EVENT" means any termination of the Acquisition Agreement (x) under
Section 7.1(c) or (d) of the Acquisition Agreement, or (y) so long as Parent
shall not have materially breached the Acquisition Agreement or this Agreement,
under Section 7.1(b)(i)(y) of the Acquisition Agreement if at the expiration or
termination of the Offer there is pending or outstanding an Alternative
Transaction Proposal.
(d) Closing. At the Closing, Parent shall deliver to Shareholder
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(x) the Per Share Exercise Price multiplied by (y) the number of Owned Shares,
and Shareholder shall deliver to Parent certificates representing all Owned
Shares free and clear of all liens, claims, charges, encumbrances, rights or
interests of any kind or nature whatsoever, duly endorsed for transfer or
accompanied by stock powers duly executed in blank, and any other documents
necessary to effectuate and evidence the transfer.
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(e) Conditions to Closing. The obligations of Parent to proceed with
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any Closing shall be subject to the satisfaction or waiver by Parent of the
following conditions prior to such Closing:
(i) any waiting period(s) under any applicable laws shall have
expired or been terminated and any required governmental approvals shall
have been obtained; and
(ii) no order, statute, rule, regulation, executive order, stay,
decree, judgment or injunction shall have been enacted, entered, issued,
promulgated or enforced by any court or governmental authority, subsequent
to the date of this Agreement, which prohibits or restricts any of the
transactions contemplated by this Agreement or the Acquisition Agreement.
6. [Intentionally Omitted]
7. Non-Solicitation. For a period of one year from the date hereof,
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neither Shareholder nor any of its Representatives or Affiliates shall solicit
for hire any employees of Parent, or any of its subsidiaries with whom
Shareholder or its Representatives have had contact in connection with this
Agreement and the Acquisition Agreement or any employees of the Company or its
subsidiaries.
8. Representations and Warranties of Shareholder. Shareholder hereby
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represents, warrants and covenants to Parent as follows:
(a) Shareholder is a corporation duly organized and validly existing
under the laws of the Netherlands Antilles. Shareholder has all necessary power
and authority to execute and deliver this Agreement and perform its obligations
hereunder. The execution and delivery by Shareholder of this Agreement and the
performance by Shareholder of its obligations hereunder have been duly and
validly authorized by all requisite corporate action on the part of Shareholder,
and no other proceedings or actions on the part of Shareholder 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
Shareholder and constitutes the valid and binding agreement of Shareholder,
enforceable against Shareholder 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 specified 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) Shareholder is the sole record holder and Beneficial Owner of
16,368,000 shares of Company Common Stock, and has good and marketable title to
all
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of such shares, free and clear of all liens, claims, options, proxies, voting
agreements, security interests, charges and encumbrances. The Owned Shares
constitute all of the capital stock of the Company Beneficially Owned by
Shareholder, and except for the Owned Shares Shareholder does not Beneficially
Own or have 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 Company Common Stock or any
securities convertible into Company Common Stock. Except as provided in Section
2(b) hereof and in this Section 8(c), Shareholder has sole power to vote and to
dispose of the Owned Shares, and sole power to issue instructions with respect
to the Owned Shares to the extent appropriate in respect of the matters set
forth in this Agreement, sole power to demand appraisal rights and sole power to
agree to all of the matters set forth in this Agreement, in each case which
respect to all of the Owned Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and the terms
of this Agreement.
(d) Except for filings, authorizations, consents and approvals as may
be required under, and other applicable requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), and the Exchange
Act, (i) no filing will, and no permit, authorization, consent or approval of,
any state or federal governmental body or authority is necessary for the
execution of this Agreement by Shareholder and the consummation by Shareholder
of the transactions contemplated hereby and (ii) none of the execution and
delivery of this Agreement by Shareholder, the consummation by Shareholder of
the transactions contemplated hereby or compliance by Shareholder with any of
the provisions hereof shall (A) conflict with or result in any breach of the
certificate or incorporation or by-laws or other organizational documents of
Shareholder, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
Shareholder is a party or by which Shareholder or any of its properties or
assets (including the Owned Shares) may be bound, or (C) violate any order,
writ, injunction, decree, judgment, statute, rule or regulation applicable to
Shareholder or any of its properties or assets.
(e) Shareholder understands and acknowledges that Parent is entering
into the Acquisition Agreement, and is incurring the obligations set forth
therein, in reliance upon Shareholder's execution and delivery of this
Agreement.
(f) Shareholder agrees with and covenants to Parent that Shareholder
shall not request that the Company or Parent, as the case may be, register the
Transfer (book-entry or otherwise) of any certificated or uncertificated
interest representing any of the securities of the Company or of Parent, as the
case may be, unless such Transfer is made in compliance with this Agreement.
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9. Representations and Warranties of Parent. Parent hereby
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represents, warrants and covenants to Shareholder as follows:
(a) Parent is a corporation duly organized and validly existing under
the laws of its jurisdiction of incorporation and is in good standing under the
laws of its jurisdiction of incorporation. Parent has all necessary corporate
power and authority to execute and deliver this Agreement and perform its
respective obligations hereunder. The execution and delivery by Parent of this
Agreement and the performance by Parent of its obligation hereunder 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 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
Parent and constitutes a valid and binding agreement of Parent, enforceable
against it 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) Except for filings, authorizations, consents and approvals as may
be required under, and other applicable requirements of the HSR Act and the
Exchange Act, (i) no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for the
execution of this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by Parent, the consummation by Parent of the transactions
contemplated hereby or compliance by Parent with any of the provisions hereof
shall (A) conflict with or result in any breach of the certificate of
incorporation or by-laws of Parent, or (B) result in a violation or breach of,
or constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which Parent is a party or by which Parent or any of
its properties or assets may be bound, or violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to Parent or any of its
properties or assets.
10. Further Assurances. From time to time, at the other party's
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request and without further consideration, each party hereto 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.
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11. Termination. All representations, warranties and agreements
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contained in this Agreement shall terminate on the third anniversary of the date
hereof unless any such representation, warranty or agreement explicitly
terminates earlier in accordance with the terms of this Agreement.
12. Miscellaneous.
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(a) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
(b) Shareholder agrees that this Agreement and the respective rights
and obligations of Shareholder hereunder shall attach to any shares of Company
Common Stock, and any securities convertible into such shares, that may become
Beneficially Owned by Shareholder.
(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, and
Parent, on the one hand, and Shareholder, on the other hand, shall indemnify and
hold the other harmless from and against any and all claims, liabilities or
obligations with respect to any brokerage fees, commissions or finders' fees
asserted by any person on the basis of any act or statement alleged to have been
made by such party or its Affiliates.
(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 and
permitted assigns, but neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by either party (whether by operation
of Law or otherwise) without the prior written consent of the other party;
provided, that Parent may assign its rights and obligations hereunder to any
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subsidiary of Parent, but no such assignment shall relieve Parent of its
obligations hereunder. It is understood that Parent expects to delegate its
rights and obligations hereunder and under the Acquisition Agreement to a
wholly-owned Netherlands subsidiary. 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
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 each of the parties hereto. The parties may waive
compliance by the other parties hereto with any representation, agreement or
condition otherwise required to be complied with by such other party hereunder,
but any such waiver shall be effective only if in writing executed by the
waiving party.
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(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 following addresses (or at such other address for a party as shall be
specified by like notice):
If to Shareholder:
c/o ABN Amro Trust Company
Pietermaai nr.15
Curacao, Netherlands Antilles
copy to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038
Attn: Stephan H. Haimo, Esq.
If to Parent:
Marriott International, Inc.
10400 Fernwood Road
Bethesda, Maryland 20857
Attn: General Counsel, Dept. 52/923
copy to:
O'Melveny & Myers LLP
555 13th Street, Suite 500 W
Washington, D.C. 20004
Attn: Jeffrey J. Rosen, Esq.
(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.
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(h) Each of the parties hereto acknowledges and agrees that in the
event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (a) will waive, in
any action for specific performance, the defense of adequacy of a remedy at law
and (b) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement
in any action instituted in any state or federal court sitting in New York.
(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) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to its rules of conflict
of laws. Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of the State of
New York and of the United States of America located in the State of New York
(the "New York Courts") for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any litigation relating thereto except in the New York Courts), waives any
objection to the laying of venue of any such litigation in the New York Courts
and agrees not to plead or claim in any New York Court that such litigation
brought therein has been brought in an inconvenient forum.
(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.
(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.
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IN WITNESS WHEREOF, Parent and Shareholder have caused this Agreement
to be duly executed as of the day and year first above written.
MARRIOTT INTERNATIONAL, INC.
By: /s/ Arne Sorenson
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Name: Arne Sorenson
Title: Senior Vice President
DIAMANT HOTEL INVESTMENTS N.V.
By: /s/ Robert W. Oleson
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Name: Robert W. Oleson
Title: Managing Director
New World Hotel (Holdings) Limited, a Hong Kong corporation,
represents that it is the Beneficial Owner of all of the outstanding capital
stock of Shareholder and hereby unconditionally guarantees the performance by
Shareholder of all of its obligations under the foregoing Shareholder Agreement.
NEW WORLD HOTEL (HOLDINGS) LIMITED
By: /s/ Cheng Kar-Shun
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Name: Cheng Kar-Shun, Henry
Title: Managing Director
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