Exhibit 10.2
SHAREHOLDERS AGREEMENT
AGREEMENT, dated as of July 2, 1997, among BAA plc, a corporation
organized under the laws of England (the "Parent"), W & G Acquisition
Corporation, a Maryland corporation and a direct wholly owned subsidiary of
Parent ("Merger Sub"), and the other parties signatory hereto (each a
"Shareholder," and collectively, the "Shareholders").
W I T N E S S E T H :
WHEREAS, concurrently herewith, Parent, Merger Sub and Duty Free
International, Inc. a Maryland corporation (the "Company"), are entering into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "Merger Agreement"; capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement),
pursuant to which, among other things, Merger Sub will be merged with and into
the Company (the "Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company have
agreed that as soon as practicable (and not later than five business days) after
the first public announcement of the execution and delivery of the Merger
Agreement, Merger Sub will commence a cash tender offer to purchase all
outstanding shares of Company Common Stock (as defined in Section 1), including
all of the Shares (as defined in Section 2) Beneficially Owned (as defined in
Section 1) by the Shareholders; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Shareholders agree, and the Shareholders
have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), 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 other Persons with whom such
Person would constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act.
(b) "Company Common Stock" shall mean at any time the common stock,
$.01 par value, of the Company.
(c) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
2. Tender Of Shares.
(a) Subject to Section 6, each Shareholder hereby agrees to validly
tender (and not to withdraw) pursuant to and in accordance with the terms of the
Offer, not later than the fifth business day after commencement of the Offer
pursuant to Rule 14d-2 under the Exchange Act, the number of shares of Company
Common Stock set forth opposite such Shareholder's name on Schedule I hereto
(the "Existing Shares" and, together with any shares of Company Common Stock
acquired by such Shareholder after the date hereof and prior to the termination
of this Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of
purchase, dividend, distribution or otherwise, the "Shares"). Each Shareholder
hereby acknowledges and agrees that Merger Sub's obligation to accept for
payment and pay for Shares in the Offer is subject to the terms and conditions
of the Offer.
(b) Subject to Section 6, each Shareholder hereby agrees to permit
Parent and Merger Sub to publish and disclose in the Offer Documents and, if
approval of the Merger by the Company's shareholders (other than Parent or any
of its wholly-owned subsidiaries) is required under applicable law, in the Proxy
Statement (including all documents and schedules filed with the SEC) his or its
identity and ownership of Company Com-
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mon Stock and the nature of his or its commitments under this Agreement.
3. Provisions Concerning Company Common Stock.
Each Shareholder hereby agrees that during the period commencing on
the date hereof and continuing until the first to occur of the (i) purchase of
the Shares by Merger Sub pursuant to the Offer, (ii) Effective Time or (iii)
termination of the Merger Agreement in accordance with its terms, at any meeting
of the holders of Company Common Stock, however called, or in connection with
any written consent of the holders of Company Common Stock, such Shareholder
shall vote (or cause to be voted) the Shares held of record or Beneficially
Owned by such Shareholder, whether issued, heretofore owned or hereafter
acquired, (i) in favor of the Merger, the execution and delivery by the Company
of the Merger Agreement and the approval of the terms thereof and each of the
other actions contemplated by the Merger Agreement and this Agreement and any
actions required in furtherance thereof and hereof; (ii) against any action or
agreement that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or this Agreement (after giving effect to any
materiality or similar qualifications contained therein); and (iii) except as
otherwise agreed to in writing in advance by Parent, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement): (A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or its
subsidiaries; (B) a sale, lease or transfer of a material amount of assets of
the Company or its subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or its subsidiaries; (C) (1) any
change in a majority of the persons who constitute the Board of Directors of the
Company; (2) any change in the present capitalization of the Company or any
amendment of the Company's Articles of Incorporation or Bylaws; (3) any other
material change in the Company's corporate structure or business; or (4) any
other action involving the Company or its subsidiaries which is intended, or
could reasonably be expected, to impede, interfere with, delay, postpone, or
materially adversely affect the Merger and the transactions contemplated by this
Agreement and the Merger Agreement. Such Shareholder shall not enter into any
agreement or understanding with any person or entity the effect of which would
be inconsistent with or violative of the provisions and agreements contained in
this Section 3.
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Other Covenants, Representations And Warranties. Each Shareholder
hereby individually as to itself represents and warrants to Parent as follows:
(a) Ownership Of Shares. Such Shareholder is either (i) the record and
Beneficial Owner of, or (ii) the Beneficial Owner but not the record holder
of, the number of Existing Shares, other shares, and derivative securities
set forth opposite such Shareholder's name on Schedule I hereto. On the
date hereof, the Existing Shares set forth opposite such Shareholder's name
on Schedule I hereto constitute all of the shares or securities issued by
the Company owned of record or Beneficially Owned by such Shareholder.
Except as noted on Schedule I, such Shareholder has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Sections 2 and 3 hereof, sole power of disposition, sole power of
conversion, sole power to demand appraisal rights and sole power to agree
to all of the matters set forth in this Agreement, in each case with
respect to all of the Existing Shares set forth opposite such Shareholder's
name on Schedule I hereto, with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and the
terms of this Agreement.
(b) Power; Binding Agreement. Such Shareholder has the legal capacity,
power and authority, as applicable, to enter into and perform all of such
Shareholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Shareholder will not violate any
other agreement to which such Shareholder is a party including, without
limitation, any voting agreement, shareholders agreement or voting trust.
This Agreement has been duly and validly executed and delivered by such
Shareholder and constitutes a valid and binding agreement of such
Shareholder, enforceable against such Shareholder in accordance with its
terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws affecting creditors' rights generally. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust of
which such Shareholder is trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by such
Shareholder of the transactions contemplated hereby.
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(c) No Conflicts. Except for filings under the HSR Act, if applicable,
(A) no filing with, and no permit, authorization, consent or approval of,
any state or federal public body or authority or any other Person is
necessary for the execution of this Agreement by such Shareholder and the
consummation by such Shareholder of the transactions contemplated hereby
and (B) none of the execution and delivery of this Agreement by such
Shareholder, the consummation by such Shareholder of the transactions
contemplated hereby or compliance by such Shareholder with any of the
provisions hereof shall (1) conflict with or result in any breach of any
applicable organizational documents applicable to such Shareholder, (2)
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, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which such
Shareholder is a party or by which such Shareholder or any of such
Shareholder's properties or assets may be bound, or (3) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to such Shareholder or any of such Shareholder's properties or
assets.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Section 2 hereof and except as noted on
Schedule I hereto, the certificates representing such Shareholder's
Existing Shares are now, and with respect to such Shareholder's Shares
(other than the other shares listed on Schedule I) at all times during the
term hereof will be, held by such Shareholder, or by a nominee or custodian
for the benefit of such Shareholder, free and clear of all liens, claims,
security interests, proxies, voting trusts or agreements, or any other
encumbrances whatsoever, except for any such encumbrances arising
hereunder. The transfer by each Shareholder of his or its Shares to Merger
Sub in the Offer shall pass to Merger Sub good and valid title to the
number of Shares set forth opposite such Shareholder's name on Schedule I
hereto, free and clear of all claims, liens, restrictions, security
interests, pledges, limitations and encumbrances whatsoever.
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(e) No Finder's Fees. Other than existing financial advisory and
investment banking arrangements and agreements entered into by the Company,
no broker, investment banker, financial adviser or other Person is entitled
to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based
upon arrangements made by or on behalf of such Shareholder.
(f) No Solicitation. Subject to Section 6, no Shareholder shall, in
his or its capacity as such, directly or indirectly, solicit (including by
way of furnishing information for the purpose of soliciting) any inquiries
by any person or entity (other than Parent or any affiliate of Parent) for
the purchase or voting of his or its Shares or with respect to the Company
that constitutes a Takeover Proposal, except that a Shareholder who is a
director of the Company may take actions in such capacity as a director to
the extent permitted by the Merger Agreement. Subject to Section 6, if any
Shareholder receives any such inquiry or proposal, then such Shareholder
shall promptly inform Parent of the existence thereof. Each Shareholder
will immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with
respect to any of the foregoing.
(g) Restriction On Transfer, Proxies And Non-Interference. Except as
applicable in connection with the transactions contemplated by Section 2
hereof, subject to Section 6, no Shareholder shall (i) directly or
indirectly, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of such Shareholder's Shares or any interest
therein; (ii) except as contemplated by this Agreement, grant any proxies
or powers of attorney, deposit any Shares into a voting trust or enter into
a voting agreement with respect to any Shares; or (iii) take any action
that would make any representation or warranty of such Shareholder
contained herein untrue or incorrect or have the effect of preventing or
disabling such Shareholder from performing such Shareholder's obligations
under this Agreement.
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(h) Waiver Of Appraisal Rights. Each Shareholder hereby waives any
rights of appraisal or rights to dissent from the Merger that such
Shareholder may have.
(i) Reliance By Parent. Such Shareholder understands and acknowledges
that Parent is entering into, and causing Merger Sub to enter into, the
Merger Agreement in reliance upon such Shareholder's execution and delivery
of this Agreement.
(j) Further Assurances. From time to time, at the other party's
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,
the transactions contemplated by this Agreement.
5. Stop Transfer; Changes In Shares. Each Shareholder agrees with, and
covenants to, Parent that such Shareholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Shareholder's Shares, unless
such transfer is made in compliance with this Agreement (including the
provisions of Section 2 hereof). In the event of a stock dividend or
distribution, or any change in the Company Common Share by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged.
6. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares shall terminate upon the
earliest of (w) the acquisition of the Shares by Parent or Merger Sub pursuant
to the Offer, (x) the Effective Time, (y) if the Effective Time does not occur,
the termination of the Merger Agreement or the withdrawal or modification by the
Company Board of its recommendation of the Offer or the Merger as permitted by
Section 6.02(b) of the Merger Agreement and (z) the first anniversary of the
date hereof.
7. Shareholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director
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of the Company makes any agreement or understanding herein in his or her
capacity as such director.
8. Confidentiality. The Shareholders recognize that successful
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure thereof, each Shareholder hereby agrees
not to disclose or discuss such matters with anyone not a party to this
Agreement (other than such Shareholder's counsel and advisors, if any, and other
than with another Shareholder or the Company's counsel or advisors) without the
prior written consent of Parent, except for filings required pursuant to the
Exchange Act and the rules and regulations thereunder or disclosures such
Shareholder's counsel advises are necessary in order to fulfill such
Shareholder's obligations imposed by law, in which event such Shareholder shall
give notice of such disclosure to Parent as promptly as practicable.
9. Miscellaneous.
(a) Entire Agreement. This Agreement and the Merger Agreement
constitute 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) Certain Events. Each Shareholder agrees that this Agreement and
the obligations hereunder shall attach to such Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, such Shareholder's heirs, guardians, administrators or successors.
Notwithstanding any transfer of Shares, the transferor shall remain liable for
the performance of all obligations under this Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other party, provided
that Parent may assign, in its sole discretion, its rights and obligations
hereunder to any direct or indirect wholly owned subsidiary of Parent, but no
such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
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(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, with respect
to any one or more Shareholders, except upon the execution and delivery of a
written agreement executed by the relevant parties hereto; provided that
Schedule I hereto may be supplemented by Parent by adding the name and other
relevant information concerning any shareholder of the Company who agrees to be
bound by the terms of this Agreement without the agreement of any other party
hereto, and thereafter such added shareholder shall be treated as a
"Shareholder" for all purposes of this Agreement.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to Shareholders: At the addresses set forth on Schedule I hereto
copy to: Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Attn: Stephen P. Farrell, Esq.
Telecopy: (212) 309-6273
If to Parent: BAA plc
Stockley House
130 Wilton Road
London SW1 VLQ
Attention: Robert Herga
copy to: Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
Telecopy: (212) 269-5420
Attention: Stephen A. Greene, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
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(f) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) Remedies Cumulative. 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.
(i) No Waiver. 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) No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto.
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(k) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law thereof.
(l) Descriptive Headings. 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.
(m) Counterparts. 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 Agreement.
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IN WITNESS WHEREOF, Parent, Merger Sub and each Shareholder have
caused this Agreement to be duly executed as of the day and year first above
written.
BAA PLC
By: ____________________________
Name:
Title:
W & G ACQUISITION CORPORATION
By: ____________________________
Name:
Title:
GEBR. HEINEMANN
By: ____________________________
Name:
Title:
____________________________
JOHN A. COURI
____________________________
DAVID H. BERNSTEIN
____________________________
CARL REIMERDES
____________________________
HERIBERT H. DIEHL
____________________________
ALFRED CARFORA
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AGREED TO AND ACKNOWLEDGED (with respect to Section 5):
DUTY FREE INTERNATIONAL, INC.
By: _______________________
Name:
Title:
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Schedule I to
Shareholders Agreement
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Name and Address Derivative
of Shareholder Existing Shares Other Shares Securities
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David H. Bernstein 1,057,069 Shares 734 Shares 190,000
6691 Baymeadow Dr. indirectly shares
Glen Burnie, MD owned subject to
21060 through option
employer (148,334
401(k) plan exercisable)
John A. Couri 704,000 Shares 274,000 As trustee 202,000
41 Mulberry Street for the shares
Ridgefield, CT 06877 Couri subject to
Charitable option
Remainder (148,334
Trust exercisable)
32,485 As trustee
with wife
for
children
63,000 As trustee
for the
Couri
Charitable
Remainder
Trust
Carl Reimerdes 200 Shares 498,213 As trustee 202,666
c/o Fenton Hill for the shares
America Reimerdes subject to
Limited Annuity option
B-3 East Trust (140,000
Airport Ind. exercisable)
Office Park 250,000 As trustee
145 Hook Creek for the
Rd. Reimerdes
Valley Stream, Annuity
NY 11581 Trust
101,535 As trustee
for the
Reimerdes
Annuity
Trust
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Name and Address Derivative
of Shareholder Existing Shares Other Shares Securities
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1,156.7 Shares
indirectly
owned
through
employer
401(k) plan
Gebr. Heinemann 4,571,664 Shares None
Madgeburger Str. 3
2000 Hamburg 11,
Germany
Heribert Diehl 895,422 Shares 52,334 shares
Madgeburger Str. 3 subject to
2000 Hamburg 11, option
Germany (40,334
exercisable)
Alfred Carfora 175,895 Shares 700.9 Shares 225,000
c/o Duty Free indirectly shares
International owned subject to
63 Copps Hill Road through option
Ridgefield, CT employer (133,334
06877 401(k) plan exercisable)