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EXHIBIT 12
SHAREHOLDER'S AGREEMENT
THIS SHAREHOLDER'S AGREEMENT (this "Agreement") dated as of October 25,
2000 is entered into by and between London Bridge Acquisition Company, Inc., a
Delaware corporation ("London Bridge"), and Robert Fleming Inc., a Delaware
corporation in its capacity as a stockholder of the Company ("Securityholder"),
with respect to certain equity securities owned by Securityholder of Phoenix
International Ltd., Inc., a Florida corporation (the "Company").
WITNESSETH:
WHEREAS, London Bridge and the Company have entered into an Asset
Purchase Agreement (the "Purchase Agreement") dated as of the date hereof
pursuant to which London Bridge has agreed to purchase from the Company, and the
Company has agreed to sell to London Bridge, substantially all of the assets of
the Company (the "Purchase");
WHEREAS, as of the date hereof, Securityholder beneficially owns and
has the power to vote certain shares of the common stock, no par value, of the
Company (the "Company Common Stock"); and
WHEREAS, in consideration of London Bridge's agreements herein and in
the Purchase Agreement, Securityholder has agreed to cooperate with London
Bridge with respect to the Purchase upon the terms and subject to the conditions
set forth in the Purchase Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration
of the mutual agreements, covenants, representations and warranties contained
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Certain Covenants.
1.1 Lock-Up. Securityholder hereby covenants and agrees
during the term of this Agreement that (a) except as consented to in writing by
London Bridge in its sole discretion, Securityholder will not, directly or
indirectly, sell, transfer, assign, pledge, hypothecate, tender or otherwise
dispose of or limit its right to vote in any manner any of the Securities (as
hereinafter defined), or agree to do any of the foregoing, and (b)
Securityholder will not take any action which would have the effect of
preventing or disabling Securityholder from performing its obligations under
this Agreement.
1.2 No Solicitation. During the term of this Agreement,
neither Securityholder nor any person acting as an agent of Securityholder or
otherwise on Securityholder's behalf shall, directly or indirectly, solicit,
encourage or initiate negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group
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(other than London Bridge or an affiliate or an associate of London Bridge)
concerning any sale, transfer, pledge, tender or other disposition or conversion
of the Securities. Securityholder 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. Securityholder will
notify London Bridge immediately if any party contacts Securityholder following
the date hereof (other than London Bridge or an affiliate or associate of London
Bridge) concerning any sale, transfer, pledge, tender or other disposition or
conversion of the Securities.
1.3 Voting Agreement. Securityholder has revoked or
terminated any proxies, voting agreements or similar arrangements previously
given or entered into with respect to the Securities. Securityholder agrees (i)
to vote all of the Securities in favor of the adoption and approval of the
Purchase Agreement and the Purchase and (ii) to vote all of the Securities
against: (A) any extraordinary corporate transaction (other than the Purchase),
such as a merger, consolidation, business combination, tender or exchange offer,
reorganization, recapitalization, liquidation or other change of control
involving the Company or any of its subsidiaries, including but not limited to
any Acquisition Proposal (as defined in the Purchase Agreement) and (B) any sale
or transfer of a material amount of the assets or securities of the Company or
any of its subsidiaries (other than with respect to the Purchase Agreement).
1.4 Public Announcement. Securityholder shall consult
with London Bridge before issuing any press releases or otherwise making any
public statements with respect to the transactions contemplated herein and shall
not issue any such press release or make any such public statement without the
approval of London Bridge, except as may be required by law.
2. Representation and Warranties.
2.1 Representations and Warranties of London Bridge.
London Bridge hereby represents and warrants to Securityholder as follows:
(a) Authorization. London Bridge is a
corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation. London
Bridge has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby. London Bridge has duly authorized,
executed and delivered this Agreement and this Agreement is a
legal, valid and binding agreement of London Bridge,
enforceable against London Bridge in accordance with its
terms.
(b) No Violation. Neither the execution and
delivery of this Agreement by London Bridge nor the
consummation of the transactions contemplated hereby by London
Bridge will (a) require London Bridge to file or register
with, or obtain any material permit, authorization, consent or
approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal,
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foreign or domestic, or any other entity, or (b) violate, or
cause a breach of or default under, any contract, agreement or
understanding, any statute or law, or any judgment, decree,
order, regulation or rule of any governmental agency,
authority, administrative or regulatory body, court or other
tribunal, foreign or domestic, or any other entity or any
arbitration award binding upon London Bridge.
2.2 Representations and Warranties of Securityholder.
Securityholder hereby represents and warrants to London Bridge as follows:
(a) Ownership. Securityholder is the sole record
and beneficial owner of, and has good and marketable title to,
585,455 shares of Company Common Stock (collectively, the
"Securities"), in each case free and clear of all liabilities,
claims, liens, options, proxies, charges, participations and
encumbrances of any kind or character whatsoever.
(b) Authorization. Securityholder has all
requisite power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated
hereby and has sole voting power and sole power of
disposition, with respect to all of the Securities owned by
Securityholder with no restrictions on its voting rights or
rights of disposition pertaining thereto. Securityholder has
duly authorized, executed and delivered this Agreement and
this Agreement is a legal, valid and binding agreement of
Securityholder, enforceable against Securityholder in
accordance with its terms.
(c) No Violation. Neither the execution and
delivery of this Agreement by the Securityholder nor the
consummation of the transactions contemplated hereby by the
Securityholder will (a) require Securityholder to file or
register with, or obtain any material permit, authorization,
consent or approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal,
foreign or domestic, or any other entity, or (b) violate, or
cause a breach of or default under, any contract, agreement or
understanding, any statute or law, or any judgment, decree,
order, regulation or rule of any governmental agency,
authority, administrative or regulatory body, court or other
tribunal, foreign or domestic, or any other entity or any
arbitration award binding upon Securityholder. No proceedings
are pending against the Securityholder which, if adversely
determined, will have a material adverse effect on the
Securityholder's ability to vote or dispose of any of the
Securities. Securityholder has not previously assigned or sold
any of the Securities to any third party.
(d) Securityholder Has Adequate Information.
Securityholder is a sophisticated party with respect to the
Securities and has adequate information concerning the
business and financial condition of the Company to make an
informed decision regarding the Securities and has
independently and without reliance upon London Bridge and
based on such information as Securityholder has deemed
appropriate, made its own analysis and decision to enter into
this Agreement. Securityholder acknowledges that London Bridge
has not made and does not make any representation or warranty
to Securityholder, whether express or implied, of any kind or
character except as expressly set forth in this Agreement.
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3. Survival of Representations and Warranties. The respective
representations and warranties of Securityholder and London Bridge contained
herein or in any certificates or other documents delivered in connection
herewith shall not be deemed waived or otherwise affected by any investigation
made by the other party hereto, and each representation and warranty contained
herein shall survive the closing of the transactions contemplated hereby until
the expiration of the applicable statute of limitations, including extensions
thereof.
4. Specific Performance. Securityholder acknowledges that London
Bridge will be irreparably harmed and that there will be no adequate remedy at
law for a violation of any of the covenants or agreements of Securityholder
which are contained in this Agreement. It is accordingly agreed that, in
addition to any other remedies which may be available to London Bridge upon the
breach by Securityholder of such covenants and agreements, London Bridge shall
have the right to obtain injunctive relief to restrain any breach or threatened
breach of such covenants or agreements or otherwise to obtain specific
performance of any of such covenants or agreements.
5. Miscellaneous.
5.1 Term. This Agreement (including, but not limited to,
the covenants contained herein) shall terminate upon the earlier to occur of (i)
the consummation of the transactions contemplated by the Purchase Agreement or
(ii) the termination of the Purchase Agreement according to its terms
(including, but not limited to, a termination by the Company pursuant to the
exercise of its fiduciary obligations pursuant to Section 8.1(i) of the Purchase
Agreement).
5.2 Expenses. Each of the parties hereto shall pay its
own expenses incurred in connection with this Agreement. Each of the parties
hereto warrants and covenants to the others that it will bear all claims for
brokerage fees attributable to action taken by it.
5.3 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective representatives and permitted successors and assigns.
5.4 Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
5.5 Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Time is of the essence with respect to all
provisions of this Agreement.
5.6 Assignment. This Agreement may not be transferred or
assigned by Securityholder but may be assigned by London Bridge to any of its
affiliates or to any successor
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to its business and will be binding upon London Bridge and shall inure to the
benefit of any such affiliate or successor.
5.7 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be an original, but both of which together
shall constitute one and the same Agreement.
5.8 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 given if so given) by delivery, telegram or
telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses (or at such other address for a party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof):
(a) If to London Bridge : London Bridge Group
25 New London Bridge House
25 New London Bridge Street
16th Floor
London SE1 9SG
United Kingdom
Attention: Jon Lee
Telecopy: 011-44-207-940-0241
with a copy to: LBSS, Inc.
2550 W. Tyvola Road
Suite 460
Charlotte, North Carolina 28217
Attention: Patricia B. Todd
Telecopy: (704) 357-8220
and
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: Alan J. Prince, Esq.
Mark E. Thompson, Esq.
Telecopy: (404) 572-5100
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(b) If to
Securityholder: Robert Fleming Inc.
320 Park Avenue
New York, New York 10022
Attention: Christopher Jones
Telecopy: 212-508-3928
5.9 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Delaware,
without regard to its principles of conflicts of laws.
5.10 Enforceability. The invalidity or unenforceability of
any provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
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IN WITNESS WHEREOF, London Bridge and Securityholder have caused this
Agreement to be duly executed as of the day and year first above written.
LONDON BRIDGE ACQUISITION COMPANY, INC.
By: /s/ Jon Lee
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Name: Jon Lee
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Title: President
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ROBERT FLEMING INC.
By: /s/ Christopher Jones
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Name: Christopher Jones
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Title:
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