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EXHIBIT 7.5
[Execution Copy]
STOCKHOLDER AGREEMENT
This Stockholder Agreement (this "Agreement") dated as of July 2,
2000 is between EGL, Inc., a Texas corporation ("Parent"), and those persons set
forth on Exhibit A (each, a "Stockholder" and collectively, the "Stockholders").
RECITALS
WHEREAS, Parent, EGL Delaware I, Inc., a Delaware corporation and a
direct, wholly owned subsidiary of Parent ("Merger Sub"), and Circle
International Group, Inc., a Delaware corporation (the "Company"), are entering
into an Agreement and Plan of Merger dated as of the date hereof (as amended
from time to time pursuant thereto, the "Merger Agreement");
WHEREAS, each Stockholder is the record and beneficial owner of the
number of shares of common stock, par value $1.00 per share, of the Company (the
"Company Common Stock") set forth opposite such Stockholder's name on Exhibit A
(such shares of Company Common Stock, together with any shares of capital stock
of the Company acquired by such Stockholder after the date hereof and during the
term of this Agreement, being collectively referred to herein as such
Stockholder's "Shares");
WHEREAS, as a condition to the willingness of Parent to enter into
the Merger Agreement, and as an inducement to it to do so, the Stockholder has
agreed for the benefit of Parent as set forth in this Agreement; and
WHEREAS, the Board of Directors of the Company has approved the
Stockholder's entering into this Agreement, the form of this Agreement and the
transactions contemplated hereby;
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereby agree as follows (terms defined in the Merger Agreement and used
but not defined herein having the meanings assigned to such terms in the Merger
Agreement):
ARTICLE 1
COVENANTS OF THE STOCKHOLDERS
Each Stockholder hereby covenants as follows:
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Section 1.1 Agreement to Vote. At any meeting of the stockholders of
the Company held prior to the earlier of (a) the Effective Time of the Merger
and (b) the close of business on the date 45 days after the termination of the
Merger Agreement, provided such date shall be extended (but in no event beyond
May 15, 2001) if a Company Acquisition Proposal is pending until the close of
business on the third business day after any Stockholder gives Parent notice of
the consummation, withdrawal or termination of the Company Acquisition Proposal
if at such time no other Company Acquisition Proposal is pending (such earlier
time being herein referred to as the "Voting Termination Date"), however called,
and at every adjournment or postponement thereof prior to the Voting Termination
Date, or in connection with any written consent of the stockholders of the
Company given prior to the Voting Termination Date, such Stockholder shall vote
or cause to be voted such Stockholder's Shares (together with (a) any additional
shares of capital stock of the Company or any securities or other property that
the Stockholder is or becomes entitled to receive from the Company by reason of
being a record holder of such number of Shares, (b) any capital stock,
securities or other property into which any such number of Shares shall have
been or shall be converted or changed, whether by amendment to the Certificate
of Incorporation of the Company, merger, consolidation, reorganization, capital
change or otherwise, (c) any additional Company Common Stock acquired by the
Stockholder as the result of the Stockholder's exercising an option, warrant or
other right to acquire shares of capital stock from the Company issued with
respect to such number of Shares (all of the foregoing hereinafter collectively
referred to as such Stockholder's "Additional Shares")) in favor of the approval
of the Merger and each of the other transactions contemplated by the Merger
Agreement and in favor of the approval and adoption of the Merger Agreement and
any actions required in furtherance hereof and thereof. Such Stockholder shall
not enter into any agreement or understanding with any person prior to the
Voting Termination Date, directly or indirectly, to vote, grant any proxy or
give instructions with respect to the voting of such Stockholder's Shares (and
any Additional Shares) in any manner inconsistent with the preceding sentence.
Section 1.2 Proxies and Voting Agreements. Such Stockholder hereby
revokes any and all previous proxies granted with respect to matters set forth
in Section 1.1. Prior to the Voting Termination Date, such Stockholder shall
not, directly or indirectly, except as contemplated hereby, grant any proxies or
powers of attorney with respect to matters set forth in Section 1.1, deposit any
of such Stockholder's Shares (or any Additional Shares) or enter into a voting
agreement with respect to any of such shares.
Section 1.3 No Solicitation.
(a) From and after the date hereof until the Voting Termination
Date, such Stockholder will not, and will not authorize or permit any of its
officers, directors, employees, agents or representatives (collectively,
"Stockholder Representatives") to, or upon becoming aware of it will stop such
person from continuing to, directly or indirectly, solicit, initiate or
encourage (including by way of furnishing material non-public information), or
take any action designed to facilitate, directly or indirectly, any inquiry,
proposal or offer (including, without limitation, any proposal or offer to the
Company's stockholders) with respect to a Company Acquisition Proposal
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or cooperate with or assist, participate or engage in any substantive
discussions or negotiations concerning a Company Acquisition Proposal.
(b) Such Stockholder shall immediately cease and cause to be
terminated any existing negotiations with any parties conducted heretofore by
such Stockholder or any Stockholder Representatives with respect to any Company
Acquisition Proposal.
(c) Prior to the Voting Termination Date, such Stockholder will
promptly notify Parent orally and in writing of any requests for information
made to such Stockholder or any Stockholder Representative or the receipt of any
Company Acquisition Proposal made to such Stockholder or any Stockholder
Representative or any inquiry with respect to (including, without limitation,
any inquiry as to the Company's willingness or ability to entertain offers,
proposals or engage in discussions or negotiations), or which could reasonably
be expected to lead to, a Company Acquisition Proposal, including the identity
of the person or group engaging in such discussions or negotiations, requesting
such information or making such Company Acquisition Proposal, and the material
terms and conditions of any Company Acquisition Proposal.
(d) Prior to the Voting Termination Date, such Stockholder shall not
enter into any agreement with any person or group that provides for, or in any
way facilitates, a Company Acquisition Proposal.
(e) The provisions of this Section 1.3 do not prohibit any
Stockholder or Stockholder Representative who also serves in the capacity of
officer, director, employee, agent or other representative of the Company from
taking actions in such other capacity to the extent permitted by Section 7.3 of
the Merger Agreement.
Section 1.4 Other Actions. Prior to the Voting Termination Date,
such Stockholder shall not take any action that would in any way restrict,
limit, impede or interfere with the performance of its obligations hereunder or
the transactions contemplated hereby or by the Merger Agreement.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF THE STOCKHOLDERS
Each Stockholder represents, warrants and covenants to Parent that:
Section 2.1 Ownership. Such Stockholder is as of the date hereof the
beneficial and record owner of such Stockholder's Shares, such Stockholder has
the sole right to vote such Stockholder's Shares and there are no restrictions
on rights of disposition or other lien, pledge, security interest, charge or
other encumbrance or restriction pertaining to such Stockholder's Shares. None
of such Stockholder's Shares is subject to any voting trust or other agreement,
arrangement
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or restriction with respect to the voting of the such Stockholder's Shares, and
no proxy, power of attorney or other authorization has been granted with respect
to any of such Stockholder's Shares.
Section 2.2 Authority and Non-Contravention. Such Stockholder has
the right, power and authority, and such Stockholder has been duly authorized by
all necessary action (including consultation, approval or other action by or
with any other person), to execute, deliver and perform this Agreement and
consummate the transactions contemplated hereby. Such actions by such
Stockholder (a) require no action by or in respect of, or filing with, any
governmental or regulatory authority with respect to such Stockholder, and (b)
do not and will not contravene or constitute default under any provision of
applicable law or regulation or any agreement, judgment, injunction, order,
decree or other instrument binding on such Stockholder or result in the
imposition of any lien, pledge, security interest, charge or other encumbrance
or restriction on any of such Stockholder's Shares (other than as provided in
this Agreement with respect to such Stockholder's Shares).
Section 2.3 Binding Effect. This Agreement has been duly executed
and delivered by such Stockholder and is the valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally and by equitable
principles to which the remedies of specific performance and injunctive and
similar forms of relief are subject.
Section 2.4 Total Shares. Such Stockholder's Shares are the only
shares of capital stock of the Company owned beneficially or of record as of the
date hereof by such Stockholder, and such Stockholder does not have any option
to purchase or right to subscribe for or otherwise acquire any securities of the
Company (except for options outstanding under Company Stock Option Plans) and
has no other interest in or voting rights with respect to any other securities
of the Company.
Section 2.5 Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from the Company, Parent or Merger Sub in
respect of this Agreement based upon any arrangement or agreement made by or on
behalf of such Stockholder, except as otherwise provided in the Merger
Agreement.
Section 2.6 Reasonable Efforts. Prior to the Voting Termination
Date, such Stockholder shall use reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and cooperate
with the Company and Parent in doing, all things necessary, proper or advisable
to consummate and make effective the Merger and the other transactions
contemplated by the Merger Agreement and this Agreement.
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ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARENT
Parent represents, warrants and covenants to each Stockholder that:
Section 3.1 Corporate Power and Authority. Parent has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by Parent of this
Agreement and the consummation by Parent of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Parent.
Section 3.2 Binding Effect. This Agreement has been duly executed
and delivered by Parent and is a valid and binding agreement of Parent,
enforceable against Parent in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights generally and by equitable principles to which the
remedies of specific performance and injunctive and similar forms of relief are
subject.
ARTICLE 4
GENERAL PROVISIONS
Section 4.1 Expenses; Attorneys' Fees. Each party hereto shall pay
its own expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby. If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees, costs and necessary disbursements, in addition to any other relief to
which such party may be entitled.
Section 4.2 Further Assurances. From time to time, at the request of
any other party, each party shall execute and deliver or cause to be executed
and delivered such additional documents and instruments and take all such
further action as may be necessary or desirable to consummate the transactions
contemplated by this Agreement.
Section 4.3 Notices. Any notice required to be given hereunder shall
be sufficient if in writing, and sent by facsimile transmission or by courier
service (with confirmation of receipt or proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid), addressed as follows:
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(a) if to Parent:
James R. Crane
President, Chief Executive Officer and
Chairman of the Board of Directors
EGL, Inc.
15350 Vickery Drive
Houston, Texas 77032
Facsimile: (281) 618-3204
with a copy to:
Gene J. Oshman, Esq.
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana
Houston, Texas 77002-4995
Facsimile: (713) 229-1522
(b) if to any Stockholder, at such address or facsimile number
indicated opposite the name of such Stockholder on Exhibit A.
with a copy to:
John F. Seegal, Esq.
Orrick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111-3143
Facsimile: (415) 773-5759
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated or personally delivered or three business days after so mailed.
Section 4.4 Assignment; Binding Effect; Benefit. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective heirs, successors,
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executors, administrators and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement. Each Stockholder agrees that
this Agreement and the obligations hereunder shall attach to the Shares
beneficially owned by such Stockholder and shall be binding upon any person to
which legal or beneficial ownership of such shares shall pass, whether by
operation of law or otherwise.
Section 4.5 Entire Agreement. This Agreement and any documents
delivered by the parties in connection herewith constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto.
Section 4.6 Amendments. This Agreement may not be amended except
by an instrument in writing signed on behalf of each of the parties hereto.
Section 4.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws.
Section 4.8 Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all of the
parties hereto.
Section 4.9 Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretative effect whatsoever.
Section 4.10 Interpretation. Unless the context otherwise requires,
words describing the singular number shall include the plural and vice versa,
and words denoting any gender shall include all genders and words denoting
natural persons shall include corporations and partnerships and vice versa.
Section 4.11 Waivers. Except as provided in this Agreement, no
action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 4.12 Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or
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provisions of this Agreement 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.
Section 4.13 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
[Signature Page Follows]
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IN WITNESS WHEREOF, Parent and the Stockholders have caused this
Agreement to be duly executed as of the day and year first above written.
EGL, INC.
By: /s/ Elijio V. Serrano
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Name: Elijio V. Serrano
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Title: Chief Financial Officer
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STOCKHOLDERS
/s/ Peter Gibert
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Peter Gibert
RAY AND JO ROBINSON TRUST
/s/ Ray C. Robinson, Jr.
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Ray C. Robinson, Jr., as trustee of
the Ray and Jo Robinson Trust
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EXHIBIT A
<TABLE>
<CAPTION>
ADDRESS AND
STOCKHOLDER NUMBER OF SHARES OWNED FACSIMILE NUMBER
----------- ---------------------- ----------------
<S> <C> <C>
Peter Gibert 1,004,500 260 Townsend Street
San Francisco, California 94107
Facsimile: (415) 978-0773
Ray and Jo Robinson Trust 1,673,656 260 Townsend Street
San Francisco, California 94107
Facsimile: (415) 978-0773
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