Exhibit 99.5
EXHIBIT E
STOCKHOLDER AGREEMENT
---------------------
August 15, 1997
The parties to this agreement are VS&A Communications Partners II,
L.P., a Delaware limited partnership ("Parent"), VS&A-T/SF, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent (the "Sub"), and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇., and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., as Co-Trustees of the Revocable Inter
Vivos Trust of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. (the "Stockholder").
Concurrently with the execution and delivery of this agreement,
Parent, the Sub, and T/SF Communications Corporation, a Delaware corporation
(the "Company"), are entering into a Stock Purchase Agreement the ("Agreement")
which provides inter alia, for the Company's cash tender offer (the "Offer") to
----------
purchase all of the Company's outstanding shares of common stock, par value $.10
per share ("Common Stock") at a price of $40.25 per share. As a condition to
entering into the Agreement, Parent has required that the Stockholder agree to
the terms of this agreement and, as an inducement to Parent and the Sub to enter
into the Agreement and proceed with the Offer, the Stockholder has agreed to
those terms as set forth below. Capitalized terms used end not defined in this
agreement have the meanings ascribed to them in the Agreement.
It is therefore agreed as follows:
1. Tender of Shares.
----------------
(a) Tender. Not later than the fifteenth business day after
------
commencement of the Offer pursuant to Section 1.1 of the Agreement, the
Stockholder shall validly tender (or cause the record owner of his Shares to
validly tender), in accordance with the terms of the Offer, the number of shares
of the Common Stock set forth opposite the Stockholder's name on Schedule I to
this agreement, all of which are beneficially owned by the Stockholder, together
with any additional shares of the Common Stock that the Stockholder acquires
record or beneficial ownership of after execution of this agreement except for
additional shares acquired in any capacity excepted from this agreement pursuant
to Schedule I.
(b) Authorization to Disclose. The Stockholder authorizes the Company,
-------------------------
Parent and the Sub to publish and disclose in the documents relating to the
Offer the Stockholder's identity and ownership of the Company's common stock and
the nature of the Stockholder's commitments, arrangements and understandings
under this agreement.
(c) Conditions. The Stockholder acknowledges that the Company's
----------
obligation to accept and pay for the Shares in the Offer, including the Shares
owned of record or beneficially by the Stockholder, is subject to the term and
conditions of the Offer.
2. The Stockholder's Responsibilities with Respect to the Merger.
-------------------------------------------------------------
(a) Voting Agreement. The Stockholder shall, at any meeting of the
----------------
holders of Common Stock, however called, or in connection with any written
consent of the holders of Common Stock, vote (or cause to be voted) the Shares,
then held of record or beneficially owned by the Stockholder against any
Acquisition Proposal and against any action or agreement that would impede,
frustrate, prevent or nullify this agreement, or result in a breach in any
respect of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Agreement or which would result in any of the
conditions set forth in Annex A to the Agreement or set forth in Article VI of
the Agreement not being fulfilled. The Stockholder shall not be required to
take any action in accordance with this provision, however, to the extent that
the Stockholder shall have been advised by counsel in writing that in the
opinion of such counsel, the taking of any such action would violate the
Stockholder's fiduciary duties to the Company's stockholders under applicable
law, either in the Stockholder's capacity as a stockholder of the Company or in
the Stockholder's capacity as a member of the Company's Board of Directors.
(b) No Solicitation. Upon execution of this agreement the Stockholder
---------------
immediately shall cease any activities, discussions or negotiations with other
parties with respect to any Acquisition Proposal and shall not, directly or
indirectly, encourage, solicit, participate in or initiate discussions or
negotiations with or provide any information to, any corporation, partnership,
person or other entity or group (other than Parent and any of its affiliates or
representatives) concerning any Acquisition Proposal, except that the
Stockholder may negotiate and participate in negotiations with any entity or
group concerning an Acquisition Proposal to the extent that the Company is
permitted to do so under section 5.4 of the Agreement. The Stockholder shall
immediately communicate to Parent the terms of any proposal, discussion,
negotiation or inquiry the Stockholder receives in his capacity as a stockholder
of the Company (and the Stockholder shall furnish to Parent copies of any
written materials received by the Stockholder in his capacity as a stockholder
of the Company, in connection with any such proposal, discussion, negotiation or
inquiry) and the identity of the party making such proposal or inquiry.
(c) No Transfer of Shares or Inconsistent Arrangements. Except as
--------------------------------------------------
contemplated by the Agreement or this agreement, the Stockholder shall not (i)
transfer (which term shall include, without limitation, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the Shares
in the Company held by the Stockholder of record or beneficially, (ii) enter
into any contract, option or other agreement or understanding with respect to
any transfer of any or all of those Shares or any interest therein, (iii) grant
any proxy, power-of-attorney or other authorization in or with respect to those
Shares, (iv) deposit any of those Shares into a voting trust or enter into a
voting agreement or arrangement with respect to any of those Shares, or (v) take
any other action that would in any way restrict, limit or interfere with the
performance of the Stockholder's obligations under this agreement or the
transactions contemplated by this agreement or by the Agreement. The Stockholder
shall not request that the Company register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of the
Shares in the Company owned of record or beneficially by the Stockholder, unless
such transfer is made in compliance with this agreement.
2
(d) Company Options. If the Stockholder holds Options to acquire
---------------
shares of Company Common Stock, Stockholder shall, if requested by the Company,
consent to the cancellation or substitution of those options in accordance with
the terms of the Agreement and shall execute all appropriate documentation in
connection with such cancellation or substitution.
(e) Reasonable Efforts. Subject to the terms and conditions of this
------------------
agreement, each of the parties to this agreement shall use reasonable efforts to
take or cause to be taken all such action as may be necessary, proper or
advisable under applicable laws and regulations to consummate the transactions
contemplated by this agreement and the Agreement. Each party shall promptly
consult with the other and provide any necessary information and material with
respect to all filings made by Stockholder with any Governmental entity in
connection with this agreement and the Agreement and the transactions
contemplated by this agreement and the Agreement.
(f) Further Assurances. Each party shall from time to time, at the
------------------
other party's request and without further consideration, execute and deliver
such additional documents and take such further lawful action as may be
necessary or desirable to consummate, in the most expeditious manner
practicable, the transactions contemplated by this agreement.
3. Profit on Disposition of Shares Other than Pursuant to the Offer.
----------------------------------------------------------------
If prior to the time of acceptance for payment of the shares pursuant
to the Offer (a) the Company's board of directors withdraws or modifies its
approval or recommendation of the Offer or the Agreement, approves or recommends
a Superior Proposal, or enters into an agreement with respect to a Superior
Proposal, and (b) within 12 months thereafter there is a Disposition of any or
all of the shares of the Company owned by the Stockholder either pursuant to the
Superior Proposal or pursuant to a different Acquisition Proposal for which an
agreement was entered into within six months thereafter, then, promptly upon
receipt by the Stockholder of the proceeds of the Disposition, the Stockholder
shall pay to Parent an amount equal to the first $1.50 per Share of additional
consideration received in connection with the Disposition and 50% of any
additional consideration in excess of $1.50 per Share received in connection
with the Disposition (including the fair market value of any property) as
compared to the consideration that would have been received pursuant to the
Offer. If all or any portion of the consideration received in connection with
the Disposition is other than cash, payment to Parent shall be made in kind or,
at the Stockholder's election, in cash in an amount equal to the fair market
value of the consideration other than cash. As used in this provision, the term
"Disposition" means any sale, exchange or other disposition of shares, including
any disposition in connection with any tender offer, merger, consolidation or
liquidation.
4. Representations and Warranties of the Stockholder. The Stockholder
-------------------------------------------------
represents and warrants to Parent and the Sub as follows:
(a) Power; Binding Agreement. The Stockholder has the legal capacity,
------------------------
power and authority to enter into and perform all of the Stockholder's
obligations under
3
this agreement. The execution, delivery and performance of this agreement by the
Stockholder will not violate any other agreement to which the Stockholder is a
party or by which the Stockholder is bound, including, but not limited to, any
voting agreement, proxy arrangement, pledge agreement, shareholders agreement or
voting trust. This agreement has been duly and validly executed and delivered by
the Stockholder and constitutes a valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms.
There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which the Stockholder is a trustee whose consent is
required for the execution and delivery of this agreement or the consummation by
the Stockholder of the transactions contemplated by this agreement.
(b) No Conflicts. Except for filings under the HSR Act, the Exchange
------------
Act and as set forth in Section 3.4 of the Disclosure Schedule to the Agreement,
(i) no filing with, and no permit, authorization, consent or approval of, any
Governmental Entity is required for the execution and delivery of this agreement
by the Stockholder and the consummation by the Stockholder of the transactions
contemplated by this agreement and (ii) the execution, delivery and performance
of this agreement by the Stockholder will not violate any agreement or other
obligation to which the Stockholder is a party or by which the Stockholder or
any of the Stockholder's properties or assets is bound or violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to the Stockholder or any of the Stockholder's properties or assets.
(c) Ownership of Shares. The Stockholder is the record and beneficial
-------------------
owner of the number of shares of the Common Stock subject to this agreement set
forth opposite the Stockholder's name on Schedule I to this agreement, except as
set forth on Schedule I, those shares constitute all of the shares of the Common
Stock owned of record or beneficially by the Stockholder, and upon tender of
those shares to the Company and the purchase of the shares by the Company
pursuant to the Offer, the Company shall acquire valid title to those shares,
free and clear of any claims, liens, encumbrances, proxies, voting trusts or
agreements, understandings or arrangements or any other rights (collectively,
"Encumbrances"). Subject to applicable securities laws and the terms of this
agreement, the Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in sections 1,2 and 3 of this
agreement, 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 shares in the Company
beneficially owned by the Stockholder, with no limitations, qualifications or
restrictions on those rights.
(d) No Encumbrance. Except as permitted by this agreement, the shares
--------------
in the Company owned by the Stockholder of record or beneficially, and the
certificates representing those shares, are now, and at all times prior to the
purchase of those shares pursuant to the Offer will be, held by the Stockholder,
or by a nominee or custodian for the benefit of the Stockholder, free and clear
of all Encumbrances except for those arising under this agreement.
(e) No Finder's Fees. Except as set forth in Section 3.18 of the
----------------
Agreement, no broker, investment banker, financial advisor 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 by this agreement
based upon arrangements made by
4
or on behalf of the Stockholder.
5. Representations and Warranties of Parent and the Sub. Parent and the
----------------------------------------------------
Sub jointly and severally represent and warrant to the Stockholder as follows:
(a) Power: Binding Agreement. Each of Parent and the Sub has the
-------------------------
corporate power and authority to enter into and perform all of its obligations
under this agreement and the execution, delivery and performance of this
agreement by Parent and the Sub have been duly authorized by all necessary
partnership or corporate action. The execution, delivery and performance of
this agreement by each of Parent and the Sub will not violate any other
agreement to which either of them is a party or by which either of them is
bound. This agreement has been duly and validly executed and delivered by each
of Parent and the Sub and constitutes a valid and binding agreement of each of
Parent and the Sub, enforceable against each of them in accordance with its
terms.
(b) No Conflicts. Except for filings under the HSR Act and the
------------
Exchange Act, (i) no filing with, and no permit, authorization, consent or
approval of, any Governmental Entity is necessary for the execution of this
agreement by each of Parent and the Sub and the consummation by each of Parent
and the Sub of the transactions contemplated hereby and (ii) the execution,
delivery and performance of this agreement by each of Parent and the Sub will
not (A) conflict with or result in any breach of any organizational documents
applicable to either Parent or the Sub, (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 either Parent or the Sub is a party or by which
either Parent or the Sub or any of their respective properties or assets is
bound, or (C) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to either Parent or the Sub or any of
their respective properties or assets.
6. Termination.
-----------
Except as provided in Section 3 of this agreement, this agreement
shall terminate upon the termination of the Agreement in accordance with its
terms. The termination of this agreement pursuant to this provision shall not
relieve any party of liability for any prior breach of its or his or her
obligations under this agreement.
5
7. Definitions.
-----------
(a) Shares. Any reference in this agreement to the shares owned of
------
record or beneficially by the Stockholder shall be deemed to include shares
hereafter acquired by the Stockholder upon any stock dividend or distribution or
any change in the Company's Common Stock by reason of any split-up,
recapitalization, combination, exchange of shares or similar corporate action.
(b) Beneficial Ownership. For the purpose of this agreement,
--------------------
beneficial ownership with respect to any shares means beneficial ownership as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, including pursuant to any agreement, arrangement or understanding,
whether or not in writing.
(c) Agreement. Any reference to the "Agreement" refers to the
---------
Agreement executed on this date as it may hereafter be amended from time to
time.
8. Miscellaneous.
-------------
(a) Reliance by Parent. The Stockholder acknowledges that Stockholder
------------------
understands that Parent is entering into, and causing Sub to enter into, the
Agreement in reliance upon the Stockholder's execution, delivery and performance
of this agreement.
(b) Entire Agreement; No Oral Change. This agreement contains a
---------------------------------
compete statement of all of the arrangements among the parties with respect to
its subject matter, supersedes all prior agreements and understandings, written
and oral, among the parties with respect to that subject matter, and cannot be
changed or terminated except by an agreement in writing signed by all parties.
(c) Binding Agreement. This agreement and the obligations under this
-----------------
agreement shall attach to the shares owned of record and beneficially by the
Stockholder and shall be binding upon any such person or entity to which legal
or beneficial ownership of those shares shall pass, whether by operation of law
or otherwise, including, but not limited to, the Stockholder's heirs, guardians,
administrators or successors. The transferee of any shares shall remain liable
for the performance of all obligations of the transferor under this agreement.
(d) Assignment. None of the parties may assign any of its or his or
----------
her rights or delegate any of its or his or her duties under this agreement
without the prior written consent of the other parties.
(e) Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or sent by an overnight courier service, such as Federal Express,
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
6
(i) if to Parent or the Sub, to:
VS&A Communications Partners II, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
with a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(ii) if to the Stockholder, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
as Co-Trustees of the Revocable Inter Vivos
Trust of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Tower
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(f) Severability. Whenever possible, each provision or portion of any
------------
provision of this agreement shall 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 shall 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 in this agreement.
(g) Specific Performance. The Stockholder acknowledges that the
--------------------
Company's business is of a special, unique and extraordinary character, and that
any default in the performance of Stockholder's obligations under sections 1 and
2 of this agreement could not be compensated for by damages. Accordingly, if the
Stockholder defaults in the performance of Stockholder's obligations under
section 1 or 2 of this agreement, Parent and the Sub shall be entitled, in
addition to any other remedies that either of them may have, to enforcement of
this agreement by a decree of specific performance requiring the Stockholder to
fulfill those obligations, without any bond or other security being required and
without the necessity of showing actual damages.
(h) Remedies Cumulative. All rights, powers and remedies provided
-------------------
7
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 right,
power or remedy by any party shall not preclude the simultaneous or later
exercise by that party of any other right, power or remedy.
(i) No Waiver. The failure of any party hereto to exercise any right,
---------
power or remedy provided under this agreement or otherwise available at law or
in equity, or to insist upon compliance by any other party with its obligations
under this agreement, and any custom or practice of the parties at variance with
the terms of this agreement, shall not constitute a waiver by that 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.
(k) Governing Law. This agreement shall be governed and construed in
-------------
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(l) Jurisdiction. The courts of the State of Delaware and the United
------------
States District Court for the Southern District of New York shall have
jurisdiction over the parties with respect to any dispute or controversy among
them arising under or in connection with this agreement and, by execution and
delivery of this agreement, each of the parties to this agreement submits to the
jurisdiction of those courts, including, but not limited to, the in personam and
-----------
subject matter jurisdiction of those courts, waives any objection to such
jurisdiction on the grounds of venue or forum non conveniens, the absence of in
----- --- ---------- --
personam or subject matter jurisdiction and any similar grounds, consents to
--------
service of process by mail (in accordance with section 8(e)) or any other manner
permitted by law, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this agreement. These consents to jurisdiction shall
not be deemed to confer rights on any person other than the parties to this
agreement.
8
(m) Headings. The descriptive headings in this agreement are for
--------
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this agreement.
VS&A COMMUNICATIONS PARTNERS II, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and General Partner
VS&A-T/SF, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and General Partner
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. AND ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇. AS CO-TRUSTEES OF THE
REVOCABLE INTER VIVOS TRUST OF
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
9
SCHEDULE 1
NUMBER OF SHARES NUMBER OF SHARES BENEFICIALLY
BENEFICIALLY OWNED OWNED EXCLUDED FROM THIS
SUBJECT TO THIS AGREEMENT (INDICATING
NAME OF STOCKHOLDER AGREEMENT CAPACITY OWNED)
------------------- -------------- ------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., and 2,510 shares See separate Stockholder
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., as Agreements for:
Co-trustees of the Revocable
Inter Vivos Trust of (i) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ and
trustees of The ▇▇▇▇▇▇▇▇ ▇. ▇. and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Foundation
(ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
(iii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., as Co-
trustees of the Revocable Inter
Vivos Trust of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
(iv) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, as
Trustee of the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Charitable
Remainder Unitrust
