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EXHIBIT 10.45
IRREVOCABLE PROXY AND OPTION AGREEMENT
Each undersigned stockholder of THE CERPLEX GROUP, INC., a
Delaware corporation (the "Company"), hereby irrevocably appoints Xxxxx
XxXxxxxx and Xxxxxxx X. Xxxxx, and each of them, or any other designee of
AURORA ELECTRONICS, INC., a Delaware corporation ("Parent"), the
attorneys-in-fact and proxies of such stockholder, each with full power of
substitution:
(a) to attend any meeting (whether annual or special or both)
of the stockholders of the Company, including any adjournment or
postponement thereof, on behalf of such stockholder, and at such
meeting, with respect to all shares of common and preferred stock of
the Company owned by such stockholder on the date hereof or acquired
hereafter that are entitled to vote at such meeting or over which such
stockholder has voting power (with the exception of Xxxxxxx Partners,
L.P. ("Xxxxxxx Partners") who makes such agreement with respect to
2,478,773 shares of the Company's Common Stock, $.001 par value
("Company Common Stock") held by such stockholder (hereinafter, the
"Xxxxxxx Shares")) and any and all other shares of common or preferred
stock of the Company or other securities issued on or after the date
hereof in respect of any such shares, including, without limitation,
the shares of Company Common Stock indicated following such
stockholder's signature at the end of this proxy and option:
(i) to vote in favor of the Merger (as such term
is defined in the Agreement and Plan of Merger (the "Merger
Agreement") among the Company, Parent and Xxxxx Acquisition
Corp. ("Sub") dated as of the date hereof) as set forth in the
Merger Agreement or on substantially the same terms, and
otherwise to act with respect to such shares as each such
attorney and proxy or his substitute shall deem necessary or
appropriate for such purpose; and
(ii) to vote and otherwise act with respect to
such shares in such a manner as each such attorney and proxy
or his substitute shall deem proper, with respect to (x)
proposals or offers (other than the Merger) relating to (1)
any proposed sale, lease or other disposition of all or a
substantial amount of the assets of the Company or any of its
subsidiaries (as defined in the Merger Agreement), (2) any
proposed merger, consolidation or other combination of the
Company or any of its subsidiaries with any other entity, (3)
any sale, lease or other disposition of the shares of any
subsidiary of the Company or (4) any other proposed action of
the Company or any of its subsidiaries requiring stockholder
approval that would conflict with or violate the Company's
representations, covenants or obligations under the Merger
Agreement, adversely affect the Company's ability to
consummate the transactions contemplated thereby or otherwise
impede, interfere with or discourage the Merger (each of the
actions described in (1) - (4) above, an "Acquisition
Proposal"), and (y) any procedural matters presented at any
such meeting at which any action is scheduled to be taken with
respect to the Merger or any Acquisition Proposal;
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(b) to execute and deliver one or more consents in
writing (pursuant to Section 228 of the General Corporation Law of the
State of Delaware (the "GCL")) in lieu of such meeting or adjournment
thereof;
(c) if no meeting of stockholders is scheduled in
accordance with the Merger Agreement, or any such meeting is canceled
or adjourned, and no action is taken by written consent in lieu
thereof, to call a special stockholders meeting of the Company or to
act by written consent for the purpose of (i) approving the Merger or
any action with respect thereto, (ii) taking action with respect to
any Acquisition Proposal or (iii) replacing any or all members of the
Board of Directors of the Company with such persons as may be
designated by such attorneys and proxies or their substitutes to the
extent permitted under the GCL and the Certificate of Incorporation of
the Company; and
(d) to waive for the term of this proxy and option any
and all rights of such stockholder to exercise any rights as an
objecting stockholder under Section 262 of the GCL, subject to the
right to receive the consideration as specifically provided in the
Merger Agreement.
Each undersigned stockholder hereby grants Parent the
irrevocable right and option (the "Option") to purchase all shares of Company
Common Stock (or, in the case of Xxxxxxx Partners, any of the Xxxxxxx Shares)
and warrants to purchase such shares, owned by such stockholder on the date
hereof or acquired hereafter (and any and all other shares of Company Common
Stock or other securities issued on or after the date hereof in respect of any
such shares or warrants or in respect of any options to purchase shares of
Company Common Stock), for the same consideration as such stockholder would
receive in the Merger pursuant to the Merger Agreement. The Option may be
exercised in whole as to all the undersigned stockholders, but not in part as
to any or all of such stockholders, at any time after the expiration of any
applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and after the earlier to occur of (a) the date the
Board of Directors of the Company votes not to approve the Merger or the Merger
Agreement, or otherwise withdraws or modifies its recommendation of the Merger
and the Merger Agreement or recommends or accepts any other Acquisition
Proposal, (b) the date the Merger Agreement terminates, other than as a result
of a breach by either of Parent or Sub of any of the representations or
warranties made by it or any of its obligations thereunder, and (c) the date
the proxy contained herein is determined by any court to be invalid or
unenforceable.
Each undersigned stockholder agrees (a) (i) to take all action
necessary to call, or cause the Company to call, a meeting of the stockholders
of the Company, to be held no later than twenty-one business days after the
date on which the Registration Statement on Form S-4 with respect to the shares
of Parent Common Stock to be issued in the Merger is declared effective, for
the purpose of approving the Merger and shall use its best efforts to cause
such meeting to be held on its scheduled date, or (ii) to take such action by
written consent in lieu thereof as is necessary to effect such approval; (b)
not to deposit any of its shares of Company Common Stock (or, in the case of
Xxxxxxx Partners, any of the
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Xxxxxxx Shares) into a voting trust or enter into a voting agreement with
respect to such shares; (c) not to sell, transfer or otherwise dispose of or
pledge or otherwise encumber, any shares of Company Common Stock or options or
warrants to purchase such shares owned by such stockholder (or, in the case of
Xxxxxxx Partners, any of the Xxxxxxx Shares), unless the purchaser or
transferee of such shares or rights agrees in writing (a copy of which shall be
delivered by such stockholder to Parent) prior to such sale, transfer or
disposition to be bound by and subject to the provisions contained in this
proxy and option; and (d) not, in its capacity as stockholder, to solicit,
initiate, encourage, endorse, support (including, by providing information) or
participate in any discussions regarding, any Acquisition Proposal.
Each undersigned stockholder affirms that this proxy and
option is issued in connection with the Merger Agreement to facilitate the
transactions contemplated thereunder and in consideration of Parent entering
into the Merger Agreement and as such is coupled with an interest and is
irrevocable. This proxy and option will terminate upon the earlier to occur of
(a) the closing of the transactions described in the Merger Agreement and (b)
the termination of the Merger Agreement in accordance with its terms. For
purposes of this proxy and option, any notice of any stockholders' meeting and
any written consent shall be deemed delivered to such attorneys and proxies and
their substitutes when delivered to Parent in accordance with the Merger
Agreement, and any written consent shall be deemed delivered to the Company
when delivered to it in accordance with the Merger Agreement.
By execution and delivery of this proxy and option to the
designees of Parent, each undersigned stockholder confirms that such
stockholder has received a copy of a substantially final form of the Merger
Agreement, and that all other information deemed necessary by such stockholder
concerning the Merger, the Merger Agreement and the transactions contemplated
thereunder or any other matters considered by such stockholder to be relevant
to the its decision to execute this proxy and option has been made available to
such stockholder.
All authority herein conferred or agreed to be conferred shall
survive the death, dissolution, liquidation or incapacity of any undersigned
stockholder and any obligation of any undersigned stockholder hereunder shall
be binding upon the heirs, personal representatives, successors and assigns of
such undersigned stockholder. This proxy and option revokes any and all other
proxies and options heretofore granted by each and any undersigned stockholder
to vote or otherwise to act with respect to any of the shares to which this
proxy and option relates. No undersigned stockholder will give any subsequent
proxy or option (and such proxy or option if given will be deemed not to be
effective) with respect to such shares that purports to grant authority within
the scope of the authority hereby conferred, except on the express condition
that such proxy or option shall not be effective unless and until this proxy
and option shall have terminated in accordance with its terms. This proxy
shall be governed by the internal laws of the State of Delaware.
Each undersigned stockholder acknowledges that money damages
would be both incalculable and an insufficient remedy for any breach of this
proxy and option by it, and that any such breach would cause Parent and Sub
irreparable harm. Accordingly, each undersigned stockholder agrees that in the
event of any breach or threatened breach of this
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proxy and option, Parent, in addition to any other remedies at law or in equity
it may have, shall be entitled, without the requirement of posting a bond or
other security, to equitable relief, including injunctive relief and specific
performance.
The invalidity or unenforceability of any provision of this
proxy and option in any jurisdiction shall not affect the validity or
enforceability of any other provision of this proxy and option in such
jurisdiction, or the validity or enforceability of any provision of this proxy
and option in any other jurisdiction.
Each undersigned stockholder represents and warrants that, as
of the date hereof, such stockholder owns or possesses voting power with
respect to the number of shares of Company Common Stock set forth following
such stockholder's name below. Each undersigned stockholder (with the
exception of Xxxxxxx Partners) represents and warrants that, as of the date
hereof, such stockholder owns the number of shares of Company Common Stock,
options to purchase shares of Company Common Stock and warrants to purchase of
Company Common Stock set forth following such stockholder's name below.
Xxxxxxx Partners represents and warrants that, as of the date hereof, such
stockholder owns not less than 2,478,773 shares of Company Common Stock.
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For the convenience of the parties, this proxy and option
agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
Dated: January 30, 1998
/s/ XXXXXXX X. XXXXX
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XXXXXXX X. XXXXX
[4,710,383 shares of Company Common Stock]
XXXXX INVESTMENTS FAMILY LIMITED PARTNERSHIP
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
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Title: General Partner
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[2,442,599 shares of Company Common Stock]
THE XXXXX FOUNDATION
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
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Title: CEO & President
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[180,000 shares of Company Common Stock]
XXXXX 1994 CHARITABLE REMAINDER TRUST
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx, Trustee
[1,271,299 shares of Company Common Stock]
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/s/ XXXXXXX X. XXXXX
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XXXXXXX X. XXXXX
[845,871 shares of Company Common Stock]
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation, Managing
General Partner
By: /s/ XXXXXX XXXXX
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Xxxxxx Xxxxx, Attorney-in-Fact
[8,410,398 shares of Company Common Stock]
DLJ CAPITAL CORPORATION
By: /s/ XXXXXX XXXXX
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Xxxxxx Xxxxx, Attorney-in-Fact
[856,268 shares of Company Common Stock]
/s/ XXXXXX XXXXX
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XXXXXX XXXXX
[3,500 shares of Company Common Stock]
/s/ XXXXX XXXXX
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XXXXX XXXXX
[952,642 shares of Company Common Stock]
/s/ XXXXXX XXXXXXXX
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XXXXXX XXXXXXXX
[17,605 shares of Company Common Stock]
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XXXXXXX PARTNERS L.P.
By: Xxxxxxx Capital, Inc., its general partner
By: /s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx
Title: President/G.P.
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[2,478,773 shares of Company Common Stock]
Accepted and Agreed to
as of the date noted above:
AURORA ELECTRONICS, INC.
By /s/ XXX X. XXXXXX
-----------------------------
Name:
Title:
