EXHIBIT 10.1
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FORM OF
SUPPORT AGREEMENT
This SUPPORT AGREEMENT (this "Agreement"), dated as of March __, 2008, is
entered into by and among L-1 Identity Solutions, Inc., a Delaware corporation
("Parent"), Dolomite Acquisition Co., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), and ____________________ ("Stockholder").
Capitalized terms used but not defined in this Agreement have the meanings
ascribed thereto in the Merger Agreement (as defined below).
WHEREAS, concurrently with the execution of this Agreement, Digimarc
Corporation, a Delaware corporation (the "Company"), Parent and Merger Sub are
entering into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement"), which provides, among other things, for Merger Sub to merge with
and into the Company, with the Company continuing as the surviving corporation
and a wholly-owned subsidiary of Parent (the "Merger");
WHEREAS, as of the date hereof, Stockholder is the record and beneficial
owner of ____________ shares of common stock, par value $0.001, of the Company
(such shares of Company Common Stock, together with any other shares of Company
Common Stock acquired by Stockholder after the date hereof, being collectively
referred to herein as the "Stockholder Shares"); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Merger Sub have required that Stockholder enter into this
Agreement and, in order to induce Parent and Merger Sub to enter into the Merger
Agreement, Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Representations and Warranties of Stockholder. Stockholder
hereby represents and warrants to Parent and Merger Sub as follows:
(a) Authority. Stockholder has all necessary power and
authority to execute and deliver this Agreement and to perform his, her or its
obligations hereunder. The execution, delivery and performance by Stockholder of
this Agreement and the transactions contemplated hereby have been duly
authorized and approved by all necessary action on the part of Stockholder and
no further action on the part of Stockholder is necessary to authorize the
execution and delivery by Stockholder of this Agreement or the performance by
Stockholder of his, her or its obligations hereunder. This Agreement has been
duly executed and delivered by Stockholder and, assuming due and valid
authorization, execution and delivery hereof by Parent and Merger Sub,
constitutes a valid and binding obligation of Stockholder, enforceable against
Stockholder in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar Laws affecting or
relating to creditors' rights generally and by general principles of equity.
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(b) Consents and Approvals; No Violations. Except for any
required filings pursuant to federal and state securities laws, no consents or
approvals of, or filings, declarations or registrations with, any Governmental
Authority are necessary for the performance by Stockholder of his, her or its
obligations under this Agreement, other than such consents, approvals, filings,
declarations or registrations that, if not obtained, made or given, would not,
individually or in the aggregate, reasonably be expected to prevent or
materially delay the performance by Stockholder of any of his, her or its
obligations under this Agreement. Neither the execution of this Agreement by
Stockholder nor the consummation of the transactions contemplated hereby will
result in a breach or violation of the terms of any agreement to which the
Stockholder is bound or is a party or any Law or order applicable to
Stockholder, except for such breaches or violations as would not, individually
or in the aggregate, reasonably be expected to prevent or materially delay the
performance by Stockholder of any of his, her or its obligations under this
Agreement.
(c) Ownership of Shares. Stockholder owns, beneficially and
of record, all of the Stockholder Shares free and clear of any proxy, voting
restriction, adverse claim or other Lien (other than proxies and restrictions in
favor of Parent and Merger Sub pursuant to this Agreement and except for such
transfer restrictions of general applicability as may be provided under the
Securities Act and the "blue sky" Laws of the various states of the United
States, collectively "Permitted Liens"). Without limiting the foregoing, except
for Permitted Liens, Stockholder has sole voting power and sole power of
disposition with respect to all Stockholder Shares, with no restrictions on
Stockholder's rights of voting or disposition pertaining thereto, and no Person
other than Stockholder has any right to direct or approve the voting or
disposition of any Stockholder Shares. Except as set forth on Exhibit A hereto,
as of the date hereof, Stockholder does not own, beneficially or of record, or
have the right to acquire, any securities of the Company other than the
Stockholder Shares.
(d) Brokers. No broker, investment banker, financial advisor
or other Person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission that is payable by the Company, Parent or any of
their respective Subsidiaries in connection with the transactions contemplated
by the Merger Agreement based upon arrangements made by or on behalf of
Stockholder.
(e) Reliance by Parent. Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon
Stockholder's execution and delivery of this Agreement.
2. Representation and Warranties of Parent and Merger Sub. Parent
and Merger Sub jointly and severally represent and warrant to Stockholder as
follows:
(a) Authority. This Agreement has been authorized by all
necessary action on the part of each of Parent and Merger Sub and has been duly
executed by a duly authorized officer of each of Parent and Merger Sub.
(b) No Violations. This Agreement constitutes the legal,
valid and binding obligation of each of Parent and Merger Sub, enforceable
against each of them in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, moratorium or other similar Laws
affecting or relating to creditors' rights generally and by general principles
of equity.
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Neither the execution of this Agreement by Parent and Merger Sub nor the
consummation of the transactions contemplated hereby will result in a breach or
violation of the terms of any agreement by which Parent or Merger Sub is bound
or of any Law or order applicable to Parent or Merger Sub.
3. Additional Covenants of the Stockholder. Subject to Section
5(a) hereof, Stockholder hereby covenants and agrees that:
(a) Voting. From the date hereof until any termination of
this Agreement in accordance with its terms, at any meeting of the stockholders
of the Company however called (or any action by written consent in lieu of a
meeting) or any adjournment or postponement thereof, Stockholder shall vote all
Stockholder Shares or, as appropriate, execute written consents in respect
thereof, (i) in favor of the adoption of the Merger Agreement and the approval
of the transactions contemplated thereby, (ii) in favor of the Restructuring and
the Spin-Off (to the extent to be voted upon by the Company's stockholders),
(iii) against any agreement (including, without limitation, any amendment of any
agreement), amendment of the Company Charter Documents or other action that is
intended or could reasonably be expected to prevent, impede, interfere with,
materially delay, postpone or discourage the consummation of the Merger and (iv)
against any Takeover Proposal. Any such vote shall be cast (or consent shall be
given) by Stockholder in accordance with such procedures relating thereto so as
to ensure that it is duly counted, including for purposes of determining that a
quorum is present and for purposes of recording the results of such vote or
consent.
(b) Irrevocable Proxy. In order to secure the performance of
such Stockholder's obligations under this Agreement, by entering into this
Agreement, such Stockholder hereby irrevocably grants a proxy appointing each
executive officer of Parent as such Stockholder's attorney-in-fact and proxy,
with full power of substitution, for and in his, her or its name, to vote,
express consent or dissent, or otherwise to exercise all voting and related
rights with respect to the Stockholder Shares at every annual, special or
adjourned meeting of the stockholders of the Company, and in every written
consent in lieu of any such meeting, as specifically set forth in Section 3(a)
as to the matters specified in Section 3(a). The proxy granted by such
Stockholder pursuant to this Section 3(b) shall be revoked upon termination of
this Agreement in accordance with its terms and the provisions of Section 212(e)
of the DGCL. Such Stockholder hereby revokes any and all previous proxies
granted with respect to the Stockholder Shares.
(c) Restriction on Transfer; Proxies; Non-Interference. From
the date hereof until any termination of this Agreement in accordance with its
terms, except as provided hereunder or under the Merger Agreement, such
Stockholder shall not, directly or indirectly, (i) sell, transfer (including by
operation of Law), give, pledge, encumber, assign or otherwise dispose of
(including, without limitation, any Constructive Disposition (as defined
below)), or enter into any Contract, option or other arrangement or
understanding with respect to the sale, transfer, gift, pledge, encumbrance,
assignment or other disposition of, any Stockholder Shares (or any right, title
or interest thereto or therein), (ii) deposit any Stockholder Shares into a
voting trust or grant any proxies or enter into a voting agreement, power of
attorney or voting trust with respect to any Stockholder Shares, (iii) take any
action that would make any representation or warranty of Stockholder set forth
in this Agreement
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untrue or incorrect in any material respect or have the effect of preventing,
disabling or delaying Stockholder from performing any of his, her or its
obligations under this Agreement or (iv) agree (whether or not in writing) to
take any of the actions referred to in the foregoing clauses (i), (ii) or (iii)
of this Section 3(c). As used herein, the term "Constructive Disposition" means,
with respect to any Stockholder Shares, a short sale with respect to such
security, entering into or acquiring an offsetting derivative contract with
respect to such security, entering into or acquiring a futures or forward
contract to deliver such security or entering into any other hedging or other
derivative transaction that has the effect of materially changing the economic
benefits and risks of ownership. Any attempted transfer of the Stockholder
Shares or any interest therein in violation of this Section 3(c) shall be null
and void. In furtherance of this Agreement, such Stockholder shall and hereby
does authorize the Company and Merger Sub's counsel to notify the Company's
transfer agent that there is a stop transfer restriction with respect to all of
the Stockholder Shares (and that this Agreement places limits on the voting and
transfer of the Stockholder Shares); provided, however, that any such stop
transfer restriction shall terminate upon the termination of this Agreement in
accordance with its terms and, upon such event, Parent shall notify the
Company's transfer agent of such termination. Notwithstanding anything herein to
the contrary, in connection with the exercise of a Company Stock Option
(cashless or otherwise), Stockholder may sell Stockholder Shares in open market
transactions in an amount necessary to satisfy the payment of any transaction
costs and any tax liability incurred by Stockholder in connection with such
exercise.
(d) No Solicitation. Stockholder acknowledges and agrees
that it has reviewed and understands Section 5.4 of the Merger Agreement and
hereby agrees from the date hereof until the termination of this Agreement that
it shall be bound by Section 5.4 of the Merger Agreement to the same extent as
if Stockholder were bound by the Company's obligations thereunder.
(e) Appraisal Rights. Stockholder agrees not to exercise any
appraisal rights in respect of the Stockholder Shares which may arise with
respect to the Restructuring, the Spin-Off or the Merger.
(f) Legends. If requested by Parent, Stockholder agrees to
cause all certificates representing Stockholder Shares to bear a prominent
legend stating that such Stockholder Shares are subject to the transfer, voting
and other restrictions described in this Agreement.
4. No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in either Parent or Merger Sub any direct or indirect
ownership or incidence of ownership of or with respect to any Stockholder
Shares. All rights, ownership and economic benefits of and relating to the
Stockholder Shares shall remain vested in and belong to Stockholder, and neither
Parent nor Merger Sub shall have any authority to exercise any power or
authority to direct Stockholder in the voting of any of the Stockholder Shares,
except as otherwise specifically provided herein, or in the performance of the
Stockholder's duties or responsibilities as a stockholder of the Company.
5. Termination. This Agreement shall terminate on the first to
occur of (a) the written consent of Parent, Merger Sub and Stockholder to
terminate this Agreement, (b) the
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termination of the Merger Agreement in accordance with its terms and (c) the
Effective Time. Notwithstanding the foregoing, (i) nothing herein shall relieve
any party from liability for fraud or any willful breach of this Agreement and
(ii) the provisions of this Section 4 and Section 5 of this Agreement shall
survive any termination of this Agreement.
6. Miscellaneous.
(a) Action in Stockholder Capacity Only. The parties
acknowledge that this Agreement is entered into by Stockholder in his, her or
its capacity as owner of the Stockholder Shares and that nothing in this
Agreement shall in any way restrict or limit any director or officer of the
Company from taking any action in his or her capacity as a director or officer
of the Company that is necessary for him or her to comply with his or her
fiduciary duties as a director or officer of the Company, including, without
limitation, participating in his or her capacity as a director of the Company in
any discussions or negotiations of the Merger Agreement.
(b) Expenses. Except as otherwise expressly provided in this
Agreement, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs
and expenses.
(c) Additional Shares. Until any termination of this
Agreement in accordance with its terms, Stockholder shall promptly notify Parent
of the number of shares of Company Common Stock, if any, as to which Stockholder
acquires record or beneficial ownership after the date hereof. Any shares of
Company Common Stock as to which Stockholder acquires record or beneficial
ownership after the date hereof and prior to termination of this Agreement shall
be Stockholder Shares for purposes of this Agreement. Without limiting the
foregoing, in the event of any stock split, stock dividend or other change in
the capital structure of the Company affecting the Company Common Stock, the
number of shares of Company Common Stock constituting Stockholder Shares shall
be adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of Company Common Stock or other voting
securities of the Company issued to Stockholder in connection therewith.
(d) Definition of "Beneficial Ownership". For purposes of
this Agreement, "beneficial ownership" with respect to (or to "own
beneficially") any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Exchange Act),
including pursuant to any agreement, arrangement or understanding, whether or
not in writing.
(e) Further Assurances. From time to time, at the request of
Parent and without further consideration, Stockholder shall execute and deliver
such additional documents and take all such further action as may be reasonably
required to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
(f) Amendments; Waiver. This Agreement may not be amended or
supplemented, except by a written agreement executed by the parties hereto. Any
party to this Agreement may (i) waive any inaccuracies in the representations
and warranties of any other
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party hereto or extend the time for the performance of any of the obligations or
acts of any other party hereto or (ii) waive compliance by the other party with
any of the agreements contained herein. Notwithstanding the foregoing, no
failure or delay by Parent or Merger Sub in exercising any right hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right hereunder. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
(g) Governing Law; Enforcement; Jurisdiction; Waiver of Jury
Trial.
(i) This Agreement shall be governed by, and construed
in accordance with, the laws of the state of Delaware, applicable to contracts
executed in and to be performed entirely within that State.
(ii) All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined in the Chancery Court
of the State of Delaware or any federal court sitting in the State of Delaware,
and the parties hereto hereby irrevocably submit to the exclusive jurisdiction
of such court (and, in the case of appeals, appropriate appellate courts
therefrom) in any such action or proceeding and irrevocably waive the defense of
an inconvenient forum to the maintenance of any such action or proceeding. Each
party hereby consents to process being served in any such action or proceeding
by the mailing of a copy thereof to the address set forth in Section 5(j) hereof
and agrees that such service upon receipt shall constitute good and sufficient
service of process or notice thereof. Nothing in this Section 5(g) shall affect
or eliminate any right to serve process in any other matter permitted by Law.
(iii) EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY.
(h) Specific Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were 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 of this Agreement in the Chancery Court of
the State of Delaware or any federal court sitting in the State of Delaware,
without bond or other security being required, this being in addition to any
other remedy to which they are entitled at Law or in equity.
(i) Entire Agreement; No Third Party Beneficiaries. This
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof. This Agreement is not intended to and
shall not confer upon any Person other than the parties hereto any rights
hereunder.
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(j) Notices. All notices, requests and other communications
to any party hereunder shall be in writing and shall be deemed given if
delivered personally, facsimiled (which is confirmed), sent by email (with a
return receipt) or sent by overnight courier (providing proof of delivery) to
the parties at the following addresses:
If to Parent or Merger Sub, to:
L-1 Identity Solutions, Inc.
000 Xxxxx Xx., 00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Email: Xxxxxx.Xxxxxxx@xxxx.xxx
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Email: Xxxx.Xxxxxx@xxxx.xxx
If to Stockholder, to:
___________________________
c/o Digimarc Corporation
0000 X.X. Xxxxxx Xx.
Xxxxxxxxx, XX 00000
With a copy (which shall not constitute notice) to:
___________________________
___________________________
Attention: _______________
Facsimile: _______________
(k) Severability. If any term or other provision of this
Agreement is determined by a court of competent jurisdiction to be invalid,
illegal or incapable of being enforced by any rule of Law or public policy, all
other terms, provisions and conditions of this Agreement shall nevertheless
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remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable Law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
(l) Assignment; Binding Effect. 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 permitted assigns. Any
purported assignment not permitted under this Section 5(l) shall be null and
void.
(m) Descriptive Headings. Headings of Sections and
subsections of this Agreement are for convenience of the parties only, and shall
be given no substantive or interpretive effect whatsoever.
(n) Drafting. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement and, in the event an ambiguity
or question of intent or interpretation arises, this Agreement shall be
construed as jointly drafted by the parties hereto and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the
authorship of this Agreement.
(o) Counterparts. This Agreement may be executed in multiple
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, the parties have caused this Agreement to be duly
executed as of the date first above written.
L-1 Identity Solutions, Inc.
By:
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Name:
Title:
Dolomite Acquisition Co.
By:
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Name:
Title:
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Name:
[Signature Page to Support Agreement]
EXHIBIT A
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ADDITIONAL STOCKHOLDER SHARES
