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EXHIBIT 2
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STOCKHOLDER AGREEMENT
dated as of January 27, 1997
by and among
DENTSPLY International Inc.
Image Acquisition Corp.
and
Xxxxxx X. Xxxxxx
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STOCKHOLDER AGREEMENT
AGREEMENT, dated as of January 27, 1997 by and among DENTSPLY
International Inc. a Delaware corporation ("Parent"), Image Acquisition Corp, a
Delaware corporation and a wholly owned subsidiary of Parent (the "Merger
Sub"), and Xxxxxx X. Xxxxxx (the "Stockholder"). Except as otherwise defined
herein, capitalized terms shall have the respective meanings given to them in
the Merger Agreement.
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this Agreement,
Parent, the Merger Sub and New Image Industries, Inc., a Delaware corporation
(the "Company"), have entered into an Agreement and Plan of Merger (as such
agreement may hereafter be amended from time to time, the "Merger Agreement"),
pursuant to which Merger Sub will be merged with and into the Company (the
"Merger"); and
WHEREAS, the Stockholder is executing this Agreement as an inducement for
Parent and Merger Sub to enter into the Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE 1 -- DEFINITIONS
1.1 For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of
the same securities by the same holder, securities Beneficially Owned by a
Person shall include securities Beneficially Owned by all other Persons with
whom such Person would constitute a "group" as within the meaning of Section
13(d)(3) of the Exchange Act.
(b) "Company Common Stock" shall mean the Common Stock, $.001 par
value, of the Company.
(c) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
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ARTICLE 2 -- TENDER OF SHARES
2.1 In order to induce Parent and Merger Sub to enter into the Merger
Agreement, the Stockholder hereby agrees to validly tender (or cause the record
owner of such shares to validly tender), and not to withdraw, pursuant to and
in accordance with the terms of the Offer, the number of shares of Company
Common Stock set forth opposite such Stockholder's name on Schedule I hereto
and any shares of Company Common Stock acquired by such Stockholder in any
capacity after the date hereof and prior to the termination of this Agreement
whether upon the exercise of Stock Options, subject to Section 2.11 of the
Merger Agreement, or Warrants, subject to Section 2.12 of the Merger Agreement,
or by means of purchase, dividend, distribution or otherwise (such shares being
referred to hereinafter collectively as the "Shares"), all of which are and
will be Beneficially Owned by such Stockholder. The Stockholder hereby
acknowledges and agrees that the obligation of Parent and Merger Sub to accept
for payment and pay for the Shares in the Offer, including the Shares
Beneficially Owned by such Stockholder, is subject to the terms and conditions
of the Offer.
2.2 The transfer by the Stockholder of the Shares to Merger Sub in the
Offer shall pass to, and unconditionally vest in, Merger Sub good and valid
title to the Shares, free and clear of all Liens.
2.3 The Stockholder hereby permits Parent and Merger Sub to publish and
disclose in the Offer Documents and, if approval or advisement of the Company's
stockholders is required under applicable law, the Proxy Statement or
Information Statement (including all documents and schedules filed with the
SEC) its identity and ownership of the Company Common Stock and the nature of
its commitments, arrangements and understandings under this Agreement.
ARTICLE 3 -- ADDITIONAL AGREEMENTS
3.1 Voting Agreement. The Stockholder shall, at any meeting of the holders
of Company Common Stock, however called, or in connection with any written
consent of the holders of Company Common Stock, vote (or cause to be voted) the
Shares (if any) then held of record or Beneficially Owned by such Stockholder,
(i) in favor of the Merger, the execution and delivery by the Company of the
Merger Agreement and the approval of the terms thereof and each of the other
actions contemplated by the Merger Agreement and this Agreement and any actions
required in furtherance thereof and hereof; and (ii) 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 Merger Agreement or which would result in any of the
conditions set forth in Annex A to the Merger Agreement or set forth in Article
VI of the Merger Agreement not being fulfilled. Notwithstanding anything in
this Agreement to the contrary, the Stockholder, in his capacity as a director
and/or officer of the
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Company, as the case may be, and in accordance with the Merger Agreement, may
exercise his fiduciary duties with respect to the Company.
3.2 No Inconsistent Arrangements. The Stockholder hereby covenants and
agrees that, except as contemplated by this Agreement and the Merger Agreement,
it 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 such Stockholder's Shares, Stock Options or Warrants or any interest
therein, (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such Shares, Stock
Options or Warrants or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to such Shares,
Stock Options or Warrants, (iv) deposit such Shares, Stock Options or Warrants
into a voting trust or enter into a voting agreement or arrangement with
respect to such Shares, Stock Options or Warrants, or (v) take any other action
that would in any way restrict, limit or interfere with the performance of its
obligations hereunder or the transactions contemplated hereby or by the Merger
Agreement.
3.3 No Solicitation. The Stockholder hereby agrees, in its or his capacity
as a stockholder of the Company, that neither the Stockholder nor any of its
affiliates shall (and such Stockholder shall use its best efforts to cause its
officers, directors, employees, representatives and agents, including, but not
limited to, investment bankers, attorneys and accountants, not to), 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, any of its affiliates or
representatives) concerning any Acquisition Proposal. The Stockholder will
immediately cease any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any Acquisition Proposal. The
Stockholder will immediately communicate to Parent the terms of any proposal,
discussion, negotiation or inquiry such Stockholder, in its or his capacity as
a stockholder of the Company, receives (and will disclose any written materials
received by such Stockholder, in its or his capacity as a stockholder of the
Company, in connection with such proposal, discussion, negotiation or inquiry)
and the identity of the party making such proposal or inquiry which it may
receive in respect of any such transaction.
3.4 Stock Options and Warrants. If the Stockholder holds Stock Options
and/or Warrants to acquire shares of Company Common Stock, he shall, if
requested by the Company, consent to the cancellation and conversion of his
Company Options and/or Warrants in accordance with the terms of the Merger
Agreement and shall execute all appropriate documentation in connection with
such cancellation and conversion.
3.5 Best Reasonable Efforts. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its best reasonable efforts
to take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement
and the Merger Agreement. Each party shall promptly consult
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with the other and provide any necessary information and material with respect
to all filings made by such party with any Governmental Entity in connection
with this Agreement and the Merger Agreement and the transactions contemplated
hereby and thereby.
3.6 Waiver of Appraisal Rights. The Stockholder hereby waives any rights
of appraisal or rights to dissent from the Merger that it or he may have.
ARTICLE 4 -- REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent and Merger Sub as
follows:
(a) Ownership of Shares. The Shares, as of the date hereof, constitute
all of the Shares Beneficially Owned by such Stockholder. With respect to the
Shares, the Stockholder has sole voting power and sole dispositive power, 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 with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and the
terms of this Agreement.
(b) Power; Binding Agreement. The Stockholder has the legal capacity,
power and authority to enter into and perform all of the Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by the Stockholder will not violate any other agreement to which
such Stockholder is a party including, without limitation, 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 agreement of the
Stockholder, enforceable against such 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 such Stockholder of the transactions contemplated hereby.
(c) No Liens. Except as permitted by this Agreement, the Shares and
the certificates representing such Shares are now, and at all times during the
term hereof will be, held by such Stockholder, or by a nominee or custodian for
the benefit of such Stockholder, free and clear of all Liens, proxies, voting
trusts or agreements, understandings or arrangements or any other rights
whatsoever.
(d) No Finder's Fees. 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 hereby based upon arrangements made by or on behalf of such
Stockholder.
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(e) Reliance by Parent. The Stockholder understands and acknowledges
that Parent is entering into, and causing Merger Sub to enter into, the Merger
Agreement in reliance upon such Stockholder's execution and delivery of this
Agreement.
ARTICLE 5 -- STOP TRANSFER
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, unless such transfer is made in compliance with
this Agreement. In the event of a stock dividend or distribution, or any change
in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Shares" shall refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all
of the Shares may be changed or exchanged.
ARTICLE 6 -- TERMINATION
The covenants and agreements set forth herein shall terminate upon the
termination of the Merger Agreement in accordance with its terms.
ARTICLE 7 -- MISCELLANEOUS
7.1 Notices. All notices and other communications hereunder shall be given
by telephone and immediately confirmed in writing and shall be deemed given if
delivered personally or mailed by registered or certified mail (return receipt
requested) or overnight courier to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice):
(a) if to Parent or Merger Sub:
DENTSPLY International Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxx, XX 00000
Attention:
With a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esquire
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(b) if to the Stockholder:
Xxxxxx X.Xxxxxx
00 Xxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
With a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx Boston
7.2 Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement and supersedes all other prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. There are no third party beneficiaries of
this Agreement and nothing in this Agreement, express or implied, is intended
to or shall confer upon any person other than the parties hereto and their
respective successors and permitted assigns, any rights, remedies, obligations
or liabilities.
7.3 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned by operation of law or otherwise,
provided that Parent or Merger Sub may assign its rights and obligations
hereunder to a direct or indirect subsidiary of Parent, but no such assignment
shall relieve Parent or Merger Sub, as the case may be, of its obligations
hereunder. Subject to the foregoing sentence, this Agreement will be binding
upon, and inure to the benefit of, the parties and their respective successors
and assigns.
7.4 Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware, without giving effect to the conflicts of law principles thereof.
7.5 Counterparts. This Agreement may be executed in one or more
counterparts which together shall constitute a single agreement.
7.6 Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any of the provisions of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunder duly authorized.
DENTSPLY INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Senior Vice President
IMAGE ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Senior Vice President
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx*
* in his individual capacity and as
Trustee of the following trusts:
Xxxxxx X. Xxxxxx Trust u/a dated 3/13/85
X. X. Xxxxxx Trust FBO Xxxxxx X. Xxxxxx
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SCHEDULE I
NAME OF STOCKHOLDER SHARES BENEFICIALLY OWNED
Xxxxxx X. Xxxxxx common stock 105,000 Xxxxxx X. Xxxxxx
Trust u/a 3/13/85
4,000 X. X. Xxxxxx Trust
FBO Xxxxxx X.
Xxxxxx
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reissued 11/6/96 @ 1/9/16
stock options 2,500
warrants 45,000
exercise price greater than $2.00
warrants 137,500
