1
Exhibit (c)(2)
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement"), dated March 8, 1998, by and
among ASK asa, a corporation organized under the laws of the Kingdom of Norway
("Parent"), BD Acquisition Corp., a Delaware corporation ("Purchaser") and an
indirect wholly owned subsidiary of Parent, and each of the Individuals Listed
on the Signature Pages hereto (each in his individual capacity, a "Stockholder",
and collectively, the "Stockholders").
WHEREAS, each of the Stockholders is, as of the date hereof, the record
and beneficial owner of the shares of common stock, par value $.001 per share
(the "Common Stock"), of Proxima Corporation, a Delaware corporation (the
"Company"), set forth on Annex I hereto;
WHEREAS, Parent, Purchaser and the Company concurrently herewith are
entering into an Agreement and Plan of Merger, dated as of the date hereof (the
"Merger Agreement"; capitalized terms used but not defined herein have the
meanings ascribed to such terms in the Merger Agreement), which provides, among
other things, for the acquisition of the Company by Parent by means of a cash
tender offer (the "Offer") by Purchaser for all of the outstanding shares of
Common Stock and for the subsequent merger (the "Merger") of Purchaser with and
into the Company upon the terms and subject to the conditions set forth in the
Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement, and in order to induce Parent and Purchaser to
enter into the Merger Agreement, the Stockholders have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent and Purchaser of the Merger Agreement and the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein and
therein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Stockholder. Each of
the Stockholders hereby represents and warrants to Parent and Purchaser,
severally and not jointly, as follows:
(a) Such Stockholder is the record and beneficial owner of the shares
of Common Stock (as may be adjusted from time to time pursuant to Section 7
hereof, the "Shares") set forth opposite his name on Annex I to this Agreement.
2
(b) Such Stockholder has the legal capacity to execute and deliver this
Agreement and to consummate the transactions contemplated hereby.
(c) This Agreement has been validly executed and delivered by such
Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization, moratorium or other
laws affecting enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(d) The execution and delivery of this Agreement by such Stockholder do
not, and the performance by such Stockholder of his obligations hereunder will
not, (i) conflict with, result in a violation or breach of, constitute (with or
without notice or lapse of time or both) a default under, result in or give to
any person any right of termination, cancellation, modification or acceleration
of, or result in the creation or imposition of any Lien upon any of the assets
or properties of such Stockholder under, any of the terms, conditions or
provisions of (A) (x) any Law or Order of any Governmental or Regulatory
Authority applicable to such Stockholder or any of his assets or properties, or
(y) any Contract to which such Stockholder is a party or by which such
Stockholder or any of his assets or properties is bound, or (ii) require any
filing by such Stockholder with, or any permit, authorization, consent or
approval of, any Governmental or Regulatory Authority or any third party.
(e) The Shares and the certificates representing the Shares owned by
such Stockholder 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, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or proxies arising
hereunder, and not subject to any preemptive rights.
SECTION 2. Representations and Warranties of Parent and Purchaser. Each
of Parent and Purchaser hereby represents and warrants to the Stockholders as
follows:
(a) Parent is a corporation duly organized, validly existing and in
good standing under the laws of the Kingdom of Norway, Purchaser is a
corporation duly organized, validity existing and in good standing under the
laws of the State of Delaware, and each of Parent and Purchaser has full
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
each of Parent and Purchaser and constitutes the legal, valid and binding
obligation of each of Parent and Purchaser, enforceable against each of them in
accordance with its terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
2
3
(c) The execution and delivery of this Agreement by Parent and
Purchaser do not, and the performance by Parent and Purchaser of their
obligations hereunder and the consummation of the transactions contemplated
hereby will not, (i) conflict with, result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default under,
result in or give to any person any right of termination, cancellation,
modification or acceleration of, or result in the creation or imposition of any
Lien upon any of the assets or properties of Parent or Purchaser under, any of
the terms, conditions or provisions of (A) the certificates or articles of
incorporation or bylaws (or other comparable charter documents) of Parent or
Purchaser or (B) (x) any Law or Order of any Governmental or Regulatory
Authority applicable to Parent or Purchaser or any of their respective assets or
properties, or (y) any Contract to which Parent or Purchaser is a party or by
which Parent or Purchaser or any of their respective assets or properties is
bound, excluding from the foregoing clauses (x) and (y) conflicts, violations,
breaches, defaults, terminations, modifications, accelerations and creations and
impositions of Liens which, individually or in the aggregate, could not be
reasonably expected to have a material adverse effect on the ability of Parent
and Purchaser to consummate the transactions contemplated by this Agreement, or
(ii) require any filing by Parent or Purchaser with, or any permit,
authorization, consent or approval of, any Governmental or Regulatory Authority.
SECTION 3. Grant of Option.
(a) Each Stockholder hereby irrevocably grants to Parent and Purchaser
an exclusive option ("Option") to purchase all Shares of such Stockholder at a
price of $11.00 per Share, net to such Stockholder in cash, subject to any
amounts required to be withheld under applicable federal, state, local or
foreign income tax laws and regulations, and subject to adjustment under Section
3(d), which Option shall be exercisable by Parent or Purchaser at any time after
consummation of the Offer and prior to the termination of this Agreement.
(b) To exercise the Option, either Parent or Purchaser shall send a
written notice ("Exercise Notice") to each Stockholder specifying the place and
the time (which shall be not less than two business days and not more than four
business days after the date of the Exercise Notice) for the closing of the
purchase and sale of the Shares in accordance with the exercise of the Option.
The closing of the purchase of the Shares ("Closing") pursuant to the exercise
of the Option shall take place at the places and at the times designated by
Parent or Purchaser in the Exercise Note.
(c) At Closing, each Stockholder shall sell, assign, convey and
transfer to Parent or Purchaser, and its successors or permitted assigns, each
such Stockholder's Shares, free and clear of any and all liens, claims, security
interests, encumbrances, options or adverse claims whatsoever, and each
Stockholder shall deliver or cause to be delivered to either Parent or Purchaser
a certificate or certificates representing the number of Shares to be delivered
by such Stockholder at the Closing, duly endorsed, or accompanied by stock
powers duly executed in blank, with all required transfer tax stamps affixed
thereto; and either Parent or Purchaser shall deliver to each Stockholder (or
the Stockholder's designee) by wire transfer or certified or bank cashier's
check or checks, an amount equal to (i) the product of (x) the number of such
3
4
Stockholder's Shares purchased at Closing multiplied by (y) the Per Share
Amount, less (ii) any amounts required to be withheld under applicable federal,
state, local or foreign income tax laws and regulations.
(d) In the event of any change in the Company's capital stock by reason
of any stock dividend, stock split, merger, consolidation, recapitalization,
combination, conversion, exchange of shares or dividend or other change in the
corporate or capital structure of the Company, which would have the effect of
diluting or changing Parent's or Purchaser's rights hereunder, the number and
kind of shares or securities subject to the Option and the Offer Price shall be
appropriately and equitably adjusted so that (i) Parent or Purchaser shall
receive, at the Closing, the number and class of shares or other securities or
property that Parent or Purchaser would have received and (ii) the Stockholders
shall receive, at the Closing, the consideration they would have received in
respect of the Shares purchasable upon exercise of the Option if the Option had
been exercised immediately prior to such event.
SECTION 4. Purchase and Sale of the Shares. Each of the Stockholders
hereby agrees that he shall tender his Shares into the Offer promptly, and in
any event no later than the tenth business day following the commencement of the
Offer pursuant to Section 1.01 of the Merger Agreement, and that such
Stockholder shall not withdraw any Shares so tendered unless the Offer is
terminated or has expired. Purchaser hereby agrees to purchase all the Shares so
tendered at a price per Share equal to $11.00 per Share or any higher price that
may be paid in the Offer; provided, however, that Purchaser's obligation to
accept for payment and pay for the Shares in the Offer is subject to all the
terms and conditions of the Offer set forth in the Merger Agreement and Annex A
thereto.
SECTION 5. Transfer of the Shares. Prior to the termination of this
Agreement, except as otherwise provided, herein, none of the Stockholders shall:
(i) transfer (which term shall include, without limitation, for the purposes of
this Agreement, any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of the Shares; (ii) enter into any contract, option or
other agreement or understanding with respect to any transfer of any or all of
the Shares or any interest therein; (iii) grant any proxy, power-of-attorney or
other authorization or consent in or with respect to the Shares; (iv) deposit
the Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares; or (v) take any other action that would in any way
restrict, limit or interfere with the performance of such Stockholder's
obligations hereunder or the transactions contemplated hereby.
SECTION 6. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Each of the Stockholders hereby irrevocably grants to, and
appoints, Parent and any nominee thereof, its proxy and attorney-in-fact (with
full power of substitution), for and in the name, place, and stead of such
Stockholder, to vote his Shares, or grant a consent or approval in respect of
his Shares, in connection with any meeting of the Stockholders of the Company
(i) in favor of the Merger, and (ii) against any action or agreement which would
impede, interfere with or prevent the Merger, including any Acquisition Proposal
(as defined below).
4
5
(b) Each of the Stockholders represents that any proxies heretofore
given in respect of the Shares are not irrevocable, and that such proxies are
hereby revoked.
(c) Each of the Stockholders hereby affirms that the proxy set forth in
this Section 6 is irrevocable and is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performances of the duties of such Stockholder under this Agreement. Each
Stockholder hereby further affirms that the irrevocable proxy granted hereby is
coupled with an interest in the Shares and, except as set forth in Section 9
hereof, is intended to be irrevocable in accordance with the provisions of
Section 212(e) of the Delaware General Corporation Law.
SECTION 7. Certain Events. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by any Stockholder, the number of Shares shall be adjusted
appropriately, and this Agreement and the rights and obligations hereunder shall
attach to any additional shares of Common Stock or other securities or rights of
the Company issued to or acquired by any such Stockholder.
SECTION 8. Certain Other Agreements. From the date of this Agreement
until the earlier of the termination of this Agreement or the Effective Time,
none of the Stockholders shall, and none of the Stockholders shall authorize or
permit any advisor or representative retained by or acting for or on behalf of
any such Stockholder to, directly or indirectly, (i) take any action to
knowingly solicit, initiate, continue, facilitate or encourage (including by way
of furnishing or disclosing non-public information) any offer or proposal for a
merger, consolidation or other business combination involving the Company or any
of its Subsidiaries or any proposal or offer to acquire in any manner, directly
or indirectly, 15% or more of the shares of any class of voting securities of
the Company or any of its Subsidiaries or a substantial portion of the assets of
the Company or any of its Subsidiaries, other than the transactions contemplated
by the Merger Agreement or by this Agreement (any of the foregoing being
referred to as an "Acquisition Proposal"), or (ii) knowingly engage in
negotiations, discussions or communications regarding or disclose any
information relating to the Company or any of its Subsidiaries or afford access
to the properties, books or records of the Company or any of its Subsidiaries to
any person, corporation, partnership or other entity or group (a "Potential
Acquiror") that may be considering making, or has made, an Acquisition Proposal.
Each of the Stockholders shall (i) notify Parent promptly (and in any event
within one business day) after receipt of any Acquisition Proposal (or any
indication that any person is considering making an Acquisition Proposal) or any
request for non-public information relating to the Company or any of its
Subsidiaries or for access to the properties, books or records of the Company or
any of its Subsidiaries by any person that may be considering making, or has
made, an Acquisition Proposal, (ii) notify Parent promptly of any material
change to any such Acquisition Proposal, indication or request and (iii) upon
reasonable request by Parent, provide Parent with all material information about
any such Acquisition Proposal, indication or request.
5
6
SECTION 9. Further Assurances. Each of the Stockholders shall, upon
request of Parent or Purchaser, execute and deliver any additional documents and
take such further actions as may reasonably be deemed by Parent or Purchaser to
be necessary or desirable to carry out the provisions hereof and to vest in
Parent the power to vote the Shares as contemplated by Section 6 hereof.
SECTION 10. Termination. Except as otherwise provided in this
Agreement, this Agreement, and all rights and obligations of the parties
hereunder, shall terminate immediately upon the earlier of (i) the acquisition
by Parent, through Purchaser or otherwise, of all the Shares, (ii) the
termination of the Merger Agreement in accordance with its terms or (iii) the
Effective Time; provided, however, that Sections 9 and 11 shall survive any
termination of this Agreement.
SECTION 11. Expenses. All fees and expenses incurred by any one party
hereto shall be borne by the party incurring such fees and expenses.
SECTION 12. Public Announcements. Each of the Stockholders, Parent and
Purchaser agrees that it will not issue any press release or otherwise make any
public statement with respect to this Agreement or the transactions contemplated
hereby without the prior consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that such disclosure can be
made without obtaining such prior consent if (i) the disclosure is required by
law, and (ii) the party making such disclosure has first used its best efforts
to consult with the other party about the form and substance of such disclosure.
Section 13. Miscellaneous.
(a) All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or mailed (first class postage prepaid) to the
parties at the following addresses or facsimile numbers:
(A) if to any or all the Stockholders, to:
Proxima Corporation
0000 Xxxxxxx Xxxx Xxxxx
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
6
7
with copies to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Facsimile No.: 000-000-0000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
and
Xxxxxxx, Phleger & Xxxxxxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile No.: 000-000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
and
(B) if to Parent or Purchaser, to:
ASK asa
X.X. Xxxxxxxxxxx 0
X-0000 Xxxxxxxxxxx
XXXXXX
Telephone: 47 69 34 01 55
Facsimile: 47 69 34 06 32
Attention: Xxx X. Xxxxxxxxxx
with a copy to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice is to be delivered pursuant to this Section). Any party from
time to time may change its address,
7
8
facsimile number or other information for the purpose of notices to that party
by giving notice specifying such change to the other parties hereto.
(b) The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
(c) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall be considered one and
the same agreement.
(d) This Agreement constitutes the entire agreement, and supersedes all
prior agreements and understandings, whether written and oral, among the parties
hereto with respect to the subject matter hereof.
(e) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware without giving effect to the principles
of conflicts of laws thereof.
(f) 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, and any such purported assignment shall be null and void; provided,
however, Purchaser or Parent may, without the prior written consent of any
Stockholder assign its rights and obligations to any of its direct or indirect
wholly owned Subsidiaries. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by, the parties
and their respective successors and assigns, and the provisions of this
Agreement are not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(g) If any term, provision, covenant or restriction herein is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable or against its regulatory policy, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
(h) Each of the parties hereto acknowledge and agrees that in the event
of any breach of this Agreement, each non-breaching party would be irreparably
and immediately harmed and could not be made whole by monetary damages. It is
accordingly agreed that the parties hereto (i) will waive, in any action for
specific performance, the defense of adequacy of a remedy at law and (ii) shall
be entitled, in addition to any other remedy to which they may be entitled at
law or in equity, to compel specific performance of this Agreement.
(i) No amendment, modification or waiver in respect to this Agreement
shall be effective unless it shall be in writing and signed by each party
hereto.
8
9
(j) No person who is or becomes (during the term hereof) a director or
officer of the Company makes any agreement or understanding herein in his or her
capacity as such director or officer, and nothing herein shall limit or affect
any action taken by any Stockholder in his or her capacity as an officer or
director of the Company in connection with the Company's rights under the Merger
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
10
IN WITNESS WHEREOF, each of Parent, the Purchaser and the Stockholders
have caused this Agreement to be duly executed and delivered as of the date
first written above.
ASK ASA
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
BD ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxx
-----------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx
10
11
ANNEX I
Ownership of Company Common Stock
1. Xxxxxxx Xxxxxxxxx............................................. 0 Shares
2. Xxxxxxx X. Xxxxxxxx........................................... 0 Shares
3. Xxxxxx X. Xxxxxxx............................................. 9,260 Shares
4. Xxxxxxx X. Xxxx............................................... 0 Shares
5. Xxxxxxx X. Xxxxx.............................................. 202,430 Shares
6. Xxxx X. Xxxxxx................................................ 8,106 Shares
11
