Exhibit 99.4
SHAREHOLDER AGREEMENT, dated as of November 17,
1998, among HOLOPAK TECHNOLOGIES, INC, a Delaware
corporation ("Company"), , and the persons listed on
Schedule A hereto (each a "Shareholder", and, collectively,
the "Shareholders").
WHEREAS, Foilmark Inc., a Delaware corporation ("Parent"), Foilmark
Acquisition Corporation a Delaware corporation and a wholly owned subsidiary of
Parent ("Sub") and the Company, propose to enter into an Agreement and Plan of
Merger of even date herewith (as the same may be amended or supplemented, the
"Merger Agreement") providing for the merger of the Company with and into Sub
(the "Merger");
WHEREAS, defined terms used herein and not elsewhere defined shall
have the meaning ascribed to such terms in the Merger Agreement;
WHEREAS, each Shareholder is the owner of the number of shares of
Parent Common Stock set forth opposite such Shareholder's name on Schedule A
hereto; such shares of Parent Common Stock, as such shares may be adjusted by
stock dividend, stock split, recapitalization, combination or exchange of
shares, merger, consolidation, reorganization or other change or transaction of
or by the Company, together with shares of Parent Common Stock that may be
acquired after the date hereof by such Shareholder, including shares of Parent
Common Stock issuable upon the exercise of options to purchase Parent Common
Stock (as the same may be adjusted as aforesaid), being collectively referred to
herein as the "Shares"; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, the Company has requested that the Shareholders enter into this
Agreement;
NOW, THEREFORE, to induce the Company to enter in to, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Representations and Warranties of the Shareholders. Each
Shareholder hereby, severally and not jointly, represents and warrants to the
Company as follows:
(a) Authority. The Shareholder has all requisite power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Shareholder. This Agreement has been duly executed and
delivered by the Shareholder and, assuming this Agreement constitutes a valid
and binding obligation of the Company, constitutes a valid and binding
obligation of the Shareholder enforceable against the Shareholder in accordance
with its terms, except as such enforcement may be limited by general equitable
principles and bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors generally. Except for the expiration or
termination of the waiting periods, if any, under the Xxxx-Xxxxx-Xxxxxx
Antitrust
781484.1
Improvements Act of 1976, as amended (the "HSR Act"), filings with the
Securities and Exchange Commission and as set forth in Section 5.21 of the
Foilmark Disclosure Memorandum, neither the execution, delivery or performance
of this Agreement by the Shareholder nor the consummation by the Shareholder of
the transactions contemplated hereby will (i) require any filing with, or
permit, authorization, consent or approval of, any federal, state or local
government or any court, tribunal, administrative agency or commission or other
governmental or regulatory authority or agency, domestic or foreign (a
"Governmental Entity"), (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default under, or give
rise to any right of termination, amendment, cancellation or acceleration under,
or result in the creation of any pledge, claim, lien, charge, encumbrance or
security interest of any kind or nature whatsoever (a "Lien") upon any of the
properties or assets of the Shareholder under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, permit,
concession, franchise, contract, agreement or other instrument or obligation (a
"Contract") to which the Shareholder is a party or by which the Shareholder or
any of the Shareholder's properties or assets, including the Shareholder's
Shares, may be bound or (iii) knowingly violate any judgment, order, writ,
preliminary or permanent injunction or decree (an "Order") or any statue, law,
ordinance, regulation of any Governmental Entity (a "Law") applicable to the
Shareholder or any of the Shareholder's properties or assets, including the
Shareholder's Shares.
(b) The Shares. The Shareholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by such Shareholder, or by a nominee or custodian for the benefit of
such Shareholder, and the Shareholder has good and marketable title to such
Shares, free and clear of any Liens, proxies, voting trusts or agreements,
understandings or arrangements, except for any such Liens or proxies arising
hereunder. The Shareholder owns shares of Parent Common Stock other than such
Shareholder's Shares and shares of Parent Common Stock issuable upon the
exercise of Parent Stock Options.
(c) 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 in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of such Shareholder.
(d) Merger Agreement. The Shareholder understands and acknowledges
that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon the Shareholder's execution and delivery of this
Agreement.
2. Covenants of the Shareholders. Each Shareholder, severally and not
jointly, agrees as follows:
(a) Until the earlier to occur of the Effective Time or the
termination of the Merger Agreement, the Shareholder shall not, except as
contemplated by the terms of this Agreement, (i) sell, transfer, pledge, assign
or otherwise dispose of, or enter into any Contract, option or other arrangement
(including any profit sharing arrangement) or understanding with respect to the
sale, transfer, pledge, assignment or other disposition of, the Shares to any
person other than the
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Company (except for a transfer of Shares to a trust which unconditionally and
irrevocably agrees to be bound by the terms of this Agreement with respect to
the Shares being transferred), (ii) enter into any voting arrangement, whether
by proxy, voting agreement, voting trust, power of attorney or otherwise, with
respect to the Shares except as provided herein or (iii) 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.
(b) Until the Effective Time or termination of this Agreement in
accordance with its terms, the Shareholder shall not, and the Shareholder shall
use its reasonable best efforts to cause any of its investment bankers,
financial advisers, attorneys, accountants or other representatives not to,
directly or indirectly (i) solicit, initiate or encourage (including by way of
furnishing information), or take any other action designed to facilitate, any
inquiries or the making of any proposal which constitutes, or may reasonably be
expected to lead to, any Acquisition Transaction Proposal involving the Parent
or (ii) participate in any discussions or negotiations regarding any such
Acquisition Transaction Proposal. Shareholder shall notify the Company orally
and in writing of any such proposals or inquiries relating to the purchase or
acquisition of Shares (including, without limitation, the terms and conditions
thereof and the identity of the person making it), within 24 hours of the
receipt thereof. Shareholder shall, and shall use its reasonable best efforts to
cause its investment bankers, financial advisors, attorneys, accountants or
other representatives or agents to, immediately cease and cause to be terminated
all existing activities, discussions and negotiations, if any, with any parties
conducted heretofore with respect to any Acquisition Transaction Proposal
relating to the Parent, other than discussions or negotiations with the Company.
(c) During the period commencing on the date hereof and continuing
until the first to occur of (i) the Effective Time and (ii) termination of this
Agreement in accordance with its terms, at any meeting of shareholders of the
Parent called to vote upon the Merger and the Merger Agreement or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval (including by written consent) with respect to the Merger and the
Merger Agreement is sought, each Shareholder shall, including by initiating a
written consent solicitation if requested by Company, vote (or cause to be
voted) such Shareholder's Shares in favor of the Merger, the adoption by Parent
of the Merger Agreement and the approval of the other transactions contemplated
by the Merger Agreement. During the period commencing on the date hereof and
continuing until the first to occur of (i) the Effective Time and (ii)
termination of this Agreement in accordance with its terms, at any meeting of
shareholders of the Parent or at any adjournment thereof or in any other
circumstances upon which the Shareholder's vote, consent or other approval is
sought, such Shareholder shall vote (or cause to be voted) such Shareholder's
Shares against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger ), consolidation, combination, sale of all or
substantially all assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company or any other Acquisition
Transaction Proposal (collectively, "Alternative Transactions") or (ii) any
amendment of the Parent's Certificate of Incorporation or By-laws or other
action involving the Parent or any of its Subsidiaries, which amendment or other
proposal or transaction would reasonably be expected to delay, postpone, impede,
frustrate, prevent or
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781484.1
nullify the Merger, the Merger Agreement or any of the other transaction
contemplated by the Merger Agreement (collectively, "Frustrating Transactions").
3. Fiduciary Duty. Notwithstanding the restrictions set forth in
Section 2(b) hereof, any person who is a director or officer of the Parent may
take such action in furtherance of the exercise of his fiduciary duties in his
capacity as a director or officer with respect to the Parent, as opposed to
taking action with respect to the direct or indirect ownership of any Shares,
and no such action in furtherance of the exercise of fiduciary duties shall be
deemed to be a breach of, or a violation of the restrictions set forth in
Section 2(b) hereof and the Shareholders shall not have any liability hereunder
for any such action in furtherance of the exercise of fiduciary duties by such
person in his capacity as a director or officer of the Company.
4. Further Assurances. Each Shareholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
the Company may reasonably request for the purpose of effectively carrying out
the transactions contemplated by this Agreement and to vest the power to vote
such Shareholder's Shares as contemplated by Section 3. The Company agrees to
use reasonable efforts to take, or cause to be taken, all actions necessary to
comply promptly with all legal requirements that may be imposed with respect to
the transactions contemplated by this Agreement (including legal requirements of
the HSR Act, if any).
5. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties. 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. Each
Shareholder agrees that this Agreement and the obligations of such Shareholder
hereunder shall attach to such Shareholder's Shares and shall be binding upon
any person or entity to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise, including without limitation
such Shareholder's heirs, guardians, administrators or successors.
6. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the earliest of (a) the date upon which
the Merger Agreement is terminated pursuant to Section 10.1(a), (d) or (e)
thereof, (b) the Effective Time and (c) April 30, 1999.
7. Stop Transfer. The Parent agrees with, and covenants to, the
Company that the Parent shall not register the transfer of any certificate
representing any Shareholder's Shares unless such transfer is made in accordance
with the terms of this Agreement.
8. General Provisions.
(a) Payments. All payments required to be made to any party to this
Agreement shall be made by wire transfer of immediately available funds to an
account designated by such party at least one trading day prior to such payment.
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781484.1
(b) Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expense.
(c) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed), sent by overnight courier (providing proof of delivery ) or
mailed by registered or certified mail (returned receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(i) if to the Company, to
Holopak Technologies, Inc.
0 Xxxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxxx, XX 00000
Attention:Xxxxx X. Xxxxxx, President
Telecopy No: 000-000-0000
with a copy to:
Battle Xxxxxx, LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:Xxxx X. xx Xxxxx, Esq.
Telecopy No: (000) 000-0000 and
(ii) if to a Shareholder, to the address set forth under the name of
such Shareholder on Schedule A hereto
with a copy to:
Xxxxxxxx, Xxxxx & Xxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention:Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy No: (000) 000-0000
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(e) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. 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. Wherever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
(f) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(g) Entire Agreements; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(h) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without regard to any
applicable conflicts of law.
(i) Publicity. Except as otherwise required by law, court process or
the rules of a national securities exchange or the Nasdaq National Market or as
contemplated or provided in the Merger Agreement, for so long as this Agreement
is in effect, neither any Shareholder nor the Company shall issue or cause the
publication of any press release or other public announcement with respect to
the transactions contemplated by this Agreement or the Merger Agreement without
the consent of the other parties, which consent shall not be unreasonably
withheld.
9. Shareholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director of officer of the Parent makes any
agreement or understanding herein in his or her capacity as such director or
officer. Each Shareholder signs solely in his or her capacity as the record
holder and beneficial owner of, or the trustee of a trust whose beneficiaries
are the beneficial owners of, such Shareholder's Shares and nothing herein shall
limit or affect any actions taken by a Shareholder in its capacity as an officer
or director of the Parent to the extent permitted by the Merger Agreement.
10. 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 entitle to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in court of the United States located
in the State of Delaware or any Delaware State court, this being in addition to
any other remedy to which they are entitled at law or in equity. In addition,
each of the parties hereto waives any right to trial by
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jury with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
signed by its officer thereunto duly authorized and each Shareholder has signed
this Agreement, all as of the date firs written above.
HOLOPAK TECHNOLOGIES, INC.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name:
Title:
SHAREHOLDERS
/s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx, Xx.
---------------------------
Name: Xxxxx X. Xxxxx, Xx.
/s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
/s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
/s/ Xxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxx
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/s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
ACKNOWLEDGED
TO AS TO SECTION 7:
FOILMARK, INC.
By /s/ Xxxxx X. Xxxxx, Xx.
------------------------
Title:
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SCHEDULE A
NAME AND ADDRESS OF NUMBER OF NUMBER OF SHARES
SHAREHOLDER SHARES UNDERLYING OPTIONS1
Xxxxxx X. Xxxxx 527,477
0000 Xxx Xxxx Xxxx Xxxx
Xxxxx Xxxxx Xxxxx, XX 00000
Xxxxx X. Xxxxx, Xx. 490,659 67,667
00 Xxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxx Xxxxxx 107,697 70,867
Xxx Xxxx Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxx Xxxxxx 78,163 62,733
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx Xxxxx 212,409 21,100
00 Xxxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx 158,834 5,000
0000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Xxxxxxx Xxxxxx 10,000 5,000
WPI Group, Inc.
0000 Xxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx 5,000 5,000
00 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxxx 131,022 2,500
00 Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
--------
1 These options have been included in the number of shares.
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