EXHIBIT 10.2
FORM OF STOCKHOLDER AGREEMENT
This Stockholder Agreement (the "Agreement") dated as of April 1997, is
made and entered into by and among Imation Corp., a Delaware corporation
("Imation"), and the undersigned stockholder (the "Stockholder") of Cemax-Icon,
Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, concurrently with delivery of this Agreement, Imation, the
Company and CI Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Imation ("Sub"), are entering into an Agreement and Plan of Merger
(the "Merger Agreement") which provides for the merger (the "Merger") of Sub
with and into the Company. Pursuant to the Merger, shares of capital stock of
the Company will be converted into the right to receive cash and other
consideration on the basis described in the Merger Agreement. Capitalized terms
used but not defined herein shall have the respective meanings ascribed to them
in the Merger Agreement.
WHEREAS, the Stockholder is the record holder and beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of the number of shares of the outstanding capital stock of the
Company as is indicated on the signature page of this Agreement (the "Shares").
WHEREAS, as a material inducement to Imation to enter into the Merger
Agreement, the Stockholder is willing to enter into and be bound by this
Agreement pursuant to which the Stockholder agrees (a) not to transfer or
otherwise dispose of any of the Shares, or any other shares of capital stock of
the Company acquired hereafter and prior to the Expiration Date (as defined in
Section 1.1 below), and (b) to vote the Shares and any other such shares of
capital stock of the Company held by the Stockholder so as to facilitate
consummation of the Merger.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations and covenants set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereby agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance. The Stockholder agrees not to
transfer (except as may be specifically required by court order), sell,
exchange, pledge or otherwise dispose of or encumber any of the Shares or any
New Shares (as defined in Section 1.2 below), grant any proxies (except the
proxy referred to in Section 2(b)) with respect to the Shares or any New
Shares), or make any offer or agreement relating thereto, at any time prior to
the Expiration Date. As used herein, the term "Expiration Date" shall mean the
earlier to occur of (a) such date and time as the Merger shall become effective
in accordance with the terms and provisions of the Merger Agreement, and (b)
such date and time as the Merger Agreement shall be terminated pursuant to
Article VIII thereof.
1.2 Additional Purchases. The Stockholder agrees that any
shares of capital stock of the Company that such Stockholder purchases or with
respect to which such Stockholder otherwise acquires beneficial ownership after
the execution of this Agreement and prior to the Expiration Date ("New Shares")
shall be subject to the terms and conditions of this Agreement to the same
extent as if they constituted Shares.
2. Agreement to Vote Shares and Irrevocable Proxy.
(a) At every meeting of the stockholders of the Company called
with respect to any of the following, and at every adjournment thereof, and on
every action or approval by written consent of the stockholders of the Company
with respect to any of the following, the Stockholder agrees to vote the Shares
and any New Shares: (i) in favor of approval of the Merger Agreement and the
Merger and any matter that could reasonably be expected to facilitate the
Merger; and (ii) against approval of any proposal made in opposition to or
competition with consummation of the Merger and against any merger,
consolidation, sale of assets, reorganization or recapitalization, with any
party other than Imation, Sub and their affiliates and against any liquidation
or winding up of the Company (each of the foregoing is hereinafter referred to
as an "Opposing Proposal"). The Stockholder agrees not to take any actions
contrary to such Stockholder's obligations under this Agreement.
(b) In furtherance of Section 2(a), the Stockholder hereby
irrevocably appoints, during the term of this Agreement, Imation as proxy to
vote the Shares and any New Shares which the Stockholder is entitled to vote,
for and in the name, place and stead of such Stockholder (the "Proxy"), at any
annual, special or other meeting of the holders of capital stock of the Company
and at any adjournments thereof or pursuant to any consent in lieu of a meeting
or otherwise.
(c) The Proxy is granted in consideration of the execution and
delivery of the Merger Agreement by Imation. The Stockholder agrees that the
Proxy is coupled with an interest sufficient in law to support an irrevocable
proxy.
(d) The Proxy shall revoke all prior proxies given by the
Stockholder with respect to any Shares or New Shares.
3. Nonsolicitation. During the term of this Agreement, the Stockholder
shall not, directly or indirectly, solicit, initiate or encourage submission of
any proposal or offer from any person, group or entity relating to any
acquisition of the assets, business or capital stock of the Company, or other
similar transaction or business combination involving the business of the
Company; shall not participate in any negotiations or discussions regarding or
furnish to any other person any information with respect to, or otherwise
cooperate in any way with, or assist or participate in, facilitate or encourage
any effort or attempt by any other person or entity to do or seek such
acquisition or other transaction; and shall inform Imation of any such inquiry.
Without limiting the generality of the foregoing, the Stockholder will not, and
will not permit any person or entity under Stockholder's control to, (a) solicit
proxies or become a "participant" in a "solicitation" (as such terms are defined
in Regulation 14A under the Exchange Act) with respect to an Opposing Proposal
or otherwise encourage or assist any party in taking or planning any action that
would compete with, restrain or otherwise serve to interfere with or inhibit the
timely consummation of the Merger in accordance with the terms of the Merger
Agreement; (b) initiate a stockholders' vote or action by consent of the Company
stockholders with respect to an Opposing Proposal; or (c) become a member of a
"group" (as such term is used in Section 13(d) of the Exchange Act) with respect
to any voting securities of the Company with respect to an Opposing Proposal.
Imation agrees that the foregoing shall not prohibit the Company from issuing
the Picker Shares and Warrants.
4. Representations and Warranties of the Stockholders. The Stockholder
hereby represents and warrants to Imation as follows:
4.1 Ownership of Shares. The Stockholder (a) is the beneficial
owner of the number of Shares set forth on the signature page of this Agreement,
which at the date hereof and at all times up until the Expiration Date will be
free and clear of any liens, claims, options, charges or other encumbrances; and
(b) does not beneficially own any shares of capital stock of the Company other
than such Shares (excluding shares as to which Stockholder currently disclaims
beneficial ownership in accordance with applicable law).
4.2 Authority; Enforceability. The Stockholder has the legal
right and power, and all authorization and approval required by law, to enter
into this Agreement and to grant the Proxy. This Agreement, including the Proxy,
has each been duly authorized, executed and delivered by or on behalf of the
Stockholder and constitutes a valid and binding obligation of the Stockholder
enforceable in accordance with its respective terms.
4.3 No Conflict. The execution and delivery by the Stockholder
of, and the performance by the Stockholder of its obligations under, this
Agreement will not contravene any provision of applicable law, or the
certificate of incorporation or bylaws, partnership agreement, limited liability
company agreement, trust agreement or other charter documents of the
Stockholder, any agreement or other instrument binding upon the Stockholder, or
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Stockholder, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required for
the performance by the Stockholder of its obligations under this Agreement,
except (i) such consents, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable state and federal
securities laws, (ii) filings under the HSR Act, and (iii) such other consents,
authorizations, filings, approvals and registrations which if not obtained or
made would not have a material adverse effect on the ability of the Stockholder
to consummate the transactions contemplated by this Agreement and the Merger
Agreement.
5. Additional Documents. The Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Imation, to carry out the intent of this Agreement.
6. Consent and Waiver. The Stockholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreements to which the Stockholder is a party or pursuant to
any rights the Stockholder may have.
7. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. Miscellaneous.
8.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then 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.
8.2 Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of any Stockholder may be assigned by
the Stockholder without the prior written consent of Imation.
8.3 Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the party against whom enforcement
is sought.
8.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Imation will be irreparably harmed and that there will
be no adequate remedy at law for a violation of any of the covenants or
agreement of any Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Imation upon any such
violation, Imation shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Imation at law or in equity, in any event without the necessity of posting bond
or proving actual damages.
8.5 Notices. All notices, demands and other communications to
be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when personally
delivered or three days after being mailed, if mailed by first class mail,
return receipt requested, or when receipt is acknowledged, if sent by facsimile,
telecopy or other electronic transmission device. Notices, demands and
communications to Imation and the Stockholders will, unless another address is
specified in writing, be sent to the address indicated below:
Notices to Imation or Sub: with a copy to:
Imation Corp. Xxxxxx & Xxxxxxx LLP
Legal Affairs 000 Xxxxx Xxxxx Xxxxxx
Imation Corp. Xxxxxxxxxxx, XX 00000
One Imation Place Attention: Xxxx X. Xxxxxxxx
Xxxxxxx, XX 00000-0000 Telecopy: (000) 000-0000
Attn:
Imation Corp.
Xxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn:
Notices to the Stockholders:
To the address set forth on the signature page
8.6 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
8.7 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
8.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
8.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
8.10 Effective Time. This Agreement and the Proxy delivered in
connection herewith shall become effective only upon execution of the Merger
Agreement by each of the Company, Imation and Sub.
IN WITNESS WHEREOF, the parties have caused this Stockholders Agreement
to be duly executed on the date and year first above written.
IMATION CORP.
By _______________________________
Its _________________________
STOCKHOLDER:
__________________________________
Name:
Shares:___________________________
Address: _________________________
__________________________________
__________________________________
