Exhibit 9.1
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as of November 9, 2000,
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among Xxxxxxx Kodak Company (the "Parent"), Sunfish Acquisition Corporation
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("Merger Subsidiary"), Lumisys Incorporated (the "Company"), Xxxx X. Xxxxxx,
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Ph.D., individually and as trustee of the Xxxxxx Revocable Trust and as a
general partner of Saraswati Partners ("Xx. Xxxxxx"), and Xxxxxxx Xxxxxx, M.D.,
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individually and as managing member of the X. Xxxxxx Family LLC, which is the
general partner of Sequoia Investments Limited Partnership ("Xx. Xxxxxx").
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RECITALS
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WHEREAS, each of Xx. Xxxxxx and Xx. Xxxxxx (each of Xx. Xxxxxx and Xx.
Xxxxxx and their respective affiliates is hereafter individually referred to as
a "Stockholder" and collectively as the "Stockholders") is the record and/or
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beneficial owner of the number of shares of capital stock of the Company set
forth opposite such Stockholder's name on Schedule A attached hereto (such
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shares, together with any other shares of capital stock of the Company acquired
by such Stockholder after the date hereof (including through the exercise of
stock options, warrants or similar rights or the conversion or exchange of
securities) being collectively referred to herein as the "Shares" of such
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Stockholder); and
WHEREAS, the Board of Directors of the Company has approved the execution
of an Agreement and Plan of Merger, dated as of the date hereof (as the same may
be amended, supplemented or otherwise modified in accordance with its terms, the
"Merger Agreement"), with respect to the merger of the Company and Merger
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Subsidiary (the "Merger"); and
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WHEREAS, as a condition to and in order to induce Parent to enter into the
Merger Agreement, Parent has required the Stockholders to execute and deliver
this Agreement to the Parent and Merger Subsidiary.
NOW, THEREFORE, to induce the Parent to enter into, and in consideration of
its entering into the Merger Agreement, and in consideration of the premises and
the representations, warranties and agreements contained herein, the parties,
intending to be legally bound, agree as follows (certain capitalized terms are
used herein with the meanings set forth in Section 10):
1. Voting Agreement.
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(a) Each Stockholder hereby agrees with the Parent and Merger
Subsidiary that, at any meeting of the Company's stockholders, however called,
or in connection with any written consent of the Company's stockholders
(collectively, the "Company Stockholders Meeting"), the Stockholder shall cause
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the Shares to be present at any such meeting for purposes of establishing and
maintaining a quorum and shall vote (or, if applicable, execute consents in
respect of) the Shares by such Stockholder as of the
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date of such meeting or written consent, whether heretofore owned or hereafter
acquired: (i) in favor of approval of the Merger Agreement and the transactions
contemplated thereby (including the Merger) and by any of the agreements
referred to therein (the "Transactions"); (ii) against any action or agreement
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that would result in a breach in any respect of any representation, warranty,
agreement or covenant or any other obligation or agreement of the Company under
the Merger Agreement or in connection with the Transactions; and (iii) except as
otherwise agreed to in writing in advance by the Parent, against: (A) any Other
Acquisition (as defined in Section 10(a) below); (B) any change in a majority of
the individuals who, as of the date hereof, constitute the Board of Directors of
the Company; (C) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company and any Third
Party (as defined in Section 10(a), the definition of "Other Acquisition"
below); (D) a sale, lease, transfer or disposition of any assets of the Company
or any of its subsidiaries outside the ordinary course of business, or any
assets which are material to its business whether or not in the ordinary course
of business, or a reorganization, recapitalization, dissolution or liquidation
of the Company;(E) any change in the present capitalization of the Company or
any amendment of the Company's Certificate of Incorporation or Bylaws; (F) any
other material change in the Company's corporate structure or affecting its
business, and (G) any other action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone or materially adversely
affect the Merger or any of the other transactions contemplated by the Merger
Agreement (including the agreements referred to therein), or any of the
transactions contemplated by this Agreement or change any of the voting rights
of any voting securities of the Company. Each Stockholder hereby agrees with the
Parent and Merger Subsidiary that he will not take any action or enter into any
agreement or understanding with any Person the effect of which would be
inconsistent or violative of the provisions and agreements contained herein.
(b) Each Stockholder hereby consents to and authorizes and approves
the actions taken by the Board of Directors of the Company in approving the
Merger, the Merger Agreement, this Agreement and the transactions contemplated
hereby and thereby. To the extent permitted by law, each Stockholder hereby
waives, and agrees not to exercise, any appraisal rights under the Delaware
General Corporation Law in connection with the Merger.
2. Grant of Irrevocable Proxy; Appointment of Proxy.
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(a) Each Stockholder hereby irrevocably and severally grants to, and
appoints, the Parent and any person designated by the Parent to act in its
place, proxy and attorney-in-fact (with full power of substitution and
resubstitution), for and in the name, place and stead of such Stockholder, to
vote Shares by such Stockholder, or to grant a consent or approval in respect of
the Shares by such Stockholder, in a manner consistent with Section 1 hereof.
(b) Each Stockholder represents and warrants that any proxies (other
than the proxies contained in Section 2(a) hereof) heretofore given in respect
of such Shares by such Stockholder are not irrevocable or if irrevocable, that,
upon execution and
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delivery of this Agreement, the valid consent to the revocation of such proxies
from the party or parties to whom such proxies were heretofore granted will be
obtained, and that any such other proxies are hereby revoked to the extent
necessary to effect the transactions contemplated by Section 1 hereof. Each
Stockholder understands and acknowledges that the Parent is entering into the
Merger Agreement in reliance upon the execution, delivery and performance of
this Agreement by such Stockholder.
(c) Each Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 2 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of such Stockholder in accordance with this Agreement. Each
Stockholder hereby further affirms that his irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. This irrevocable proxy is
executed and intended to be irrevocable in accordance with the applicable
provisions of the Delaware General Corporation Law. This irrevocable proxy
shall be valid until termination of this Agreement pursuant to Section 8 hereof.
3. Restrictions on Transfer.
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(a) Each Stockholder covenants and agrees with the Parent that, prior
to the time the Company Stockholders Meeting called and held for the purpose
of voting on the Merger shall have been completed, such Stockholder will not,
nor will any of their respective affiliates, directly or indirectly, (i) give,
offer, sell, transfer, assign, pledge, hypothecate or otherwise dispose of the
record or beneficial ownership of (any such act, a "Transfer"), or consent to
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any Transfer of, any or all of the Shares Beneficially Owned by such Stockholder
or any interest therein; (ii) enter into any contract, option, commitment or
other arrangement (including any profit sharing arrangement) with respect to the
transfer of, the Shares Beneficially Owned by such Stockholder; or (iii) enter
into any other voting arrangement, whether by proxy, voting agreement, voting
trust, power-of-attorney or otherwise (each, a "Voting Arrangement") with
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respect to the Shares Beneficially Owned by such Stockholder.
(b) No Transfer of any Shares Beneficially Owned by a Stockholder in
violation of Section 3(a) shall be made or recorded on the books of the Company
or the Parent and any such Transfer shall be void and of no effect.
(c) Upon issuance thereof and until such time as the same is no
longer required hereunder, any certificate issued representing any of the Shares
Beneficially Owned by each Stockholder, including all certificates issued upon
transfer or in exchange thereof or in substitution therefor, shall, in addition
to any legend(s) required by law, bear the following legend:
THESE SECURITIES MAY ONLY BE TRANSFERRED PURSUANT TO
THE PROVISIONS OF A CERTAIN STOCKHOLDER AGREEMENT DATED
AS OF NOVEMBER 9, 2000, AMONG XXXXXXX KODAK
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COMPANY, SUNFISH ACQUISITION CORPORATION, THE COMPANY AND
CERTAIN OTHER PERSONS, COPIES OF WHICH AGREEMENT ARE ON
FILE AT THE PRINCIPAL OFFICE OF THE PARENT.
(d) The certificates representing the Shares Beneficially Owned by
each Stockholder (including any certificate issued upon transfer or in exchange
thereof or in substitution therefor) shall also bear any legend required under
any applicable state securities or blue sky laws.
(e) The Company shall make a notation on its records or give
instructions to any transfer agents or registrars for the Shares Beneficially
Owned by each Stockholder in order to implement the restrictions on transfer set
forth in this Section 3.
4. Acquisition Proposals. Each Stockholder agrees that he shall not nor
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shall he authorize any person, including the Company or any of its officers,
directors, employees, agents or representatives or any subsidiary (including,
any investment banker, attorney or accountant retained by any of the foregoing)
to take or permit to be taken any action which the Company has agreed not to
take pursuant to Section 6.3 of the Merger Agreement. The Stockholder will
notify Parent of any written Acquisition Proposals (as that term is defined in
Section 6.3 of the Merger Agreement) or oral Acquisition Proposals made to such
Stockholder or of which such Stockholder has actual knowledge which in either
event shall include the value of the Acquisition Proposal.
5. Noncompete. Each Stockholder hereby agrees that, for a period of five
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(5) years commencing the date hereof (the "Non Competition Period"), he shall
not, nor shall any entity he directly or indirectly controls the management of
or owns more than fifty percent (50%) of the equity or other ownership interests
of (each a "Stockholder Affiliate"), without the prior written consent of the
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Parent, own, manage, operate, control, finance, or serve in any capacity,
including without limitation, as an agent, employee, director, officer or
advisor, any entity which is engaged anywhere in the world in the manufacture,
sale or delivery of any products or services which are substantially similar to
or competitive with any products or services manufactured, sold or delivered by
the Company or XxxxXxxxxx.xxx on the date hereof, or any product substantially
similar to or competitive with the "Daylight DesktopCR" presently being
developed by the Company (a "Competing Business"), provided, however, that
nothing in this Section 5 shall prevent such Stockholder from accepting
employment during the Non Competition Period with a company involved in a
Competing Business so long as such Stockholder shall not directly or indirectly
consult with, assist or otherwise work in the division of such Company involving
the Competing Business provided that Stockholder shall inform such employer of
the Competing Business of the restrictions contained herein and shall notify
Parent of such employment. Ownership or purchase by either Stockholder of less
than five percent (5%) of the outstanding capital stock of any corporation, the
securities of which are listed on a national securities exchange or included in
the national list of over-the-counter securities, shall not be deemed a
violation of this Section 5.
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6. Representations and Warranties of Stockholders. Each Stockholder,
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severally and not jointly, hereby represents and warrants to the Parent and
Merger Subsidiary as of the date hereof as follows:
(a) Authority. Such Stockholder has all requisite power and authority
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to execute and deliver this Agreement and to consummate the transactions
contemplated hereby, except as may otherwise be set forth in any stock option
agreement with the Company to which Stockholder is a party (each a "Stock Option
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Agreement") or any loan agreement (a "Loan Agreement") with the Company to which
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Stockholder is a party to which certain Shares held by the Stockholder are held
in escrow by the Company to secure such loan. The execution and delivery of
this Agreement by such Stockholder, and the consummation of the transactions
contemplated hereby, have been duly authorized and approved by all necessary
action on the part of any entity or entities on whose behalf such Stockholder
acts in his non-individual capacity (the "Entities"). This Agreement has been
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duly executed and delivered by such Stockholder and constitutes his valid and
binding obligation and the valid and binding obligation of the Entities
enforceable against them in accordance with its terms, subject to any
restrictions in any Stock Option Agreement or any Loan Agreement and subject to
the effect of any applicable bankruptcy, reorganization, insolvency, moratorium,
or similar law affecting creditors' rights generally and subject, as to
enforceability, to the effect of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(b) No Conflicts. Except for (i) compliance with and filings under
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the pre-merger notification requirements of the Merger Control Laws, and (ii)
the applicable requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), the execution and delivery of this Agreement do not, and
the consummation by such Stockholder and the Entities of the Transactions and
compliance with the terms hereof will not, (A) conflict with, or result in any
violation of, or default (with or without notice or lapse of time or both)
under, or give rise to a right of termination, amendment, cancellation or
acceleration of any obligation or to loss of a material benefit under, or to
increased, additional, accelerated or guaranteed rights or entitlements of any
person under, or result in the creation of any lien upon any of the Shares under
any provision of any applicable trust agreement, loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, or instrument other than a
Loan Agreement, or (B) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to such Stockholder or the Entities or any of the
properties or assets of such Stockholder or the Entities, including the Shares
Beneficially Owned, except for such conflicts, violations, breaches, defaults or
other occurrences which, individually or the aggregate, have not had and would
not reasonably be expected to prevent or materially delay the ability of to
perform its obligations under this Agreement (a "Stockholder Material Adverse
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Effect").
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(c) No Consents. Neither the execution, delivery and performance of
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this Agreement by such Stockholder or the Entities, nor the consummation of the
Transactions by such person, will require any consent, approval, authorization,
order or permit of, or filing with or notification to and Governmental Entity,
except for (i) applicable requirements of the Exchange Act and the Securities
Act of 1933, as amended,
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(ii) compliance with and filings under the pre-merger notification requirements
and or consents or approvals of the Merger Control Laws, and (iii) the
applicable requirements of state securities laws, takeover laws or Blue Sky
laws. If such Stockholder is married and the Shares Beneficially Owned by such
Stockholder constitute community property and spousal or other approval is
necessary to make this Agreement valid and binding, this Agreement has been duly
authorized, executed and delivered by, and, constitutes a valid and binding
agreement of, such Stockholder's spouse enforceable against such spouse in
accordance with its terms, subject to the effect of any applicable bankruptcy,
reorganization, insolvency, moratorium, or similar law affecting creditors'
rights generally and subject, as to enforceability, to the effect of general
principles of equity. No trust of which such Stockholder is a trustee (including
the Xxxxxx Revocable Trust) requires the consent of any beneficiary for the
execution and delivery of this Agreement or for the consummation of the
transactions contemplated hereby.
(d) The Shares Beneficially Owned. Each Stockholder together with
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such Stockholder's spouse is the record and beneficial owner of, is the sole
manager of the record owner of, or is the trustee of the trust that is the
record holder of, and whose beneficiaries are the beneficial owners of, and has
good and valid title to, the Shares set forth opposite his or its name on
Schedule A attached hereto, free and clear of any claims, liens, encumbrances,
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security interests, options, charges and restrictions of any kind. Except as
otherwise set forth on Schedule A attached hereto, such Stockholder does not
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own, of record or beneficially, any shares of capital stock or other voting
securities of the Company. Such Stockholder has the sole right to dispose of and
vote the Shares, and none of the Shares are subject to any Voting Arrangement or
other voting trust or other agreement, arrangement or restriction with respect
to the voting of the Shares Beneficially Owned by such Stockholder, except as
set forth in this Agreement.
(e) No Brokers. Except for UBS Warburg, whose fees are payable by the
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Company, 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 this Agreement based upon arrangements made by or
on behalf of such Stockholder or the Entities.
7. Assignment. Neither this Agreement nor any of the rights, interests or
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obligations hereunder shall be assigned by any of the parties hereto without the
prior written consent of the other parties (other than the rights of
substitution and resubstitution with respect to the proxies granted herein) and
any purported assignment in violation of this Section 7 shall be void and of no
effect. 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
administrators, heirs, legal representatives, successors and permitted
assignees.
8. Termination. This Agreement shall terminate immediately upon the
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termination of the Merger Agreement in accordance with the terms thereof. If
the Merger Agreement is not so terminated, this Agreement shall survive any
closing under the Merger Agreement until perform in accordance with its terms.
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9. Binding Obligations. Upon execution hereof by the Parent, and any
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Stockholder, this Agreement shall be binding upon and inure to the benefit of
the Parent, Merger Subsidiary, and each such Stockholder, regardless of the
failure of any other party listed on the signature page hereto to execute this
Agreement.
10. General Provisions.
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(a) Certain Definitions.
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"Beneficially Owned" with respect to any securities of the
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Company shall mean that the Stockholder has such ownership, control or
power to direct the voting or investment with respect to, or to
legally act with respect to, such securities as contemplated hereby,
including pursuant to any agreement, arrangement or understanding,
whether or not in writing. Shares Beneficially Owned by any
Stockholder shall include securities Beneficially Owned by all other
persons with whom such Stockholder would constitute a "group" within
the meaning of Section 13(d)(3) of the Exchange Act.
"Governmental Entity" means any federal, state, local or foreign
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government or any court of competent jurisdiction, or other
governmental, administrative or regulatory authority, commission or
agency, domestic or foreign.
"Merger Control Laws" means the Xxxx-Xxxxx-Xxxxxx Antitrust
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Improvements Act of 1976 and all amendments thereof, and all other
laws, rules and regulations governing the combination of businesses.
"Other Acquisition" means the occurrence of any of the following
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events: (i) the acquisition of the Company by merger or otherwise by
any Person (which includes a "person" as such term is defined in
Section 13(d)(3) of the Exchange Act, other than the Parent, Merger
Subsidiary or any affiliate thereof (a "Third Party"); (ii) the
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acquisition by a Third Party of any material portion (which shall
include ten percent (10%) or more) of the assets of the Company or any
of its subsidiaries, other than the sale of its or their products in
the ordinary course of business and consistent with past practices;
(iii) the acquisition by a Third Party of ten percent (10%) or more of
the outstanding Voting Securities of the Company; (iv) the adoption by
the Company of a plan of liquidation or the declaration or payment of
an extraordinary dividend; (v) the repurchase by the Company of more
than ten percent (10%) of its outstanding Voting Securities; or (vi)
the acquisition (or any group of acquisitions) by the Company by
merger, purchase of stock or assets, joint venture or otherwise of a
direct or indirect ownership interest or investment in any entity (or
entities) or business (or businesses) whose annual revenues, net
income or assets is equal or greater than ten percent (10%) of the
annual revenues, net income or assets of the Company.
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"Voting Securities" means any capital stock or other security
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convertible for or exchangeable into securities entitled to vote in
the generally in the election of directors.
(b) Amendments. This Agreement may not be amended, supplemented,
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modified or waived except by an instrument in writing signed by the Parent and
the Stockholder or Stockholders to whom such amendment, modification or waiver
relates.
(c) Specific Performance, Enforceabilty. The parties hereto agree
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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. Accordingly, the parties further agree that each party
shall be entitled to an injunction or restraining order to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other right or remedy to which such party may be
entitled under this Agreement, at law or in equity. Each of the parties hereto
acknowledges and agrees that the covenants set forth in Section 5 hereof are
reasonable in geographical and temporal scope and in all other respects and are
designed to protect the interests of Parent in acquiring the Company pursuant to
the Merger Agreement. If any court determines that any of the provisions of this
Agreement, or any part thereof, are unenforceable because of the duration or
geographic scope of such provision, such court shall have the power to reduce
the duration or scope of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision hereof.
(d) Notice. All notices, requests and other communications to any
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party hereunder shall be in writing, including facsimile, telex or similar
writing, and shall be deemed given if delivered to the Parent or the Company at
their respective addresses or telecopier numbers set forth below and to each
Stockholder at his address or telecopier number set forth on Schedule A attached
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hereto (or at such other address or telecopier number for a party as shall be
specified by like notice). Each such notice, request or other communication
shall be effective (i) if given by facsimile and received at or prior to 5:00
p.m. local time on a business day, upon confirmation of receipt, and if given by
facsimile and received at any other time, upon the next business day or (ii) if
given by any other means, when delivered at the address specified in this
Section 10(d).
If to the Company, to:
Lumisys Incorporated
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
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With a copy to:
Pillsbury Madison & Sutro LLP
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxx Xxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 650-233-4545
If to the Parent, to:
Xxxxxxx Kodak Company
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Xxxxx Peabody LLP
X.X. Xxx 0000
Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx XxXxxx Xxxxx, Esq.
Telephone: 000-000-0000
Facisimile: 000-000-0000
(e) Interpretation. When a reference is made in this Agreement to
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Sections, such reference shall be to a Section to 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."
The parties acknowledge and agree that: (i) each party to this Agreement
and its counsel reviewed and negotiated the terms and provisions of this
Agreement and have contributed to its revision; (ii) the rule of construction to
the effect that any ambiguities are resolved against the drafting party shall
not be employed in the interpretation of this Agreement; and (iii) the terms and
provisions of this Agreement shall be construed fairly as to both parties
hereto, regardless of which party was generally responsible for the preparation
of this Agreement or any provision hereof.
(f) Counterparts. This Agreement may be executed in two or more
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counterparts, all of which shall be considered one and the same agreement, and
shall become effective when two or more of the counterparts have been signed by
each of the
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parties and delivered to the other party, it being understood that each party
need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement
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(including the documents and instruments referred to herein) 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 is not intended to and does not confer upon any Person other than the
parties hereto any rights or remedies hereunder.
(h) Governing Law. This Agreement shall be construed in accordance
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with and governed in all respects, including validity, interpretation and
effect, by the law of the State of Delaware without giving effect to the
principles of conflicts of laws thereof.
(i) Consent to Jurisdiction; Consent to Service. IN THE EVENT OF ANY
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LITIGATION, CLAIM OR OTHER LEGAL PROCEEDING WITH RESPECT TO ANY MATTER
PERTAINING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, THE
PARTIES HERETO HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY. THE PARTIES HERETO
HEREBY READILY CONSENT TO THE NON-EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS
OF THE STATE OF DELAWARE AND ANY FEDERAL COURT LOCATED IN THE STATE OF DELAWARE
IN CONNECTION WITH ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE PARTIES HERETO HEREBY WAIVE
PERSONAL SERVICE OF ANY PROCESS IN CONNECTION WITH ANY SUCH LITIGATION AND AGREE
THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL ADDRESSED TO OR
BY PERSONAL DELIVERY TO ANOTHER PARTY TO THIS AGREEMENT AT SUCH OTHER PARTIES'
ADDRESS SPECIFIED IN SECTION 10(d).
(j) Severability. If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
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. If no
such agreement is reached between the parties, the term or provision which is
determined to be invalid, illegal or incapable of being enforced shall
nonetheless be enforced to fulfill the intent of the parties to the extent
legally permissible.
(k) Equitable Relief. In the event of any breach or threatened breach
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of any provision hereof by a Stockholder, Parent shall be entitled to equitable
relief, including without limitation, the right and remedy to have the
provisions of this Agreement specifically enforced in any court of competent
jurisdiction, without posting a
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bond or other security of any kind whatsoever, it being agreed that any breach
or threatened breach of this Agreement would cause Parent irreparable injury and
that money damages alone would not provide an adequate remedy.
11. Confidentiality; Public Announcements. Each Stockholder recognizes
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that successful consummation of the Transactions may be dependent upon
confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure of the Transactions by the Parent, the
Company and Merger Subsidiary, each Stockholder (and Entities represented by any
Stockholder) hereby agrees not to issue any press release or make any other
public statement or disclose or discuss such matters with anyone not a party to
this Agreement (other than such person's counsel and advisors, if any) without
the prior written consent of the Parent and the Company, except for filings
required pursuant to the Exchange Act and the rules and regulations thereunder
or as required by law.
[THIS SPACE LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX KODAK COMPANY
By: /s/ Xxxxxxx X. Love
________________________________
Name: Xxxxxxx X. Love
Title: Treasurer
SUNFISH ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
________________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
LUMISYS INCORPORATED
By: /s/ Xxxx XxxXxxxxx
________________________________________
Name: Xxxx XxxXxxxxx
Title: Executive Vice President
/s/ Xxxx X. Xxxxxx
____________________________________________
Xxxx X. Xxxxxx, Ph.D.
/s/ Xxxxxxx Xxxxxx
____________________________________________
Xxxxxxx Xxxxxx, M.D., individually and as
managing member of the X. Xxxxxx Family LLC
SCHEDULE A
NAME AND ADDRESS SUBJECT SHARES
Xxxx X. Xxxxxx, Ph.D. 50,000 options
Xxxxxx Revocable Trust 472,597 Shares
Saraswati Partners 51,500 Shares
Xxxxxxx Xxxxxx, M.D. 2,299 Shares
125,000 options
16,249 options with an
exercise price in excess
of $4.05
Sequoia Investments Limited Partnership 375,240 Shares
SPOUSAL CONSENT
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The undersigned, the spouse of Xxxx Xxxxxx acknowledges that she is
familiar with the substance of the Stockholder Agreement (the "Agreement"),
dated as of November __, 2000, by and between Xxxxxxx Kodak Company and her
spouse, among others. Without modifying any rights between herself and her
spouse , the undersigned hereby (i) agrees to be bound by the Agreement; (ii)
agrees that her spouse may enter into the Agreement and consummate the
transactions contemplated thereby; and (iii) agrees that her spouse may amend or
modify the Agreement without further consent on her part.
/s/ Xxxx Xxxxxx
________________________
Signature
Xxxx Xxxxxx
________________________
Print Name
SPOUSAL CONSENT
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The undersigned, the spouse of Xxxxxxx Xxxxxx acknowledges that she is
familiar with the substance of the Stockholder Agreement (the "Agreement"),
dated as of November __, 2000, by and between Xxxxxxx Kodak Company and her
spouse, among others. Without modifying any rights between herself and her
spouse , the undersigned hereby (i) agrees to be bound by the Agreement; (ii)
agrees that her spouse may enter into the Agreement and consummate the
transactions contemplated thereby; and (iii) agrees that her spouse may amend or
modify the Agreement without further consent on her part.
/s/ Iasneem Ismailji
________________________
Signature
Iasneem Ismailji
________________________
Print Name
