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Exhibit 2.4
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of September 1, 1998
(this"Agreement"), among Photobition Group PLC, a company organized under the
laws of England ("Photobition"), KDT Acquisition Corp., a Delaware corporation
("KDT"), and the individuals whose names and addresses are set forth on the
signature pages hereto (collectively, the "Stockholders", and each,
individually, a "Stockholder").
A. Photobition and KDT have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), with Xxxx Digital
Technologies, Inc., a Delaware corporation (the "Company"), which Merger
Agreement provides, among other things, that KDT will merge with and into the
Company (the "Merger").
B. As of the date hereof, the Stockholders are the record owners of,
and have the exclusive right to vote, the number of shares of common stock, par
value $0.001 per share, of the Company (the "Company Common Shares") set forth
opposite their respective names on the signature pages hereto.
C. Each of the Stockholders has agreed to enter into this Agreement
governing the voting of the Company Common Shares now or hereafter beneficially
owned by such Stockholder, including any Company Common Shares that such
Stockholder may acquire pursuant to a stock dividend, stock split,
recapitalization, combination or other transaction or upon the exercise of any
options to acquire Company Common Shares (as the same may be adjusted in the
manner described above) (the "Shares").
D. As a condition and inducement to Photobition's and KDT's willingness
to enter into the Merger Agreement, Photobition and KDT have requested that each
Stockholder agree, and each Stockholder has agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained herein, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
1. Voting of Shares. Each Stockholder will cause the Shares owned by
such Stockholder to be voted at the Special Meeting or any other meeting of the
stockholders of the Company (and at any and all postponements and adjournments
thereof), however called, and in any action by written consent of the
stockholders of the Company (a) to adopt the Merger Agreement and to approve the
transactions contemplated thereby and any other matter that could reasonably be
expected to facilitate the Merger and (b) against any Adverse Proposal. For
purposes of this Agreement, "Adverse Proposal" means any action, proposal or
agreement that could reasonably be expected to result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of the Company under the Merger Agreement, or which could
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reasonably be expected to result in any of the conditions set forth in Article
VII or VIII of the Merger Agreement not being fulfilled.
2. No Disposition or Encumbrance of Shares. Each Stockholder hereby
agrees that such Stockholder will not, and will not offer or agree to, sell,
transfer, tender, assign, hypothecate or otherwise dispose of, such
Stockholder's Shares, or create or permit to exist any security interest, lien,
claim, pledge, option, right of first refusal, agreement, limitation on the
Stockholder's voting rights, charge or other encumbrance of any nature
whatsoever with respect to such Stockholder's Shares.
3. Reliance by Photobition and KDT. Each Stockholder understands and
acknowledges that Photobition and KDT are entering into the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this Agreement and the
Stockholder's representations, warranties and covenants contained herein.
4. Non-Interference. Each Stockholder will not take any action that
would make any representation or warranty of the Stockholder contained herein
untrue or incorrect.
5. Representations and Warranties of the Stockholders. Each Stockholder
hereby severally represents and warrants to Photobition and KDT with respect to
itself and its ownership of Shares as follows:
(a) No Conflict. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by
the Stockholder will not, (i) require any consent, approval,
authorization or Permit of, or filing with or notification to (other
than pursuant to the Securities Exchange Act), any Governmental Body,
(ii) conflict with or violate any law, rule, regulation, order,
judgment, decree or agreement applicable to the Stockholder or by which
the Stockholder or any property or asset of the Stockholder is bound,
or (iii) result in the creation of a Security Interest on any of such
Stockholder's Shares pursuant to any note, bond, mortgage, indenture,
contract, agreement, lease, license, Permit, franchise or other
instrument or obligation to which such Stockholder is a party or by
which such Stockholder's Shares are bound.
(b) Title to the Shares. The Shares owned by the Stockholders
are all the securities of the Company owned, either of record or
beneficially, by the Stockholders. Except for any restrictions arising
under this Agreement, the Stockholder owns all such Shares free and
clear of all Security Interests, options, rights of first refusal,
agreements, limitations on the Stockholder's voting rights, charges and
other encumbrances of any nature whatsoever which would prohibit the
voting agreement contained herein, and the Stockholder has not
appointed or granted any proxy, which appointment or grant is still
effective, with respect to such Stockholder's Shares.
6. Representations and Warranties of Photobition and KDT. Each of
Photobition and KDT hereby represents and warrants to the Stockholders as
follows:
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(a) Authority Relative to this Agreement. It has all necessary
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution, delivery and
performance of this Agreement by it have been duly and validly
authorized by all necessary action on its part. This Agreement has been
duly and validly executed and delivered by it and, assuming the due
authorization, execution and delivery by each Stockholder, constitutes
a legal, valid and binding obligation of it, enforceable against it in
accordance with its terms.
(b) No Conflict. The execution and delivery of this Agreement
by it does not, and the performance of this Agreement by it will not,
(i) require any consent, approval, authorization or Permit of, or
filing with or notification to (other than pursuant to the Securities
Exchange Act), any Governmental Body, (ii) conflict with or violate its
constituent documents, (iii) conflict with or violate any law, rule,
regulation, order, judgment, decree or agreement applicable to it or by
which it or any of its property or assets is bound, or (iii) result in
the creation of a Security Interest on any of its property pursuant to
any note, bond, mortgage, indenture, contract, agreement, lease,
license, Permit, franchise or other instrument or obligation to which
it is a party or by which its properties are bound.
7. Miscellaneous.
(a) Termination. This Agreement will terminate and will have
no further force or effect as of the Termination Date. For the purposes
of this Agreement, "Termination Date" means the earliest of (i) the
termination of the Merger Agreement in accordance with its terms
following payment of any applicable Termination Fee, (ii) the Effective
Time, and (iii) the termination of this Agreement by the written
agreement of the parties hereto.
(b) Expenses. Except as otherwise provided herein or in the
Merger Agreement, all costs and expenses incurred in connection with
the transactions contemplated by this Agreement will be paid by the
party incurring such expenses.
(c) Enforcement. The parties hereto agree that (i) irreparable
damage would occur in the event any of the provisions of this Agreement
were not performed in accordance with the terms hereof, and (ii) the
parties will be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to specific performance of the terms
hereof, in addition to any other remedy to which they may be entitled
at law or in equity.
(d) Entire Agreement. This Agreement, together with the Merger
Agreement and the other Transaction Agreements (as such term is defined
in the Merger Agreement) constitutes the entire agreement between
Photobition, KDT and the Stockholders with respect to the subject
matter hereof and supersedes all prior agreements and understandings,
both written and oral, between Photobition, KDT and the Stockholders
with respect to the subject matter hereof.
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(e) Assignment. This Agreement may not be assigned, by
operation of law or otherwise, without the prior written consent of the
parties.
(f) Obligations of Successors; Parties in Interest. This
Agreement will be binding upon, inure solely to the benefit of, and be
enforceable by, the successors and permitted assigns of the parties
hereto. Nothing in this Agreement, express or implied, is intended to
or will confer upon any other Person any rights, benefits or remedies
of any nature whatsoever under or by reason of this Agreement.
(g) Amendment; Waiver. This Agreement may not be amended or
changed except by an instrument in writing signed by the parties
hereto. Any party hereto may (i) extend the time for the performance of
any obligation or other act of any other party hereto, (ii) waive any
inaccuracy in the representations and warranties contained herein or in
any document delivered pursuant hereto, and (iii) waive compliance with
any agreement or condition contained herein. Any such extension or
waiver will be valid only if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
(h) Severability. The validity or unenforceability of any
provision of this Agreement will not affect the validity or
enforceability of any other provision of this Agreement, which will
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 will 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 a
mutually acceptable manner in order that the terms of this Agreement
remain as originally contemplated to the fullest extent possible.
(i) Notices. All notices, requests, claims, demands and other
communications hereunder will be in writing and may be given (and will
be deemed to have been duly given only upon actual receipt) by delivery
in person, by fax, by overnight courier service or by registered or
certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address
for a party as may be specified in a notice given in accordance with
this Section 7(i)):
(1) if to Photobition and KDT:
Photobition Group PLC
Xxxxx Xxxxx
000 Xxxxxx Xxxx
Xxxxxxx
Xxxxxx XX0 0XX
England
Attention: Xxxxx Xxxxxxxxxx and Xxxxxx Xxxxx
Telephone No.: 000.000.00.000.0000
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Fax No.: 000.000.00.000.0000
with a required copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
(2) if to any Stockholder:
at the respective addresses of such
Stockholder set forth on the signature pages
to this Agreement
with a required copy to:
Feder, Kaszovitz, Isaacson, Weber,
Xxxxx & Bass LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq. and
Xxxxxxxx X. Xxxx, Esq.
Telephone No.: (000) 000-0000
Fax No: (000) 000-0000
(j) Governing Law; Consent to Jurisdiction. This Agreement
will be governed by and construed in accordance with the laws of the
State of Delaware (regardless of the laws that might otherwise govern
under applicable Delaware principles of conflicts of law) as to all
matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies. Each of Photobition and
KDT and each Stockholder (i) irrevocably submits to the jurisdiction of
any state or federal court sitting in New York, New York in any action
or proceeding arising out of or related to this Agreement, (ii) agrees
that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court, and (iii)
agrees that it will not bring any action relating to this Agreement in
any court other than a federal or state court sitting in New York, New
York. Each of Photobition and KDT and each Stockholder irrevocably
consents to the service of process which may be served in any such
action or proceeding by certified mail, return receipt requested, by
delivering a copy of such process to such Person at the address
specified herein or by any other method permitted by law.
(k) Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and will not
affect in any way the meaning or interpretation of this Agreement.
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(l) Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed will be deemed to be an
original, but all of which taken together will be one and the same
agreement.
(m) WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ANY RIGHT
IT MIGHT HAVE TO A JURY TRIAL OF ANY DISPUTE ARISING IN CONNECTION WITH
THIS AGREEMENT.
(n) Defined Terms. Capitalized terms used herein that are not
otherwise defined herein have the meanings set forth in the Merger
Agreement.
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IN WITNESS WHEREOF, Photobition, KDT and the Stockholders have duly
executed this Agreement as of the date first written above.
PHOTOBITION GROUP PLC
By: /s/ J.E.T. XXXXXXXXXX
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Name: X.X..X. XXXXXXXXXX
Title:
KDT ACQUISITION CORP.
By: /s/ J.E.T. XXXXXXXXXX
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Name: J.E.T. XXXXXXXXXX
Title:
STOCKHOLDERS: NUMBER OF SHARES BENEFICIALLY OWNED OF
RECORD:
/S/ XXXX XXXX 1,068,355
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Xxxx Xxxx
Stockholder's Address for Notice:
00 Xxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
/S/ XXXXXXXX XXXX 1,308,355
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Xxxxxxxx Xxxx
Stockholder's Address for Notice:
00 Xxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
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Until the Termination Date, the undersigned acknowledges and agrees not to
register the transfer of any Stockholder's Shares other than in accordance with
Section 2 of this Agreement.
XXXX DIGITAL TECHNOLOGIES, INC.
By: /s/ XXXX XXXX
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Name: XXXX XXXX
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Title: Chairman and Chief Executive Officer
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