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Exhibit 99(c)(5)
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of October 19, 1999 (this
"Agreement"), among EDB Business Partner ASA, a Norwegian Public Limited
Company (the "Parent"), EDB 4tel Acquisition Corp., a Delaware corporation and
a wholly owned subsidiary of the Parent ("Purchaser"), and Xxxxxxx Xxxxx (the
"Stockholder").
WHEREAS, concurrently with the execution and delivery of this
Agreement the Parent, Purchaser and Telesciences, Inc., a Delaware corporation
(the "Company"), have entered into an Agreement and Plan of Merger dated as of
the date hereof (such Agreement and Plan of Merger, as amended from time to
time, the "Merger Agreement"), which provides, among other things, that
Purchaser shall make the Offer (as defined in the Merger Agreement) to purchase
at a price of $8.79 per share, net to the sellers in cash, all of the issued
and outstanding shares of the Company's Common Stock, par value $0.04 per share
(the "Company Common Stock"), and shall merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement (any term used herein without definition shall have the definition
ascribed thereto in the Merger Agreement);
WHEREAS, the Stockholder owns beneficially and of record 100,760
shares of Company Common Stock (such shares of Company Common Stock being
collectively referred to herein as the "Stockholder Shares"); and
WHEREAS, as a condition to the willingness of the Parent and
Purchaser to enter into the Merger Agreement, and as an inducement to them to
do so, the Stockholder has agreed for the benefit of the Parent and Purchaser
to tender the Stockholder Shares and any other shares of Company Common Stock
at any time during the term of this Agreement held by the Stockholder, pursuant
to the Offer, to vote all the Stockholder Shares and any other shares of
Company Common Stock owned by the Stockholder in favor of the Merger.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
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ARTICLE I
Tender Offer
SECTION 1.1. Tender of Shares. (a) At least two business days prior
to the consummation by the Purchaser of the Offer, the Stockholder shall tender
to the Depository designated in the Offer to Purchase (the "Offer to Purchase")
distributed by Purchaser in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder Shares and any other shares of
Company Common Stock held by the Stockholder (whether or not currently held by
the Stockholder; the Stockholder Shares, together with any shares acquired by
the Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities,
or by means of purchase, dividend, distribution or otherwise (the "Shares")),
complying with the terms of the Offer to Purchase, (ii) the certificates
representing the Shares, and (iii) all other documents or instruments required
to be delivered pursuant to the terms of the Offer to Purchase.
(b) The Stockholder shall not, subject to applicable law,
withdraw the tender effected in accordance with Section 1.1(a); provided,
however, that the Stockholder may decline to tender, or may withdraw, any and
all Shares owned by the Stockholder if the Purchaser amends the Offer to (w)
reduce the Offer Price to less than $8.79 in cash, net to the stockholders, (x)
reduce the number of shares of Company Common Stock subject to the Offer, (y)
change the form of consideration payable in the Offer or (z) amend or modify
any term or condition of the Offer in a manner adverse to the stockholders of
the Company (other than insignificant changes or amendments or other than to
waive any condition). The Stockholder shall give Purchaser at least two
business days' prior notice of any withdrawal of Shares owned by the
Stockholder pursuant to the immediately preceding proviso.
SECTION 1.2. No Purchase. Purchaser and Parent may allow the Offer
to expire without accepting for payment or paying for any Shares, on the terms
and conditions set forth in the Offer to Purchase. If all Shares validly
tendered and not withdrawn are not accepted for payment and paid for in
accordance with the terms of the Offer to Purchase, they shall be returned to
the Stockholder, whereupon they shall continue to be held by the Stockholder
subject to the terms and conditions of this Agreement.
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ARTICLE II
Consent and Voting
The Stockholder hereby revokes any and all previous proxies granted
with respect to the Shares owned by the Stockholder. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as the Merger
Agreement is in effect, or Purchaser notifies Stockholder of its intent to
continue its Offer or a revised offer within 2 business days of termination of
the Merger Agreement the Stockholder hereby agrees (i) to vote all Shares now
or hereafter owned by such Stockholder or execute a consent or proxy and not
revoke any proxy, vote or consent, in favor of the Merger Agreement, the Merger
and the transactions contemplated thereby, and (ii) to oppose any Alternative
Acquisition and to vote all Shares now or hereafter owned by such Stockholder,
or execute a consent or proxy, against any Acquisition Proposal.
ARTICLE III
Representations, Warranties and Covenants
of the Stockholder
The Stockholder represents, warrants and covenants to the Purchaser
that:
SECTION 3.1. (a) Ownership. As of the date hereof the Stockholder is
the sole, true, lawful and beneficial owner of 100,760 Shares and that there
are no restrictions on voting rights or rights of disposition pertaining to
such Shares. The Stockholder will convey good and valid title to the Shares
owned by the Stockholder and being acquired pursuant to the Offer or the
Merger, as the case may be, free and clear of any and all liens, restrictions,
security interests or any encumbrances whatsoever, other than restrictions
under applicable securities laws (collectively, "Liens"). None of the Shares
owned by the Stockholder is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of such Shares.
(b) Transfer of the Shares. (i) Until this Agreement is
terminated, the Stockholder shall not directly or indirectly offer to sell,
sell short, transfer (including gift), assign, pledge or otherwise dispose of
or transfer (each, a "Transfer") any interest in or encumber with any Lien any
of the Shares, (ii) enter into any contract, option, put, call, "collar" or
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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 with respect to the
Shares that would in any way restrict, limit or interfere with the performance
of its obligations hereunder.
(c) The Stockholder agrees to place the following legend
on any and all certificates
evidencing the Shares:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
SHAREHOLDER AGREEMENT, DATED AS OF OCTOBER 19, 1999, BY AND AMONG
PARENT, PURCHASER AND STOCKHOLDER. ANY TRANSFER OF SUCH SHARES OF
COMMON STOCK IN VIOLATION OF THE TERMS OF SUCH AGREEMENT SHALL BE
NULL AND VOID AND OF NO EFFECT WHATSOEVER.
SECTION 3.2. Authority and Non-Contravention. The execution,
delivery and performance by the Stockholder of this Agreement and the
consummation of the transactions contemplated hereby (i) are within the
Stockholder's power and authority, have been duly authorized by all necessary
action (including any consultation, approval or other action by or with any
other person), (ii) require no action by or in respect of, or filing with, any
Governmental Body (except as may be required under the HSR Act and under the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (the "Exchange Act")), and (iii) do not and will not
contravene or constitute a default under, or give rise to a right of
termination, cancellation or acceleration of any right or obligation of the
Stockholder or to a loss of any benefit of the Stockholder under, any provision
of applicable law or regulation or any agreement, judgment, injunction, order,
decree, or other instrument binding on the Stockholder or result in the
imposition of any Lien on any assets of the Stockholder. If the Stockholder is
married and the Shares constitute community property or otherwise are owned or
held in a manner that requires spousal or other approval for this Agreement to
be legal, valid and binding, this Agreement has been duly consented to and
delivered by the Stockholder's spouse or the person giving such approval,
enforceable against such spouse or person in accordance with its terms.
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SECTION 3.3. Binding Effect. This Agreement has been duly executed
and delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
SECTION 3.4. Total Shares. The Stockholder Shares owned by the
Stockholder are the only shares of Company Common Stock beneficially owned as
of the date hereof by the Stockholder and, except as set forth in the
disclosure schedule to the Merger Agreement, the Stockholder has no option to
purchase or right to subscribe for or otherwise acquire any securities of the
Company and has no other interest in or voting rights with respect to any other
securities of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or finder
is entitled to a commission or fee from Purchaser or the Company in respect of
this Agreement based upon any arrangement or agreement made by or on behalf of
the Stockholder, except as otherwise disclosed in the Merger Agreement.
ARTICLE IV
Representations and Warranties
of the Parent and Purchaser
The Parent and Purchaser represent and warrant to the Stockholder:
SECTION 4.1. Corporate Power and Authority; Noncontravention. The
Parent and Purchaser have all requisite corporate power and authority to enter
into this Agreement and to perform their obligations hereunder. The execution,
delivery and performance by the Parent and Purchaser of this Agreement and the
consummation by the Parent and Purchaser of the transactions contemplated
hereby (i) have been duly authorized by all necessary corporate action on the
part of the Parent and Purchaser, (ii) require no action by or in respect of,
or filing with, any Governmental Body (except as may be required under the HSR
Act and under the Exchange Act), or (iii) do not and will not contravene or
constitute a default under, the certificate of incorporation or by-laws of
Parent or Purchaser or any provision of applicable law or regulation or any,
judgment, injunction, order, decree, material agreement or other material
instrument binding on the Parent or Purchaser.
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SECTION 4.2. Binding Effect. This Agreement has been duly executed
and delivered by the Parent and Purchaser and is a valid and binding agreement
of the Parent and Purchaser, enforceable against each of them in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 4.3. Acquisition for Purchaser's Account. Any Shares to be
acquired upon consummation of the Offer will be acquired by Parent for its own
account and not with a view to the public distribution thereof and will not be
transferred except in compliance with the Securities Act and the rules and
regulations promulgated thereunder.
ARTICLE V
Additional Agreements
SECTION 5.1. Agreements of Stockholder. The Stockholder hereby
covenants and agrees that:
(a) No Solicitation. From the date hereof, the Stockholder
shall not directly or indirectly (i) solicit, initiate or knowingly
encourage (or authorize any person to solicit, initiate or
encourage) any Alternative Acquisition, or (ii) participate in any
discussion or negotiations regarding, or furnish to any other person
any information with respect to, or otherwise knowingly cooperate in
any way with, or participate in, facilitate or encourage any effort
or attempt by any other person to do or seek the foregoing. The
Stockholder shall promptly advise the Purchaser of the terms of any
communications it or any of its affiliates may receive relating to
any Alternative Acquisition (including, without limitation, the
identify of the party making any such Alternative Acquisition).
(b) Adjustment upon Changes in Capitalization or Merger.
In the event of any change in the Company's capital stock by reason
of stock dividends, stock splits, mergers, consolidations,
recapitalization, combinations, conversions, exchanges of shares,
extraordinary or liquidating dividends, or other changes in the
corporate or capital structure of the Company which would have the
effect of diluting or changing Parent and Purchaser's rights
hereunder, the number and kind of shares or securities subject to
this Agreement and the price set forth herein at which Shares may be
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purchased from the Stockholder pursuant to the Offer shall be
appropriately and equitably adjusted so that Parent and Purchaser
shall receive pursuant to the Offer the number and class of shares
or other securities or property that Parent or Purchaser, as the
case may be, would have received in respect of the Shares
purchasable pursuant to the Offer if such purchase had occurred
immediately prior to such event.
ARTICLE VI
Miscellaneous
SECTION 6.1. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by Purchaser.
SECTION 6.2. Further Assurances. The Parent, Purchaser and the
Stockholder will execute and deliver or cause to be executed and delivered all
further documents and instruments and use its reasonable best efforts to secure
such consents and take all such further action as may be reasonably necessary
in order to consummate the transactions contemplated hereby and by the Merger
Agreement.
SECTION 6.3. Additional Agreements. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use all
reasonable best efforts to take, or cause to be taken, all actions and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or
bound, to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.4. Specific Performance. The parties acknowledge and agree
that performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will not be compensable
by money damages. The parties therefore agree that this Shareholder Agreement
shall be specifically enforceable and that specific enforcement and injunctive
relief shall be available to the Parent, Purchaser or the Stockholder for any
breach by the other party or parties of any agreement, covenant or
representation hereunder.
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SECTION 6.5. Notices. All notices, requests, claims, demands and
other communications hereunder shall be deemed to have been duly given when
delivered in person, by telecopy, or by registered or certified mail (postage
prepaid, return receipt requested) to such party at its address set forth on
the signature page hereto.
SECTION 6.6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Shares pursuant to Section 1.2 hereof. None of
the representations and warranties contained in this Agreement shall survive
the acceptance for payment and payment for the Shares pursuant to the Offer.
SECTION 6.7. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. Notwithstanding
anything herein to the contrary, this Agreement shall expire and be of no
further force or effect if (i) the conditions to the Purchaser's obligations to
accept for payment and pay for Shares pursuant to the Offer shall have been
satisfied and the Purchaser breaches any obligation of Purchaser under the
Merger Agreement to accept for payment and promptly pay for all Shares validly
tendered and not withdrawn pursuant to the Offer upon expiration of the Offer
or (ii) Purchaser amends the Offer to (w) reduce the Offer Price to less than
$8.79 in cash, net to the sellers, (x) reduce the number of shares of Company
Common Stock subject to the Offer, (y) change the form of consideration payable
in the Offer or (z) amend or modify any term or condition of the Offer in a
manner adverse to the stockholders of the Company (other than insignificant
changes or amendments or other than to waive any condition). This Agreement
will also terminate upon the later of (i) the Merger Agreement or (ii)
termination of the Offer or any revised Offer if Purchaser notifies Stockholder
of its intent to continue its Offer or a revised Offer within 2 business days
after termination of the Merger Agreement.
SECTION 6.8. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided, however, that Purchaser
may assign its rights and obligations to another wholly-owned subsidiary of the
Parent which is the assignee of Purchaser's rights under the Merger Agreement;
and provided further that except as set forth in the prior clause, a party may
not assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties hereto and any
purported assignment, delegation or transfer without such consent shall be null
and void.
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SECTION 6.9. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to
the principles of conflicts of laws thereof.
SECTION 6.10. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effects as if the signatures thereto and thereof were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
SECTION 6.11. Stockholder Capacity. The Stockholder signs solely in
its capacity as the record holder and beneficial owner of the Shares and
nothing herein shall limit or affect any actions taken by the Stockholder in
his or her capacity as an officer, director, partner, employee or affiliate of
the Company and no such actions shall be deemed a breach of this Agreement.
SECTION 6.12. Severability. If any term or other provision of this
Agreement is 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 so long as the economic or
legal substance of the transactions contemplated hereby are not affected in any
manner materially adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions be consummated as originally
contemplated to the fullest extent possible. To the extent that any provision
of this Agreement and the Merger Agreement conflict, the provisions of the
Merger Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
EDB BUSINESS PARTNER ASA
By: /s/ Eivind Kinck
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Name:
Title:
Address for Notices:
EDB 4TEL
By: /s/ Xxxxxxx Xxxx
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Name:
Title:
Address for Notices:
/s/ Xxxxxxx Xxxxx
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Name:
Address for Notices:
