EXHIBIT 99.1
SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT (this "Agreement") is made and entered
into as of June 5, 2007, by and between InFocus Corporation, an Oregon
corporation (the "Company"), and Caxton Associates, L.L.C., a Delaware
limited liability company ("Caxton"), Caxton International Limited, a
British Virgin Islands corporation ("Caxton International"), and GDK
Inc., a British Virgin Islands corporation (together with Caxton and
Caxton International, the "Caxton Entities").
RECITALS
WHEREAS, on May 16, 2007, the Company announced that its President and
Chief Executive Officer had left the Company and had resigned from the
Company's board of directors (the "Board"), effective immediately;
WHEREAS, the Board currently consists of the following six members:
Messrs. Xxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxx and
Xxxxx X. XxXxxxxxx (the "Pre-Caxton Directors") and Messrs. Xxxxxxx X.
Xxxxxx and Xxxx X. Xxxxxxxx (the "Prior Caxton Designees" and, together
with the Pre-Caxton Directors, the "Incumbent Directors"); and
WHEREAS, among other things, the Company is willing under certain
circumstances to add to the Board two individuals set forth on Schedule
1 hereto (the "Additional Caxton Designees" and, together with the
Prior Caxton Designees, the "Caxton Designees");
WHEREAS, in consideration of the agreements of the Company and the Caxton
Entities set forth herein, among other matters, Caxton and the Company
shall enter into a confidentiality agreement (the "Confidentiality
Agreement") in the form attached as Annex A hereto and each of the Caxton
Entities shall refrain from calling for a special meeting of the
shareholders of the Company (a "Special Meeting") and to solicit proxies
from the Companies' shareholders (a "Special Meeting Solicitation") until
the 2008 annual meeting of shareholders (the "2008 Annual Meeting"); and
WHEREAS, the Company and the Caxton Entities believe that the Company may
benefit from the exchange between the Company and Caxton of certain
Non-Public Information (as defined in the Confidentiality Agreement) in
connection with (a) identifying and recruiting a new Chief Executive
Officer for the Company (the "Search Process") and (b) pursuing its
ongoing exploration of strategic alternatives that may be available to
the Company (the "Strategic Alternatives Process").
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I.
AGREEMENTS
Section 1.1. Abandonment of Special Meeting Solicitation. Neither the
Caxton Entities nor any of their Affiliates will, directly or indirectly,
(a) at any time prior to the Company's 2008 Annual Meeting (the
"Standstill Period"), demand, or encourage any other shareholder of the
Company to demand, pursuant to the Company's Bylaws or the Oregon Business
Corporation Act, that the Company call a Special Meeting or (b) with
respect to any Special Meeting held prior to the 2008 Annual Meeting (an
"Interim Special Meeting"), solicit proxies or consents for the purpose of
removing directors or increasing the authorized number of directors of the
Company or otherwise become a "participant," directly or indirectly, in
any "solicitation" of "proxies" or consents for such purpose (such quoted
terms being defined in Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act")). For purposes of this Agreement,
"Affiliate" means any person that directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common
control with, the Caxton Entities.
Section 1.2. Confidentiality Agreement; Consultation.
(a) Simultaneous with the execution of this Agreement, Caxton and the
Company shall enter into a confidentiality agreement (the "Confidentiality
Agreement") in the form attached as Annex A hereto.
(b) During the term of the Confidentiality Agreement, the Company shall,
subject to any existing contractual limitations, provide Caxton with such
Non-Public Information relating to the Search Process and the Strategic
Alternatives Process as the Company may reasonably determine to be appropriate,
and Caxton agrees to consult with and provide to the Company such assistance
as Caxton believes would be helpful to the Company in the Company's pursuit
of the Search Process and the Strategic Alternatives Process. Caxton
understands and acknowledges that the Company is not hereby making any
representation or warranty, express or implied, as to the accuracy or
completeness of the Non-Public Information, and neither the Company nor any
of its Representatives will have any liability to the undersigned or any
other person resulting from use of the Non-Public Information. For the
avoidance of doubt, the Search Process and the Strategic Alternatives Process
shall be and remain within the sole discretion of the Company, and the Company
shall remain solely responsible for the conduct thereof.
Section 1.3. Additional Caxton Designees; Company Slate.
(a) As promptly as practicable, and in any event within ten (10) business
days following the date of this Agreement, the Company shall take all action
necessary (including the calling of a special meeting of the Board to amend
the Company's Bylaws and approve such actions) to increase the authorized
number of directors of the Company from seven (7) to eight (8) members and to
cause the Board to nominate and elect the Additional Caxton Designees to fill
the newly created directorship and the existing vacancy on the Board to serve
until the next election of directors of the Company or until the earlier
resignation or removal of such directors.
(b) In the event that, prior to the date of the 2007 Annual Meeting
(as defined below), any Caxton Designee shall resign from the Board, decide
not to seek appointment to the Board or decide not to seek election to the
Board as contemplated by Section 1.3(c) of this Agreement, Caxton shall be
entitled to designate a replacement for such Caxton Designee as a member of
the Board (such replacement being a person whom Caxton believes in good faith
to be qualified to serve on the Board), and the Company shall take all
necessary action to replace such Caxton Designee with such designated
replacement as promptly as practicable. Any such designated replacement who
becomes a Board member shall be deemed to be a Caxton Designee for all purposes
under this Agreement.
(c) The Board or a nominating committee of the Board shall nominate for
election to the Board at the Company's 2007 annual meeting of shareholders
(the "2007 Annual Meeting") a slate of six (6) individuals (the "Company
Slate") that shall consist of the Caxton Designees and two (2) individuals
chosen by the Pre-Caxton Directors; provided, however, that in the event the
Company hires a new Chief Executive Officer prior to the 2007 Annual Meeting,
the Company Slate may be increased in number to include the new Chief Executive
Officer. The Board shall take such action as may be necessary so that the
Board shall consist of six (6) members (or seven (7) members in accordance
with the proviso to the immediately preceding sentence) commencing immediately
following the 2007 Annual Meeting.
(d) The Caxton Entities agree that, at the 2007 Annual Meeting, (i) they
shall vote all shares beneficially owned by them and as to which they have
voting power as of the record date for the 2007 Annual Meeting in favor of the
Company Slate and (ii) they shall not propose an alternative slate of directors
to be elected at the 2007 Annual Meeting or encourage or support any
solicitation with respect to the election of directors at the 2007 Annual
Meeting, other than a solicitation in favor of the Company Slate. Caxton will
use its reasonable efforts to cause the Caxton Designees to provide, as
promptly as reasonably practicable, all information relating to the Caxton
Designees (and other information, if any) to the extent required under
applicable law to be included in the Company's proxy statement and any other
solicitation materials to be delivered to its stockholders in connection with
the 2007 Annual Meeting or as may reasonably be requested by the Company.
(e) Notwithstanding any provision to the contrary contained in this
Agreement, the Company shall not be required to cause the Board (or the
nominating committee thereof) to nominate the Caxton Designees unless at all
times after the date hereof and prior to the 2007 Annual Meeting the Caxton
Entities and their Affiliates maintain an aggregate beneficial ownership of at
least ten (10) percent of the total number of shares of common stock of the
Company outstanding on May 1, 2007, adjusted proportionately in all cases to
reflect any stock dividend or distribution, stock split, reverse stock split,
combination, recapitalization reclassification or similar transaction affecting
the outstanding shares of common stock of the Company after the date of this
Agreement. For all purposes of this Agreement, "beneficial ownership" (and
its correlative terms) shall be determined in accordance with the rules
promulgated by the Securities and Exchange Commission under Section 13(d)
of the Exchange Act.
(f) At any time prior to the 2007 Annual Meeting applicable to the Caxton
Entities, at the request of the Company, Caxton shall certify to the Company
in writing the number of shares of Common Stock beneficially owned by the
Caxton Entities.
(g) Upon becoming directors of the Company, each Caxton Designee shall be
subject to the Company's xxxxxxx xxxxxxx guidelines and other policies
governing the Board to the same extent as any other member of the Board.
Section 1.4. Annual Meeting. Except as otherwise expressly agreed to in
writing by Caxton, the Company shall hold the 2007 Annual Meeting no later
than July 31, 2007.
Section 1.5. Publicity. Promptly following the execution of this Agreement,
the Company and the Caxton Entities shall prepare and issue a joint press
release in the form attached hereto as Annex B. Thereafter, the Company and
the Caxton Entities shall use their reasonable efforts to consult with each
other before issuing any press release or otherwise making any public statement
about the execution or terms of this Agreement.
ARTICLE II MISCELLANEOUS PROVISIONS
Section 2.1. Representations and Warranties.
(a) Each of the parties hereto represents and warrants to the other party
that:
(i) such party has all requisite authority and power to execute and deliver
this Agreement and to consummate the transactions contemplated hereby,
(ii) the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
all required action on the part of such party and no other proceedings on the
part of such party are necessary to authorize the execution and delivery of
this Agreement or to consummate the transactions contemplated hereby,
(iii) this Agreement has been duly and validly executed and delivered by
such party and constitutes the valid and binding obligation of such party
enforceable against such party in accordance with its terms, and
(iv) this Agreement will not result in a violation of any terms or provisions
of any agreements to which such person is a party or by which such party may
otherwise be bound or of any law, rule, license, regulation, judgment, order
or decree governing or affecting such party.
(b) The parties hereto acknowledge, warrant and represent that they have
carefully read this Agreement, understand it, have consulted with and received
the advice of counsel regarding this Agreement, agree with its terms, are duly
authorized to execute it and freely, voluntarily and knowingly execute it.
Section 2.2. General.
(a) This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and the respective successors, personal
representatives and assigns of the parties hereto.
(b) This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and thereof and supersedes all prior and
contemplated arrangements and understandings with respect thereto.
(c) This Agreement may be signed in counterparts, each of which shall
constitute an original and all of which together shall constitute one and
the same Agreement.
(d) All notices and other communications required or permitted hereunder
shall be effective upon receipt and shall be in writing and may be delivered
in person, by telecopy, electronic mail, express delivery service or U.S. mail,
in which event it may be mailed by first-class, certified or registered,
postage prepaid, addressed to the party to be notified at the respective
addresses set forth below, or at such other addresses which may hereinafter
be designated in writing:
If to the Company:
InFocus Corporation
00000 X.X. Xxxxxxx Xxxxxx
Xxxxxxxxxxx XX 00000
Attention: Xxxxx Xxxx, Secretary
Fax No.: (000) 000-0000
Email: Xxxxx.Xxxx@xxxxxxx.xxx
with a copy to:
Xxxxxx Xxxxxxxx Xxxx
11th Floor
000 X.X. Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
Email: xxxxxxxxxx@xxxxxx.xxx
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
Fax No.: (000) 000-0000
Email: xxxxxx@xxxxxx.xxx
If to Caxton:
Caxton Associates, L.L.C.
000 Xxxxxxxxx Xxxx, Xxxxxxxx 0
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
Email: xxxxxxxxx@xxxxxx.xxx
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
Email: xxxxxxxxx@xxxxxxx.xxx
(e) This Agreement and the legal relations hereunder between the parties
hereto shall be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and performed therein,
without giving effect to the principles of conflicts of law thereof.
(f) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid, but if any provision
of this Agreement is held to be invalid or unenforceable in any respect, such
invalidity or unenforceability shall not render invalid or unenforceable any
other provision of this Agreement.
(g) It is hereby agreed and acknowledged that it will be impossible to
measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the
event of any such failure, an aggrieved person will be irreparably damaged
and will not have an adequate remedy at law. Any such person, therefore,
shall be entitled to injunctive relief, including specific performance, to
enforce such obligations, without the posting of any bond, and, if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at law.
(h) Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(i) Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of the State
of New York and of the United States of America, in each case located in the
County of New York, for any action, proceeding or investigation in any court or
before any governmental authority arising out of or relating to this Agreement
and the transactions contemplated hereby (and agrees not to commence any
action, proceeding or investigation relating thereto except in such courts),
and further agrees that service of any process, summons, notice or document by
registered mail to its respective address set forth in this Agreement shall
be effective service of process for any action, proceeding or investigation
brought against it in any such court. Each of the parties hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue
of any action, proceeding or investigation arising out of this Agreement or
the transactions contemplated hereby in the courts of the State of New York or
the United States of America, in each case located in the County of New York,
and hereby further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, proceeding or
investigation brought in any such court has been brought in an inconvenient
forum.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first written above.
INFOCUS CORPORATION
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Cheif Financial Officer
CAXTON ASSOCIATES, L.L.C.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Cheif Financial Officer
CAXTON INTERNATIONAL LIMITED
By: Caxton Associates, L.L.C., Attorney-in-Fact
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Cheif Financial Officer
GDK, INC.
By: A.R.T. Advisors, LLC, Attorney-In-Fact
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Authorized Representative
Schedule 1
Xxxxx Xxxxxxx
Xxxxxx X. Xxxx
