exhibit (d) (5)
December 11, 2001
SDL International plc
Xxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxxxxxxx
XX0 0XX
Xxxxxx Xxxxxxx
Re: Stockholder Agreement
Dear Sirs:
The undersigned (the "Stockholder") understands that SDL International
plc, a company organized under the laws of England and Wales ("Acquiror") is
considering an acquisition of all or substantially all of the capital stock of
ALPNET, Inc. (the "Acquisition").
The Stockholder is a stockholder of ALPNET, Inc. (the "Company") and is
entering into this letter agreement (the "Stockholder Agreement") to induce you
to proceed with an Acquisition and to consummate the transactions contemplated
thereby.
The Stockholder confirms its agreement with you as follows:
1. The Stockholder represents, warrants and agrees that Schedule I annexed
hereto sets forth the shares of Common Stock of the Company of which the
Stockholder or its affiliates (as defined under the Securities Exchange Act of
1934, as amended) are the record and/or beneficial owner and that the
Stockholder and its affiliates are on the date hereof the lawful owners of the
number of shares of Common Stock set forth in Schedule I beside the name of the
Stockholder or such other person. Except as set forth in Schedule I, neither the
Stockholder nor any of its affiliates, own or hold any rights to acquire any
additional shares of the capital stock of the Company (by exercise of stock
options or otherwise) or any interest therein or any voting rights with respect
to any additional shares of Common Stock. The Stockholder, has sole voting power
and sole power to issue instructions with respect to the matters set forth
herein, sole power of disposition, sole power of conversion, sole power to
demand appraisal rights and sole power to engage in the actions set forth
herein, in each case with respect to the shares of Common Stock set forth on
Schedule I hereto beside the name of the Stockholder or such other person.
2. Effective and commencing only at the time SDL and the Company executed
a definitive agreement (the "Merger Agreement") providing for the Acquisition
(the "Merger Agreement Effective Time") the Stockholder agrees, until February
28, 2002, that it will not permit any company, trust or other person or entity
controlled by the Stockholder to, and will not permit any of its affiliates to,
contract to sell, sell or otherwise transfer or dispose of any shares of Common
Stock or any interest therein or securities convertible therein to or any voting
rights with respect thereto, other than (i) pursuant to the Acquisition, or (ii)
with your prior written consent.
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3. The Stockholder agrees that it will not, and will not permit any such
company, trust or other entity or person controlled by it to, and will not
authorize any of its affiliates to, directly or indirectly (including through
its officers, directors, employees or other representatives) solicit, initiate,
encourage or facilitate, or furnish or disclose non-public information in
furtherance of, any inquiries or the making of any proposal with respect to any
recapitalization, Acquisition, consolidation or other business combination
involving the Company, or the acquisition of any capital stock or any material
portion of the assets of the Company, or any combination of the foregoing (a
"Competing Transaction"), or negotiate, explore or otherwise engage in
discussions with any person (other than Acquiror and its affiliates, or their
respective directors, officers, employees, agents and representatives) with
respect to any Competing Transaction or enter into any agreement, arrangement or
understanding with respect to any Competing Transaction or agree to or otherwise
assist in the effectuation of any Competing Transaction; provided, however, that
nothing herein shall prevent or restrict the Stockholder, or any director or
trustee of the Stockholder, who is a director or officer of the Company from
taking any action or exercising his independent judgment in his capacity as a
director or officer of the Company.
4. Effective and commencing only at the Merger Agreement Effective Time,
the Stockholder agrees during the term of this Agreement that all of the shares
of Common Stock beneficially owned by the Stockholder, or over which the
Stockholder has voting power or control, directly or indirectly (including any
shares of Common Stock beneficial ownership of which is acquired by the
Stockholder after the date hereof), at the record date for any meeting of the
Company's stockholders, however called, or in connection with any written
consent of the stockholders of the Company, shall be voted (or caused to be
voted) (i) in favor of the Acquisition, the execution and delivery by the
Company of the Merger Agreement and the approval of the terms thereof and each
of the other actions contemplated by the Merger Agreement, this Stockholder
Agreement and any actions required in furtherance hereof and thereof; (ii)
against any action or agreement that would 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 under this Stockholder Agreement; and
(iii) except as otherwise agreed to in writing in advance by Acquiror, against
the following actions (other than the Acquisition and the transactions with you
or your affiliates contemplated by the Merger Agreement): (1) any extraordinary
corporate transaction, such as an Acquisition, consolidation or other business
combination involving the Company or its Subsidiaries; (2) any sale, lease or
transfer of a material amount of assets of the Company or its Subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its Subsidiaries; (3) (a) any change in the majority of the Board of Directors
of the Company; (b) any material change in the present capitalization of the
Company or any amendment of the Company's charter or bylaws; (c) any other
material change in the Company's corporate structure or business; or (d) any
other action, which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, discourage or materially adversely affect the
contemplated economic benefits to Acquiror of the Acquisition or the
transactions contemplated by the Merger Agreement or this Stockholder Agreement.
5. Effective and commencing only at the Merger Agreement Effective Time,
the Stockholder hereby grants to, and appoints, Acquiror and its officers, and
any other designee of Acquiror, each of them individually, the Stockholder's
irrevocable proxy and attorney-in-fact (with full power of substitution) to vote
(as indicated in Section 4 above) the shares of Common Stock listed on Schedule
I hereto beside the name of the Stockholder, and any shares of Common Stock
beneficial ownership of which is acquired by the Stockholder after the date
hereto at a duly called meeting of the Company's stockholders (and, in the event
the
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Stockholder has breached its obligations under this Stockholder Agreement or the
Company breaches its obligation under the Merger Agreement to call and hold or
otherwise fails to hold the Company Stockholders' Meeting, by duly executed
written consent of stockholders). The Stockholder intends this proxy to be
irrevocable, subject to Section 13 hereof, and coupled with an interest and will
take such further action and execute such other instruments as may be necessary
to effectuate the intent of this proxy and hereby revokes any proxy previously
granted by the Stockholder with respect to the Stockholder's shares of Common
Stock. The Stockholder agrees that if requested by Acquiror, the Stockholder
will not attend or vote any shares of Common Stock beneficially owned by the
Stockholder at any annual or special meeting of stockholders or execute any
written consent of stockholders.
6. The Stockholder has the legal capacity, power and authority to enter
into and perform all of such Stockholder's obligations under this Stockholder
Agreement. The execution, delivery and performance of this Stockholder Agreement
by such Stockholder will not violate any other agreement to which such
Stockholder is a party including, without limitation, any trust agreement,
voting agreement, stockholders agreement or voting trust. This Stockholder
Agreement has been duly and validly executed and delivered by the Stockholder,
and is enforceable against the Stockholder in accordance with its terms. There
is no beneficiary or holder of any interest of the Stockholder or any trust of
which the Stockholder is a trustee whose consent is required for the execution
and delivery of this Stockholder Agreement or the consummation of the
transactions contemplated hereby. If the Stockholder is married and the
Stockholder's shares of Common Stock constitute community property, this letter
agreement has been duly authorized, executed and delivered by, and constitutes a
valid and binding agreement of, the Stockholder's spouse, enforceable against
such spouse in accordance with its terms.
7. Except for filings with the Securities and Exchange Commission, if
applicable, no filing with, and no permit, authorization, consent or approval
of, any state or federal public body or authority is necessary for the execution
of this Stockholder Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby.
8. The Stockholder's shares of Common Stock (as listed on Schedule I) and
the certificates representing such shares of Common Stock are now and at all
times during the term hereof will be held by the Stockholder, or by a nominee or
custodian for the benefit of the Stockholder, free and clear of all liens,
claims, security interests, rights of first refusal or offer, proxies, voting
trusts or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
9. 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 the transactions contemplated hereby based upon
arrangements made by the Stockholder.
10. The Stockholder agrees that damages are an inadequate remedy for the
breach by the Stockholder of any term or condition of this Stockholder Agreement
and that Acquiror shall be entitled, without limitation of other available
rights or remedies, to specific performance, a temporary restraining order and
preliminary and permanent injunctive relief in order to enforce the
Stockholder's agreements herein.
11. Effective and commencing at the Merger Agreement Effective Time, the
Stockholder agrees that this Stockholder Agreement and the obligations hereunder
shall attach to such Stockholder's shares of Common Stock and shall be binding
upon any person or entity
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to which legal or beneficial ownership of such shares of Common Stock shall
pass, whether by operation of law or otherwise, including without limitation
such Stockholder's heirs, guardians, administrators or successors.
12. From time to time, at the other party's request and without further
consideration, each party hereto shall execute and deliver such additional
documents and take all such further action as may be necessary or desirable to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Stockholder Agreement.
13. This Stockholder Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
14. This Stockholder Agreement shall be governed by and construed in
accordance with the laws of the State New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
Whenever possible, each provision or portion of any provision of this
Stockholder Agreement will be interpreted in such manner as to be effective and
valid under applicable law but if any provision or portion of any provision of
this Stockholder Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Stockholder Agreement
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein. Each party hereto irrevocably and unconditionally
consents and submits to the exclusive jurisdiction of the courts of the State of
New York and of the United States of America located in the State of New York
for any actions, suits or proceedings arising out of or relating to this
agreement and the transactions contemplated hereby, and further agrees that
service of any process, summons, notice or document by U.S. registered or
certified mail to the Stockholder at his or its address below, or to Acquiror at
the address set forth above, shall be effective service of process for any
action, suit or proceeding brought against such party in such court (and such
address shall be also used for notices under this Stockholder Agreement). Each
party hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this
Stockholder Agreement or the transactions contemplated hereby, in the courts of
the State of New York located in New York City or the United States of America
located in New York City, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
15. Effective and commencing only at the Merger Agreement Execution Time,
the Stockholder agrees that in the event SDL or any of its affiliates commences
a tender offer in any Acquisition approved by the Company (and not subsequently
rejected) and occurring during the Effective Period, the Stockholder will tender
all of its shares of Common Stock of the Company to SDL or such affiliate,
within 10 days following such commencement of such tender offer and will not
thereafter withdraw any such shares (provided that the Stockholder shall not
receive less consideration than any other stockholder of the Company).
16. Please confirm that the foregoing correctly states the understanding
between us by signing and returning to me a counterpart hereof, whereupon this
will become a legal and binding obligation.
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VERY TRULY YOURS,
/ s / Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Address:
Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx
Xxxx Xxxxxx XX000XX
Xxxxxx Xxxxxxx
Confirmed on the date
first above written.
SDL INTERNATIONAL PLC
By: / s / Xxxx Xxxxxxxxx
----------------------------------
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SCHEDULE I
NAME AND ADDRESS OF STOCKHOLDER COMMON STOCK
------------------------------- ------------
OWN NAME:
Xxxxxxx X. Xxxxxxx 330,000 shares
C/o ALPNET Inc.
0000 Xxxxx Xxxxxxxx Xxxxx Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000-0000
OWN NAME:
Xxxxxxx X. Xxxxxxx 134,369 shares
Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxx XX000XX
Xxxxxx Xxxxxxx
NOBO:
Xxxxxxx Xxxxxxx 35,000 shares
Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx
Xxxx Xxxxxx XX000 RX
United Kingdom
OBJECTING BENEFICIAL OWNER:
Xxxx Xxxxxxx 904,517 shares
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