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Exhibit 3
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 reasonably
be expected to result in any of the conditions set forth in Article VII or VIII
of the Merger Agreement not being fulfilled.
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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:
(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
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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.
(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
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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
Fax No.: 000.000.00.000.0000
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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.
(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.
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(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/ X. X. Xxxxx
Name: X. X. Xxxxx
Title: Group Finance Director
KDT ACQUISITION CORP.
By: /s/ X. X. Xxxxx
Name: X. X. Xxxxx
Title: Group Finance Director
NUMBER OF SHARES BENEFICIALLY
STOCKHOLDERS: 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
Title: Chairman and Chief Executive
Officer
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