Exhibit (2)(d)
EXECUTION COPY
STOCKHOLDER AGREEMENT, as of April 26, 1999, among GEC
INCORPORATED, a Delaware corporation ("Parent"), GEC ACQUISITION
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CORP., a Delaware corporation and a wholly owned subsidiary of
Parent ("Purchaser"), and the persons listed on Schedule A hereto
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(each a "Stockholder" and, collectively, the "Stockholders").
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WHEREAS, concurrently with the execution of this Agreement, Parent,
Purchaser and FORE Systems, Inc., a Delaware corporation (the "Company"), are
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entering into an Agreement and Plan of Merger dated as of the date hereof (as
the same may be amended or supplemented, the "Merger Agreement"; terms used but
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not defined herein have the meanings set forth in the Merger Agreement)
providing for the making of a cash tender offer (as such offer may be amended
from time to time as permitted under the Merger Agreement, the "Offer") by
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Purchaser for shares of Common Stock, par value $.01 per share, of the Company
(the "Common Stock") and the merger of the Company and Purchaser (the "Merger");
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WHEREAS, each Stockholder is the beneficial owner of the shares of
Common Stock set forth opposite such Stockholder's name on Schedule A hereto;
such shares of Common Stock, as such shares may be adjusted by stock dividend,
stock split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the
Company, together with shares of Common Stock that may be acquired after the
date hereof by such Stockholder, including shares of Common Stock issuable upon
the exercise of options to purchase Common Stock (as the same may be adjusted as
aforesaid), being collectively referred to herein as the "Shares" of such
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Stockholder; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that the Stockholders enter into
this Agreement;
NOW, THEREFORE, to induce Parent and Purchaser to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
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SECTION 1. Agreement to Sell; Tender.
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(a) Subject to Section 8, as promptly as practicable following the
expiration of the Offer (but in no event later than 10:00 a.m., New York City
time, immediately after such expiration), each Stockholder hereby severally and
not jointly agrees to sell to Purchaser, and Purchaser agrees to purchase, all
the Shares owned by such Stockholder not tendered pursuant to Section 1(b) at a
price per Share equal to the price per Share paid by Purchaser in the Offer (the
"Offer Price"). The obligations of each Stockholder to sell its Shares pursuant
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to this Section 1(a) is conditioned upon Purchaser purchasing shares of Common
Stock pursuant to the Offer.
(b) In addition, each Stockholder hereby severally and not jointly
agrees that if such Stockholder is directed to tender the Shares it owns as of
the date hereof and any Shares it may acquire prior to the expiration of the
Offer by Purchaser pursuant to the following sentence, it shall promptly tender
all such Shares in the Offer, and it shall not withdraw any Shares so tendered
(it being understood that the obligation contained in this sentence is
unconditional, subject to Section 8). In the event that Purchaser wishes to
direct a Stockholder to tender its Shares, Purchaser shall give written notice
to such Stockholder to such effect and specifying the number (if less than all)
of such Stockholder's Shares. Section 1(a) above shall be deemed satisfied upon
completion of the purchase of such Shares in the Offer.
(c) In addition, each Stockholder hereby severally and not jointly
grants to Purchaser an irrevocable option (as to each Stockholder, the "Option")
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to purchase any of or all the Shares owned by such Stockholder and any of or all
the Shares for which any stock options owned by such Stockholder are then
exercisable on the date the Option is exercised by the Purchaser (on any date,
the "Vested Options") in each case at a price per Share equal to the Offer
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Price. Subject to Section 8, the Option may be exercised at any time and from
time to time after any breach by such Stockholder of Section 4(b) or after
Parent is entitled to a Termination Fee pursuant to the Merger Agreement as a
result of a breach of Section 7.03 thereof. In the event that Purchaser wishes
to exercise the Option as to a Stockholder, Purchaser shall give written notice
(the date of such notice being called the "Notice Date") to such Stockholder and
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to the Company specifying the number (if less than all) of such Stockholder's
Shares, including shares of Common Stock underlying Vested Options, and a
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place, time and date not later than 10 Business Days from the Notice Date for
the closing of such purchase.
SECTION 2. Representations and Warranties of the Stockholders. Each
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Stockholder hereby represents and warrants to Parent and Purchaser as follows:
(a) Authority. Such Stockholder has all requisite power and
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authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. If such Stockholder is not an individual, the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by such
Stockholder. This Agreement has been duly executed and delivered by such
Stockholder and constitutes a valid and binding obligation of the Stockholder
enforceable against such Stockholder in accordance with its terms, except as the
same may be limited by (a) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar Laws (as defined in the Merger Agreement)
relating to creditors' rights generally and (b) legal principles of general
applicability governing the application and availability of equitable remedies.
Except for the expiration or termination of any applicable waiting period under
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR
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Act"), neither the execution, delivery or performance of this Agreement by such
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Stockholder nor the consummation by such Stockholder of the transactions
contemplated hereby will (i) require any filing with, or permit, authorization,
consent or approval of, any Governmental Authority (as defined in the Merger
Agreement), (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default under, or give rise to
any right of termination, amendment, cancellation or acceleration under, or
result in the creation of any Lien (as defined in the Merger Agreement) upon any
of the properties or assets of such Stockholder under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, license,
permit, concession, franchise, contract, agreement or other instrument or
obligation (a "Contract") to which such Stockholder is a party or by which such
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Stockholder or any of such Stockholder's properties or assets, including such
Stockholder's Shares, may be bound or (iii) violate any Order (as defined in the
Merger Agreement) or any Law applicable to such Stockholder or any of such
Stockholder's properties or assets, including such Stockholder's Shares, other
than, in the case of clause (ii) above, such items that, individually or in the
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aggregate, have not and could not reasonably be expected to have a material
adverse effect on the ability of such Stockholder to perform its obligations
under this Agreement.
(b) The Shares. Such Stockholder's Shares and the certificates
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representing such Shares are now, and at all times during the term hereof will
be, held by such Stockholder, or by a nominee or custodian for the benefit of
such Stockholder, and such Stockholder is the legal and beneficial owner of and
has good and marketable title to such Shares, free and clear of any Liens,
proxies, voting trusts or agreements, understandings or arrangements, except for
any such Liens or proxies arising hereunder.
(c) Brokers. No broker, investment banker, financial advisor or
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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 by
this Agreement based upon arrangements made by or on behalf of such Stockholder.
(d) Merger Agreement. Such Stockholder understands and acknowledges
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that Parent is entering into, and causing Purchaser to enter into, the Merger
Agreement in reliance upon such Stockholder's execution and delivery of this
Agreement.
SECTION 3. Representations and Warranties of Parent and the
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Purchaser. Parent and the Purchaser hereby represent and warrant to the
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Stockholders as follows:
(a) Authority. Each of Parent and such Purchaser has the requisite
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corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement by Parent and such Purchaser and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Parent and such Purchaser. This
Agreement has been duly executed and delivered by Parent and such Purchaser and
constitutes a valid and binding obligation of Parent and Purchaser enforceable
in accordance with its terms, except as the same may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar Laws relating to creditors' rights generally and (b) legal
principles of general applicability governing the application and availability
of equitable remedies.
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(b) Securities Act. The Shares will be acquired in compliance with,
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and such Purchaser will not offer to sell or otherwise dispose of any Shares so
acquired by it in violation of the registration requirements of, the Securities
Act of 1933, as amended.
SECTION 4. Covenants of the Stockholders. Each Stockholder agrees
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as follows:
(a) Such Stockholder shall not, except as contemplated by the terms
of this Agreement, (i) sell, transfer, pledge, assign or otherwise dispose of,
or enter into any Contract, option or other arrangement (including any profit
sharing arrangement) or understanding with respect to the sale, transfer,
pledge, assignment or other disposition of, the Shares to any person other than
Purchaser or Purchaser's designee, (ii) enter into any voting arrangement,
whether by proxy, voting agreement, voting trust, power-of-attorney or
otherwise, with respect to the Shares or (iii) take any other action that would
in any way restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby.
(b) Subject to Section 11 hereof, until the Merger is consummated or
the Merger Agreement is terminated, such Stockholder shall not, nor shall such
Stockholder permit any investment banker, financial adviser, attorney,
accountant or other representative or agent of such Stockholder to, directly or
indirectly (i) solicit, initiate or encourage (including by way of furnishing
information), or take any other action designed or reasonably likely to
facilitate, any inquiries or the making of any proposal which constitutes, or
may reasonably be expected to lead to, any Acquisition Proposal (as defined in
the Merger Agreement) or (ii) participate in any discussions or negotiations
regarding any Acquisition Proposal. Without limiting the foregoing, it is
understood that any violation of the restrictions set forth in the preceding
sentence by an investment banker, financial advisor, attorney, accountant or
other representative or agent of such Stockholder shall be deemed to be a
violation of this Section 4(b) by such Stockholder.
(c) At any meeting of stockholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought,
such Stockholder shall vote (or cause
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to be voted) such Stockholder's Shares in favor of the Merger, the adoption by
the Company of the Merger Agreement and the approval of the other Transactions
(as defined in the Merger Agreement). At any meeting of stockholders of the
Company or at any adjournment thereof or in any other circumstances upon which
the Stockholder's vote, consent or other approval is sought, the Stockholder
shall vote (or cause to be voted) the Stockholder's Shares against (i) any
merger agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the Company or
any other Acquisition Proposal (collectively, "Alternative Transactions") or
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(ii) any amendment of the Company's certificate of incorporation or bylaws or
other proposal or transaction involving the Company or any of its subsidiaries,
which amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Offer, the Merger, the Merger Agreement or any
of the other Transactions (collectively, "Frustrating Transactions").
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SECTION 5. Grant of Irrevocable Proxy; Appointment of Proxy. (a)
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Each Stockholder hereby irrevocably grants to, and appoints, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇▇▇▇▇ and any other individual who shall hereafter be designated by
Parent, and each of them, such Stockholder's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of such
Stockholder, to vote such Stockholder's Shares, or grant a consent or approval
in respect of such Shares, at any meeting of stockholders of the Company or at
any adjournment thereof or in any other circumstances upon which their vote,
consent or other approval is sought, in favor of the Merger, the adoption by the
Company of the Merger Agreement and the approval of the terms thereof and each
of the other transactions contemplated by the Merger Agreement and against any
Alternative Transaction or Frustrating Transaction.
(b) Each Stockholder represents that any proxies heretofore given in
respect of such Stockholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 5 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of such Stockholder under this
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Agreement. Such Stockholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked, subject to
Section 8. Such Stockholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in accordance with
the provisions of the General Corporation Law of the State of Delaware. Such
irrevocable proxy shall be valid until the termination of this Agreement
pursuant to Section 8.
SECTION 6. Further Assurances. Each Stockholder will, from time to
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time, execute and deliver, or cause to be executed and delivered, such
additional or further transfers, assignments, endorsements, consents and other
instruments as Parent or Purchaser may reasonably request for the purpose of
effectively carrying out the transactions contemplated by this Agreement and to
vest the power to vote such Stockholder's Shares as contemplated by Section 5.
Parent and Purchaser jointly and severally agree to use reasonable efforts to
take, or cause to be taken, all actions necessary to comply promptly with all
legal requirements that may be imposed with respect to the transactions
contemplated by this Agreement (including any applicable legal requirements of
the HSR Act).
SECTION 7. Assignment. Neither this Agreement nor any of the rights,
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interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Purchaser
may assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to Parent or to an Affiliate (as defined in the Merger
Agreement) of Parent, but no such assignment shall relieve Purchaser of any of
its obligations under this Agreement. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by,
the parties and their respective successors and assigns. Each Stockholder
agrees that this Agreement and the obligations of such Stockholder hereunder
shall attach to such Stockholder's Shares and shall be binding upon any person
or entity to which legal or beneficial ownership of such Shares shall pass,
whether by operation of law or otherwise, including such Stockholder's heirs,
guardians, administrators or successors.
SECTION 8. Termination. This Agreement shall terminate upon the
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earlier of (i) the Effective Time and (ii) the termination of the Merger
Agreement in accordance with its terms, except that, with respect to each
Stockholder, Section 1(c) shall (x) survive (A) any
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termination pursuant to clause (ii) above in the event that such termination was
the result of a breach by the Company of Section 7.03 of the Merger Agreement or
(B) if at the time of such termination, such Stockholder is in breach Section
4(b) and (y) shall remain in effect so long as Purchaser has the right to
exercise the option granted by the Company under the Option Agreement.
SECTION 9. Stop Transfer. The Company agrees with, and covenants to,
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Parent and Purchaser that the Company shall not register the transfer of any
certificate representing any Stockholder's Shares unless such transfer is made
in accordance with the terms of this Agreement.
SECTION 10. General Provisions. (a) Payments. All payments required
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to be made to any party to this Agreement shall be made by wire transfer of
immediately available funds to an account designated by such party at least one
trading day prior to such payment.
(b) Expenses. All costs and expenses incurred in connection with
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this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense.
(c) Amendments. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties hereto.
(d) Notice. All notices and other communications hereunder shall be
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in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed), sent by overnight courier (providing proof of delivery) or mailed
by registered or certified mail (return receipt requested)
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to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(i) if to Parent or Purchaser, to:
GEC Incorporated and
GEC Acquisition Corp.
c/o Videojet Systems International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
and
(ii) if to a Stockholder, to the address set forth under the name of
such Stockholder on Schedule A hereto
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
One Oxford Centre
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(e) Interpretation. When a reference is made in this Agreement to a
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Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Wherever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words
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"without limitation". Words in the singular include the plural, and words in the
plural include the singular.
(f) Counterparts. This Agreement may be executed in multiple
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counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement
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(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(h) Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the Laws of the State of Delaware, regardless of
the Laws that might otherwise govern under applicable principles of conflict of
Law.
(i) Publicity. Except as otherwise required by Law, court process or
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the rules of a national securities exchange or the Nasdaq National Market or as
contemplated or provided in the Merger Agreement, for so long as this Agreement
is in effect, no Stockholder shall issue or cause the publication of any press
release or other public announcement with respect to the transactions
contemplated by this Agreement or the Merger Agreement without the consent of
Parent, which consent shall not be unreasonably withheld.
SECTION 11. Stockholder Capacity. No person executing this Agreement
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makes any agreement or understanding herein in his or her capacity as a director
or officer of the Company or any subsidiary of the Company. Each Stockholder
signs solely in his or her capacity as the beneficial owner of such
Stockholder's Shares and nothing herein shall limit or affect any actions taken
by a Stockholder in its capacity as an officer or director of the Company or any
subsidiary of the Company to the extent specifically permitted by the Merger
Agreement.
SECTION 12. Performance by Purchaser. Parent covenants and agrees
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for the benefit of the Stockholders that it shall cause Purchaser to perform in
full each obligation of Purchaser set forth in this Agreement.
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SECTION 13. Enforcement. The parties agree that irreparable damage
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would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any federal court located in the
State of Delaware or in any Delaware state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court located in the state
of Delaware or a Delaware state court and (iv) waives any right to trial by jury
with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby. The parties
irrevocably and unconditionally waive any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of Delaware or of the United
States of America located in the State of Delaware, and hereby further
irrevocably and unconditionally waive and agree 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.
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IN WITNESS WHEREOF, each of Parent and Purchaser has caused this
Agreement to be signed by its officer or director thereunto duly authorized and
each Stockholder has signed this Agreement, all as of the date first written
above.
GEC INCORPORATED,
By________________________
Name:
Title:
GEC ACQUISITION CORP.,
By________________________
Name:
Title:
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STOCKHOLDERS
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▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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ACKNOWLEDGED AND AGREED
TO AS TO SECTION 9:
FORE SYSTEMS, INC.,
By________________________
Name:
Title:
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Schedule A
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Total number Total number
of shares of shares
underlying
stock options
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▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,154,978 960,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,776,558 606,000