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EXHIBIT 5
STOCKHOLDER OPTION AGREEMENT
AGREEMENT, dated as of May 18, 1994 among Speedbird Merge,
Inc., a Delaware corporation ("Buyer"), and the holders (the "Stockholders") of
the shares of common stock, $0.01 par value (the "Shares") of The ASK Group,
Inc., a Delaware corporation (the "Company"), listed on the signature pages
hereof.
In order to induce Buyer and certain of its affiliates to
enter into an agreement and plan of merger (the "Merger Agreement") with the
Company, Buyer has requested the Stockholders, and the Stockholders have
agreed, to enter into this Agreement.
The parties hereto agree as follows:
ARTICLE I
STOCK OPTION
SECTION 1.1. Grant of Stock Option. Each of the Stockholders
hereby grants to Buyer an irrevocable option (the "Option") to purchase all
Shares (including the associated Rights, as defined in Section 4.5 of the
Merger Agreement) presently owned by them as set forth on the signature pages
hereto and any additional Shares (including such associated Rights) acquired by
such Stockholder (whether by purchase or otherwise) after the date of this
Agreement (such "Stockholder's Shares" and, collectively, the "Stockholder
Shares") at a purchase price of $13.25 per Stockholder Share (including such
associated Rights) (as adjusted pursuant to Section 1.5, the "Purchase Price").
SECTION 1.2. Exercise of Option. (a) Subject to the
conditions set forth in Section 1.4 hereof, the Option may be exercised by
Buyer, in whole or in part, at any time or from time to time after the date
hereof and prior to the 30th business day after the termination of the Merger
Agreement in accordance with the terms thereof. In the event Buyer wishes to
exercise the Option for all or some of the Stockholder Shares other than
pursuant to the Offer (as defined in the Merger Agreement), Buyer shall send a
written notice (the "Exercise Notice") to the Stockholders specifying the total
number of Stockholder Shares it wishes to purchase pursuant to such exercise
(and the corresponding number of each such Stockholder's Shares) and the place,
the date (not less than one nor more than 20 business days from the date of the
Exercise Notice), and the time for the closing of such purchase, provided that
such date and time may be earlier than one day after the Exercise Notice if
reasonably practicable. Each closing of a purchase of Stockholder Shares
pursuant to this Section 1.2(a) (a "Closing") shall take place at the place, on
the date and at the time designated by Buyer in its Exercise Notice, provided
that if, at the date of the Closing herein provided for, the conditions set
forth in Section 1.4 shall not have been satisfied (or waived), Buyer may
postpone the Closing until a date within five business days after such
conditions are satisfied.
(b) Upon receipt of instructions from the Buyer, each
Stockholder shall deliver to the depositary (the "Depositary") designated in
the Offer (i) a letter of transmittal with respect to such
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Stockholder's Shares complying with the terms of the Offer together with
instructions directing the Depositary to make payment for such Shares
directly to the Stockholder (but if such Shares are not accepted for payment
and are to be returned pursuant to the Offer, to return such Shares to such
Stockholder whereupon they shall continue to be held by such Stockholder
subject to the terms and conditions of this Agreement), (ii) the Certificates
and (iii) all other documents or instruments required to be delivered pursuant
to the terms of the Offer (such documents in clauses (i) through (iii)
collectively being hereinafter referred to as the "Tender Documents").
(c) Each Stockholder will deliver (x) the Certificates to the
Buyer (in accordance with Buyer's instructions) upon receipt of the notice
provided for paragraph (a) above or (y) the Tender Documents to the Depositary
upon receipt of the instructions provided for in paragraph (b) above and will
not (without prior written notice to the Buyer) withdraw the tender effected
thereby, in each case in accordance with this Section 1.2. Any withdrawn
Shares shall continue to be held by such Stockholder subject to the terms and
conditions of this Agreement.
(d) Except to the extent otherwise provided in Section 1.2(e)
below, Buyer shall not be under any obligation to deliver any Exercise Notice
and may allow the Option to terminate without purchasing any Stockholder Shares
hereunder; provided however that once Buyer has delivered to the Stockholders
an Exercise Notice, subject to the terms and conditions of this Agreement,
Buyer shall be bound to effect the purchase as described in such Exercise
Notice.
(e) Buyer agrees that, if Buyer shall have accepted Shares for
payment and purchased Shares pursuant to the Offer, Buyer shall, within ten
business days of such purchase, exercise the Option in its entirety (or any
remaining portion of the Option). This paragraph (e) shall inure to the
benefit of the Company.
SECTION 1.3. Closing. At the Closing, (a) each Stockholder
shall deliver to Buyer (in accordance with Buyer's instructions) a certificate
or certificates (the "Certificates") representing such Stockholder's Shares,
duly endorsed or accompanied by stock powers duly executed in blank and (b)
Buyer shall deliver to such Stockholder a certified or bank cashier's check or
checks payable to or upon the order of such Stockholder in an amount equal to
(i) the number of such Stockholder's Shares being purchased at such Closing
multiplied by (ii) the Purchase Price (the "Purchase Amount").
SECTION 1.4. Conditions. The obligation of each Stockholder
to sell Stockholder Shares at any Closing is subject to the following
conditions:
(i) The representations and warranties of Buyer
contained in Article IV shall be true and correct in all material
respects on the date thereof as if made on such date.
(ii) All waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder (the "HSR Act") applicable to such
exercise of the Option shall have expired or been terminated.
(iii) There shall be no preliminary or permanent
injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or
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administrative agency or commission, nor any statute, rule, regulation
or order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining such exercise of the Option.
(iv) The Buyer shall have commenced the Offer, the Buyer
shall not have materially breached any of its material covenants and
agreements in the Merger Agreement, and the Merger Agreement shall not
have been terminated.
(v) (A) A tender or exchange offer for any Shares shall
have been made or publicly proposed to be made by another person, (B)
it shall have been publicly disclosed (or Buyer shall have learned)
that any person, entity or group (as that term is used in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended) shall
have acquired or proposed to acquire more than 25% of the Shares, or
shall have granted any option or right, conditional or otherwise, to
acquire more than 25% of the Shares, other than acquisitions for bona
fide arbitrage purposes, or a group shall have been formed the members
of which hold in the aggregate more than 25% of the Shares, (C) any
person other than Buyer or an affiliate of Buyer has entered into an
agreement or an agreement in principle providing for a merger,
consolidation or other business combination with, or a purchase of all
or substantially all the assets of, the Company or of any subsidiary
or division of the Company the business of which could constitute a
"significant subsidiary" as that term is used in Rule 1.02 of
Regulation S-X of the Securities and Exchange Commission, (D) the
Board of Directors of the Company has failed to make, or has revoked
or modified, its unqualified recommendation in favor of the Offer and
the Merger or its approval of the entry by Buyer into this Agreement,
or (E) the Company has committed a material breach of any provision of
the Merger Agreement.
SECTION 1.5. Adjustment Upon Changes in Capitalization or
Merger. (a) In the event of any change in the Company's capital stock by
reason of stock dividends, stock splits, mergers, consolidations,
recapitalizations, 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 the Buyer's rights hereunder, the number and kind of shares or
securities subject to the Option and the purchase price per Stockholder Share
(but not the total purchase price) shall be appropriately and equitably
adjusted so that the Buyer shall receive upon exercise of the Option the number
and class of shares or other securities or property that the Buyer would have
received in respect of the Stockholder Shares purchasable upon exercise of the
Option if the Option had been exercised immediately prior to such event. Each
Stockholder shall take such steps in connection with such consolidation,
merger, liquidation or other such action as may be necessary to assure that the
provisions hereof shall thereafter apply as nearly as possible to any
securities or property thereafter deliverable upon exercise of the Option.
(b) In the event the consideration per Share to be paid by
Buyer pursuant to the Offer is increased, the Purchase Price shall be similarly
increased and in the event the Closing hereunder shall have occurred, Buyer
shall promptly pay to each Stockholder the product of the amount of such
increase in the Purchase Price multiplied by the number of such Stockholder's
Shares as to which the Option has been exercised.
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ARTICLE II
GRANT OF PROXY
Each Stockholder hereby revokes any and all previous proxies
granted with respect to such Stockholder's Shares. By entering into this
Agreement, each Stockholder hereby grants a proxy appointing Buyer as such
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in such Stockholder's name, to vote, express consent or dissent, or
otherwise to utilize such voting power in such manner and upon such matters as
Buyer or its proxy or substitute shall, in Buyer's sole discretion, deem proper
with respect to such Stockholder's Shares. The proxy granted by each
Stockholder pursuant to this Article II is irrevocable and is granted in
consideration of Buyer's entering into this Agreement and the Merger Agreement;
provided, however, that such proxy shall be revoked upon termination of this
Agreement in accordance with its terms.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each of the Stockholders severally represents and warrants to
the Buyer that:
SECTION 3.1. Valid Title. Such Stockholder is the sole, true,
lawful and beneficial owner of such Stockholder's Shares with no restrictions
on such Stockholder's voting rights or rights of disposition pertaining
thereto. At any Closing, such Stockholder will convey good and valid title to
such Stockholder's Shares being purchased free and clear of any and all claims,
liens, charges, encumbrances and security interests. None of such
Stockholder's Shares is subject to any voting trust or other agreement or
arrangement with respect to the voting of such Shares.
SECTION 3.2. Non-Contravention. The execution, delivery and
performance by such Stockholder of this Agreement and the consummation of the
transactions contemplated hereby (i) are within such Stockholder's powers, 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, agency, official or
authority (except as required under the HSR 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 such
Stockholder or to a loss of any benefit of such Stockholder under, any
provision of applicable law or regulation or of any agreement, judgment,
injunction, order, decree, or other instrument binding on such Stockholder or
result in the imposition of any lien on any asset of such Stockholder.
SECTION 3.3. Binding Effect. This Agreement has been duly
executed and delivered by such Stockholder and is the valid and binding
agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
generally. If this
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Agreement is being executed in a representative or fiduciary capacity, the
person signing this Agreement has full power and authority to enter into and
perform such Agreement.
SECTION 3.4. Total Shares. Except as disclosed under Section
4.5 of the Company Disclosure Letter that accompanies the Merger Agreement, the
number of Shares set forth on the signature pages hereto are the only Shares
beneficially owned by such Stockholder and, except as set forth on such
signature pages, the beneficial owner or owners of such Stockholder's Shares
own no options to purchase or rights to subscribe for or otherwise acquire any
securities of the Company and has or have no other interest in or voting rights
with respect to any securities of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or
finder is entitled to a commission or fee from Buyer or the Company in respect
of this Agreement based upon any arrangement or agreement made by or on behalf
of such Stockholder.
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF BUYER
The Buyer represents and warrants to each of the Stockholders:
SECTION 4.1. Corporate Power and Authority. Buyer has all
requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution, delivery and performance by
Buyer of this Agreement and the consummation by Buyer of the transactions
contemplated hereby have been duly authorized by the board of directors of
Buyer and no other corporate action on the part of Buyer is necessary to
authorize the execution, delivery or performance by Buyer of this Agreement and
the consummation by Buyer of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Buyer and is a valid and
binding agreement of Buyer, 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 4.2. Acquisition for Buyer's Account. Any Stockholder
Shares to be acquired upon exercise of the Option will be acquired by Buyer 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 of 1933.
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ARTICLE V
COVENANTS OF THE STOCKHOLDERS
Each of the Stockholders hereby covenants and agrees that:
SECTION 5.1. No Proxies for or Encumbrances on Stockholder
Shares. Except pursuant to the terms of this Agreement, such Stockholder shall
not, without the prior written consent of Buyer, directly or indirectly, (i)
grant any proxies or enter into any voting trust or other agreement or
arrangement with respect to the voting of any Shares or (ii) acquire, sell,
assign, transfer, encumber or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the direct or
indirect acquisition or sale, assignment, transfer, encumbrance or other
disposition of, any Shares during the term of this Agreement. Such Stockholder
shall not seek or solicit any such acquisition or sale, assignment, transfer,
encumbrance or other disposition or any such contract, option or other
arrangement or assignment or understanding and agrees to notify Buyer promptly
and to provide all details requested by Buyer if such Stockholder shall be
approached or solicited, directly or indirectly, by any person with respect to
any of the foregoing.
SECTION 5.2. No Shopping. Such Stockholder shall not directly
or indirectly (i) solicit, initiate or encourage (or authorize any person to
solicit, initiate or encourage) any inquiry, proposal or offer from any person
to acquire the business, property or capital stock of the Company or any direct
or indirect subsidiary thereof, or any acquisition of a substantial equity
interest in, or a substantial amount of the assets of, the Company or any
direct or indirect subsidiary thereof, whether by merger, purchase of assets,
tender offer or other transaction or (ii) subject to the fiduciary duty of such
Stockholder as a director of the Company under applicable law (if such
Stockholder is such a director), participate in any discussion or negotiations
regarding, or furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or participate in, facilitate or encourage
any effort or attempt by any other person to do or seek any of the foregoing.
Such Stockholder shall promptly advise Buyer of the terms of any communications
it may receive relating to any of the foregoing.
SECTION 5.3. Conduct of Stockholders. Such Stockholder will
not (i) take, agree or commit to take any action that would make any
representation and warranty of such Stockholder hereunder inaccurate in any
respect as of any time prior to the termination of this Agreement or (ii) omit,
or agree or commit to omit, to take any action necessary to prevent any such
representation or warranty from being inaccurate in any respect at any such
time.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost
or expense.
SECTION 6.2. Further Assurances. In the event the Buyer
exercises the Option, the Buyer and the Stockholders will each execute and
deliver or cause to be executed and delivered all further documents and
instruments and use its 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 or to enable the Buyer and any assignee to
exercise and enjoy all benefits and rights of the Stockholders with respect to
the Option and the Stockholder Shares.
SECTION 6.3. Additional Agreements. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action 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 hereto agree
that the Buyer may be irreparably damaged if for any reason any Stockholder
failed to sell such Stockholder's Shares (or other securities deliverable
pursuant to Section 1.5) upon exercise of the Option or to perform any of its
other obligations under this Agreement, and that the Buyer would not have an
adequate remedy at law for money damages in such event. Accordingly, the Buyer
shall be entitled to specific performance and injunctive and other equitable
relief to enforce the performance of this Agreement by each Stockholder. This
provision is without prejudice to any other rights that the Buyer may have
against any Stockholder for any failure to perform its obligations under this
Agreement.
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 Stockholder Shares.
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. This Agreement
may be terminated by any of the parties hereto upon written notice to the other
parties hereto on or after the 30th business day after the termination of the
Merger Agreement in accordance with its terms.
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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 that Buyer may assign its
rights and obligations to any affiliate of Buyer and provided, further, that no
Stockholder may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the Buyer.
SECTION 6.9. Governing Law. This Agreement shall be construed
in accordance with and governed by the law of New York 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 effect as if the signatures thereto and hereto 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.
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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.
SPEEDBIRD MERGE, INC.
By /s/ Belden A. Frease
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One Computer Associates Plaza
Islandia, NY 11788-7000
ELECTRONIC DATA SYSTEMS CORPORATION
Class of Shares
Stock Owned By /s/ Robert N. Sharpe
------- ------ ---------------------------
Vice President
common 4,008,535 7117 Forest Lane
Dallas, TX 75230
HEWLETT-PACKARD COMPANY
Class of Shares
Stock Owned By /s/ D. Craig Nordlund
------- ------ ---------------------------
Associate General Counsel
and Secretary
common 2,004,268 3000 Hanover Street
Palo Alto, CA 94304
THOMAS I. UNTERBERG
Class of Shares
Stock Owned /s/ Thomas I. Unterberg
------- ------ ------------------------------
common 0 c/o The ASK Group, Inc.
2880 Scott Boulevard
Santa Clara, CA 95052
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ROBERT H. WATERMAN, JR.
Class of Shares
Stock Owned /s/ Robert H. Waterman, Jr.
------- ------ -----------------------------
common 6,000 c/o The ASK Group, Inc.
2880 Scott Boulevard
Santa Clara, CA 95052
PAUL C. ELY, JR.
Class of Shares
Stock Owned /s/ Paul C. Ely, Jr.
------- ------ -----------------------------
common 5,000 c/o The ASK Group, Inc.
2880 Scott Boulevard
Santa Clara, CA 95052
ERIC CARLSON
Class of Shares
Stock Owned /s/ Eric Carlson
------- ------ -----------------------------
common 10,000 c/o The ASK Group, Inc.
2880 Scott Boulevard
Santa Clara, CA 95052
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