Exhibit 99.3
SHAREHOLDER AGREEMENT, dated as of November 17, 1998, among
FOILMARK, INC, a Delaware corporation ("Parent"), FOILMARK
ACQUISITION CORPORATION, a Delaware corporation and a wholly owned
subsidiary of Parent ("Sub"), and the persons listed on Schedule A
hereto (each a "Shareholder", and, collectively, the "Shareholders")
WHEREAS, Parent, Sub and Holopak Technologies, Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger of even date herewith (as the same may be amended or supplemented, the
"Merger Agreement") providing for the merger of the Company with and into Sub
(the "Merger");
WHEREAS, defined terms used herein and not elsewhere defined shall
have the meaning ascribed to such terms in the Merger Agreement;
WHEREAS, each Shareholder is the owner of the number of shares of
Company Common Stock set forth opposite such Shareholder's name on Schedule A
hereto; such shares of Company 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 Company Common Stock that may be
acquired after the date hereof by such Shareholder, including shares of Company
Common Stock issuable upon the exercise of options to purchase Parent Common
Stock (as the same may be adjusted as aforesaid), being collectively referred to
herein as the "Shares"; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Sub have requested that the Shareholders enter into this
Agreement;
NOW, THEREFORE, to induce Parent and Sub to enter in to, 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:
1. Representations and Warranties of the Shareholders. Each
Shareholder hereby, severally and not jointly, represents and warrants to Parent
and Sub as follows:
(a) Authority. The Shareholder has all requisite power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Shareholder. This Agreement has been duly executed and
delivered by the Shareholder and, assuming this Agreement constitutes a valid
and binding obligation of the Parent and Sub, constitutes a valid and binding
obligation of the Shareholder enforceable against the Shareholder in accordance
with its terms, except as such enforcement may be limited by general equitable
principles and bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors generally. Except for the expiration or
termination of the waiting periods, if any, under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), filings with the
Securities and Exchange Commission and as set forth in Section 6.21 of the
Holopak Disclosure Memorandum,
781481.1
neither the execution, delivery or performance of this Agreement by the
Shareholder nor the consummation by the Shareholder of the transactions
contemplated hereby will (i) require any filing with, or permit, authorization,
consent or approval of, any federal, state or local government or any court,
tribunal, administrative agency or commission or other governmental or
regulatory authority or agency, domestic or foreign (a "Governmental Entity"),
(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 pledge, claim, lien, charge, encumbrance or security interest of
any kind or nature whatsoever (a "Lien") upon any of the properties or assets of
the Shareholder 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
the Shareholder is a party or by which the Shareholder or any of the
Shareholder's properties or assets, including the Shareholder's Shares, may be
bound or (iii) knowingly violate any judgment, order, writ, preliminary or
permanent injunction or decree (an "Order") or any statue, law, ordinance,
regulation of any Governmental Entity (a "Law") applicable to the Shareholder or
any of the Shareholder's properties or assets, including the Shareholder's
Shares.
(b) The Shares. The Shareholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by such Shareholder, or by a nominee or custodian for the benefit of
such Shareholder, and the Shareholder 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. The Shareholder owns no shares of Company Common Stock other than
such Shareholder's Shares and shares of Company Common Stock issuable upon the
exercise of Company Stock Options.
(c) Brokers. 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 by
this Agreement based upon arrangements made by or on behalf of such Shareholder.
(d) Merger Agreement. The Shareholder understands and acknowledges
that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon the Shareholder's execution and delivery of this
Agreement.
2. Covenants of the Shareholders. Each Shareholder, severally and not
jointly, agrees as follows:
(a) Until the earlier to occur of the Effective Time or the
termination of Merger Agreement, the Shareholder 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 Parent or Sub (except for a transfer of Shares to a trust
which unconditionally and irrevocably agrees to be bound by the terms of this
Agreement with respect to the Shares being transferred), (ii) enter into any
voting arrangement, whether by proxy, voting agreement, voting trust, power of
attorney or
2
781481.1
otherwise, with respect to the Shares except as provided herein 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) Until the Effective Time or termination of this Agreement in
accordance with its terms, the Shareholder shall not, and the Shareholder shall
use its reasonable best efforts to cause any of its investment bankers,
financial advisers, attorneys, accountants or other representatives not to,
directly or indirectly (i) solicit, initiate or encourage (including by way of
furnishing information), or take any other action designed to facilitate, any
inquiries or the making of any proposals which constitute, or may reasonably be
expected to lead to, any Acquisition Transaction Proposal involving the Company
or (ii) participate in any discussions or negotiations regarding any such
Acquisition Transaction Proposal. Shareholder shall notify the Parent orally and
in writing of any such proposals or inquiries relating to the purchase or
acquisition of the Shares (including, without limitation, the terms and
conditions thereof and the identity of the person making it), within 24 hours of
the receipt thereof. Shareholder shall, and shall use its reasonable best
efforts to cause its investment bankers, financial advisors, attorneys,
accountants or other representatives or agents to, immediately cease and cause
to be terminated all existing activities, discussions and negotiations, if any,
with any parties conducted heretofore with respect to any Acquisition
Transaction Proposal relating to the Company other than discussions or
negotiations with the Parent.
(c) During the period commencing on the date hereof and continuing
until the first to occur of (i) the Effective Time and (ii) termination of this
Agreement in accordance with its terms, at any meeting of shareholders 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, each Shareholder shall, including by initiating a
written consent solicitation if requested by Parent, vote (or cause to be voted)
such Shareholder's Shares in favor of the Merger, the adoption by the Company of
the Merger Agreement and the approval of the other transactions contemplated by
the Merger Agreement. During the period commencing on the date hereof and
continuing until the first to occur (i) the Effective Time and (ii) termination
of this Agreement in accordance with its terms, at any meeting of shareholders
of the Company or at any adjournment thereof or in any other circumstances upon
which the Shareholder's vote, consent or other approval is sought, such
Shareholder shall vote (or cause to be voted) such Shareholder's Shares against
(i) any merger agreement or merger (other than the Merger Agreement and the
Merger ), consolidation, combination, sale of all or substantially all assets,
reorganization, recapitalization, dissolution, liquidation or winding up of or
by the Company or any other Acquisition Transaction Proposal (collectively,
"Alternative Transactions") or (ii) any amendment of the Company's Certificate
of Incorporation or By-laws or other action involving the Company or any of its
subsidiaries, which amendment or other proposal or transaction would reasonably
be expected to delay, postpone impede, frustrate, prevent or nullify the Merger,
the Merger Agreement or any of the other transaction contemplated by the Merger
Agreement (collectively, "Frustrating Transactions").
(d) The holders of the Class A Common Stock of the Company shall
cause such Class A Common Stock to be converted into shares of Company Common
Stock prior to the record
3
781481.1
date for the Special Meeting of Shareholders of the Company to be convened for
the purpose of approving the Merger.
3. Fiduciary Duty. Notwithstanding the restrictions set forth in
Section 2(b) hereof, any person who is a director or officer of the Company may
take such action in furtherance of the exercise of his fiduciary duties in his
capacity as a director or officer with respect to the Company as opposed to with
respect to taking action with respect to the direct or indirect ownership of any
Shares, and no such action in furtherance of the exercise of fiduciary duties
shall be deemed to be a breach of, or a violation of the restrictions set forth
in Section 2(b) hereof and the Shareholders shall not have any liability
hereunder for any such action in furtherance of the exercise of fiduciary duties
by such person in his capacity as a director or officer of the Company.
4. Further Assurances. Each Shareholder will, from time to 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 Sub may reasonably request for the purpose of effectively carrying out
the transactions contemplated by this Agreement and to vest the power to vote
such Shareholder's Shares as contemplated by Section 3. Parent and Sub 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 legal requirements of the HSR Act, if any).
5. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Sub may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to Parent or to any direct or indirect wholly owned
subsidiary of Parent. 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 Shareholder agrees that this
Agreement and the obligations of such Shareholder hereunder shall attach to such
Shareholder'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 without limitation such Shareholder's heirs,
guardians, administrators or successors.
6. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the earliest of (a) the date upon which
the Merger Agreement is terminated pursuant to Section 10.1(a), (d) or (e)
thereof, (b) the Effective Time and (c) April 30, 1999.
7. Stop Transfer. The Company agrees with and covenants to Parent and
Sub that the Company shall not register the transfer of any certificate
representing any Shareholder's Shares unless such transfer is made in accordance
with the terms of this Agreement.
4
781481.1
8. General Provisions.
(a) Payments. All payments required 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 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
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices and other communications hereunder shall be
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 (returned receipt requested) 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 Sub, to
Foilmark, Inc.
Malcolm Hoyt Drive
Newburyport, MA 01950
Attention: Frank J. Olsen, Jr., Chairman and President
Telecopy No: (978) 463-8651
with a copy to:
Hinckley, Allen & Snyder
1500 Fleet Center
Providence, RI 02903
Attention:Stephen J. Carlotti, Esq.
Telecopy No: (401) 277-9600
and
5
781481.1
(ii) if to a Shareholder, to the address set forth under the name of
such Shareholder on Schedule A hereto.
with a copy to:
Battle Fowler, LLP
75 East 55th Street
New York, NY 10022
Attention: Carl A. de Brito, Esq.
Telecopy No: (212) 856-7818
(e) Interpretation. When a reference is made in this Agreement to a
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 "without
limitation".
(f) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(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 and construed in
accordance with the laws of the State of Delaware without regard to any
applicable conflicts of law.
(i) Publicity. Except as otherwise required by law, court process or
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, neither any Shareholder nor Parent 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 the other parties, which consent shall not be unreasonably
withheld.
9. Shareholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director of officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer. Each Shareholder signs solely in his or her capacity as the record
holder and beneficial owner of, or the trustee of a trust
6
781481.1
whose beneficiaries are the beneficial owners of, such Shareholder's Shares and
nothing herein shall limit or affect any actions taken by a Shareholder in its
capacity as an officer or director of the Company to the extent permitted by the
Merger Agreement.
10. Enforcement. The parties agree that irreparable damage 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 entitle to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in court of the United States located
in the State of Delaware or 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 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.
7
781481.1
IN WITNESS WHEREOF, each of Parent and Sub has caused this Agreement to be
signed by its officer thereunto duly authorized and each Shareholder has signed
this Agreement, all as of the date first written above.
FOILMARK, INC.
By: /s/ Frank J. Olsen, Jr.
---------------------------------
Name: Frank J. Olsen, Jr.
Title: Chairman and President
FOILMARK ACQUISITION CORPORATION
By: /s/ Frank J. Olsen, Jr.
---------------------------------
Name: Frank J. Olsen, Jr.
Title: Chairman and President
SHAREHOLDERS
/s/ Robert J. Simon
-------------------------------------
Name: Robert J. Simon
BRADFORD VENTURE PARTNERS, L.P.
By: Bradford Associates,
Its General Partner
By: /s/ Robert J. Simon
---------------------------------
OVERSEAS PRIVATE INVESTOR PARTNERS
By: Overseas Private Investors, Ltd.,
Its General Partner
By: /s/ Robert J. Simon
---------------------------------
8
781481.1
/s/ Brian Kelly
------------------------------------
Name: Brian Kelly
/s/ Michael S. Mathews
------------------------------------
Name: Michael S. Mathews
/s/ Harvey S. Share
-----------------------------------
Name: Harvey S. Share
Acknowledged
as to Section 2(d) and 7
HOLOPAK TECHNOLOGIES, INC.
By: /s/ James L. Rooney
--------------------
Title: ____________________
9
781481.1
SCHEDULE A
- ---------------------
NAME AND ADDRESS OF NUMBER OF NUMBER OF SHARES
SHAREHOLDER SHARES UNDERLYING OPTIONS1
Robert J. Simon 17,880 12,000
c/o Bradford Ventures, Ltd.
One Rockefeller Plaza
Suite 1722
New York, NY 10020
Bradford Venture Partners, L.P. 753,086
44 Nassau Street
Princeton, NJ 08542
Overseas Private Investor Partners 753,0862
Clarendon House
Church Street
Hamilton 5-31 Bermuda
James L. Rooney 66,667 66,667
1272 Camelot Lane
Lemont, IL 60439
Brian Kelly 8,000 8,000
c/o DelaFoil, Inc.
232 Shoemaker Road
Pottstown, PA 19464
Michael S. Mathews 17,880 12,000
193 Elm Road
Princeton, NJ 08540
Harvey S. Share 2,000 2,000
250 Ridgedale Avenue, Suite R6
Florham Park, NJ 07932
- --------
1 These options have been included in the number of shares.
2 Class A Common Stock.
10
781481.1