Exhibit 2.2
STOCKHOLDERS AGREEMENT
AGREEMENT dated as of June 2, 1999, among UNITED PAN-EUROPE
COMMUNICATIONS NV, a corporation organized under the laws of The Netherlands
(`Parent'), BISON ACQUISITION CORP., a Delaware corporation and an indirect
wholly owned subsidiary of Parent (`Sub'), and the other parties signatory
hereto (individually and collectively, the `Stockholder').
W I T N E S S E T H :
WHEREAS, prior to entering into this Agreement, Parent, Sub and Eagle,
Inc., a Delaware corporation (the `Company'), entered into an Agreement and Plan
of Merger (as such agreement may hereafter be amended from time to time, the
`Merger Agreement'; capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement), pursuant to which
Sub will be merged with and into the Company (the `Merger');
WHEREAS, in furtherance of the Merger, Parent and the Company desire
that as soon as practicable (and not later than five business days) after the
execution and delivery of the Merger Agreement, Sub commence a cash tender offer
to purchase all outstanding shares of Company Common Stock (as defined in
Section 1) including all of the Shares (as defined in Section 2); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholder agree, and the Stockholder
has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) `Company Common Stock' shall mean at any time the common stock, $.01 par
value, of the Company.
(b) `Company Securities' shall mean the Existing Options and the Existing
Company Warrants, together with any Options or Company Warrants acquired by
the Stockholder after the date hereof and prior to the termination of this
Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by
means of purchase, dividend, distribution or otherwise.
(c) `Existing Company Warrants' shall mean the Company Warrants set forth
opposite the Stockholder's name on Schedule I hereto.
(d) `Existing Options' shall mean the Options set forth opposite the
Stockholder's name on Schedule I hereto.
(e) `Person' shall mean an individual, corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity.
2. TENDER OF SHARES.
(a) Stockholder hereby agrees to validly tender (and not to withdraw) pursuant
to and in accordance with the terms of the Offer, in a timely manner for
acceptance by Sub in the Offer, the number of shares of Company Common
Stock (if any) set forth opposite the Stockholder's name on Schedule I
hereto (the `Existing Shares' and, together with any shares of Company
Common Stock acquired by the Stockholder after the date hereof and prior to
the termination of this Agreement whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of purchase, dividend, distribution or
otherwise, the `Shares'), owned by it. The Stockholder hereby acknowledges
and agrees that Parent's obligation to accept for payment and pay for
Company Common Stock in the Offer, including the Shares, is subject to the
terms and conditions of the Offer. The Stockholder shall be entitled to
receive the highest price paid by Sub pursuant to the Offer. The Offer
Price shall not be less than $19.00, payable in cash.
(b) The Stockholder hereby agrees to permit Parent and Sub to publish and
disclose in the Offer Documents and, if approval of the stockholders of the
Company is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the Securities and Exchange
Commission) its identity and ownership of Company Common Stock and the
nature of its commitments, arrangements and understandings under this
Agreement.
3. PROVISIONS CONCERNING COMPANY COMMON STOCK.
The Stockholder hereby agrees that during the period commencing on the date
hereof and continuing until the first to occur of (i) the Effective Time,
(ii) the last date the Option is exercisable pursuant to Section 4 and (iii)
the termination date set forth in Section 9, at any meeting of the holders
of Company Common Stock, however called, or in connection with any written
consent of the holders of Company Common Stock, the Stockholder shall vote
(or cause to be voted) the Shares (if any) owned by the Stockholder whether
issued, heretofore owned or hereafter acquired, (i) in favor of the Merger,
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 and this Agreement and any actions required in
furtherance thereof and hereof; (ii) against any action or agreement that
would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the
Merger Agreement; and (iii) except as otherwise agreed to in writing in
advance by Parent, against the following actions (other than the Merger and
the transactions contemplated by the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or its subsidiaries; (B) a
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; (C) (1) any change in a
majority of the persons who constitute the board of directors of the
Company; (2) any change in the present capitalization of the Company or any
amendment of the Company's Certificate of Incorporation or By-laws; (3) any
other material change in the Company's corporate structure or business; or
(4) any other action involving the Company or its subsidiaries which is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, or materially adversely affect the Merger and the transactions
contemplated by this Agreement and the Merger Agreement. The Stockholder
shall not enter into any agreement or understanding with any Person or
entity the effect of which would be to violate the provisions and agreements
contained in this Section 3.
4. STOCK OPTION; CERTAIN PURCHASE OBLIGATIONS.
(a) The Stockholder hereby grants to Sub (x) an irrevocable option (the `Stock
Option') to purchase the Shares at a purchase price per Share (the
`Purchase Price') equal to $19.00, payable in cash, and (y) an irrevocable
option (the `Securities Option' and, together with the Stock Option, the
`Option') to purchase the Company Securities at a price per Company
Security equal to the Purchase Price LESS the exercise price of such
Company Security, payable in cash, in each case until the termination date
set forth in Section 9. Until the termination date set forth in Section 9,
if (i) the Offer is terminated, abandoned or withdrawn by Parent or Sub
(whether due to the failure of any of the conditions thereto or otherwise),
(ii) the Offer is consummated but the Shares have not been validly tendered
into the Offer or (iii) the Merger Agreement is terminated in accordance
with its terms, the Option shall, in any such case, become exercisable, in
whole but not in part, upon the first to occur of any such event and remain
exercisable, in whole but not in part, until the date which is 90 days
after the date of the occurrence of such event, but shall not be
exercisable in each case unless: (x) all waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the `HSR
Act'), required for the purchase of Shares and/or Company Securities, as
the case may be, upon the exercise of the Option shall have expired or been
waived and all other necessary governmental consents required for Sub to
purchase Shares and/or Company Securities, as the case may be, upon the
exercise of the Option, including, but not limited to, all necessary
approvals of the Polish Anti-Monopoly Commission, and (y) there shall not
then be in effect any preliminary or final injunction or other order issued
by any court or governmental, administrative or regulatory agency or
authority prohibiting the exercise of the Option pursuant to this
Agreement. Provided that this Agreement has not been terminated, in the
event that the Option is not exercisable because the circumstances
described in clauses (x) and (y) have not occurred, then the Option shall
be exercisable for the 90 day period commencing on the date that the
circumstances set forth in clauses (x) and (y) have occurred. In the event
that Parent wishes to exercise the Option, Parent shall send a written
notice to the Stockholder identifying the place for the closing of such
purchase at least three business days prior to such closing.
(b) In the event that Sub shall have purchased Shares purchased in the Offer in
an amount necessary to satisfy the Minimum Condition in accordance with the
terms of the Merger Agreement, Sub shall thereafter purchase all of the
Company Securities then held by the Stockholder no later than the date
which is the third business day after the date of such consummation, at a
purchase price per Company Security equal to the Offer Price for the Shares
underlying such Company Security less the exercise price of such Company
Security.
5. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
The Stockholder hereby represents and warrants to Parent as follows:
(a) OWNERSHIP OF SHARES. The Stockholder is the record and beneficial owner of
the number of Shares and Company Securities set forth opposite such
Stockholder's name on Schedule I hereto. On the date hereof, the Existing
Shares, Existing Options and Existing Company Warrants set forth opposite
such Stockholder's name on Schedule I hereto constitute all of the Shares
and Company Securities owned beneficially or of record by such Stockholder.
The Stockholder has sole voting power and sole power to issue instructions
with respect to the matters set forth in Sections 2, 3 and 4 hereof, sole
power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Existing Shares,
Existing Options and Existing Company Warrants set forth opposite
Stockholder's name on Schedule I hereto, with no limitations,
qualifications or restrictions on such rights, subject to applicable
securities laws and the terms of this Agreement.
(b) POWER; BINDING AGREEMENT. The Stockholder has the legal capacity, power and
authority to enter into and perform all of the Stockholder's obligations
under this Agreement. The execution, delivery and performance of this
Agreement by such Stockholder will not violate any other agreement to which
the Stockholder is a party including, without limitation, any voting
agreement, stockholders agreement or voting trust. This Agreement has been
duly and validly executed and delivered by the Stockholder and constitutes
a valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms. There is no beneficiary or holder
of a voting trust certificate or other interest of any trust of which the
Stockholder is trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by the Stockholder of the
transactions contemplated hereby.
(c) NO CONFLICTS. Except for (i) filings and approvals under the HSR Act or any
other applicable Laws related to competition, antitrust, monopoly or
similar matters, (A) 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 Agreement by such Stockholder and the performance
by such Stockholder of its obligations hereunder and (B) none of the
execution and delivery of this Agreement by such Stockholder, the
performance by such Stockholder of its obligations hereunder or compliance
by such Stockholder with any of the provisions hereof shall (1) conflict
with or result in any breach of any applicable organizational documents
applicable to such Stockholder, or (2) violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to such
Stockholder or any of such Stockholder's properties or assets.
(d) NO FINDER'S FEES. Except as disclosed in the Merger Agreement, 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 or on behalf of such Stockholder.
(e) NO ENCUMBRANCES. The Stockholder's Shares and Company Securities and the
certificates representing such Shares and Company Securities 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, free and
clear of all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
The transfer by the Stockholder of its Shares and Company Securities to Sub
in the Offer or hereunder shall pass to and unconditionally vest in Sub
good and valid title to all such Shares and Company Securities, free and
clear of all claims, liens, restrictions, security interests, pledges,
limitations and encumbrances whatsoever.
(f) RELIANCE BY PARENT. The Stockholder understands and acknowledges that
Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement.
6. COVENANTS OF THE STOCKHOLDER.
The Stockholder covenants and agrees as follows:
(a) NO SOLICITATION. Beginning on the date hereof and ending on the last date
the Option is exercisable pursuant to Section 4 hereof, the Stockholder
shall not, in its capacity as such, directly or indirectly, initiate,
solicit (including by way of furnishing information), encourage or respond
to or take any other action knowingly to facilitate, any inquiries or the
making of any proposal by any person or entity (other than Parent or any
affiliate of Parent) with respect to the Company that constitutes or
reasonably may be expected to lead to, an Acquisition Proposal, or enter
into or maintain or continue discussions or negotiate with any person or
entity in furtherance of such inquiries or to obtain any Acquisition
Proposal, or agree to or endorse any Acquisition Proposal, or authorize or
permit any Person or entity acting on behalf of the Stockholder to do any
of the foregoing. If the Stockholder receives any inquiry or proposal
regarding any Acquisition Proposal, the Stockholder shall promptly inform
Parent of that inquiry or proposal and the details thereof.
(b) RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE. Beginning on the
date hereof and ending on the last date the Stock Option is exercisable
pursuant to Section 4 hereof, except as expressly contemplated by this
Agreement, the Stockholder shall not (i) directly or indirectly, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all
of such Stockholder's Shares and Company Securities or any interest
therein; provided that the Stockholder may transfer any Shares and/or
Company Securities to any Affiliate of the Stockholder; provided, further
that such transferee shall have become a party to this Agreement (or an
agreement identical to this Agreement) and shall be deemed to make all
representations and warranties set forth in paragraph 5 hereof on the date
of the transfer of such Shares and/or Company Securities; (ii) grant any
proxies or powers of attorney (except for powers of attorney granted to
Affiliates of the Stockholder solely for administrative purposes and which
require the holder thereof to vote any and all Shares subject to such
powers in accordance with this Agreement), deposit any Shares and/or
Company Securities into a voting trust or enter into a voting agreement
with respect to any Shares and/or Company Securities; or (iii) take any
action that would make any representation or warranty of such Stockholder
contained herein untrue or incorrect or have the effect of preventing the
Stockholder from performing the Stockholder's obligations under this
Agreement.
(c) WAIVER OF APPRAISAL RIGHTS. The Stockholder hereby irrevocably waives any
rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
(d) STOP TRANSFER; CHANGES IN SHARES. The Stockholder agrees with, and
covenants to, Parent that the Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate
or uncertificated interest representing any of the Stockholder's Shares or
Company Securities, unless such transfer is made in compliance with this
Agreement. In the event of a stock dividend or distribution, or any change
in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
`Shares' shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for
which any or all of the Shares may be changed or exchanged and the Purchase
Price shall be appropriately adjusted. The Stockholder shall be entitled to
receive any cash dividend paid by the Company during the term of this
Agreement until Shares are purchased in the Offer or hereunder.
7. FIDUCIARY DUTIES.
Notwithstanding anything in this Agreement to the contrary, the covenants
and agreements set forth herein shall not prevent of the Stockholder (or
any of its designees) from taking any action, subject to the applicable
provisions of the Merger Agreement, while acting in his or her (or such
designee's) capacity as a director of the Company.
8. MISCELLANEOUS.
(a) FURTHER ASSURANCES. 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 lawful action as may be
necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement; provided that no party shall be required to incur unreasonable
expense in complying with this paragraph.
(b) ENTIRE AGREEMENT. This Agreement and the Merger Agreement constitute the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understanding, both
written and oral, between the parties with respect to the subject matter
hereof.
(c) CERTAIN EVENTS. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the 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, without limitation, such Stockholder's heirs,
guardians, administrators or successors. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor in the event such
transferee does not perform such obligations.
(d) ASSIGNMENT. This Agreement shall not be assigned by operation of law or
otherwise without the prior written consent of the other party provided
that Parent may assign, at its sole discretion, its rights and obligations
hereunder to any direct or indirect wholly-owned subsidiary of Parent,
although no such assignment shall relieve Parent of its obligations
hereunder if such assignee does not perform such obligations.
(e) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the relevant
parties hereto.
(f) NOTICES. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to
have been duly received if so given) by hand delivery, telegram, telex or
telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses:
If to the Stockholders: At the addresses set forth on Schedule I hereto
copy to:
If to Parent or Sub:
c/o United Pan-Europe Communications NV
Fred. Roeskestraat 123
1076 EE Amsterdam
The Netherlands
Attention: Anton H.E. van Voskuijlen
Facsimile: +31 20 778 9817
copy to: White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: William F. Wynne, Jr., Esq.
Facsimile +212 354 8113
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(g) SEVERABILITY. Whenever possible, each provision or portion of any provision
of this 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 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
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.
(h) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the other party to sustain damages for which
it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity; provided that no party shall be liable for
any consequential or punitive damages or damages for lost profits or lost
opportunities, whether or not such damages, profits or opportunities were
foreseen or foreseeable by such party, except to the extent such damages
are the result of a breach of this Agreement arising out of the gross
negligence or willful misconduct of such party.
(i) REMEDIES CUMULATIVE. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by
any party shall not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
(j) NO WAIVER. The failure of any party hereto to exercise any right, power or
remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by
such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(k) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to be for the
benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto.
(l) GOVERNING LAW. This Agreement shall be governed and construed in accordance
with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(m) JURISDICTION. Each party hereby irrevocably submits to the exclusive
jurisdiction of any United States District Court or any court of the State
of Delaware, in each case located in the City of Wilmington, Delaware, in
any action, suit or proceeding arising in connection with this Agreement,
and agrees that any such action, suit or proceeding may be brought in such
court (and waives any objection based on forum non conveniens or any other
objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this paragraph (m)
and shall not be deemed to be a general submission to the jurisdiction of
said Courts or in the State of Delaware other than for such purposes. EACH
PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH
ANY SUCH ACTION, SUIT OR PROCEEDING.
(n) DESCRIPTIVE HEADINGS. The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
(o) COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same Agreement.
9. TERMINATION.
This Agreement shall terminate, and no party shall have any rights or
obligations hereunder and this Agreement shall become null and void and have
no effect upon the fifth day after the earlier of (1) the expiration of the
90 day exercise period set forth in Section 4 hereof, (2) at the
Stockholders, option upon the valid termination of the Merger Agreement by
the Company pursuant to Section 10.3 thereof or (3) the date which is 180
days after the date hereof.
10. BINDING AGREEMENT.
All authority and rights herein conferred or agreed to be conferred by the
Stockholder shall survive the death or incapacity of the Stockholder. This
Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, personal representatives, successors and
assigns.
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
[ ]
By: _______________________
Name:
Title:
[ ]
By: _______________________
Name:
Title:
[ ]
By: _______________________
Name:
Title:
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF SHARES AND/OR COMPANY SECURITIES OWNED
Attention: