EXHIBIT 3
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of October 19, 1999 (this
"Agreement"), among EDB Business Partner ASA, a Norwegian Public Limited Company
(the "Parent"), EDB 4tel Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of the Parent ("Purchaser"), and Frances Penfold (the
"Stockholder").
WHEREAS, concurrently with the execution and delivery of this
Agreement the Parent, Purchaser and Telesciences, Inc., a Delaware corporation
(the "Company"), have entered into an Agreement and Plan of Merger dated as of
the date hereof (such Agreement and Plan of Merger, as amended from time to
time, the "Merger Agreement"), which provides, among other things, that
Purchaser shall make the Offer (as defined in the Merger Agreement) to purchase
at a price of $8.79 per share, net to the sellers in cash, all of the issued and
outstanding shares of the Company's Common Stock, par value $0.04 per share (the
"Company Common Stock"), and shall merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement (any term used herein without definition shall have the definition
ascribed thereto in the Merger Agreement);
WHEREAS, the Stockholder owns beneficially and of record 97,837 shares
of Company Common Stock (such shares of Company Common Stock being collectively
referred to herein as the "Stockholder Shares"); and
WHEREAS, as a condition to the willingness of the Parent and Purchaser
to enter into the Merger Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Parent and Purchaser to tender the
Stockholder Shares and any other shares of Company Common Stock at any time
during the term of this Agreement held by the Stockholder, pursuant to the
Offer, to vote all the Stockholder Shares and any other shares of Company Common
Stock owned by the Stockholder in favor of the Merger, all on the terms and
conditions contained in this Agreement.
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NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I
Tender Offer
SECTION 1.1. Tender of Shares. (a) At least two business days prior to
the consummation by the Purchaser of the Offer, the Stockholder shall tender to
the Depository designated in the Offer to Purchase (the "Offer to Purchase")
distributed by Purchaser in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder Shares and any other shares of
Company Common Stock held by the Stockholder (whether or not currently held by
the Stockholder; the Stockholder Shares, together with any shares acquired by
the Stockholder in any capacity 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")),
complying with the terms of the Offer to Purchase, (ii) the certificates
representing the Shares, and (iii) all other documents or instruments required
to be delivered pursuant to the terms of the Offer to Purchase.
(b) The Stockholder shall not, subject to applicable law,
withdraw the tender effected in accordance with Section 1.1(a); provided,
however, that the Stockholder may decline to tender, or may withdraw, any and
all Shares owned by the Stockholder if the Purchaser amends the Offer to (w)
reduce the Offer Price to less than $8.79 in cash, net to the stockholders, (x)
reduce the number of shares of Company Common Stock subject to the Offer, (y)
change the form of consideration payable in the Offer or (z) amend or modify any
term or condition of the Offer in a manner adverse to the stockholders of the
Company (other than insignificant changes or amendments or other than to waive
any condition). The Stockholder shall give Purchaser at least two business days'
prior notice of any withdrawal of Shares owned by the Stockholder pursuant to
the immediately preceding proviso.
SECTION 1.2. No Purchase. Purchaser and Parent may allow the Offer to
expire without accepting for payment or paying for any Shares, on the terms and
conditions set forth in the Offer to Purchase. If all Shares validly tendered
and not withdrawn are not accepted for payment and paid for in accordance with
the terms of the Offer to Purchase, they shall be returned to the Stockholder,
whereupon they shall continue to be held by the Stockholder subject to the terms
and conditions of this Agreement.
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ARTICLE II
Consent and Voting
The Stockholder hereby revokes any and all previous proxies granted
with respect to the Shares owned by the Stockholder. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as the Merger
Agreement is in effect, or Purchaser notifies Stockholder of its intent to
continue its Offer or a revised offer within 2 business days of termination of
the Merger Agreement the Stockholder hereby agrees (i) to vote all Shares now or
hereafter owned by such Stockholder or execute a consent or proxy and not revoke
any proxy, vote or consent, in favor of the Merger Agreement, the Merger and the
transactions contemplated thereby, and (ii) to oppose any Alternative
Acquisition and to vote all Shares now or hereafter owned by such Stockholder,
or execute a consent or proxy, against any Acquisition Proposal.
ARTICLE III
Representations, Warranties and Covenants
of the Stockholder
The Stockholder represents, warrants and covenants to the Purchaser
that:
SECTION 3.1. (a) Ownership. As of the date hereof the Stockholder is
the sole, true, lawful and beneficial owner of 97,837 Shares and that there are
no restrictions on voting rights or rights of disposition pertaining to such
Shares. The Stockholder will convey good and valid title to the Shares owned by
the Stockholder and being acquired pursuant to the Offer or the Merger, as the
case may be, free and clear of any and all liens, restrictions, security
interests or any encumbrances whatsoever, other than restrictions under
applicable securities laws (collectively, "Liens"). None of the Shares owned by
the Stockholder is subject to any voting trust or other agreement, arrangement
or restriction with respect to the voting of such Shares.
(b) Transfer of the Shares. (i) Until this Agreement is
terminated, the Stockholder shall not directly or indirectly offer to sell, sell
short, transfer (including gift), assign, pledge or otherwise dispose of or
transfer (each, a "Transfer") any interest in or encumber with
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any Lien any of the Shares, (ii) enter into any contract, option, put, call,
"collar" or other agreement or understanding with respect to any Transfer of any
or all of the Shares or any interest therein; (iii) grant any proxy,
power-of-attorney or other authorization or consent in or with respect to the
Shares; (iv) deposit the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares; or (v) take any other
action with respect to the Shares that would in any way restrict, limit or
interfere with the performance of its obligations hereunder.
(c) The Stockholder agrees to place the following legend on
any and all certificates evidencing the Shares:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
SHAREHOLDER AGREEMENT, DATED AS OF OCTOBER 19, 1999, BY AND AMONG
PARENT, PURCHASER AND STOCKHOLDER. ANY TRANSFER OF SUCH SHARES OF
COMMON STOCK IN VIOLATION OF THE TERMS OF SUCH AGREEMENT SHALL BE
NULL AND VOID AND OF NO EFFECT WHATSOEVER.
SECTION 3.2. Authority and Non-Contravention. The execution, delivery
and performance by the Stockholder of this Agreement and the consummation of the
transactions contemplated hereby (i) are within the Stockholder's power and
authority, 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
(except as may be required under the HSR Act and under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder
(the "Exchange 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 the Stockholder or to a loss of any
benefit of the Stockholder under, any provision of applicable law or regulation
or any agreement, judgment, injunction, order, decree, or other instrument
binding on the Stockholder or result in the imposition of any Lien on any assets
of the Stockholder. If the Stockholder is married and the Shares constitute
community property or otherwise are owned or held in a manner that requires
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly consented to and delivered by the Stockholder's
spouse or the person giving such approval, enforceable against such spouse or
person in accordance with its terms.
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SECTION 3.3. Binding Effect. This Agreement has been duly executed and
delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, 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 3.4. Total Shares. The Stockholder Shares owned by the
Stockholder are the only shares of Company Common Stock beneficially owned as of
the date hereof by the Stockholder and, except as set forth in the disclosure
schedule to the Merger Agreement, the Stockholder has no option to purchase or
right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
SECTION 3.5. Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Purchaser or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder, except as otherwise disclosed in the Merger Agreement.
ARTICLE IV
Representations and Warranties
of the Parent and Purchaser
The Parent and Purchaser represent and warrant to the Stockholder:
SECTION 4.1. Corporate Power and Authority; Noncontravention. The
Parent and Purchaser have all requisite corporate power and authority to enter
into this Agreement and to perform their obligations hereunder. The execution,
delivery and performance by the Parent and Purchaser of this Agreement and the
consummation by the Parent and Purchaser of the transactions contemplated hereby
(i) have been duly authorized by all necessary corporate action on the part of
the Parent and Purchaser, (ii) require no action by or in respect of, or filing
with, any Governmental Body (except as may be required under the HSR Act and
under the Exchange Act), or (iii) do not and will not contravene or constitute a
default under, the certificate of incorporation or by-laws of Parent or
Purchaser or any provision of applicable law or regulation or any, judgment,
injunction, order, decree, material agreement or other material instrument
binding on the Parent or Purchaser.
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SECTION 4.2. Binding Effect. This Agreement has been duly executed
and delivered by the Parent and Purchaser and is a valid and binding agreement
of the Parent and Purchaser, enforceable against each of them 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 4.3. Acquisition for Purchaser's Account. Any Shares to be
acquired upon consummation of the Offer will be acquired by Parent 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 and the rules and
regulations promulgated thereunder.
ARTICLE V
Additional Agreements
SECTION 5.1. Agreements of Stockholder. The Stockholder hereby
covenants and agrees that:
(a) No Solicitation. From the date hereof, the Stockholder
shall not directly or indirectly (i) solicit, initiate or knowingly
encourage (or authorize any person to solicit, initiate or encourage)
any Alternative Acquisition, or (ii) participate in any discussion or
negotiations regarding, or furnish to any other person any information
with respect to, or otherwise knowingly cooperate in any way with, or
participate in, facilitate or encourage any effort or attempt by any
other person to do or seek the foregoing. The Stockholder shall
promptly advise the Purchaser of the terms of any communications it or
any of its affiliates may receive relating to any Alternative
Acquisition (including, without limitation, the identify of the party
making any such Alternative Acquisition).
(b) Adjustment upon Changes in Capitalization or Merger.
In the event of any change in the Company's capital stock by reason of
stock dividends, stock splits, mergers, consolidations,
recapitalization, 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 Parent and Purchaser's rights
hereunder, the number and kind of shares or securities subject to this
Agreement and the price set forth herein at which Shares may be
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purchased from the Stockholder pursuant to the Offer shall be
appropriately and equitably adjusted so that Parent and Purchaser
shall receive pursuant to the Offer the number and class of shares or
other securities or property that Parent or Purchaser, as the case may
be, would have received in respect of the Shares purchasable pursuant
to the Offer if such purchase had occurred immediately prior to such
event.
ARTICLE VI
Miscellaneous
SECTION 6.1. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by Purchaser.
SECTION 6.2. Further Assurances. The Parent, Purchaser and the
Stockholder will execute and deliver or cause to be executed and delivered all
further documents and instruments and use its reasonable 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 and by the Merger
Agreement.
SECTION 6.3. Additional Agreements. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use all
reasonable best efforts to take, or cause to be taken, all actions 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 acknowledge and agree
that performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will not be compensable
by money damages. The parties therefore agree that this Shareholder Agreement
shall be specifically enforceable and that specific enforcement and injunctive
relief shall be available to the Parent, Purchaser or the Stockholder for any
breach by the other party or parties of any agreement, covenant or
representation hereunder.
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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 Shares pursuant to Section 1.2 hereof. None of
the representations and warranties contained in this Agreement shall survive the
acceptance for payment and payment for the Shares pursuant to the Offer.
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. Notwithstanding
anything herein to the contrary, this Agreement shall expire and be of no
further force or effect if (i) the conditions to the Purchaser's obligations to
accept for payment and pay for Shares pursuant to the Offer shall have been
satisfied and the Purchaser breaches any obligation of Purchaser under the
Merger Agreement to accept for payment and promptly pay for all Shares validly
tendered and not withdrawn pursuant to the Offer upon expiration of the Offer or
(ii) Purchaser amends the Offer to (w) reduce the Offer Price to less than $8.79
in cash, net to the sellers, (x) reduce the number of shares of Company Common
Stock subject to the Offer, (y) change the form of consideration payable in the
Offer or (z) amend or modify any term or condition of the Offer in a manner
adverse to the stockholders of the Company (other than insignificant changes or
amendments or other than to waive any condition). This Agreement will also
terminate upon the later of (i) the Merger Agreement or (ii) termination of the
Offer or any revised Offer if Purchaser notifies Stockholder of its intent to
continue its Offer or a revised Offer within 2 business days after termination
of the Merger Agreement.
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, however, that Purchaser may assign
its rights and obligations to another wholly-owned subsidiary of the Parent
which is the assignee of Purchaser's rights under the Merger Agreement; and
provided further that except as set forth in the prior clause, a party may not
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto and any purported
assignment, delegation or
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transfer without such consent shall be null and void.
SECTION 6.9. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware 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 effects as if the signatures thereto and thereof 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.
SECTION 6.11. Stockholder Capacity. The Stockholder signs solely in
its capacity as the record holder and beneficial owner of the Shares and nothing
herein shall limit or affect any actions taken by the Stockholder in his or her
capacity as an officer, director, partner, employee or affiliate of the Company
and no such actions shall be deemed a breach of this Agreement.
SECTION 6.12. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions be consummated as originally contemplated to the
fullest extent possible. To the extent that any provision of this Agreement and
the Merger Agreement conflict, the provisions of the Merger Agreement shall
control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
EDB BUSINESS PARTNER ASA
By: /s/ Eivind Kinck
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Name:
Title:
Address for Notices:
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EDB 4TEL
By: /s/ Asbjorn Eide
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Name:
Title:
Address for Notices:
/s/ Frances Penfold
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Address for Notices: