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EXHIBIT (d)(3)
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of September 5, 2000, among
Unigraphics Solutions Inc., a Delaware corporation ("Parent"), UGS Acquisition
Corporation, a Delaware corporation and a wholly owned subsidiary of Parent
("Purchaser"), and the stockholders named in Exhibit A hereto (each a
"Stockholder").
RECITALS
A. Simultaneously herewith, Parent and Purchaser are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as amended from time
to time, the "Merger Agreement"), with Engineering Animation, Inc., a Delaware
corporation (the "Company"), which contemplates, among other things, that
Purchaser will commence a tender offer (the "Offer") for all of the outstanding
shares of common stock, $.0l par value, of the Company ("Company Common Stock")
and that Purchaser will merge with the Company pursuant to the merger
contemplated by the Merger Agreement (the "Merger").
B. As of the date hereof, each Stockholder owns (either beneficially or
of record) the number of shares of Company Common Stock set forth opposite such
Stockholder's name on Exhibit A hereto (all such shares owned by the
Stockholders and any shares of Company Common Stock hereafter acquired by any
Stockholder prior to the termination of this Agreement, the "Shares").
C. As a condition to the willingness of Parent and Purchaser to enter
into the Merger Agreement, Parent and Purchaser have requested that each
Stockholder agree, and in order to induce Parent and Purchaser to enter into the
Merger Agreement, each Stockholder has agreed, severally and not jointly, to
enter into this Agreement.
Capitalized terms used but not defined herein shall have the meanings
set forth in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
Section 1.1. Voting Agreement
Each Stockholder hereby agrees that, at any meeting of the stockholders
of the Company, however called, or in connection with any written consent of the
holders of shares of Company Common Stock, each such Stockholder shall vote his
or her Shares (a) in favor of the approval and adoption of the Merger Agreement,
the Merger and all the transactions contemplated by the
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Merger Agreement and this Agreement and any other actions required in
furtherance thereof and hereof and (b) against any Company Takeover Proposal and
any actions in furtherance thereof.
Section 1.2. Irrevocable Proxy
Each Stockholder hereby irrevocably constitutes and appoints Anthony J.
Affuso, Douglas E. Barnett and J. Randall Walti, and each or any of them, as his
or her attorney and proxy pursuant to the provisions of Section 212(c) of the
Delaware General Corporation Law ("DGCL"), with full power of substitution, to
vote and otherwise act (by written consent or otherwise) with respect to the
Shares which such Stockholder is entitled to vote at any meeting of stockholders
of the Company (whether annual or special and whether or not an adjourned or
postponed meeting) or consent in lieu of any such meeting or otherwise, on, and
only on, the matters described in Section 1.1 hereof and to execute and deliver
any and all consents, instruments or other agreements or documents in order to
take any and all such actions in connection with or in furtherance of the
obligations of such Stockholder set forth in this Agreement and each of the
transactions contemplated by this Agreement or the Merger Agreement. THIS PROXY
AND POWER OF ATTORNEY IS IRREVOCABLE, SUBJECT TO SECTION 4.4, AND COUPLED WITH
AN INTEREST. Each Stockholder hereby revokes all other proxies and powers of
attorney with respect to such Stockholder's Shares that it may have heretofore
appointed or granted, and no subsequent proxy or power of attorney shall be
given or written consent executed (and if given or executed, shall not be
effective) by such Stockholder with respect thereto. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of a
Stockholder and any obligation of such Stockholder under this Agreement shall be
binding upon the heirs, personal representatives, successors and assigns of such
Stockholder.
ARTICLE II
AGREEMENT TO TENDER
Section 2.1 Agreement to Tender
Each Stockholder hereby agrees that, if Purchaser commences the Offer,
such Stockholder will validly tender, or cause to be validly tendered, all of
the Shares then beneficially owned by such Stockholder to Purchaser as soon as
practicable (and in any event within five business days) after the commencement
of the Offer in accordance with the terms and conditions of the Offer. Each
Stockholder further agrees that it will not withdraw such tendered Shares unless
the Offer is terminated by Purchaser. Each Stockholder will be entitled, upon
consummation of the Offer, subject to and in accordance with the Offer's terms
and conditions, to receive an amount equal to the Offer Price with respect to
the tendered Shares. Each Stockholder hereby agrees to permit Purchaser to
publish and disclose in the Offer Documents and, if Company Stockholder Approval
is required under applicable law, the Proxy Statement (including all documents
and schedules filed with the SEC), their respective identity and ownership of
Company Common Stock and the nature of their respective commitments,
arrangements and understandings under this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Stockholder
Each Stockholder represents and warrants to Parent as follows:
(a) Such Stockholder has all requisite power, authority and legal
capacity to execute, deliver and perform its obligations under this Agreement.
This Agreement has been duly executed and delivered by such Stockholder and,
assuming its due authorization, execution and delivery by Parent and Purchaser,
constitutes a legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms.
(b) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
(i) conflict with or violate any statutes, laws, ordinances, rules or
regulations or (ii) conflict with or violate any contract or other instrument to
which the Stockholder is a party or by which such Stockholder is bound,
including, without limitation, any voting agreement, stockholders agreement or
voting trust.
(c) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
require such Stockholder to obtain any consent, approval, order, authorization
or permit of, or to make any filing with or notification to, any Governmental
Authority or any other person, except as may be required by the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the HSR Act and any
comparable laws in non-U.S. jurisdictions.
(d) There is no suit, action, investigation or proceeding pending or,
to the knowledge of such Stockholder, threatened against such Stockholder at law
or in equity before or by any Governmental Authority that could reasonably be
expected to impair the ability of such Stockholder to perform its obligations
hereunder, and there is no judgment, decree, injunction, rule, order or writ of
any Governmental Authority to which such Stockholder is or its assets are
subject that could reasonably be expected to impair the ability of such
Stockholder to perform its obligations hereunder.
(e) Each Stockholder owns beneficially and of record the shares of
Company Common Stock set forth opposite such Stockholder's name on Exhibit A
hereto (with respect to such Stockholder, the "Existing Shares"). The Existing
Shares constitute all the shares of Company Common Stock owned beneficially and
of record by such Stockholder. Such Stockholder has sole voting power, sole
power of disposition, sole power to demand appraisal rights and all other
stockholder rights with respect to all of its Existing Shares, with no
restrictions, other than restrictions on disposition pursuant to applicable
securities laws, on such Stockholder's rights of voting or disposition
pertaining thereto. Such Stockholder has good and valid title to all Existing
Shares, free and clear of all Liens (other than any Liens created hereby) and,
when delivered by such Stockholder to Parent or Purchaser in accordance with the
Offer,
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good, marketable and valid title in and to such Existing Shares will be
transferred to Parent or Purchaser, as the case may be, free and clear of all
Liens.
Section 3.2 Survival
Notwithstanding anything otherwise provided for herein, each
Stockholder's representations and warranties contained in this Section 3 shall
be true and correct as of the date Purchaser accepts such Stockholder's Shares
for payment pursuant to the terms of the Offer.
ARTICLE IV
COVENANTS OF THE STOCKHOLDER
Section 4.1 "No Shop" Provision
Each Stockholder shall immediately cease any discussions or
negotiations relating to a Company Takeover Proposal, other than with respect to
the Transactions, with any parties conducted heretofore. Each Stockholder will
not, directly or indirectly, and will instruct its Representatives not to,
directly or indirectly (i) solicit, initiate or encourage (including by way of
furnishing information or assistance), or take any other action to facilitate,
any inquiries, any expression of interest or the making of any proposal which
constitutes a Company Takeover Proposal or (ii) participate in any discussions
or negotiations regarding any Company Takeover Proposal. Anything in this
Section 4.1 to the contrary notwithstanding, nothing in this Section 4.1 shall
limit in any way a Stockholder who is a director or officer of the Company from
exercising any of his rights or performing any of his duties as a director or
officer of the Company.
Section 4.2 Restriction on Transfer
Until and unless this Agreement has been terminated, each Stockholder
shall not, except as expressly provided for in this Agreement, (a) sell,
exchange, pledge, encumber or otherwise transfer or dispose of, or agree to
sell, exchange, pledge, encumber or otherwise transfer or dispose of, any of its
Shares (which for avoidance of doubt shall not include any option to purchase
Company Common Stock exercisable for Shares pursuant to the terms of such
option), or any interest therein, (b) deposit its Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Shares or
grant any proxy with respect thereto, or (c) enter into any agreement,
arrangement, understanding, or undertaking to do any of the foregoing.
Section 4.3 Waiver of Appraisal Rights
Each Stockholder hereby waives any appraisal or other rights to dissent
from the Merger that such Stockholder may have.
Section 4.4 Termination
The covenants and agreements contained herein with respect to the
Shares shall terminate upon the termination of the Merger Agreement in
accordance with its terms.
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ARTICLE V
DEFINITIONS
Section 5.1 Definitions
For the purpose of this Agreement, "beneficially own" or "beneficial
ownership" with respect to any securities shall mean having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing, subject to any fiduciary duty in the
case of securities not held of record.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Severability
If any term or other provision of this Agreement is or is deemed to be
invalid, illegal or incapable of being enforced by any applicable 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 this Agreement is 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 hereto 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 so that the terms
of this Agreement remain as originally contemplated to the fullest extent
possible.
Section 6.2 Entire Agreement
This Agreement constitutes the entire understanding between Parent,
Purchaser and each Stockholder with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between Parent, Purchaser and each Stockholder with respect to the subject
matter hereof.
Section 6.3 Counterparts
This Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed and delivered shall be
deemed to be an original but all of which taken together shall constitute one
and the same instrument.
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Section 6.4 Assignment
This Agreement shall not be assigned by operation of law or otherwise
without the prior written consent of the other parties hereto, provided that
Parent may assign its rights hereunder to any direct or indirect wholly owned
subsidiary of Parent.
Section 6.5 Amendments
This Agreement may not be amended, supplemented, waived or otherwise
modified or terminated, except upon the execution and delivery of a written
agreement executed by the parties hereto.
Section 6.6 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 delivery in person, facsimile transmission,
registered or certified mail (postage prepaid, return receipt requested), or
courier service providing proof of delivery to the respective parties at the
following addresses (or to such other address for a party as shall be specified
in a notice given in accordance with this Section 6.6).
(a) if to Parent or Purchaser, to:
Unigraphics Solutions Inc.
13736 Riverport Drive
Maryland Heights, MO 63043
Telecopy No.: (314) 344-2677
Attention: J. Randall Walti
with copies to:
Bryan Cave LLP
700 13th Street, N.W.
Washington, DC 20005
Telecopy No.: (202) 508-6200
Attention: William F. Bavinger
(b) if to the Company, to
Engineering Animation, Inc.
2321 North Loop Drive
Ames, IA 50010
Telecopy No.: (515) 296-6941
Attention: Jamie A. Wade
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with copies to:
Gardner, Carton & Douglas
321 North Clark Street, Suite 3400
Chicago, IL 60610
Telecopy No.: (312) 644-3381
Attention: George C. McKann
Section 6.7 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 not a party hereto.
Section 6.8 Specific Performance
Each of the parties hereto acknowledges that a breach by it of any
agreement contained in this Agreement will cause the other party to sustain
damage 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 agreement and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity.
Section 6.9 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 right, power or remedy
by such party.
Section 6.10 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 strict 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 rights
to exercise any such or other right, power or remedy or to demand such
compliance.
Section 6.11 Governing Law and Jurisdiction
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware, without giving effect to the principles of
conflicts of law. Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware in any action,
suit or proceeding arising in connection with this Agreement, and agrees that
any such action, suit or proceeding shall be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein); provided,
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however, that such consent to jurisdiction is solely for the purpose referred to
in this Section 6.11 and shall not be deemed to be a general submission to the
jurisdiction of such court or in the State of Delaware other than for such
purposes.
Section 6.12 Waiver of Jury Trial
EACH OF PARENT, PURCHASER AND THE STOCKHOLDER HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE ACTIONS OF PARENT, PURCHASER OR THE STOCKHOLDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
Section 6.13 Headings
The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Stockholders Agreement
to be duly executed as of the date first written above.
UNIGRAPHICS SOLUTIONS INC.:
By: /s/ Douglas E. Barnett
----------------------------------------
Name: Douglas E. Barnett
--------------------------------------
Title: Chief Financial Officer
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UGS ACQUISITION CORPORATION:
By: /s/ Douglas E. Barnett
----------------------------------------
Name: Douglas E. Barnett
--------------------------------------
Title: President
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STOCKHOLDERS:
/s/ Matthew M. Rizai
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Matthew M. Rizai
/s/ Martin J. Vanderploeg
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Martin J. Vanderploeg
/s/ Jeffrey D. Trom
--------------------------------------------
Jeffrey D. Trom
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Stockholder's Agreement
Exhibit A
<TABLE>
<CAPTION>
Name Shares
---- ------
<S> <C>
Matthew M. Rizai 467,639
Martin J. Vanderploeg 378,026
Jeffrey D. Trom 465,957
</TABLE>
