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Exhibit 10.1
ALLBRITE TECHNOLOGIES, INC.
SHAREHOLDERS AGREEMENT
This Shareholders Agreement (the "Agreement") is made and entered into as
of December 4, 2000, among Planar Systems, Inc., an Oregon corporation
("Acquiror"), AllBrite Technologies, Inc., a California corporation ("Target")
and each of the shareholders of Target set forth on Appendix A hereto (each a
"Shareholder" and collectively, the "Shareholders").
This Agreement is entered into in connection with that certain Agreement
and Plan of Merger dated as of December 4, 2000 (the "Merger Agreement") by and
among Acquiror, Corona Acquisition Corporation, Target and the Shareholders. The
Merger Agreement provides for the merger of Corona Acquisition Corporation with
and into Target (the "Merger") in a transaction in which the issued and
outstanding shares of capital stock of Target (the "Target Stock") will be
converted into the right to receive shares of Common Stock, no par value, of
Acquiror (the "Acquiror Stock") as provided by, and on the terms and conditions
set forth in, the Merger Agreement. Capitalized terms used herein but not
defined herein shall have their defined meanings as set forth in the Merger
Agreement.
1. Accounting Treatment. Each Shareholder understands and agrees that it
is intended that the Merger will be treated as a "pooling of interests" in
accordance with generally accepted accounting principles and the applicable
General Rules and Regulations published by the Securities and Exchange
Commission (the "SEC").
2. Reliance Upon Representations, Warranties and Covenants. Each
Shareholder has been informed that the treatment of the Merger as a "pooling of
interests" for financial accounting purposes is dependent upon the accuracy of
each Shareholder's representations and warranties set forth herein, and upon
each Shareholder's compliance with the covenants set forth herein, and that a
tax-free reorganization for federal income tax purposes requires, among other
factors, the accuracy of the representations contained herein. Each Shareholder
understands that the representations and warranties and covenants of such
Shareholder set forth herein will be relied upon by Acquiror, Target, their
respective counsel and accounting firms and other shareholders of Target.
3. Representations, Warranties and Covenants of Each Shareholder. Each
Shareholder represents, warrants and covenants as follows:
3.1 Each Shareholder has full power and authority to execute the
Merger Agreement and this Agreement, to make the representations and warranties
and covenants herein contained and to perform such Shareholder's obligations
hereunder.
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3.2 Appendix A attached hereto sets forth all shares of Target Stock
owned by each Shareholder, including all Target Stock as to which such
Shareholder has sole or shared voting or investment power and all rights,
options and warrants to acquire Target Stock. Except as contemplated by the
Merger Agreement, no other person or entity not a signatory to this Agreement
has a beneficial interest in or right to acquire all or any portion of the
shares of Target Stock set forth in Appendix A.
3.3 Each Shareholder is acquiring the Acquiror Stock solely for the
Shareholder's own account, for investment and not with a view to any resale or
other distribution thereof in violation of the Securities Act.
3.4 Each Shareholder acknowledges and understands that the terms of
the Merger have not been reviewed by the SEC or by any state securities
authorities, that the Acquiror Stock has not been registered under the
Securities Act, any state securities law or registered or qualified under any
other securities laws, based on, among other factors, that no distribution or
public offering has been effected and the Acquiror Stock will be issued by
Acquiror in connection with a transaction that does not involve any public
offering within the meaning of Section 4(2) of the Securities Act. Each
Shareholder understands that Acquiror is relying on such Shareholder's
representations as set forth herein for purposes of claiming such exemption,
including the bona fide nature of such Shareholder's investment intent as
expressed above. Each Shareholder acknowledges that, except as is set forth in
Section 7 of this Agreement, Acquiror is under no obligation to register the
Acquiror Stock under the Securities Act. As a result, unless an exemption from
such registration is then available, such Shareholder must hold the Acquiror
Stock until such time as Acquiror has registered the Acquiror Stock for resale
under the Securities Act and qualified the Acquiror Stock for resale under
applicable state securities laws.
3.5 Each Shareholder is familiar with Regulation D promulgated under
the Securities Act and is an "accredited investor" as defined in Rule 501(a) of
such Regulation D or such Shareholder, either alone or together with such
Shareholder's representative, has such knowledge and experience in financial,
investment and business matters that the Shareholder is capable of evaluating
the merits and risks of an investment in the Acquiror Stock. Each Shareholder
acknowledges that the Acquiror Stock are volatile securities that involve a high
degree of risk. Each Shareholder represents that it is capable of determining
what documents and information are necessary to evaluate the Merger and/or an
investment in the Acquiror Stock, and has the capacity to protect its own
interests in connection with the Merger and the acquisition of the Acquiror
Stock.
3.6 Each Shareholder represents that its financial condition is such
that the Shareholder is able to bear any and all economic risks associated with
investment in the Acquiror Stock, including the risk of holding the Acquiror
Stock for an indefinite period of time. Each Shareholder represents that it can
also afford a complete loss of its investment in the Acquiror Stock, and has
adequate means of providing for the Shareholder's current needs and possible
personal contingencies; provided, however, that nothing contained herein shall
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relieve Acquiror from strict adherence to the terms of Section 7.
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3.7 Until such time as the Acquiror Stock has been registered for
resale, each Shareholder understands and acknowledges that each stock
certificate representing the Acquiror Stock shall bear a legend in, or
substantially in, the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS CONTAINED IN A SHAREHOLDERS AGREEMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
STATE SECURITIES LAWS. NEITHER SUCH SHARES NOR ANY PORTION THEREOF OR
INTEREST THEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF (I) EXCEPT AS SET FORTH IN THE SHAREHOLDERS
AGREEMENT AND (II) UNLESS THE SAME ARE REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE CORPORATION
SHALL HAVE RECEIVED EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY
TO THE CORPORATION (WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION
OF COUNSEL SATISFACTORY TO THE CORPORATION)."
3.8 Each Shareholder understands that Acquiror may maintain a "stop
transfer order" against the Acquiror Stock for the purpose of ensuring
compliance with applicable securities laws. Acquiror shall not be required (a)
to transfer or have transferred on its books any Acquiror Stock that has been
sold or otherwise transferred in violation of any of the provisions of this
Agreement or (b) to treat as an owner of such Acquiror Stock or to accord the
right to vote or pay dividends to any purchaser or other transferee to whom such
Acquiror Stock shall have been so transferred in violation of any provision of
this Agreement. Acquiror agrees that such stop transfer instructions and
legends will be promptly removed and transfers of Acquiror Common Stock will be
processed if the provisions of this Agreement and the Securities Act are
complied with.
3.9 Each Shareholder has received a copy of the AllBrite
Technologies, Inc. Information Statement dated December 13, 2000, including
copies of Acquiror's Annual Report on Form 10-K for fiscal the year ended
September 24, 1999, Acquiror's 1999 Annual Report to Shareholders, Acquiror's
Proxy Statement dated January 3, 2000 and Acquiror's Quarterly Reports on Form
10-Q for the quarters ended December 31, 1999, March 31, 2000 and June 30, 2000
(collectively, the "Disclosure Materials"). The Shareholder, either alone or
together with the Shareholder's representative, has made such further
investigation as the Shareholder deems appropriate as to, and is fully familiar
with, and knowledgeable regarding, the financial condition, business affairs and
prospects of Acquiror. The Shareholder has been given the opportunity to ask
questions of, and receive answers from, the principal officers of Acquiror
concerning the business and financial affairs of Acquiror, and has had further
opportunity to obtain any additional information necessary to verify the
accuracy of the foregoing information. To the extent any
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Shareholder has not sought information regarding any particular matter, the
Shareholder represents that Shareholder had no interest in doing so and that
such matters are not material to the Shareholder in connection with this
investment.
4. Negative Covenants of Shareholder.
4.1 Notwithstanding any other provision of this Agreement to the
contrary, each Shareholder covenants and agrees that it will not, except in the
Merger, sell, transfer, exchange, pledge or otherwise dispose of (including by
way of distributions to underlying beneficial owners), or in any other way
reduce such Shareholder's risk of ownership or investment in, or make any offer
or agreement relating to any of the foregoing with respect to any shares of
Target Stock that such Shareholder owns or hereafter may acquire as set forth in
Appendix A, or any shares of Acquiror Stock that such Shareholder may acquire in
connection with the Merger, or any securities that may be paid as a dividend or
otherwise distributed thereon or with respect thereto or issued or delivered in
exchange or substitution therefor (all such shares and other securities of
Acquiror being herein sometimes collectively referred to as "Restricted
Securities"), (i) during the thirty (30) day period immediately preceding the
Effective Time of the Merger, and (ii) until the date (the "Pooling Report
Filing Date") that Acquiror files with the SEC a report (the "Pooling Report")
that includes the combined financial results of Acquiror and Target for a period
of at least thirty (30) days of combined operations of Acquiror and Target
within the meaning of Accounting Series Release No. 130, as amended, of the SEC.
Acquiror covenants and agrees that the Pooling Report shall be filed with the
SEC on or before March 12, 2001.
4.2 Each Shareholder covenants and agrees that it will not sell,
transfer, exchange, pledge, or otherwise dispose of, or make any offer or
agreement relating to any of the foregoing with respect to, any Restricted
Securities, or any option, right or other interest with respect to any
Restricted Securities, unless (i) such transaction is permitted pursuant to Rule
144 under the Securities Act, (ii) counsel representing such Shareholder, which
counsel is reasonably satisfactory to Acquiror, shall have advised Acquiror in a
written opinion letter satisfactory to Acquiror and Acquiror's legal counsel,
and upon which Acquiror and its legal counsel may rely, that no registration
under the Securities Act would be required in connection with the proposed sale,
transfer or other disposition, (iii) a registration statement under the
Securities Act covering the Acquiror Stock proposed to be sold, transferred or
otherwise disposed of, describing the manner and terms of the proposed sale,
transfer or other disposition, and containing a current prospectus, shall have
been filed with the SEC and made effective under the Securities Act, or (iv) an
authorized representative of the SEC shall have rendered written advice to such
Shareholder (sought by such Shareholder or counsel to such Shareholder, with a
copy thereof and all other related communications delivered to Acquiror) to the
effect that the SEC would take no action, or that the staff of the SEC would not
recommend that the SEC take action, with respect to the proposed disposition if
consummated.
4.3 Each Shareholder represents and warrants that it has no plan or
intention to sell, exchange or otherwise dispose of shares of Acquiror Stock
received in connection with the Merger.
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5. Rule 144. From and after the Effective Time of the Merger and for so
long as is necessary in order to permit each Shareholder to sell the Acquiror
Stock held by it pursuant to Rule 144 under the Securities Act, Acquiror will
file on a timely basis all reports required to be filed by it pursuant to
Section 13 of the Exchange Act referred to in Paragraph (c)(1) of Rule 144 under
the Securities Act, in order to permit each Shareholder to sell the Acquiror
Stock held by it pursuant to the terms and conditions of Rule 144. Each
Shareholder understands that, except as provided in this Section 5 and in
Section 7 of this Agreement, Acquiror is under no obligation to register the
sale, transfer or other disposition of any Restricted Securities by or on behalf
of any Shareholder or to take any other action necessary in order to make
compliance with an exemption from registration available.
6. Restrictions on Resales. Each Shareholder agrees and acknowledges
that, in addition to the restrictions imposed under Section 4 of this Agreement,
the provisions of the Securities Act prohibit the public resale of Restricted
Securities (except in a transaction registered under the Securities Act) until
such time as such Shareholder has beneficially owned, within the meaning of SEC
Rule 144(d), the Restricted Securities for a period of at least one (1) year
after the date of the Merger. Each Shareholder acknowledges that such
Shareholder is familiar with Rule 144 and agrees to comply with the provisions
of such rule as applicable to the Restricted Securities.
7. Registration of Shares Issued in the Merger.
7.1 Registrable Shares. For purposes of this Agreement, "REGISTRABLE
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SHARES" shall mean the shares of Acquiror Common Stock issued in the Merger;
provided, however, that Registrable Shares shall not include: (i) eighty-five
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percent (85%) of the shares of Acquiror Common Stock issued to each of Lee
Olesen and Rick Moore in the Merger, (ii) shares of Acquiror Common Stock issued
in the Merger that have been sold or otherwise transferred by the shareholders
of Target who initially received such shares in the Merger prior to the
effective date of the Registration Statement (as defined below) (collectively,
the "HOLDERS"), and (iii) shares of Acquiror Common Stock issuable upon exercise
of Target Options; provided however, that a distribution of shares of Acquiror
Common Stock issued in the Merger without additional consideration, to
underlying beneficial owners (such as the general and limited partners,
shareholders or trust beneficiaries of a Holder) shall not be deemed such a sale
or transfer for purposes of this Section 7 and such underlying beneficial owners
shall be entitled to the same rights under this Section 7 as the initial Holder
from which the Registrable Shares were received and shall be deemed a Holder for
the purposes of this Section 7.
7.2 Required Registration. Acquiror shall prepare and file with the
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Commission a shelf registration statement on Form S-3 (or such successor or
other appropriate form) under the Securities Act with respect to the Registrable
Shares (the "REGISTRATION STATEMENT") and will effect all such registrations,
qualifications and compliances (including, without limitation, obtaining
appropriate qualifications under applicable state securities or "blue sky" laws
and compliance with any other applicable governmental requirements or
regulations) as any selling Holder may reasonably request and that would permit
or facilitate the sale of Registrable Shares
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(provided however that Acquiror shall not be required in connection therewith to
qualify to do business or to file a general consent to service of process in any
such state or jurisdiction). The Registration Statement shall be filed with the
Commission not later than March 12, 2001. Acquiror will maintain the
effectiveness of the Registration Statement and other applicable registrations,
qualifications and compliances for up to three months from the date that the
Registration Statement first becomes effective (the "REGISTRATION EFFECTIVE
PERIOD"). Following the later to occur of the Pooling Report Filing Date and the
date the Registration Statement is first declared effective, the Holders will be
permitted (subject in all cases to the provisions of paragraph (c) of this
Section 7) to offer and sell Registrable Shares during the Registration
Effective Period in the manner described in the Registration Statement provided
that the Registration Statement remains effective and has not been suspended.
7.3 Suspension Right. Notwithstanding any other provision of this
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Section 7, Acquiror shall have the right at any time to require that all Holders
suspend further open market offers and sales of Registrable Shares whenever, and
for so long as, in the reasonable judgment of Acquiror after consultation with
counsel, the use of the Registration Statement and the prospectus related
thereto must be suspended due to the happening of any event as a result of which
the prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing (the "SUSPENSION
RIGHT"). In the event Acquiror exercises the Suspension Right, such suspension
will continue for the period of time reasonably necessary for disclosure to
occur at a time that is not detrimental to Acquiror and its shareholders or, if
earlier, until such time as the information or event is no longer material, each
as determined in good faith by Acquiror after consultation with counsel.
Notwithstanding the foregoing, Acquiror shall not impose the Suspension Right at
any time for more than thirty (30) consecutive days. Acquiror will promptly give
the Holders written notice of any such suspension and will use all reasonable
efforts to minimize the length of the suspension. The Registration Effective
Period shall be extended by a period of time equal to the duration of any period
during which the Suspension Right is imposed.
7.4 Further Obligations of Acquiror.
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7.4.1 Acquiror shall furnish to the Holders such reasonable
number of copies of the Registration Statement, each amendment and supplement
thereto, the prospectus included in the Registration Statement (including each
preliminary prospectus), any documents incorporated by reference into the
Registration Statement and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Shares owned by them.
7.4.2 Acquiror will use its best efforts to diligently prepare
and file with the SEC such amendments and supplements to the Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the Registration
Statement.
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7.4.3 Acquiror shall file on a timely basis with the SEC all
information that the SEC may require under either of Section 13 or Section 15(d)
of the Exchange Act and, so long as it is required to file such information,
shall take all action that may be required as a condition to the availability of
Rule 144 under the Securities Act (or any successor exemptive rule hereinafter
in effect) with respect to Acquiror Stock. Acquiror shall furnish to any Holder
forthwith upon request (i) a written statement by Acquiror as to its compliance
with the reporting requirements of Rule 144, (ii) a copy of the most recent
annual or quarterly report of Acquiror as filed with the SEC, and (iii) any
other reports and documents that a Holder may reasonably request in availing
itself of any rule or regulation of the SEC allowing a Holder to sell any such
Registrable Shares without registration.
7.4.4 Acquiror shall notify the Holders promptly (i) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed, and with respect to the Registration Statement or post-effective
amendment, when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or supplements
to the Registration Statement or prospectus or for additional information, (iii)
of the issuance by the SEC or any other federal or state governmental authority
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceeding for that purpose, and (iv) of the receipt by
Acquiror of any notification with respect to the suspension of the qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for that purpose.
7.4.5 Acquiror shall use commercially reasonable efforts to
prevent the issuance of any stop order suspending the effectiveness of the
Registration Statement, and if one is issued, will use commercially reasonable
efforts to obtain the withdrawal of any stop order suspending the effectiveness
of the Registration Statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any Registrable Securities
for sale in any jurisdiction at the earliest possible time.
7.5 Obligations of Holders.
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7.5.1 Each Holder covenants and agrees that it shall promptly
furnish to Acquiror such information regarding themselves or the Registrable
Securities held by them, and the intended method of disposition of such
securities, as shall be reasonably requested by Acquiror in order to effect the
registration of its Registrable Securities. Each Holder agrees that it will not
effect any disposition of its Registrable Securities that would constitute a
sale within the meaning of the Securities Act (including a disposition which
qualifies for an exemption from registration thereunder) except in compliance
with the Securities Act and the regulations thereunder, including all applicable
prospectus delivery requirements.
7.5.2 Each Holder covenants and agrees that it will promptly
advise the Company of any changes in the information concerning each Holder
contained in the Registration Statement and that such Holder will not make any
sale of Registrable Securities pursuant to the
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Registration Statement without complying with the prospectus delivery
requirements of the Securities Act.
7.5.3 Each Holder acknowledges that occasionally there may be
times (as described in paragraph (c) of this Section 7) when Acquiror must
temporarily suspend the use of the prospectus forming a part of the Registration
Statement until such time as an amendment to the Registration Statement has been
filed by Acquiror and declared effective by the SEC, the relevant prospectus
supplemented by Acquiror or until such time as Acquiror has filed an appropriate
report with the SEC pursuant to the 1934 Act. During any period in which sales
are suspended, each Holder covenants and agrees that it will not offer or sell
any such Registrable Securities pursuant to the Registration Statement or any
such prospectus.
7.6 Expenses. Acquiror agrees to bear the costs and expenses for any
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registration pursuant to this Section 7. The costs and expenses to be borne by
Acquiror for purposes of this Section 7 shall include, without limitation,
printing expenses (including a reasonable number of prospectuses for circulation
by the selling Holders), legal fees and disbursements of counsel for Acquiror,
legal fees and disbursements of one counsel for the Holders in an amount not to
exceed $25,000, "blue sky" expenses, accounting fees and filing fees, but shall
not include underwriting commissions or similar charges.
7.7 Indemnification.
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7.7 Acquiror will indemnify and hold harmless each Holder,
its officers, directors, shareholders or partners and each person, if any, who
controls such Holder within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"VIOLATION"): (A) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (B) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (C) any violation or alleged violation by Acquiror of
the Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law; and Acquiror will pay to each such Holder (and its officers,
directors, employees, shareholders or partners), or controlling person, any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this paragraph (g)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of
Acquiror; nor shall Acquiror be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon (a) a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in the Registration Statement by
any
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such Holder, or (b) a Violation that would not have occurred if such Holder
had delivered to the purchaser the version of the Prospectus most recently
provided by Acquiror to the Holder prior to the date of such sale.
7.7.2 Each selling Holder will indemnify and hold harmless
Acquiror, each of its directors, each of its officers who has signed the
Registration Statement, each person, if any, who controls Acquiror within the
meaning of the Securities Act, any other Holder selling securities pursuant to
the Registration Statement and any controlling person of any such other Holder,
against any losses, claims, damages, or liabilities (joint or several) to which
any of the foregoing persons may become subject, under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation (which includes without limitation the failure of the
Holder to comply with the prospectus delivery requirements under the Securities
Act, and the failure of the Holder to deliver the most current prospectus
provided by Acquiror prior to such sale), in each case to the extent (and only
to the extent) that such Violation occurs in reliance upon and in conformity
with written information furnished by such Holder expressly for use in the
Registration Statement or such Violation is caused by the Holder's failure to
deliver to the purchaser of the Holder's Registrable Shares a prospectus (or
amendment or supplement thereto) that had been made available to the Holder by
Acquiror prior to such sale; and each such Holder will pay any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this paragraph (g) in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this paragraph (g) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder.
7.7.3 Each person entitled to indemnification under this paragraph
(g) (the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought and shall
permit the Indemnifying Party to assume the defense of any such claim and any
litigation resulting therefrom, provided that counsel for the Indemnifying Party
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who conducts the defense of such claim or any litigation resulting therefrom
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
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Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this paragraph (g) unless the
Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in
the defense of any such claim or litigation, shall (except with the consent of
each Indemnified Party) consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
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7.7.4 To the extent that the indemnification provided for in this
paragraph (g) is held by a court of competent jurisdiction to be unavailable to
an Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of indemnifying
such Indemnified Party hereunder, shall contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
8. Termination of Prior Agreements. Each party hereto agrees and
consents to the termination of the Shareholders' Agreement dated as of December
31, 1999 and February 24, 2000, respectively, by and among Target and the
Shareholders with such termination to be effective at the Effective Time.
9. Notices. All notices, requests, demands or other communications which
are required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given (i) upon receipt, if
delivered by hand, (ii) one (1) business day after deposit with a nationally-
recognized overnight courier service, with delivery charges prepaid or otherwise
satisfied, or (iii) three (3) days after deposit in the United States mail,
postage prepaid, certified or registered mail, addressed to a party as follows:
if to Acquiror or Sub:
Planar Systems, Inc.
1400 NW Compton Drive
Beaverton, OR 97008
Attention: Chief Financial Officer
Fax No: 503-690-1100
Telephone No: 503-690-1541
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with a copy to:
Ater Wynne LLP
222 S.W. Columbia, Suite 1800
Portland, OR 97201
Attention: Gregory E. Struxness, Esq.
Fax No: 503-226-0079
Telephone No: 503-226-8449
if to Target, to:
AllBrite Technologies, Inc.
12568 Kirkham Court
Poway, CA 92064
Attention: President
Fax No: 619-679-9155
Telephone No: 858-679-9226
with a copy to:
Foley & Lardner
402 West Broadway, 23/rd/ Floor
San Diego, CA 92101
Attention: Joseph M. Lesko, Esq.
Fax No: 619-234-3510
Telephone No: 619-234-6655
if to Target Shareholders:
At the address set forth beneath each Target Shareholders'
signature below with a copy to:
Foley & Lardner
402 West Broadway, 23/rd/ Floor
San Diego, CA 92101
Attention: Joseph M. Lesko, Esq.
Fax No: 619-234-3510
Telephone No: 619-234-6655
or to such other address as any part may designate for itself by notice given as
provided in this Agreement, except that notices of change of address shall only
be effective upon receipt.
<PAGE>
10. Termination. This Agreement shall terminate and shall be of no
further force and effect upon the termination of the Merger Agreement.
11. Counterparts. This Agreement shall be executed in one or more
counterparts, any of which may be a facsimile copy, each of which shall be
deemed an original, and all of which together shall constitute one instrument.
12. Binding Agreement. This Agreement will inure to the benefit of and be
binding upon and enforceable against the parties and their successors and
assigns, including administrators, executors, representatives, heirs, legatees
and devisees of each Shareholder and any pledgee holding Restricted Securities
as collateral.
13. Waiver. No waiver by any part hereto of any condition or of any
breach of any provision of this Agreement shall be effective unless in writing
and signed by each party hereto.
14. Governing Law. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of Oregon.
15. Integration. This Agreement constitutes the entire understanding of
the parties hereto with respect to the subject matter of the Agreement.
16. Attorneys' Fees. In the event of any legal action or proceeding to
enforce or interpret the provisions hereof, the prevailing party shall be
entitled to reasonable attorneys' fees, and disbursements whether or not the
proceeding results in a final judgment.
17. Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
18. Third-Party Reliance. Counsel to and accountants for the parties shall
be entitled to rely upon this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first written above.
ALLBRITE TECHNOLOGIES, INC. PLANAR SYSTEMS, INC.
By: /s/ Lee Olesen By: /s/ Balaji Krishnamurthy
--------------- --------------------------------
Lee Olesen Balaji Krishnamurthy
President President and Chief Executive Officer
<PAGE>
CORONA ACQUISITION CORPORATION
By: /s/ Balaji Krishnamurthy
-------------------------
Balaji Krishnamurthy
President and Chief Executive Officer
SHAREHOLDERS
/s/ Lee Olesen /s/ Richard Moore
--------------------------------- ---------------------------
Lee Olesen Richard Moore
2641 Pasatiempo Glen 19919 Fortuna del Este
Escondido, CA 92025 Escondido, CA 92029
/s/ Kenneth R. Christoffersen /s/ Matthew A. Peterson
---------------------------------- ----------------------------
Kenneth R. Christoffersen Matthew A. Peterson, Trustee
12217 Sunrise Court Matthew A. Peterson Trust dated 9/23/93
Poway, CA 92064 6596 Avenida Wilfredo
La Jolla, CA 92037
/s/ James F. Peterson /s/ Daniel C. Peterson
--------------------------------- ---------------------------------
James F. Peterson, Trustee Daniel C. Peterson, Co-Trustee
James F. Peterson Trust dated 1/01/00 Peterson 1988 Family Trust dated
1135 Kildeer Court 41650 Vista Montana
Encinitas, CA 92024 Hemet, CA 92544
/s/ Andrew G. Peterson /s/ Christopher J. Connolly
--------------------------------- --------------------------------
Andrew G. Peterson, Trustee Christopher J. Connolly, Co-
Andrew G. Peterson Separate Property Christopher J. Connolly and Rhonda
Trust dated 3/1/99 Connolly Family Trust
1234 Ramona Street 3306 Bumann Road
Ramona, CA 92065 Encinitas, CA 92024
/s/ Edward F. Whittler /s/ Marshal A. Scarr
---------------------------------- ---------------------------------
Edward F. Whittler, Trustee Marshal A. Scarr, Trustee
Peterson & Price Profit Sharing Plan Peterson & Price Profit
FBO Edward F. Whittler FBO Edward F. Whittler
<PAGE>
530 B Street, Suite 1700 530 B Street, Suite 1700
San Diego, CA 92101 San Diego, CA 92101
/s/ Larry N. Murnane /s/ George Salameh
---------------------------------- --------------------------------
Larry N. Murnane, Trustee George Salameh, Trustee
The Murnane Family Living Trust Salameh Family Trust
13734 Butano Way 13529 Chelly Court
San Diego, CA 92129 San Diego, CA 92129
/s/ Sharlee Lou Welsh /s/ Christopher Welsh
--------------------------------- ---------------------------------
Sharlee Lou Welsh, Trustee Christopher Welsh
Edward L. Nelson Trust dated 06/18/69 13996 Pequot Drive
FBO Sharlee Lou Welsh Poway, CA 92064
14198 Arbolitos Drive
Poway, CA 92064
<PAGE>
/s/ Robert Chognard /s/ Jean C. Chognard
----------------------------------- ----------------------------------------
Robert Chognard Jean C. Chognard, Trustee
110 Tuscaloosa Jean C. Chognard Separate Property Trust
Atherton, CA 94027 U/A/D 11/17/95
P.O. Box 406
Palo Alto, CA 94302
/s/ Kim Finley /s/ Shawn D. Evans
------------------------------------ ----------------------------------------
Kim Finley Shawn D. Evans
13856 Otis Place 1610 Monmouth Drive
Poway, CA 92064 San Diego, CA 92109
/s/ Allan Finley /s/ Werner T. Heid
------------------------------------ ----------------------------------------
Allan Finley Werner T. Heid
13856 Otis Place 6835 Via Valverde
Poway, CA 92064 La Jolla, CA 92037
/s/ Stephen Heidel /s/ Edward Hessel
------------------------------------ ----------------------------------------
Stephen Heidel Edward Hessel
PO Box 1738 5044 Chelterham Terrace
Rancho Santa Fe, CA 92067 San Diego, CA 92130
/s/ Wendy K. Wright /s/ James F. Holtz
------------------------------------ ----------------------------------------
Wendy K. Wright James F. Holtz
5044 Chelterham Terrace 12737 Rue Vincennes
San Diego, CA 92130 San Diego, CA 92131
/s/ Charles Jadallah /s/ Janine Jadallah
------------------------------------ ----------------------------------------
Charles Jadallah Janine Jadallah
1742 Los Altos Drive 1742 Los Altos Drive
San Mateo, CA 94402 San Mateo, CA 94402
/s/ Danny N. Kashou /s/ Ronald J. Monark
------------------------------------ ----------------------------------------
Danny N. Kashou Ronald J. Monark
1954 Hacienda Drive 442 Loma Larga Drive
El Cajun, CA 92020 Solana Beach, CA 92075
<PAGE>
/s/ Manoj Monga /s/ Mary Monga
------------------------------------ ----------------------------------------
Manoj Monga Mary Monga
8558 LaJolla Shores Drive 8558 LaJolla Shores Drive
La Jolla, CA 92037 La Jolla, CA 92037
/s/ Mahmoud Mostafa /s/ Najah Mostafa
------------------------------------ ----------------------------------------
Mahmoud Mostafa Najah Mostafa
15219 Avenida Rorras 15219 Avenida Rorras
San Diego, CA 92128 San Diego, CA 92128
/s/ Tayseer Odeh /s/ Donald Ratkowski
------------------------------------ ----------------------------------------
Tayseer Odeh, Trustee Donald Ratkowski, Trustee
The Odeh Family Trust dated January 19, Ratkowski Revocable Trust dated April22,
2000 1982
8585 La Jolla Shores Drive 8105 N. 47/th/
La Jolla, CA 92037 Paradise Valley, AZ 85253
/s/ Chong Roussin /s/ Joyce E. Ratkowski
------------------------------------ ----------------------------------------
Chong Roussin Joyce E. Ratkowski, Trustee
13429 Appalachian Way Ratkowski Revocable Trust dated April
San Diego, CA 92129 1982
8105 N. 47/th/
Paradise Valley, AZ 85253
/s/ John Roussin /s/ Roy K. Salameh
------------------------------------ ----------------------------------------
Roy K. Salameh
John Roussin 2642 Unicornio Street
13429 Appalachian Way Carlsbad, CA 92009
San Diego, CA 92129
/s/ Steve Steinfield /s/ Sidney A. Stutz
------------------------------------ -------------------------------------
Sidney A. Stutz, Trustee
Steve Steinfield Sidney & Judith Stutz Family Trust dated
9606 Lynne Anne Lane June 6, 1996
San Diego, CA 92129 6003 Waverley Avenue
La Jolla, CA 92037
