EXHIBIT 2.3
ONLINE
SHAREHOLDER AGREEMENT
This SHAREHOLDER AGREEMENT (this "Agreement") is made and entered into
as of January 19, 2000 between Online Trading Group, Inc., a Florida corporation
("Newco"), Omega Research, Inc., a Florida Corporation ("Omega") and the
undersigned shareholder ("Shareholder") of xxxxxxxxxxxxxxxx.xxx corp., a
Florida corporation ("Company"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings set forth in the Merger
Agreement described below.
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger and Reorganization
dated as of January 19, 2000 by and among Company, Omega, Newco, Omega
Acquisition Corporation, a Florida corporation and wholly owned subsidiary of
Newco and Onlinetrading Acquisition Corporation, a Florida corporation and
wholly owned subsidiary of Newco (such agreement as it may be amended is
hereinafter referred to as the "Merger Agreement"), Newco has agreed, among
other things, to acquire by merger (collectively, the "Merger"): (i) the
outstanding securities of Company pursuant to a statutory merger of Online
Merger Sub with and into Company in which each outstanding share of common stock
of Company (the "Company Capital Stock") will be converted into shares of common
stock of Newco (the "Newco Common Stock") at the exchange rate set forth in the
Merger Agreement and (ii) the outstanding securities of Omega pursuant to a
statutory merger of Omega Merger Sub with and into Omega in which each
outstanding share of common stock of Omega will be converted into shares of
Newco Common Stock at the exchange rate set forth in the Merger Agreement
(collectively, the "Transaction");
WHEREAS, in order to induce Newco and Omega to enter into the Merger
Agreement and consummate the Transaction, each shareholder of Company who is an
affiliate of Company has agreed to execute and deliver to Newco and Omega a
Shareholder Agreement upon the terms set forth herein; and
WHEREAS, Shareholder is the registered and beneficial owner of such
number of shares of the outstanding Company Capital Stock as is indicated on the
signature page of this Agreement (the "Shares").
NOW, THEREFORE, the parties agree as follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE.
(a) Shareholder is the beneficial owner of the
Shares and, except as otherwise set forth on the signature page hereto, (A) has
held each such Shares at all times since the date such Shares were originally
issued by Company, and (B) did not acquire any shares of Company Capital Stock
in contemplation of the Merger. The Shares constitute Shareholder's entire
interest in the outstanding capital stock and voting securities of Company. No
other person or entity not a signatory to this Agreement has a beneficial
interest in or a right to acquire the Shares or any portion
of the Shares. The Shares are, and will be at all times up until the Expiration
Date, free and clear of any liens, claims, options, charges or other
encumbrances. Shareholder's principal residence or place of business is
accurately set forth on the signature page hereto.
(b) Shareholder agrees not to transfer (except
as may be specifically required by court order or by operation of law, in which
case any such transferee shall agree to be bound hereby), sell, exchange, pledge
or otherwise dispose of or encumber any Shares or any New Shares (as defined
below), or to make any offer or agreement relating thereto, at any time prior to
the Expiration Date (as defined hereinafter) except as disclosed on Schedule I
attached hereto. As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) the Effective Time or (ii) termination of the Merger
Agreement in accordance with the terms thereof.
1.2 NEW SHARES. Shareholder agrees that any shares of capital
stock or voting securities of Company that Shareholder purchases or with respect
to which Shareholder otherwise acquires beneficial ownership after the date of
this Agreement and prior to the Expiration Date ("New Shares") shall be subject
to the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. AGREEMENT TO VOTE SHARES. Prior to the Expiration Date, at every
meeting of the stockholders of Company at which any of the following is
considered or voted upon, and at every adjournment thereof, and on every action
or approval by written resolution of the stockholders of Company with respect to
any of the following, Shareholder shall vote the Shares and any New Shares in
favor of approval and adoption of the Merger Agreement and of the Transaction
and all matters related thereto.
3. IRREVOCABLE PROXY. Shareholder hereby agrees to timely deliver to
Omega a duly executed proxy in the form attached hereto as Annex A (the
"Proxy"), such Proxy to cover the Shares and all New Shares in respect of which
Shareholder is entitled to vote at each meeting of the stockholders of Company
(including, without limitation, each written consent in lieu of a meeting)
related to the Merger Agreement and the Transaction. In the event that
Shareholder is unable to provide any such Proxy in a timely manner, Shareholder
hereby grants to certain designees of Omega a power of attorney to execute and
deliver such Proxy for and on behalf of Shareholder, such power of attorney,
which being coupled with an interest, shall survive any death, disability,
bankruptcy, or any other such impediment of Shareholder. Upon the execution of
this Agreement by Shareholder, Shareholder hereby revokes any and all prior
proxies or powers of attorney given by Shareholder with respect to the Shares
related to the Merger Agreement and the Transaction and agrees not to grant any
subsequent proxies or powers of attorney with respect to the Shares related to
the Merger Agreement and the Transaction until after the Expiration Date.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER.
Shareholder hereby represents, warrants and covenants to Newco and Omega as
follows:
(a) Shareholder has full power and legal
capacity to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by
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Shareholder and constitutes the valid and binding obligation of Shareholder,
enforceable against Shareholder in accordance with its terms. The execution and
delivery of this Agreement by Shareholder does not, and the performance of
Shareholder's obligations hereunder will not, result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any right to terminate, amend,
accelerate or cancel any right or obligation under, or result in the creation of
any lien of encumbrance on any Shares or New Shares pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Shareholder is a party or by which
Shareholder or the Shares or New Shares are or will be bound or affected.
(b) Until the Expiration Date, Shareholder will
not (and will use Shareholder's reasonable best efforts to cause Company, its
affiliates, officers, directors and employees and any investment banker,
attorney, accountant or other agent retained by Shareholder, Company or any of
the same, not to), except to the extent otherwise permitted under Section 5.4 of
the Merger Agreement: (i) initiate or solicit, directly or indirectly, any
proposal, plan or offer to acquire all or any material part of the business or
properties or capital stock of Company, whether by merger, purchase of assets,
tender offer or otherwise, or to liquidate Company or otherwise distribute to
the stockholders of Company all or any substantial part of the business,
properties or capital stock of Company (each, an "Acquisition Proposal"); (ii)
initiate, directly or indirectly, any contact with any person in an effort to or
with a view towards soliciting any Acquisition Proposal; (iii) furnish
information concerning Company's business, properties or assets to any
corporation, partnership, person or other entity or group (other than a party to
the Merger Agreement, or any associate, agent or representative of a party to
the Merger Agreement) under any circumstances that could reasonably be expected
to relate to an actual or potential Acquisition Proposal; or (iv) negotiate or
enter into discussions or an agreement, directly or indirectly, with any entity
or group with respect of any potential Acquisition Proposal. In the event
Shareholder shall receive or become aware of any Acquisition Proposal subsequent
to the date hereof, Shareholder shall promptly inform Omega as to any such
matter and the details thereof to the extent possible without breaching any
other agreement to which such Shareholder is a party or violating Shareholder's
fiduciary duties.
(c) Shareholder understands and agrees that if
Shareholder attempts to transfer or vote or provide any other person with the
authority to vote any of the Shares with respect to any vote or other
stockholder action related to the Merger Agreement and the Transaction other
than in compliance with this Agreement, Company shall not, and Shareholder
hereby unconditionally and irrevocably instructs Company to not, permit any such
transfer on its books and records, issue a new certificate representing any of
the Shares or record such vote unless and until Shareholder shall have complied
with the terms of this Agreement except in the event of and in connection with a
foreclosure of the lien described on Schedule I. Shareholder further understands
and agrees that the Company may elect to not permit the transfer of shares of
Company Capital Stock or the issuance of a new certificate representing such
shares unless and until such a transfer can be made without adversely affecting
the ability of Newco and/or each of the Surviving Corporations to account for
the business combination to be effected by the Merger as a pooling of interests.
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5. ADDITIONAL DOCUMENTS. Shareholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Newco or Omega, to carry out the purpose and intent of
this Agreement.
6. CONSENT AND WAIVER. Shareholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger Agreement and
the Transaction under the terms of any agreement to which Shareholder is a party
or pursuant to any rights Shareholder may have.
7. TERMINATION. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. CONFIDENTIALITY. Shareholder agrees (i) to hold any information
regarding this Agreement and the Transaction in strict confidence, and (ii) not
to divulge any such information to any third person, except to the extent any of
the same is hereafter publicly disclosed by Omega and Company.
9. FIDUCIARY RESPONSIBILITIES. Notwithstanding anything to the contrary
herein, to the extent Shareholder is or becomes during the term hereof a
director or officer of the Company, Shareholder is not making (nor shall be
deemed to have made) any agreement or understanding herein in his or her
capacity as such director or officer. Without limiting the generality of the
foregoing, Shareholder is executing this Agreement solely in his, her or its
capacity as the record and/or beneficial owner, as applicable, of the Shares and
nothing herein shall limit or affect any actions taken by Shareholder (or a
designee of such Shareholder) in his or her capacity as an officer or director
of the Company in exercising his or her or the Company's or the Company's Board
of Director's rights in connection with the Merger Agreement or otherwise.
10. MISCELLANEOUS.
10.1 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
10.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without the prior written consent of the other. This
Agreement is intended to bind Shareholder solely as a security holder of Company
only with respect to the specific matters set forth herein.
10.3 AMENDMENT AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
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10.4 SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF. The parties
hereto acknowledge that Newco and Omega will be irreparably harmed and that
there will be no adequate remedy at law for a violation of any of the covenants
or agreements of Shareholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Newco or Omega upon any
such violation, Newco shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Newco or Omega at law or in equity and Shareholder hereby waives
any and all defenses which could exist in its favor in connection with such
enforcement and waives any requirement for the security or posting of any bond
in connection with such enforcement.
10.5 NOTICES. All notices, requests, demands or other
communications that 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 if
delivered by hand or mailed by registered or certified mail, postage prepaid, or
sent by facsimile transmission, as follows:
(a) If to Shareholder, at the address set forth
below Shareholder's signature at the end hereof.
(b) if to Newco or Omega, to:
c/o Omega Research, Inc.
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, President
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Bilzin Xxxxxxx Xxxx Price & Xxxxxxx LLP
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Facsimile No. (000) 000-0000
Telephone No. (000)000-0000,
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
10.6 GOVERNING LAW. This Agreement shall be governed by,
construed and enforced in accordance with the internal laws of the State of
Florida without giving effect to the principles of conflicts of law thereof.
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10.7 ENTIRE AGREEMENT. This Agreement and the Proxy contain
the entire understanding of the parties in respect of the subject matter hereof,
and supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
10.8 COUNTERPART. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
10.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
10.10 PREVAILING PARTY LEGAL FEES. The prevailing party in any
litigation or other proceeding brought to enforce the terms of this Agreement
shall be entitled to receive from the nonprevailing party its reasonable
attorneys' and paralegals' fees and costs before and at trial and at all
appellate and other tribunal levels, in addition to its other remedies hereunder
or at law or in equity.
[SIGNATURE PAGE TO ONLINE SHAREHOLDER AGREEMENT ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Online Shareholder
Agreement to be executed as of the date first above written.
ONLINE TRADING GROUP, INC. SHAREHOLDER
By:
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Name: (Signature)
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Title:
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(Signature of Spouse)
OMEGA RESEARCH, INC.
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By: (Print Name of Shareholder)
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Name:
--------------------------
Title:
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(Print Street Address)
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(Print City, State and Zip)
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(Print Telephone Number)
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(Social Security or Tax I.D. Number)
Total Number of Shares of Company Capital Stock owned on the date hereof-
Common Stock:
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Principal Residence or Place of Business:
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SIGNATURE PAGE TO ONLINE SHAREHOLDER AGREEMENT
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ANNEX A
IRREVOCABLE PROXY
TO VOTE STOCK OF
XXXXXXXXXXXXXXXX.XXX
The undersigned shareholder of xxxxxxxxxxxxxxxx.xxx corp., a Florida
corporation ("Company"), hereby irrevocably (to the full extent permitted by the
Florida Business Corporation Act) appoints Xxxxxxx X. Xxxx and Xxxxx X. Xxxx
(collectively, "Proxies") and each of them, or any other designee of such
Proxies, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to vote and exercise all
voting and related rights (to the full extent that the undersigned is entitled
to do so) with respect to all of the shares of capital stock of Company that now
are or hereafter may be beneficially owned by the undersigned, and any and all
other shares or securities of Company issued or issuable in respect thereof on
or after the date hereof (collectively, the "Shares") in accordance with the
terms of this Irrevocable Proxy. The Shares beneficially owned by the
undersigned shareholder of Company as of the date of this Irrevocable Proxy are
listed on the final page of this Irrevocable Proxy. Upon the undersigned's
execution of this Irrevocable Proxy, any and all prior proxies given by the
undersigned with respect to any Shares relating to the subject matter of this
Irrevocable Proxy are hereby revoked and the undersigned agrees not to grant any
subsequent proxies with respect to the Shares relating to the subject matter of
this Irrevocable Proxy until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided in the
Florida Business Corporation Act), is coupled with an interest, including, but
not limited to, that certain Affiliate Agreement dated as of even date herewith
by and among Online Trading Group, Inc., a Florida corporation ("Newco"), and
the undersigned, and is granted in consideration of Newco and Omega Research,
Inc., a Florida corporation ("Omega"), entering into that certain Agreement and
Plan of Merger and Reorganization (the "Merger Agreement") by and among Newco,
Omega, Omega Acquisition Corporation, a Florida corporation and wholly owned
subsidiary of Newco ("Omega Merger Sub"), Onlinetrading Acquisition Corporation,
a Florida corporation and a wholly owned subsidiary of Newco ("Online Merger
Sub"), and Company, which Merger Agreement provides for the merger of Omega
Merger Sub with and into Omega and Online Merger Sub with and into Company
(collectively, the "Merger"). As used herein, the term "Expiration Date" shall
mean the earlier to occur of (i) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement,
and (ii) the date of termination of the Merger Agreement.
The Proxies named above, and each of them acting singularly or
together, are hereby authorized and empowered by the undersigned, at any time
prior to the Expiration Date, to act as the undersigned's attorney and proxy to
vote the Shares, and to exercise all voting and other rights of the undersigned
with respect to the Shares (including, without limitation, the power to execute
and deliver written consents pursuant to the Florida Business Corporation Act),
at every annual, special
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or adjourned meeting of the stockholders of Company and in every written consent
in lieu of such meeting in favor of approval and adoption of the Merger
Agreement and of any and all of the transactions and matters contemplated
thereby.
The Proxies named above may not exercise this Irrevocable Proxy on any
other matter except as provided above. The undersigned shareholder may vote the
Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: _______________, 2000
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(Signature of Shareholder)
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(Print Name of Shareholder)
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Shares beneficially owned:
__________ shares of Company Common Stock
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SCHEDULE I
LIEN
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