EXHIBIT 10.6
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of June 19, 2000 (this "Agreement"), among
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BROKAT Aktiengesellschaft, a German corporation which is in the process of
changing its name from BROKAT Infosystems Aktiengesellschaft (the "Parent"), and
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certain stockholders of Blaze Software, Inc., a Delaware corporation (the
"Company"), which are parties hereto (each, a "Stockholder" and, collectively,
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the "Stockholders"). Capitalized terms used without definition herein have the
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meanings assigned to them in the Merger Agreement (as hereinafter defined).
WITNESSETH:
WHEREAS, the Parent and the Company are, concurrently with the execution
and delivery of this Agreement, entering into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which the
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Parent and the Company intend to combine their businesses by merging Merger Sub
with and into the Company and making the Company a wholly owned subsidiary of
the Parent (the "Merger");
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WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of the number of shares of common stock, par value $0.0001 per
share, of the Company ("Company Common Stock"), the options and rights to
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purchase the Company Common Stock and any other shares of voting capital stock
of the Company, in each case, as set forth on Schedule A attached hereto (with
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respect to each Stockholder, such Stockholder's "Existing Shares" and, together
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with any shares of the Company Common Stock or other voting capital stock of the
Company acquired after the date hereof, whether upon the exercise of warrants,
options, conversion of convertible securities or otherwise, such Stockholder's
"Shares");
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WHEREAS, pursuant to the Merger Agreement, each Stockholder is entitled to
receive, at the Effective Time of the Merger, American Depositary Shares
("Parent ADSs") representing shares of the Parent ("Parent Shares") (such Parent
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Shares and Parent ADSs, together with any Parent Shares or Parent ADSs acquired
upon the exercise of any warrants or options or upon the conversion of
convertible securities acquired prior to the Effective Time, whether or not such
exercise or conversion occurred prior to the Effective Time, the "Parent
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Securities").
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WHEREAS, approval of the stockholders of the Company is necessary to
consummate the Merger; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, the Parent has required that each Stockholder agree, and each
Stockholder has agreed, to enter into this Agreement, pursuant to which, among
other things, such
Stockholder agrees to vote all of its Shares to approve the Merger, upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
I. ARTICLE
VOTING
A. Agreement to Vote. Each Stockholder hereby agrees that it shall, and
shall cause the holder of record on any applicable record date to, from time to
time, at the request of the Parent, at any meeting (whether annual or special
and whether or not an adjourned or postponed meeting) of stockholders of the
Company, however called, (a) if a meeting is held, appear at such meeting or
otherwise cause the Shares to be counted as present thereat for purposes of
establishing a quorum, and (b) vote or consent (or cause to be voted or
consented), in person or by proxy, all Shares, and any other voting securities
of the Company (whether acquired heretofore or hereafter) that are beneficially
owned or held of record by such Stockholder or as to which such Stockholder has,
directly or indirectly, the right to vote or direct the voting, in favor of the
approval and adoption of, and against any action or agreement that would
compete, impede or interfere with the approval and adoption of, the Merger
Agreement, the Merger and any action required in furtherance thereof.
A. Agreement to Vote. Each Stockholder hereby agrees that it will not, nor
will it permit any entity under its control to, (a) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act"))
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in opposition to or in competition with the consummation of the Merger and the
other transactions contemplated by the Merger Agreement or otherwise encourage
or assist any party in taking or planning any action which would compete with or
otherwise serve to interfere with or inhibit the timely consummation of the
Merger in accordance with the terms of the Merger Agreement, (b) directly or
indirectly encourage, initiate or cooperate in a shareholders' vote or action by
consent of the Company's stockholders in opposition to or in competition with
the consummation of the Merger or (c) become a member of a "group" (as such term
is used in Section 13(d) of the Exchange Act) with respect to any voting
securities of the Company for purposes of opposing or competing with the
consummation of the Merger.
X. Xxxxx of Proxy. In furtherance and not in limitation of the foregoing,
each Stockholder hereby grants to, and appoints, the Parent and each of Messrs.
Stefan Rover and Xxxxxxx Xxxxxx, in their respective capacities as officers of
the
Parent, and any individual who shall hereafter succeed any such officer of the
Parent, and any other designee of the Parent, each of them individually, its
irrevocable proxy and attorney-in-fact (with full power of substitution and
resubstitution) to vote the Shares as indicated in this Article I. Each
Stockholder intends this proxy to be irrevocable and coupled with an interest
and will take such further action and execute such other instruments as may be
necessary to effectuate the intent of this proxy. Each Stockholder hereby
revokes any and all previous proxies with respect to such Stockholder's Shares
or any other voting securities of the Company that relate to the approval of the
Merger Agreement.
A. No Ownership Interest. Nothing contained in this Agreement shall be
deemed to vest in the Parent any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership and economic
benefits of and relating to the Shares shall remain vested in and belong to the
Stockholders, and the Parent shall have no authority to manage, direct,
superintend, restrict, regulate, govern, or administer any of the policies or
operations of the Company or exercise any power or authority to direct the
Stockholders in the voting of any of the Shares, except as otherwise provided
herein, or in the performance of the Stockholders' duties or responsibilities as
stockholders of the Company.
A. Evaluation of Investment. Each Stockholder, by reason of its knowledge
and experience in financial and business matters, believes itself capable of
evaluating the merits and risks of the investment in the Parent ADSs and the
Parent Shares underlying such Parent ADSs as contemplated by the Merger
Agreement.
A. Documents Delivered. Each Stockholder acknowledges receipt of copies of
the Merger Agreement and all exhibits and schedules thereto. Each Stockholder
also acknowledges that such Stockholder possesses all the information relating
to the Company and the Parent which such Stockholder deems relevant or material
to such Stockholder's investment in the Parent ADSs and the underlying Parent
Common Stock should the Merger be consummated and to its entering into this
Agreement.
A. No Inconsistent Voting Agreements. Each Stockholder hereby covenants
and agrees that, except as contemplated by this Agreement and the Merger
Agreement, the Stockholder (a) has not entered, and shall not enter at any time
while this Agreement remains in effect, into any voting agreement or voting
trust with respect to the Shares and (b) has not granted, and shall not grant at
any time while this Agreement remains in effect, a proxy or power of attorney
with respect to the Shares, in either case, which is inconsistent with such
Stockholder's obligations pursuant to this Agreement.
I. ARTICLE
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and warrants
to the Parent as follows:
A. Authorization; Validity of Agreement; Necessary Action. Such
Stockholder has full power and authority to execute and deliver this Agreement,
to perform such Stockholder's obligations hereunder and to consummate the
transactions contemplated hereby. In the case of any Stockholder that is not a
natural person, the execution, delivery and performance by such Stockholder of
this Agreement and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by such Stockholder and no other
actions or proceedings on the part of such Stockholder are necessary to
authorize the execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by such Stockholder, and, assuming this
Agreement constitutes a valid and binding obligation of the Parent, constitutes
a valid and binding obligation of such Stockholder, enforceable against it in
accordance with its terms.
A. Consents and Approval; No Violations. None of the execution, delivery
or performance of this Agreement by such Stockholder nor the consummation by it
of the transactions contemplated hereby nor compliance by it with any of the
provisions hereof will (i) require any filing, registration or declaration with,
or consent, approval, order, or authorization of, any Governmental Entity, (ii)
result in a violation or breach of, or constitute a default under, any contract,
agreement or other instrument or obligation to which such Stockholder is a party
or (iii) violate any judgment, permit, order, decree, statute, ordinance, law,
rule or regulation applicable to it or any of its properties or assets.
A. Shares. Such Stockholder's Existing Shares are, and all of its Shares
from the date hereof through and on the Closing Date will be, owned beneficially
and of record by such Stockholder (subject to any dispositions of Shares
permitted by Section 3.1(a)). As of the date hereof, such Stockholder's
Existing Shares constitute all of the shares of the Company Common Stock owned
of record or beneficially by such Stockholder. All of such Stockholder's
Existing Shares are issued and outstanding, and, except as set forth on Schedule
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A hereto, such Stockholder does not own, of record or beneficially, any
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warrants, options or other rights to acquire any shares of the Company Common
Stock or any other capital stock of the Company. Such Stockholder has sole
voting power, sole power of disposition, sole power to issue instructions with
respect to the matters set forth in Article I, and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect to all of
such Stockholder's Existing Shares, and will have sole voting power, sole power
of disposition, sole power to issue instructions with respect to the matters set
forth in Article I, and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of such Stockholder's
Shares on the record date for and actual date of the Company Shareholders
Meeting (subject to any dispositions of Shares permitted by Section 3.1(a)),
with no limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement. Such
Stockholder has good and marketable title to its Existing Shares and at all
times during the term hereof and at the Effective Time will have good and
marketable title to its Shares.
I. ARTICLE
COVENANTS
A. Limitations on Transfer of Shares Prior to Effective Time.
(a) Each Stockholder, severally and not jointly, hereby agrees not to take any
of the following actions while Article I of this Agreement is in effect, except
in accordance with subsection (b) of this Section 3.1:
(i) tender any of such Stockholder's Shares or any securities convertible
into or exchangeable or exercisable for such Stockholder's Shares to any person,
other than the Exchange Agent, the Parent or the Merger Sub;
(ii) sell, transfer, pledge, encumber, assign or otherwise dispose of any
of such Stockholder's Shares or any securities convertible into or exchangeable
or exercisable for such Stockholder's Shares, other than to the Exchange Agent,
the Parent or the Merger Sub;
(iii) enforce or permit the execution of the provisions of any redemption,
share purchase or sale, recapitalization or other agreement with the Company; or
(iv) enter into any contract, option or other arrangement or understanding
with respect to or consent to the offer for sale, sale, transfer, pledge,
encumbrance, assignment or other disposition of, any of its Shares, any
securities convertible into or exchangeable or exercisable for Company Common
Stock, any other capital stock of the Company or any interest in any of the
foregoing with any person, other than the Exchange Agent, the Parent or Merger
Sub.
(a) Notwithstanding subsection (a) above, a Stockholder may take an action
described in subsection (a) if (i) the Parent gives its prior written consent to
such action or (ii) the proposed transferee agrees in writing, in an instrument
reasonably acceptable to the Parent, to be bound by this Agreement as a
Stockholder and grants with respect to any Shares so proposed to be acquired the
proxy described in Section 1.3 of this Agreement, and such transfer is
consummated at least thirty (30) days prior to the Effective Time.
(a) No Stockholder shall request that the Company or its transfer agent register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of such Stockholder's Shares, and each Stockholder
hereby consents to the entry of stop transfer instructions by the Company of any
transfer of such Stockholder's Shares, unless such transfer is made in
compliance with this Agreement.
(a) In the event of a stock dividend or distribution, or any change in Company
Common Stock by reason of any stock dividend or distribution, or any change, in
Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any securities into which or for which any or
all of the Shares may be changed or exchanged or which are received in such
transaction.
(a) Each Stockholder agrees not to, and agrees not to authorize or permit any
affiliate, director, officer, employee, or any investment banker, attorney or
other advisor, agent or representative of such Stockholder (collectively, the
"Representatives") to, directly or indirectly, (i) initiate, solicit, encourage
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or knowingly facilitate, or take any action to initiate, solicit, encourage or
knowingly facilitate, any inquiries or communications or the making of any
proposal or offer that constitutes or may constitute an Acquisition Proposal, or
(ii) have any discussion with or provide any confidential information or data to
any Person relating to an Acquisition Proposal, or engage in any negotiations
concerning an Acquisition Proposal or knowingly facilitate any effort or attempt
to make or implement an Acquisition Proposal. Each Stockholder agrees that it
will, and will cause its Representatives to, immediately cease and cause to be
terminated any activities, discussions or negotiations existing as of the date
hereof with any parties conducted heretofore with respect to any Acquisition
Proposal. Nothing in this Section 3.1(e) is intended to prevent the Company from
taking any action that is expressly permitted pursuant to Section 5.7 of the
Merger Agreement.
A. Limitations on Transfer of Parent Securities After Effective Time.
(a) Restrictions on Natural Persons. During (x) the six (6) month period
following the Effective Time and (y) the period specified by the Parent and the
managing underwriter in connection with any underwritten U.S. public offering of
Parent ADSs or other equity securities of the Parent (such period not to extend
more than 14 days prior to the reasonably expected date on which securities will
be issued and sold pursuant to such offering (the "closing") or beyond 90 days
after the actual closing of such offering), each Stockholder who is a natural
person, severally and not jointly, hereby agrees not to take any of the
following actions:
(i) sell, transfer, distribute, pledge, encumber, assign or otherwise
dispose of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any time in the
future of) any Parent Securities;
(ii) enter into any swap or other derivatives transaction that transfers
to another, in whole or in part, any of the economic benefits or risks of
ownership of any Parent Securities; or
(iii) deposit any Parent Securities into a facility for Parent ADSs or
withdraw any Parent ADSs from any such facility;
whether, in the case of clause (i) or (ii) above, any such transaction is to be
settled by delivery of Parent Securities or other securities, in cash or
otherwise. Any transaction referred to in clause (i), (ii) or (iii) is
hereinafter referred to as a "Transfer."
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(a) Restrictions on Other Stockholders. Each Stockholder that is not a natural
person, severally and not jointly, hereby agrees not to:
(i) Transfer any Parent Securities in violation of Rule 145, deeming (for
purposes of this covenant) such Stockholder to be an "affiliate" of the Company
for purposes of such Rules;
(ii) Transfer any Parent Securities for a period of 60 calendar days
following the Effective Time without the prior written consent of the Parent;
(iii) following such 60 calendar day period, Transfer, in any 90 day
period, (x) Parent ADSs in excess of the average weekly reported volume of
trading in such securities reported through the Nasdaq Stock Market during the
preceding four calendar weeks, or (y) Parent Shares in excess of the greater of
one percent of the total number of such Parent Shares outstanding and the
average weekly reported volume of trading in such securities reported through
the Neuer Markt during the preceding four calendar weeks, except that such
Stockholder may (subject to clauses (i), (iv) and (v)) distribute Parent
Securities to its own securityholders without regard to such volume limitations;
(iv) if the Parent notifies Stockholder prior to the expiration of the 60
calendar day period referred to above that it has filed a Registration Statement
with the Securities and Exchange Commission with respect to a primary offering
of shares for cash, Transfer any Parent Securities for a period of up to 45 days
from the date of such filing (while preparation for such offering continues) to
the "pricing" of such offering (which period may be followed by the period
contemplated by clause (v)); or
(v) Transfer any Parent Securities during the period specified by the
Parent and the managing underwriter in connection with any underwritten U.S.
public offering of Parent ADSs or other equity securities of the Parent
requested from large or "inside"
holders generally (such period not to extend more than 14 days prior to the
reasonably expected closing date for such offering or beyond 90 days after the
actual closing of such offering); provided that not more than one such "market
stand-off" period shall be imposed upon the Stockholders in any twelve-month
period.
(a) Share Legends. Each Stockholder consents to the imprinting of a legend on
certificates representing Parent Shares or American Depositary Receipts
representing Parent ADSs of legends reflecting the restrictions set forth in
this Section 4.2.
A. Incidental or "Piggy-Back" Offering.
(a) During the term of this Agreement, if the Parent proposes to commence an
underwritten public offering in the United States of Parent Shares or the Parent
ADSs that is registered with the U.S. Securities and Exchange Commission (other
than on a Form X-0, X-0 or F-4, or successor form), for the account of any
securityholder of the Parent, then the Parent shall give written notice of such
proposed offering to each of the Stockholders at least twenty (20) days before
the anticipated commencement of such offering, and such notice shall describe
the proposed distribution and offer such Stockholders the opportunity to offer
the number of Parent Shares or Parent ADSs as each such Stockholder may request
(an "Incidental Offering"). The Parent shall use commercially reasonable efforts
(within twenty (20) days of the notice provided for in the preceding sentence)
to cause the managing underwriter or underwriters to permit each of the
Stockholders who have requested in writing to participate in the Incidental
Offering to include its or his Parent Shares or Parent ADSs in such secondary
underwritten offering on the same terms and conditions as the securities of such
other stockholder. The Parent shall not be required to include any such Parent
Shares or Parent ADSs in such secondary underwritten offering unless the
Stockholder thereof accepts the terms of the underwritten offering as agreed
upon between the Parent and the managing underwriter or underwriters, and then
only in such quantity as the managing underwriter or underwriters believe will
not jeopardize the success of the offering by the Parent. If the managing
underwriter or underwriters determine that the inclusion of all or part of the
Parent Shares or Parent ADSs which the Stockholders have requested to be
included would materially adversely affect the success of such offering, then
the Parent shall be required to include in such Incidental Offering, to the
extent of the amount that the managing underwriter or underwriters believe
may be sold without causing such adverse effect, first, all of the
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securities to be offered for the account of the Parent (if any); and
second, the Parent Shares or Parent ADSs to be offered for the account of
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the Stockholders pursuant to this Section 3.3 and any other securities requested
to be included in such secondary offering, pro rata based on the number of
Parent Shares or Parent ADSs owned by each such stockholder.
(b) The Parent shall bear all expenses in connection with any Incidental
Offering pursuant to this Section 3.3 (except for underwriter commissions or
discounts to be shared on a pro rata basis based on the number of securities
offered by each person).
I. ARTICLE
MISCELLANEOUS
A. Termination. This Agreement shall terminate and no party shall have any
rights or duties hereunder if the Merger Agreement terminates pursuant to
Section 7.1 thereof. In addition, the Stockholders' obligations under Article I
and Section 3.1 shall terminate at the Effective Time. The obligations under
Sections 3.2 and 3.3 shall survive the Effective time and terminate on the
second anniversary of the Effective Date. Nothing in this Section 4.1 shall
relieve or otherwise limit any party of liability for breach of this Agreement.
A. Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate the transactions contemplated by the Merger Agreement
and this Agreement.
A. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (a) on the date of delivery if delivered
personally, or by telecopy or facsimile, upon confirmation of receipt, (b) on
the third business day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the tenth business day following
the date of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
(a) if to the Parent to:
BROKAT AG
Xxxxxxxxxxxxxxxx 0
00000 Xxxxxxxxx, Xxxxxxx
Fax:x00-000-000-00-000
Attn: Xxxx-Xxxxx Xxxxxx, Esq.
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000, X.X.X.
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
(b) if to a Stockholder, as provided on the signature
page hereof, with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000, U.S.A.
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxx, Esq.
A. Interpretation. When a reference is made in this Agreement to Sections,
Exhibits or Schedules, such reference shall be to a Section of, or Exhibit or
Schedule to, this Agreement unless otherwise indicated. The headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
A. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
A. Entire Agreement; No Third Party Beneficiaries.
(a) This Agreement and the other agreements of the parties referred to
herein constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(b) This Agreement shall be binding upon and inure solely to the benefit of
each party hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
A. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware (without giving effect to
choice of law principles thereof).
A. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any law or public policy, all
other terms 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 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 an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
A. Amendment. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
A. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto, in whole
or in part (whether by operation of law or otherwise), without the prior written
consent of the other party, and any attempt to make any such assignment without
such consent shall be null and void, except that the Parent may assign, in its
sole discretion, any or all of its rights, interests and obligations under this
Agreement to any direct wholly owned Subsidiary of the Parent or the Exchange
Agent without the consent of any Stockholder, but no such assignment shall
relieve the Parent of any of its obligations under this Agreement. Subject to
the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns. Without limiting the generality of the foregoing, the rights under
Section 4.3 shall not be assignable to any other person, including any purchaser
or other transferee of Parent Shares or Parent ADSs.
A. Submission to Jurisdiction; Waivers. Each of the Parent and the
Stockholders irrevocably agrees that any legal action or proceeding with respect
to this Agreement or for recognition and enforcement of any judgment in respect
hereof brought by the other party hereto or its successors or assigns may be
brought and determined in the Chancery or other Courts of the State of Delaware,
and each of the Parent and the Stockholders hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the nonexclusive jurisdiction of the
aforesaid courts. Each of the Parent and the Stockholders hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, counterclaim
or otherwise, in any action or proceeding with respect to this Agreement, (a)
any claim that it is not personally subject to the jurisdiction of the above-
named courts for any reason other than the failure to lawfully serve process,
(b) that it or its property is exempt or immune from jurisdiction of any such
court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and (c) to the fullest extent
permitted by applicable law, that (i) the suit, action or proceeding in any such
court is brought in an inconvenient forum, (ii) the venue of such suit, action
or proceeding is improper and (iii) this Agreement, or the subject matter
hereof, may not be enforced in or by such courts.
A. Specific Performance. Each of the parties hereto acknowledge that it
will be impossible to measure in money the damage to the other
parties if a party hereto fails to comply with any of the obligations imposed by
this Agreement, that every such obligation is material and that, in the event of
any such failure, the other parties will not have an adequate remedy at law or
damages. Accordingly, each party hereto agrees that injunctive relief of other
equitable remedy, in addition to remedies at law or damages, is the appropriate
remedy for any such failure and will not oppose the granting of such relief on
the basis that the other parties have an adequate remedy at law. Each party
hereto agrees that it will not seek, and agrees to waive any requirement for,
the securing or posting of a bond in connection with any other party's seeking
or obtaining such equitable relief.
A. Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or
delay on the part of any party hereto in the exercise of any right hereunder
will impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor will any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive to, and not exclusive of, any
rights or remedies otherwise available.
A. Attorney's Fees. In any action or proceeding brought to enforce any
provision of this Agreement or where any provision hereof is validly asserted as
a defense, the successful party shall, to the extent permitted by applicable
law, be entitled to recover all attorney's fees in addition to any other
available remedy.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the Parent and each of the Stockholders have caused this
Agreement to be signed by their respective officers or other authorized person
thereunto duly authorized as of the date first written above.
BROKAT AKTIENGESELLSCHAFT
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
TL VENTURES III INTERFUND L.P.
By: _____________________________
Name:
Title:
Notices to:
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
TL VENTURES III L.P.
By: _____________________________
Name:
Title:
Notices to:
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
TL VENTURES III OFFSHORE L.P.
By: _____________________________
Name:
Title:
Notices to:
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx 000
Xxxxx, XX 00000, X.X.X.
Fax: ____________________
Attn: ____________________
XXXXXX XXXXXXX VENTURE FUND II, C.V.
By: _____________________________
Name:
Title:
Notices to:
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
XXXXXX XXXXXXX VENTURE
CAPITAL FUND II, LP
By: _____________________________
Name:
Title:
Notices to:
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
XXXXXX XXXXXXX VENTURE INVESTORS, LP
By: _____________________________
Name:
Title:
Notices to:
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
ALTA CALIFORNIA PARTNERS, L.P.
By: _____________________________
Name:
Title:
Notices to:
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
ALTA EMBARCADERO PARTNERS, LLC
By: _____________________________
Name:
Title:
Notices to:
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, U.S.A.
Fax: ____________________
Attn: ____________________
C.V. SONFINNOVA VENTURES
By: _____________________________
Name:
Title:
Notices to:
000 Xxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
SONFINNOVA CAPITAL III FCPR
By: _____________________________
Name:
Title:
Notices to:
000 Xxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
SONFINNOVA VENTURE PARTNERS IV, L.P.
By: _____________________________
Name:
Title:
Notices to:
000 Xxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
SONFINNOVA VENTURES
By: _____________________________
Name:
Title:
Notices to:
000 Xxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
XXXX XX, L.P.
By: _____________________________
Name:
Title:
Notices to:
One Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
C.V. SOFINNOVA PARTNERS FIVE
By: _____________________________
Name:
Title:
Notices to:
One Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
_____________________________
XXXXXX X. XXXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
_____________________________
XXXX XXXXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
_____________________________
XXXX XXXXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
_____________________________
XXXXXXX XXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
_____________________________
XXXXXXXXX XXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
_____________________________
XXXXXXX XXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
_____________________________
XXXXXXX X. XXXXXXXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
_____________________________
L. XXXXXX XXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
_____________________________
XXX XXXXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
SCHEDULE A
----------
Number of Shares subject to
Stockholder Existing Shares Options or
Warrants
TL Ventures III Interfund L.P.
TL Ventures III L.P.
TL Ventures III Offshore X.X.
Xxxxxx Xxxxxxx Venture Fund II, X.X.
Xxxxxx Xxxxxxx Venture Capital Fund II, XX
Xxxxxx Xxxxxxx Venture Investors, LP
Alta California Partners, L.P.
Alta Embarcadero Partners, LLC
C.V. Sonfinnova Ventures
Sonfinnova Capital III FCPR
Sonfinnova Venture Partners IV, L.P.
Sonfinnova Ventures
Xxxx XX, L.P.
C.V. Sofinnova Partners Five
Xxxxxx X. Xxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxx
Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxxx X. Xxxxxxxxxx
L. Xxxxxx Xxxxx
Xxx Xxxxxxx
