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Exhibit 4.4
AGREEMENT
This AGREEMENT (this "Agreement") dated as of November 4, 1999, among
WT Technologies, Inc., a Georgia corporation (the "Company"), Xxxxx X. Xxxxxx
("Xxxxxx") and Xxxx X. Xxxxx and Xxxx X. Xxxxx, as Trustees of the Xxxx X. Xxxxx
and Xxxx X. Xxxxx Trust (the "Xxxxx Trust").
WHEREAS, the Xxxxx Trust is a shareholder of Xxxxxx X. Ltd. d/b/a
International Software Products, a Virginia corporation ("ISP");
WHEREAS, the Company, Hopley, the Xxxxx Trust, Xxxxxxxxxxx X. Xxxxxxx,
F. Xxxxxx Xxxxx and ISP propose to enter into a Contribution Agreement, of even
date herewith (the "Contribution Agreement"), pursuant to which the Company
would acquire all of the issued and outstanding shares of capital stock of ISP
in exchange for, among other things, shares of common stock, par value $.01 per
share, of the Company (such common stock to be received by the Xxxxx Trust as
well as other securities issued with respect to the Company's capital stock by
means of share splits, combinations, dividends or other similar recapitalization
events being referred to as the "Subject Shares");
WHEREAS, as a condition to its willingness to enter in the Contribution
Agreement, the Company has requested that the Xxxxx Trust enter into this
Agreement; and
WHEREAS, capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to such terms in the Shareholders Agreement;
NOW, THEREFORE, to induce the Company to enter into, and in
consideration of entering into, the Contribution Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Representations and Warranties of the Xxxxx Trust. The Xxxxx Trust
hereby represents and warrants to the Company that (a) the Xxxxx Trust has all
requisite power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby and
(b) this Agreement has been duly authorized, executed and delivered by the Xxxxx
Trust and constitutes a valid and binding obligation of the Xxxxx Trust
enforceable in accordance with its terms.
2. Covenants of the Xxxxx Trust. Until the termination of this
Agreement in accordance with Section 4 hereof, the Xxxxx Trust agrees as
follows:
(a) Voting of Subject Shares. At any meeting of shareholders of the
Company or at any adjournment thereof or in any other circumstances
upon which any Company shareholder's vote, consent or other approval
(including by written consent) is sought, the Xxxxx Trust shall vote
all of the Subject Shares then beneficially owned by it as directed by
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Hopley. The Xxxxx Trust shall not hereafter, unless and until this
Agreement terminates pursuant to Section 4 hereof, purport to grant
(other than through the irrevocable proxy granted in Section 2(b)) any
proxy or power of attorney with respect to any of the Subject Shares,
deposit any of the Subject Shares into a voting trust or enter into any
agreement (other than this Agreement), arrangement or understanding
with any person, directly or indirectly, to vote, grant any proxy or
give instructions with respect to the voting of any of the Subject
Shares. The Xxxxx Trust further agrees not to commit or agree to take
any action inconsistent with the foregoing.
(b) Proxy. The Xxxxx Trust hereby grants to Hopley, as the Xxxxx
Trust's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of the Xxxxx Trust, a proxy to
vote, or to grant a consent or approval in respect of, all of the
Subject Shares then beneficially owned by the Xxxxx Trust as indicated
in Section 2(a) above, and Hopley hereby accepts such proxy. The Xxxxx
Trust agrees that this proxy shall be irrevocable and coupled with an
interest and may under no circumstances be revoked, agrees to take such
further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy and hereby revokes any proxy
previously granted by the Xxxxx Trust with respect to any of the
Subject Shares. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 14-2-722 of
the Georgia Business Corporation Code.
(c) Transfer Restrictions. The Xxxxx Trust agrees not to sell,
transfer, pledge, encumber, assign or otherwise dispose of (including
by gift) (collectively, "Transfer"), or enter into any contract, option
or other arrangement or understanding (including any profit sharing
arrangement) with respect to the Transfer of, any of the Subject Shares
to any person unless (i) permitted by the Shareholders Agreement and
(ii) the transferee agrees in writing (to the reasonable satisfaction
of the Company) to be bound by all of the terms and conditions of this
Agreement.
(d) Mandatory Sale of Subject Shares. In the event that Hopley sells
or transfers her Transferee Shares for any reason including, without
limitation, pursuant to the Shareholders Agreement or the Put
Agreement, then the Xxxxx Trust shall sell or transfer its pro rata
portion of the Subject Shares on the same terms and conditions;
provided, however, that the provisions of this Section 3(d) shall not
apply to permitted transfers by Hopley pursuant to Section 2(e) of the
Shareholders Agreement; and provided further, that the Xxxxx Trust
shall be entitled to exercise or decline the Buyback Right (as defined
in the Shareholders Agreement) regardless of Hopley's election with
respect thereto.
3. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder may be assigned by any of the parties hereto without
the prior written consent of the other parties hereto, except by Hopley in
connection with a permitted transfer pursuant to Section 2(e) of the
Shareholders Agreement. Subject to the preceding sentence, this Agreement will
be binding
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upon, inure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
4. Termination. This Agreement shall terminate, and no party hereto
shall have any rights or obligations hereunder, upon the first to occur of (a)
the effective time of an initial public offering of the Company's securities or
(b) such time as Hopley and the Xxxxx Trust have exercised or declined to
exercise the Buyback Right as set forth in the Shareholders Agreement.
5. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in
person, by telecopy or by registered or certified mail (postage
prepared, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
if to Xxxxx Trust, to:
0000 000xx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
if to Hopley, to:
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
XxXxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxx Traurig
0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx, XX 00000
Attention: C. Xxxxxx Xxxxx III, Esq.
Facsimile: (000) 000-0000
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if to the Company, to:
0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Long Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(c) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of 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. Wherever the words "include",
"includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation".
(d) 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 of the
counterparts have been signed by each of the parties and delivered to
the other party, it being understood that each party need not sign the
same counterpart.
(e) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Georgia
regardless of the laws that might otherwise govern under applicable
principles of conflicts or law.
(f) Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is
not affected in any manner materially adverse to any party. Upon any
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 to the end
that transactions contemplated hereby are fulfilled to the extent
possible.
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6. Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that, in addition to any other remedy to which it may be
entitled, at law or in equity, the parties shall be entitled to the remedy of
specific performance of the covenants and agreements contained herein and
injunctive and other equitable relief.
7. Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto. Except as provided in the preceding
sentence, nothing in this Agreement, express or implied, is intended to or shall
confer upon any other person any rights, benefits or remedies or any nature
whatsoever under or by reason of this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by its signatory thereunto duly authorized, as of the date first written
above.
WT TECHNOLOGIES, INC.
By:
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Name:
Title:
THE XXXX X. XXXXX AND
XXXX X. XXXXX TRUST
By:
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Name: Xxxx X. Xxxxx
Title: Trustee
By:
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Name: Xxxx X. Xxxxx
Title: Trustee
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Xxxxx X. Xxxxxx
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