STOCKHOLDER AGREEMENT
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STOCKHOLDER AGREEMENT (this "Agreement"), dated as of September 3, 2003, by
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and between chinadotcom corporation, a company organized under the laws of the
Cayman Islands ("Parent"), and [_____________] ("Stockholder").
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RECITALS
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Concurrently herewith, Parent, CDC Software Holdings, Inc., a Delaware
corporation and wholly owned subsidiary of Parent ("Merger Sub"), and Xxxx
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Systems, Inc., a Delaware corporation (the "Company"), are entering into an
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Agreement and Plan of Merger as of the date hereof (the "Merger Agreement";
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capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement), pursuant to which (and subject to the terms and
conditions set forth therein) Merger Sub will merge with and into the Company
(the "Merger"), and each outstanding share of common stock, par value $.001 per
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share, of the Company (the "Common Stock") will be converted into the right to
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receive the Merger Consideration.
As of the date hereof, Stockholder beneficially owns [_________] Shares
(the "Owned Shares"), and stock options exercisable for [___________] Shares
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(the "Options") (the Owned Shares, including any Shares acquired by Stockholder
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after the date hereof and prior to the termination hereof, whether upon exercise
of the Options, conversion of other convertible securities or otherwise, are
collectively referred to herein as the "Covered Shares", and the Covered Shares
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and the Options are collectively referred to herein as the "Securities").
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As a condition to their willingness to enter into the Merger Agreement,
Parent and Merger Sub have required that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement.
AGREEMENT
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To implement the foregoing and in consideration of the mutual agreements
contained herein, the parties agree as follows:
1. Agreement to Vote; Proxy.
1.1 Agreement to Vote. Except as set forth in Section 8.2 hereof and
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subject to Section 7 hereof, Stockholder hereby agrees that, prior to any
termination of this Agreement, at any meeting of the stockholders of the
Company, however called, Stockholder shall (a) vote the Covered Shares in favor
of the Merger and any other matter necessary for consummation of the
Transactions, and (b) vote the Covered Shares against any proposal for any
recapitalization, reorganization, liquidation, merger, sale of assets or other
business combination between the Company and any other Person (other than the
Merger).
1.2 Proxy. Stockholder hereby grants to Parent a proxy to vote the
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Covered Shares as indicated in Section 1.1 above. Stockholder intends this proxy
to be irrevocable and coupled with an interest and will take such further action
or execute such other instruments as may be reasonably necessary to effectuate
the intent of this proxy and hereby revokes any proxy previously granted by him
with respect to the Covered Shares.
1.3 Except as set forth in Section 1.1 above, Stockholder shall not be
restricted from voting in favor of, against or abstaining with respect to any
matter presented to the stockholders of the Company. In addition, nothing in
this Agreement shall give Parent or Merger Sub the right to vote any Covered
Shares in connection with the election of directors.
2. Expiration. This Agreement shall terminate on the Expiration Date. As used
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herein, the term "Expiration Date" means the first to occur of (a) the
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Effective Time, (b) termination of the Merger Agreement in accordance with
its terms, (c) Xxxxx 0, 0000, (x) written notice of termination of this
Agreement by Parent to Stockholder, or (e) the withdrawal or adverse
modification by the Board of its approval or recommendation of the Merger
or the Merger Agreement.
3. Representations and Warranties.
3.1 Representations and Warranties of Parent. Parent hereby represents
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and warrants to Stockholder as follows:
(a) Due Authorization. The execution and delivery of this Agreement
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and the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Parent, and no other corporate
proceedings on the part of Parent are necessary to authorize its Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Parent and constitutes a valid and binding
agreement of Parent, enforceable against Parent in accordance with its terms,
except that such enforceability (i) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to enforcement of
creditors' rights generally and (ii) is subject to general principles of equity.
(b) No Conflicts. Except for the applicable requirements of the
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Exchange Act (i) no filing with, and no permit, authorization, consent or
approval of, any state, federal or foreign governmental authority is necessary
on the part of Parent for the execution and delivery of this Agreement by Parent
and the consummation by Parent of the transactions contemplated hereby and (ii)
neither the execution and delivery of this Agreement by Parent nor the
consummation by Parent of the transactions contemplated hereby nor compliance by
Parent with any of the provisions hereof shall (A) conflict with or result in
any breach of any provision of the certificate of incorporation or by-laws (or
similar documents) of Parent, (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, material
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modification or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation to which Parent is a party or by which it or any of its
properties or assets may be bound or (C) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Parent or any of its
properties or assets, except in the case of (B) or (C) for violations, breaches
or defaults which would not in the aggregate materially impair the ability of
Parent to perform its obligations hereunder.
(c) Valid Existence. Parent is a corporation duly organized and
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validly existing under the laws of the Cayman Islands and has all requisite
corporate power and authority to execute and deliver this Agreement.
3.2 Representations and Warranties of Stockholder. Stockholder hereby
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represents and warrants to Parent and Merger Sub as follows:
(a) Ownership of Securities. As of the date hereof, (i) the Owned
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Shares and the Options constitute all of the Securities owned of record or
beneficially by Stockholder, and (ii) Stockholder has sole voting power and sole
power of disposition with respect to all such Owned Shares and Options, with no
restrictions, subject to applicable federal securities laws, on Stockholder's
rights of disposition pertaining thereto (other than as created by this
Agreement, the Merger Agreement or, in the case of Options, those restrictions
under the related option plan).
(b) Power; Binding Agreement. This Agreement has been duly and validly
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authorized, executed and delivered by Stockholder and constitutes a valid and
binding agreement of Stockholder, enforceable against Stockholder in accordance
with its terms, except that such enforceability (i) may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to enforcement of creditor's rights generally and (ii) is subject to general
principles of equity.
(c) No Conflicts. To the knowledge of Stockholder, except for the
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applicable requirements of the Exchange Act (i) no filing with, and no permit,
authorization, consent or approval of, any state, federal or foreign
governmental authority on the part of Stockholder is necessary for the execution
and delivery of this Agreement by Stockholder and the consummation by
Stockholder of the transactions contemplated hereby and (ii) neither the
execution and delivery of this Agreement by Stockholder nor the consummation by
Stockholder of the transactions contemplated hereby nor compliance by
Stockholder with any of the provisions hereof shall (A) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract, agreement
or other instrument or obligation to which Stockholder is a party or by which it
or any of its properties or assets may be bound or (B) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Stockholder or any
of its properties or assets, except in the case of (A) or (B) for violations,
breaches or defaults which would not in the aggregate materially impair the
ability of Stockholder to perform his obligations hereunder.
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(d) Accredited Investor. Stockholder is an "accredited investor" (as
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defined under the Securities Act) and a sophisticated investor, is capable of
evaluating the merits and risks of its investments and has the capacity to
protect its own interests.
4. Certain Covenants of Stockholder. Except in accordance with the terms of
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this Agreement, Stockholder hereby covenants and agrees as follows:
4.1 No Solicitation. Prior to any termination of this Agreement,
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subject to Sections 7 and 8.2 hereof, Stockholder shall not, directly or
indirectly, solicit (including by way of furnishing information) any inquiries
or the making of any proposal by any Person or entity (other than Parent or any
affiliate of Parent) which constitutes, or would lead to, any Acquisition
Proposal. If Stockholder receives an inquiry or proposal with respect to the
sale of Securities, then Stockholder shall promptly inform Parent of the terms
and conditions, if any, of such inquiry or proposal and the identity of the
Person making it. Stockholder will immediately cease and cause to be terminated
any existing activities, discussions or negotiations with any parties conducted
prior to the date of this Agreement with respect to any of the foregoing.
4.2 Restriction on Transfer, Proxies and Non-Interference. Except as
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set forth in Section 8.2 hereof, Stockholder hereby agrees, while this Agreement
is in effect, and except as contemplated hereby, not to (a) sell, transfer,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the sale, transfer,
pledge, encumbrance, assignment or other disposition of, any of the Securities;
(b) grant any proxies, deposit any Securities into a voting trust or enter into
a voting agreement with respect to any Securities; or (c) knowingly take any
action that would make any representation or warranty of Stockholder contained
herein untrue or incorrect or have the effect of preventing or disabling
Stockholder from performing its obligations under this Agreement.
5. Further Assurances. From time to time, at the other party's request and
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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 and make effective the transactions contemplated by this
Agreement.
6. Stop Transfer Order. In furtherance of this Agreement, concurrently
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herewith, Stockholder shall and hereby does authorize the Company's counsel to
notify the Company's transfer agent that there is a stop transfer order with
respect to all of the Securities (and that this Agreement places limits on the
voting and transfer of such Securities).
7. Fiduciary Duties. Notwithstanding anything in this Agreement to the
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contrary: (a) Stockholder makes no agreement or understanding herein in any
capacity other than in Stockholder's capacity as a record holder and beneficial
owner of Securities, (b) nothing herein shall be construed to limit or affect
any action or inaction by Stockholder acting in such person's capacity as a
director, officer or employee of the Company, and (c) Stockholder shall have no
liability to Parent or any of its Affiliates under this Agreement or otherwise
as a result of any action or inaction by Stockholder in such person's capacity
as a director, officer or employee of the Company.
8. Miscellaneous.
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8.1 Entire Agreement; Assignment. This Agreement (a) constitutes the
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entire agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and (b) shall not
be assigned by operation of law or otherwise, provided that Parent may assign
its rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of Parent, but no such assignment shall relieve Parent of its
obligations hereunder if such assignee does not perform such obligations.
8.2 Permitted Transfers. Notwithstanding anything in this Agreement to
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the contrary, Stockholder may transfer any or all of the Securities, in
accordance with provisions of applicable Law, to Stockholder's spouse,
ancestors, descendants or any trust for any of their benefits or to a charitable
trust; provided, however, that, prior to and as a condition to the effectiveness
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of such transfer, each Person to which any of such Securities or any interest in
any of such Securities is or may be transferred shall have executed and
delivered to Parent and Merger Sub a counterpart of this Agreement pursuant to
which such Person shall be bound by all of the terms and provisions of this
Agreement, and shall have agreed in writing with Parent and Merger Sub to hold
such Securities or interest in such Securities subject to all of the terms and
provisions of this Agreement.
8.3 Amendments. This Agreement may not be modified, amended, altered
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or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
8.4 Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy or
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any courier service, such as United Parcel Service, providing proof of
delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder:
Copy to:
If to Parent:
chinadotcom corporation
00/X Xxxxxxxx Xxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx Xxx
Xxxx Xxxx
Telecopier No: 011-852-2237-7227
Attention: General Counsel
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Copy to:
Milbank, Tweed, Xxxxxx & XxXxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
8.5 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
8.6 Specific Performance. Each of the parties hereto recognizes and
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acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
8.7 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
8.8 Descriptive Headings. The descriptive headings used herein are
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inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
8.9 Severability. Whenever possible, each provision or portion of any
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provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
8.10 Non-survival of Representations and Warranties. The respective
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representations and warranties of Stockholder and Parent contained herein shall
not survive the closing of the transactions contemplated hereby and by the
Merger Agreement.
8.11 No Control. Nothing contained in this Agreement shall give Parent
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or Merger Sub the right to control or direct the Company or the Company's
operations.
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement to be
duly executed as of the day and year first above written.
CHINADOTCOM CORPORATION
By:
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Name:
Title:
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[STOCKHOLDER]
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