EXECUTION COPY
COMPANY VOTING AGREEMENT
This COMPANY VOTING AGREEMENT (this "AGREEMENT") is made and
entered into as of September 17, 2000 between Sapiens International
Corporation N.V., a Netherlands Antilles corporation ("PARENT"), and the
undersigned stockholders (each a "STOCKHOLDER" and collectively the
"STOCKHOLDERS") of Ness Technologies, Inc., a Delaware 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 September 17, 2000 by and among Parent, Wisdom
Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent ("MERGER SUB"), and Company (such agreement as it may be amended is
hereinafter referred to as the "MERGER AGREEMENT"), Parent has agreed to
acquire the outstanding securities of Company pursuant to a merger of
Merger Sub with and into Company in which outstanding shares of capital
stock of Company will be converted into shares of common stock of Parent as
set forth in the Merger Agreement (the "TRANSACTION");
WHEREAS, in order to induce Parent to enter into the Merger
Agreement and consummate the Transaction, Company has agreed to use its
reasonable efforts to cause certain stockholders of Company to execute and
deliver to Parent a Voting Agreement upon the terms set forth herein; and
WHEREAS, each Stockholder is or may become the owner of shares of
capital stock of Company (the "SHARES").
NOW, THEREFORE, the parties agree as follows:
1. Agreement to Retain Shares.
1.1. Transfer and Encumbrance. Each Stockholder represents and
warrants to Parent that (i) such Stockholder is a record or beneficial
owner of the Shares, with power to vote the Shares or cause the Shares to
be voted; (ii) the Shares set forth on the signature page hereto constitute
such Stockholder's entire interest in the outstanding capital stock and
voting securities of Company, other than Shares that are held by others and
are subject to similar voting agreements or shares that are subject to
employee stock options; and (iii) such Stockholder's address is accurately
set forth on the signature page hereto.
1.2. New Shares. Each Stockholder agrees that any shares of
capital stock or voting securities of Company ("NEW SHARES") that such
Stockholder purchases or with respect to which Stockholder otherwise
acquires beneficial ownership after the date of this Agreement and prior to
the Expiration Date (as hereinafter defined) shall be subject to the terms
and conditions of this Agreement to the same extent as if they constituted
Shares. 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.
2. Agreement to Vote Shares and Take Certain Other Action. Prior
to the Expiration Date, at every meeting of the stockholders of Company at
which any of the following matters is considered or voted upon, and at
every adjournment or postponement thereof, and on every action or approval
by written consent of the stockholders of Company with respect to any of
the following matters, each Stockholder shall vote, or, using such
Stockholder's best efforts, and to the full extent legally permitted, cause
the holder of record to vote the Shares and any New Shares (except those
Shares or New Shares which are not voting securities), in favor of adoption
of the Merger Agreement and any proposal or action presented to a
stockholders vote which would, or could reasonably be expected to,
facilitate the Merger.
Prior to the Expiration Date, each Stockholder, as the holder of
voting stock of Company, shall be present, in person or by proxy, or, using
such Stockholder's best efforts and to the full extent legally permitted,
attempt to cause the holder of record to be present, in person or by proxy,
at all meetings of stockholders of Company at which any matter referred to
in this Section 2 is to be voted upon so that all Shares and New Shares are
counted for the purposes of determining the presence of a quorum at such
meetings.
Notwithstanding the foregoing, nothing in this Agreement shall
limit or restrict any Stockholder from (i) acting in his or her capacity as
a director or officer of Company, to the extent applicable, it being
understood that this Agreement shall apply to each Stockholder solely in
his or her capacity as a stockholder of Company or (ii) voting in his or
her sole discretion on any matter other than those matters referred to in
the first paragraph of this Section 2.
3. Irrevocable Proxy. Each Stockholder hereby agrees to timely
deliver to Parent a duly executed proxy in the form attached hereto as
Annex A (the "PROXY"), such Proxy to cover the issued and outstanding
Shares and all issued and outstanding New Shares in respect of which such
Stockholder is the record holder and is entitled to vote at each meeting of
the stockholders of Company (including, without limitation, each written
consent in lieu of a meeting) prior to the Expiration Date. In the event
that any Stockholder is unable to provide any such Proxy in a timely
manner, such Stockholder hereby grants Parent a power of attorney to
execute and deliver such Proxy for and on behalf of such Stockholder, such
power of attorney, which being coupled with an interest, shall survive any
death, disability, bankruptcy, or any other such impediment of such
Stockholder. Upon the execution of this Agreement by each Stockholder, such
Stockholder hereby revokes any and all prior proxies or powers of attorney
given by such Stockholder with respect to voting of the Shares on the
matters referred to in Section 2 and agrees not to grant any subsequent
proxies or powers of attorney with respect to the voting of the Shares on
the matters referred to in Section 2 until after the Expiration Date.
4. Representations, Warranties and Covenants of Stockholder. Each
Stockholder hereby represents, warrants and covenants to Parent as follows:
(a) Such Stockholder has full power and legal capacity to execute
and deliver this Agreement and to perform his or her obligations hereunder.
This Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes the valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its
terms, except as may be limited by (i) the effect of bankruptcy,
insolvency, conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally, or (ii) the
rules governing the availability of specific performance, injunctive relief
or other equitable remedies and general principles of equity, regardless of
whether considered in a proceeding in equity or at law. The execution and
delivery of this Agreement by such Stockholder does not, and the
performance of such Stockholder'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 or 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 such Stockholder is a party or by which such
Stockholder or the Shares or New Shares are or will be bound or affected.
(b) Such Stockholder has read Section 6.05 of the Merger Agreement
and understands the Company's restrictions thereunder.
(c) Such Stockholder agrees not to transfer, sell, exchange,
pledge or otherwise dispose of or encumber any of the Shares, or make any
offer or agreement relating thereto, at any time prior to the Expiration
Date other than to a transferee that agrees to be bound by the terms of
this voting agreement and the proxy attached hereto; provided, however,
that notwithstanding the foregoing, Nesstech LLC ("Nesstech") may
distribute Shares to its members, after providing prior notice thereof to
Parent and Company, so long as such distribution will not (i) cause any of
the conditions to the consummation of the Merger set forth in Article VIII
of the Merger Agreement to not be satisfied, as determined by Parent and
Company in their reasonable discretion, or (ii) interfere with the ability
of Nesstech to have such Shares voted as contemplated in Section 2 hereof.
Each Stockholder understands and agrees that if such Stockholder attempts
to transfer, vote or provide any other person with the authority to vote
any of the Shares other than in compliance with this Agreement, Company
shall not, and each Stockholder 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 such Stockholder shall have complied with the
terms of this Agreement.
(d) Such Stockholder waives, as of the Effective Time, any claims
it may have in its capacity as a stockholder and has no knowledge of any
pending or threatened claims against the Company by any other security
holder of the Company.
(e) Such Stockholder will take all actions to terminate, as of the
Effective Time, all agreements contemplated by Section 8.3(d) of the Merger
Agreement to be terminated as of the Effective Time.
5. Additional Documents. Each Stockholder hereby covenants and agrees
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent, to carry out the purpose and intent of this
Agreement.
6. Consent and Waiver. Each Stockholder hereby gives any consents
or waivers that are reasonably required for the consummation of the
Transaction under the terms of any agreement to which such Stockholder is a
party or pursuant to any rights such Stockholder may have provided,
however, that such Stockholder shall not be required by this Section 6 to
give any consent or waiver in his capacity as a director or officer of
Company.
7. Termination. This Agreement and the Proxy delivered in
connection herewith and all obligations of each Stockholder hereunder and
thereunder, shall terminate and shall have no further force or effect as of
the Expiration Date.
8. Miscellaneous.
8.1. 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.
8.2. 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 each Stockholder solely as a
securityholder of Company only with respect to the specific matters set
forth herein.
8.3. 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.
8.4. Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent 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 each Stockholder set forth herein. Therefore, it is agreed
that, in addition to any other remedies that may be available to Parent
upon any such violation, Parent shall have the right to enforce such
covenants and agreements by specific performance, injunctive relief or by
any other means available to Parent at law or in equity and each
Stockholder 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.
8.5. 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 (a) when delivered, if delivered by hand, (b) one business day after
transmitted, if transmitted by a nationally recognized overnight courier
service, (c) when telecopied, if telecopied (which is confirmed), or (d)
three business days after mailing, if mailed by registered or certified
mail (return receipt requested), to the parties at the following addresses:
(a) If to any Stockholder, at the address set forth below such
Stockholder's signature at the end hereof.
(b) if to Parent, to:
Sapiens International Corporation N.V.
c/o Kaya, Xxxxxxx X.
Xxxxxxx, X/X
X.X. Xxx 000 Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxxx Antilles
Attention: General Counsel
Facsimile No.: 5999-736-6161
and
Sapiens International Corporation N.V.
Xxxxxxx Xxxxx Science Park
X.X. Xxx 0000
Xxxxxxx, 00000
Xxxxxx
Attention: General Counsel
Facsimile: 972-8-938-2730
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Xxxxx Xxxxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or to such other address as any party hereto may designate for itself by
notice given as herein provided.
8.6. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York without
giving effect to the principles of conflicts or choice of law rules of any
jurisdiction.
8.7. 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.
8.8. 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.
8.9. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
SAPIENS INTERNATIONAL STOCKHOLDER
CORPORATION N.V.
By: /s/ Xxxxx Xxxxxxx
---------------------------------- -----------------------------------
Name: (Signature)
-------------------------------
Title:
------------------------------
Warburg Pincus Equity Partners
-----------------------------------
(Print Name of Stockholder)
000 Xxxxxxxxx Xxxxxx, 00xx Floor
-----------------------------------
(Print Xxxxxx Xxxxxxx)
Xxx Xxxx, XX 00000-0000
-----------------------------------
(Print City, State and Zip)
(000) 000-0000
-----------------------------------
(Print Telephone Number)
Total Number of Shares of Company Common Stock owned directly on the date
hereof:
Common Stock: 1,510,347 Class B
------------------------------
330,698 Class C
[SIGNATURE PAGE TO VOTING AGREEMENT]
STOCKHOLDER
/s/ Xxxxx Xxxxxxx
--------------------------------------
(Signature)
Warburg Pincus Ventures International
--------------------------------------
(Print Name of Stockholder)
000 Xxxxxxxxx Xxxxxx, 00xx Floor
--------------------------------------
(Print Xxxxxx Xxxxxxx)
Xxx Xxxx, XX 00000-0000
--------------------------------------
(Print City, State and Zip)
(000) 000-0000
--------------------------------------
(Print Telephone Number)
Total Number of Shares of Company Common Stock owned directly on the date
hereof:
Common Stock: 1,598,250 Class B
------------------------------
349,945 Class C
STOCKHOLDER
/s/ Xxxxx Xxxxxxx
-----------------------------------
(Signature)
Warburg Pincus
-----------------------------------
(Print Name of Stockholder)
000 Xxxxxxxxx Xxxxxx, 00xx Floor
-----------------------------------
(Print Xxxxxx Xxxxxxx)
Xxx Xxxx, XX 00000-0000
-----------------------------------
(Print City, State and Zip)
(000) 000-0000
-----------------------------------
(Print Telephone Number)
Total Number of Shares of Company Common Stock owned directly on the date
hereof:
Common Stock:
------------------------
9
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
SAPIENS INTERNATIONAL STOCKHOLDER
CORPORATION N.V.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------- -----------------------------------
Name: (Signature)
-------------------------------
Title:
------------------------------
Nesstech LLC
-----------------------------------
(Print Name of Stockholder)
0 Xxxxx Xx. Xxxxx
-----------------------------------
(Print Xxxxxx Xxxxxxx)
Xxx Xxxx, XX
-----------------------------------
(Print City, State and Zip)
(000) 000-0000
-----------------------------------
(Print Telephone Number)
Total Number of Shares of Company Common Stock owned directly on the date
hereof:
Common Stock: 7,448,333 Common
------------------------------
1,833,315 Class C
STOCKHOLDER
/s/ Ran Xxxxx
-----------------------------------
(Signature)
Gmul Amgal
-----------------------------------
(Print Name of Stockholder)
Lincoln 20
-----------------------------------
(Print Xxxxxx Xxxxxxx)
Xxx Xxxx, Xxxxxx
-----------------------------------
(Print City, State and Zip)
03-6254400
-----------------------------------
(Print Telephone Number)
Total Number of Shares of Company Common Stock owned directly on the date
hereof:
Common Stock: 807,537 Class B
------------------------------
176,815 Class C
STOCKHOLDER
/s/ Xxxxxx Xxxxxxx
----------------------------------
(Signature)
Xxxxxx Xxxxxxx
----------------------------------
(Print Name of Stockholder)
0 Xxxxx Xx. Xxxxx
----------------------------------
(Print Xxxxxx Xxxxxxx)
Xxx Xxxx, XX
----------------------------------
(Print City, State and Zip)
(000) 000-0000
----------------------------------
(Print Telephone Number)
Total Number of Shares of Company Common Stock owned directly on the date
hereof:
Common Stock:
------------------------------
ANNEX A
IRREVOCABLE PROXY
TO VOTE STOCK OF
NESS TECHNOLOGIES, INC.
The undersigned stockholder of Ness Technologies, Inc., a Delaware
corporation ("COMPANY"), hereby irrevocably appoints the members of the
Board of Directors of Sapiens International Corporation N.V., a Netherlands
Antilles corporation ("PARENT"), and each of them, or any other designee of
Parent, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to vote and exercise
all voting rights (to the full extent that the undersigned is entitled to
do so) with respect to all of the issued and outstanding shares of capital
stock of Company that now are owned of record by the undersigned,
(collectively, the "SHARES") in accordance with the terms of this
Irrevocable Proxy. The Shares owned of record by the undersigned
stockholder 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 the voting of any Shares on the matters
referred to in the third full paragraph of this Irrevocable Proxy are
hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to such matters until after the Expiration Date (as
defined below).
This Irrevocable Proxy is irrevocable, is coupled with an
interest, and is granted in consideration of Parent entering into that
certain Agreement and Plan of Merger and Reorganization (the "MERGER
AGREEMENT") by and among Parent, Wisdom Merger Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent ("MERGER SUB"), and
Company, which Merger Agreement provides for the merger of Merger Sub with
and into Company (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 attorneys and proxies named above, and each of them 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 rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and
deliver written consents), at every annual, special or adjourned meeting of
the stockholders of Company and in every written consent in lieu of such
meeting, in favor of adoption of the Merger Agreement and any proposal or
action which would, or could reasonably be expected to, facilitate the
Merger.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The
undersigned stockholder 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.
[Signature Page Follows]
This Irrevocable Proxy is coupled with an interest as aforesaid
and is irrevocable.
Dated: September __, 2000
----------------------------------
(Signature of Stockholder)
----------------------------------
(Print Name of Stockholder)
Shares owned of record:
------------------ shares of
Company Common Stock
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
ANNEX A
IRREVOCABLE PROXY
TO VOTE STOCK OF
SAPIENS INTERNATIONAL CORPORATION N.V.
The undersigned stockholder of Sapiens International Corporation
N.V., a Netherlands Antilles corporation ("PARENT"), hereby irrevocably
appoints the members of the Board of Directors of Ness Technologies, Inc.,
a Delaware corporation ("COMPANY"), and each of them, or any other designee
of Company as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to vote
and exercise all voting rights (to the full extent that the undersigned is
entitled to do so) with respect to all of the issued and outstanding shares
of capital stock of Parent that now are owned of record by the undersigned
(collectively, the "SHARES"), in accordance with the terms of this
Irrevocable Proxy. The Shares owned of record by the undersigned
stockholder of Parent 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 the voting of any Shares on the matters
referred to in the third full paragraph of this Irrevocable Proxy are
hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to such matters until after the Expiration Date (as
defined below).
This Irrevocable Proxy is irrevocable, is coupled with an
interest, and is granted in consideration of Company entering into that
certain Agreement and Plan of Merger and Reorganization (the "MERGER
AGREEMENT") by and among Parent, Wisdom Merger Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent ("MERGER SUB"), and
Company, which Merger Agreement provides for the merger of Merger Sub with
and into Company (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 attorneys and proxies named above, and each of them 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 rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and
deliver written consents), at every annual, special or adjourned meeting of
the stockholders of Parent and in every written consent in lieu of such
meeting, in favor of adoption of the Merger Agreement and any proposal or
action which would, or could reasonably be expected to, facilitate the
Merger.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The
undersigned stockholder 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.
[Signature Page Follows]
This Irrevocable Proxy is coupled with an interest as aforesaid
and is irrevocable.
Dated: September __, 2000
---------------------------------------
(Signature of Stockholder)
---------------------------------------
(Print Name of Stockholder)
Shares owned of record:
---------------------------shares of
Parent Common Stock
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
