EXHIBIT 4.1
STOCKHOLDER RIGHTS AND VOTING AGREEMENT
This Stockholder Rights and Voting Agreement (this "Agreement"), dated as
of January 2, 2002, by and among SafeNet, Inc., a Delaware corporation (the
"Company"), and each of the parties identified on EXHIBIT A hereto
(collectively, the "Stockholders").
RECITALS
WHEREAS, the Company is a party to the Agreement and Plan of Reorganization
(the "Merger Agreement"), dated December 14, 2001, by and among the Company,
Pijnenburg Securealink, Inc., a Delaware corporation ("Pijnenburg Securealink"),
PBSL Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of
the Company ("Merger Sub"), and certain other parties, pursuant to which, at
such effective time as is set forth in the Merger Agreement (the "Effective
Time"), Merger Sub will be merged with and into Pijnenburg Securealink and
Pijnenburg Securealink will become a wholly-owned subsidiary of the Company;
WHEREAS, pursuant to the Merger Agreement, the Company agreed, among other
things, to issue up to an aggregate of 575,000 shares (the "Original Shares") of
common stock, $.01 par value per share, of the Company (the "Common Stock") to
the Stockholders as part of the consideration to be issued pursuant to the
Merger Agreement; and
WHEREAS, it is a condition to the obligations of the Company, Merger Sub
and Pijnenburg Securealink under the Merger Agreement that this Agreement be
executed by the parties hereto, and the parties are willing to execute this
Agreement and to be bound by the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing, the agreements set forth
below, and the parties' desire to further the interests of the Company and its
present and future stockholders, the parties hereby agree with each other as
follows:
1. CERTAIN DEFINED TERMS. As used in this Agreement, the following terms
shall have the following respective meanings:
(a) "Board" means the Board of Directors of the Company.
(b) "Bylaws" means the Bylaws of the Company, as amended from
time to time.
(c) "Commission" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
(d) "Common Stock" has the meaning ascribed to it in the Recitals
to this Agreement.
(e) "Common Stock Outstanding" means all shares of Stock issued
and outstanding at any time and from time to time during the term of
this Agreement.
(f) "Company" has the meaning ascribed to it in the introductory
paragraph to this Agreement.
(g) "Company Indemnitees" has the meaning ascribed to it in
Section 2.6(b).
(h) "Corporate Developments" has the meaning ascribed to it in
Section 2.1(c).
(i) "Delaware Law" means the Delaware General Corporation Law and
all amendments and additions thereto.
(j) "Effective Time" has the meaning ascribed to it in the
Recitals to this Agreement.
(k) "Election Meeting" means any annual or special meeting of the
holders of the Common Stock Outstanding at which either (i) all
members of the Board are to be elected, or (ii) a member of the Board
is to be elected to fill the vacancy resulting from the death,
resignation or removal of a Stockholder Designee as a member of the
Board.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
(m) "Deferral Notice" has the meaning ascribed to it in Section
2.2(d).
(n) "Holders" means the Stockholders and any Permitted
Transferees.
(o) "Holder Indemnitees" has the meaning ascribed to it in
Section 2.6(a).
17
(p) "Indemnitees" has the meaning ascribed to it in Section
2.6(c).
(q) "Majority Stockholders" shall mean the Stockholder(s) (and
Permitted Transferees) holding at least a majority of the Shares.
(r) "Material Event" has the meaning ascribed to it in Section
2.2(d).
(s) "Merger Agreement" has the meaning ascribed to it in the
Recitals to this Agreement.
(t) "Merger Sub" has the meaning ascribed to it in the Recitals
to this Agreement.
(u) "Original Shares" has the meaning ascribed to it in the
Recitals to this Agreement.
(w) "Person" means a corporation, an association, a partnership,
an organization, a business, an individual, a governmental or
political subdivision thereof or a governmental agency.
(x) "Permitted Transferee" has the meaning ascribed to it in
Section 8.
(y) "Pijnenburg Securealink" has the meaning ascribed to it in
the Recitals to this Agreement.
(z) "Proxy" has the meaning ascribed to it in Section 4.2.
(aa) "Registrable Securities" means the Original Shares and
shares of Common Stock issuable upon conversion of the 5% Subordinated
Convertible Notes to be issued as part of the consideration pursuant
to the Merger Agreement ("Conversion Shares") and any Common Stock
issued or issuable with respect to any Original Shares or Conversion
Shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization or otherwise. As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable
Securities when (i) any registration statement with respect to the
sale of such securities shall have become effective under the
Securities Act, (ii) they shall have become eligible for sale to the
public pursuant to Rule 144 (or any successor provision) under the
Securities Act, (iii) they shall have been sold or otherwise
transferred to any Person other than a Permitted Transferee, or (iv)
they shall have ceased to be outstanding.
(bb) "Registration Request" has the meaning ascribed to it in
Section 2.1(a).
(cc) "Registration Statement" has the meaning ascribed to it in
Section 2.1(b).
(dd) "Rule 144" has the meaning ascribed to it in Section 2.7.
(ee) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder.
(ff) "Shares" means and include all Original Shares and shares of
Stock issuable to a Stockholder upon conversion of the convertible
promissory notes issued to the Stockholders pursuant to Section 1.13
of the Merger Agreement.
(gg) "Stock" shall mean and include all shares of Common Stock
and all other securities of the Company which may be issued in
exchange for or in respect of shares of Common Stock (whether by way
of stock split, stock dividend, combination, reclassification,
reorganization, or any other means).
(hh) "Stockholders" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(ii) "Stockholder Designee" means an individual designated by the
Majority Stockholders in a written notice delivered to the Company to
stand for election to the Board at an Election Meeting in accordance
with Article 3, or, if permitted by the Bylaws and Delaware Law, to be
appointed by the Board to fill a vacancy in accordance with Section
3.2.
(jj) "Violation" means, with respect to the Registration
Statement:
(A) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, including
any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto;
(B) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which
they were made, not misleading; or
(C) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any
18
state securities law or any rule or regulation promulgated under
the Securities Act, the Exchange Act or any state securities law
in connection with any matter relating to the Registration
Statement.
2. REGISTRATION UNDER SECURITIES ACT, ETC.
2.1 SHELF REGISTRATION.
(a) Subject to Section 2.1(c), at any time after March 31, 2002,
Holders holding in the aggregate at least a majority of the
Registrable Securities may request, in writing (the "Registration
Request"), that the Company effect the registration of all of the
Registrable Securities then outstanding. If the Holders initiating the
registration intend to distribute the Registrable Securities by means
of an underwriting, they shall so advise the Company in the
Registration Request. Upon receipt of the Registration Request, the
Company shall promptly give written notice of the requested
registration to all of the Holders. In the event the registration is
to be underwritten, the right of any Holder to participate shall be
conditioned on such Holder's participation in such underwriting.
(b) Upon receipt of a Registration Request, the Company shall
file with the Commission, promptly but not later than thirty (30) days
after the date the Registration Request is delivered to the Company, a
registration statement (the "Registration Statement") on Form S-3 (or
a successor form) covering the resale to the public by the Holders of
the Registrable Securities. Except as otherwise expressly provided
herein, the Company shall use commercially reasonable efforts to cause
the Registration Statement to be declared effective and shall keep the
Registration Statement continuously effective under the Securities Act
until the earlier of (i) two (2) years from the date of the Effective
Time, or (ii) such date that all of the Registrable Securities
registered thereunder have been sold.
(c) Notwithstanding the provisions of this Section 2.1, the
Company's obligations to file the Registration Statement or cause such
Registration Statement to become effective shall be suspended for such
period as the Company deems reasonably necessary if during the time
period at or after the Registration Request is delivered and prior to
the Registration Statement being declared effective there is the
occurrence or existence of any event, fact or pending corporate
development (a "Corporate Development") that, in the good faith
determination of the Board, makes it appropriate to suspend the
Company's obligations to file the Registration Statement and cause it
to become effective.
2.2 REGISTRATION PROCEDURES. If and whenever the Company is required
to use commercially reasonable efforts to effect the registration of the
Registrable Securities under the Securities Act as provided herein, the
Company shall:
(a) prepare and file with the Commission an appropriate form of
the Registration Statement and such amendments and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement, and use commercially reasonable efforts to
cause the Registration Statement, and each such amendment and
supplement, to become and remain effective, as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Registration Statement;
(b) furnish to the Holders of Registrable Securities covered by
the Registration Statement such reasonable number of copies of the
prospectus, including the preliminary prospectus, Registration
Statement, and any amendments (in each case, including all exhibits)
in conformity with the requirements of the Securities Act, and such
other documents as they may reasonably request in order to facilitate
the disposition of Registrable Securities owned by them;
(c) use commercially reasonable efforts to register or qualify
the securities covered by the Registration Statement under such other
securities or blue sky laws of such states and jurisdictions as shall
be reasonably requested by the Holders, to cause all Registrable
Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
Holders to consummate the disposition of such Registrable Securities,
to keep such registrations or qualifications in effect for so long as
the Registration Statement remains in effect and do any and all other
acts and things that may be necessary to enable the Holders to
consummate in such states the public sale or other disposition of the
Registrable Securities owned by the Holders, including the removal of
legends from certificates registered pursuant to the Registration
Statement (and to the end of removing the legend from certificates, if
the Company is required to do so by the Company's transfer agent and
the facts underlying the sale are made available to the Company's
counsel by way of representations reasonably acceptable to such
counsel, the Company shall deliver to its transfer agent an opinion of
counsel in form and substance reasonably acceptable to the transfer
agent and reasonably capable of being given by such counsel (with a
copy to such Holder)); except that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do
business or file a general consent to service of process in any such
state or jurisdiction;
(d) notify each Holder covered by the Registration Statement, at
any time when a prospectus relating thereto covered by such
Registration Statement is required to be delivered under the
Securities Act, of (i) the issuance by the Commission of a stop order
suspending the effectiveness of the Registration Statement or the
initiation of proceedings with respect to the Registration Statement
under Section 8(d) or 8(e) of the Securities Act, (ii) the occurrence
of any event or the existence of any fact (a "Material Event") as a
result of which the Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any prospectus shall contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or (iii) the occurrence or existence of a Corporate
Development that, in the good faith determination of the Board, makes
it appropriate to suspend the availability of the Registration
Statement and the related prospectus. Upon the occurrence of any of
clause (i), (ii), or (iii) above, then
19
the Company shall as promptly as practicable (A) in the case of clause
(ii) above, subject to the next sentence, prepare and file a
post-effective amendment to the Registration Statement or a supplement
to the related prospectus or any document incorporated therein by
reference or file any other required document that would be
incorporated by reference into such Registration Statement and
prospectus so that the Registration Statement does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and such prospectus does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to the Registration Statement, subject to the
next sentence, use all reasonable efforts to cause it to be declared
effective as promptly as is reasonably practicable, and (B) give
notice to the Holder of any Registrable Securities that the
availability of the Registration Statement is suspended (a "Deferral
Notice") and, upon receipt of any Deferral Notice, each Holder shall
cease making offers and sales of any Registrable Securities pursuant
to the Registration Statement and the prospectus until such Holder's
receipt of copies of the supplemented or amended Registration
Statement and prospectus provided for in clause (A) above, or until it
is advised in writing by the Company that the Registration Statement
and prospectus may be used, and has received copies of any additional
or supplemental filings that are incorporated or deemed incorporated
by reference in the Registration Statement and prospectus. The Company
will use all reasonable efforts to ensure that offers and sales of
Registrable Securities under the Registration Statement and prospectus
may be resumed (x) in the case of clause (i) above, as promptly as is
practicable, (y) in the case of clause (ii) above, as soon as, in the
good faith determination of the Board, public disclosure of such
Material Event would not be prejudicial to or contrary to the
interests of the Company or, if necessary to avoid unreasonable burden
or expense, as soon as reasonably practicable thereafter and (z) in
the case of clause (iii) above, as soon as, in the good faith
determination of the Board, such suspension is no longer appropriate;
(e) promptly apply for listing and list the Registrable
Securities being registered on any national securities exchange on
which a class of the Company's equity securities is listed; and
(f) promptly notify the Holders: (a) when the Registration
Statement, the prospectus or any prospectus supplement related thereto
or post-effective amendment to the Registration Statement has been
filed, and, with respect to the Registration Statement or any
post-effective amendment thereto, when the same has become effective;
(b) of any request by the Commission for amendments or supplements to
the Registration Statement or any prospectus or for additional
information; (c) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings by any Person for that purpose; and (d)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of any Registrable Securities for sale
under the securities or blue sky laws of any jurisdiction or the
initiation or threat of any proceeding for such purpose.
2.3 PREPARATION; REASONABLE INVESTIGATION. The Company will not file
the Registration Statement or amendment thereto or any prospectus or any
supplement thereto (including such documents incorporated by reference and
proposed to be filed after the initial filing of the Registration
Statement) to which Holders of at least a majority of the Registrable
Securities shall reasonably object, provided that the Company, after
allowing the Holders an opportunity to review such filing pursuant to this
Section 2.3, may file such document in a form required by law or upon the
written advice of its counsel. Subject to the foregoing sentence, in
connection with the preparation and filing of the Registration Statement
under the Securities Act pursuant to this Agreement, the Company will give
the Holders, their underwriters, if any, and their respective counsel and
accountants, the opportunity to participate (by delivery of written
comments to the Company) in the preparation of the Registration Statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto.
2.4 REQUIREMENTS OF HOLDERS.
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Article 2 in respect of
the Registrable Securities of any selling Holder that such selling
Holder shall furnish to the Company such information regarding itself,
the Registrable Securities held by it, and the intended method of
disposition of such Registrable Securities as shall be required to
effect the registration of such Registrable Securities. To the extent
a Holder fails to provide such information in a timely manner, and if
the Company determines it appropriate, the Company may either (i)
delay the filing of the Registration Statement until the Holder
provides such information, or (ii) upon the written request of Holders
holding a majority of the Registrable Securities, exclude the
Registrable Securities held by such Holder from registration under the
Registration Statement.
(b) No Holder shall distribute any prospectus or make any offer
to sell (or solicit any offer to purchase) or sell any Registrable
Securities in a transaction covered by the Registration Statement and
any prospectus thereunder from and after the time that the Company
delivers a Deferral Notice to such Holder until such time as such
Holder may resume offers and sales of Registrable Securities under
Section 2.2(d).
(c) During any calendar month in which the Registration Statement
is effective, no Holder shall offer to sell or sell any Registrable
Securities in excess of the amount equal to one percent (1%) of the
aggregate number shares of Common Stock of the Company outstanding, as
disclosed in the most recent annual or quarterly report filed by the
Company with the Commission under the Exchange Act prior to such
month.
(d) Each Holder shall comply with the prospectus delivery
requirements of the Securities Act in connection with offers to sell,
solicitations of offers to purchase, and sales of Registrable
Securities in connection with any offer or sale pursuant to the
Registration Statement.
20
2.5 EXPENSES OF REGISTRATION. The Holders shall bear all expenses
incurred in connection with the registration, filing or qualification of
Registrable Securities pursuant to this Agreement, including but not
limited to all registration, filing and qualification fees, exchange
listing fees, state securities law fees and expenses, printing and
accounting fees, underwriting discounts and commissions, fees and
disbursements of counsel for the Company, and fees and disbursements of
counsel for the Holders.
2.6 INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless each selling
Holder, the officers, directors, partners, agents and employees of
each selling Holder, any underwriter (as defined in the Securities
Act) for such Holder and each Person, if any, who controls such
selling Holder or underwriter within the meaning of the Securities Act
or the Exchange Act and their agents (collectively, the "Holder
Indemnitees"), against any losses, claims, damages or liabilities
(joint or several) to which they may become subject under the
Securities Act, the Exchange Act or any other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any Violation. The
indemnity agreement contained in this Section 2.6(a) shall not apply
to amounts paid in settlement of any loss, claim, damage, liability or
action if such settlement is effected without the consent of the
Company, nor shall the Company be liable to any Holder Indemnitee in
any such case for any such loss, claim, damage, liability or action
(i) to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written
information furnished by any Holder; or (ii) in the case of a sale
directly by a Holder (including a sale of such Registrable Securities
through any underwriter retained by such Holder engaging in a
distribution solely on behalf of such Holder), that results from an
untrue statement or alleged untrue statement or omission or alleged
omission that was contained in a preliminary prospectus and corrected
in a final or amended prospectus, and such Holder failed to deliver a
copy of the final or amended prospectus at or prior to the
confirmation of the sale of the Registrable Securities to the Person
asserting any such loss, claim, damage or liability in any case in
which such delivery is required by the Securities Act.
(b) Each Holder shall indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the
Registration Statement, each Person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act, each
agent and any underwriter for the Company, and any other selling
Holder or other stockholder selling securities in such Registration
Statement or any of its directors, officers, partners, agents or
employees or any Person who controls such selling Holder or such other
stockholder or such underwriter (collectively, the "Company
Indemnitees") against any losses, claims, damages or liabilities
(joint or several) to which any Company Indemnitee may become subject
under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished by or on behalf of such selling Holder expressly
for use in connection with such registration; provided, however, that
the indemnity agreement contained in this Section 2.6(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent
of such selling Holder nor, in the case of a sale directly by the
Company of its securities (including a sale of such securities through
any underwriter retained by the Company to engage in a distribution
solely on behalf of the Company), shall such selling Holder be liable
to the Company in any case in which such untrue statement or alleged
untrue statement or omission or alleged omission was contained in a
preliminary prospectus and corrected in a final or amended prospectus,
and the Company failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of the sale of the
securities to the Person asserting any such loss, claim, damage or
liability in any case in which such delivery is required by the
Securities Act.
(c) Promptly after receipt by any Company Indemnitee or Holder
Indemnitee (collectively, the "Indemnitees") under this Section 2.6 of
notice of the commencement of any action (including any governmental
action), such Indemnitee will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 2.6, deliver to
the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any
other indemnifying party similarly noticed, to assume and control the
defense thereof with counsel mutually satisfactory to the parties;
provided, however, that such Indemnitee shall have the right to retain
its own counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such Indemnitee by the
counsel retained by the indemnifying party would be inappropriate due
to actual or potential differing interests, as reasonably determined
by either party, between such Indemnitee and any other party
represented by such counsel in such proceeding. In no event shall the
Indemnitees be entitled to more than one firm of counsel at the
expense of the indemnifying party. The failure to deliver written
notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its
ability to defend such action, shall relieve such indemnifying party
of any liability to the Indemnitee under this Section 2.6 to the
extent of such prejudice, but the omission to so deliver written
notice to the indemnifying party will not relieve it of any liability
that it may have to such Indemnitee otherwise than under this Section
2.6.
(d) The obligations of the Company and the Holders under this
Section 2.6 shall survive the completion of any offering of
Registrable Securities in a Registration Statement whether under this
Article 2 or otherwise.
(e) If the indemnification provided for in this Section 2.6 is
unavailable to a party that would have been an Indemnitee under this
Section 2.6 in respect of any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to herein,
then each party that would have been an indemnifying party hereunder
shall, in lieu of indemnifying such Indemnitee, contribute to the
amount paid or payable by such Indemnitee as a result of such losses,
claims, damages or liabilities (or actions or proceedings in respect
21
thereof) in such proportion as is appropriate to reflect the relative
fault of such indemnifying party, on the one hand, and such
Indemnitee, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof). The
relative fault shall be determined by reference to, among other
things, whether the Violation relates to information supplied by such
indemnifying party or such Indemnitee and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such Violation. The parties agree that it would not be just
and equitable if contribution pursuant to this Section 2.6(e) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred
to in the preceding sentence. The amount paid or payable by a
contributing party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
above in this Section 2.6(e) shall include any legal or other expenses
reasonably incurred by such Indemnitee in connection with
investigating or defending any such action or claim. No Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
2.7 REPORTS UNDER THE EXCHANGE ACT. With a view to making available to
the Holders the benefits of Rule 144 promulgated under the Securities Act
("Rule 144") and any other rule or regulation of the Commission that may at
any time permit a Holder to sell securities of the Company to the public
without registration, the Company agrees to:
(a) use commercially reasonable efforts to make and keep public
information available, as those terms are understood and defined in
Rule 144, at all times;
(b) use commercially reasonable efforts to file with the
Commission in a timely manner all reports and other documents required
of the Company under the Securities Act and the Exchange Act; and
(c) furnish to any Holder upon request (i) a written statement by
the Company as to its compliance with the reporting requirements of
Rule 144 and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a
copy of the most recent annual or quarterly report of the Company
filed with the Commission under the Exchange Act, and (iii) such other
reports and documents of the Company as such Holder may reasonably
request to avail itself of any similar rule or regulation of the
Commission allowing it to sell any such securities without
registration.
3. STOCKHOLDER DESIGNEE.
3.1 NOMINATION OF STOCKHOLDER DESIGNEE. At each Election Meeting held
after the Effective Time and prior to the termination of this Article 3
pursuant to Section 3.3, the Company and the Board, subject to applicable
fiduciary duties, shall take any and all actions necessary to nominate the
Stockholder Designee for election by the holders of the Common Stock
Outstanding to serve as a member of the Board until the next Election
Meeting, and until his successor is elected and qualified, or until his
prior death, resignation or removal.
3.2 DEATH, RESIGNATION, REMOVAL. Any Stockholder Designee that is
elected by the holders of the Common Stock Outstanding (or appointed by the
Board pursuant to this Section 3.2) to serve as a member of the Board may
resign or be removed as a member of the Board as provided in the Bylaws or
under Delaware Law. If a Stockholder Designee serving as a member of the
Board dies or resigns or is removed as a member of the Board, and the Board
is permitted under the Bylaws and Delaware Law to appoint an individual to
fill the vacancy resulting from such death, resignation or removal, then
promptly after the Majority Stockholders deliver a notice designating a
replacement Stockholder Designee, the Board shall appoint such replacement
Stockholder Designee to fill such vacancy. If a Stockholder Designee
serving as a member of the Board dies or resigns or is removed as a member
of the Board, and the Board is not permitted under the Bylaws and Delaware
Law to appoint an individual to fill the vacancy resulting from such death,
resignation or removal, then the Company and the Board shall take any and
all actions necessary to nominate a replacement Stockholder Designee to be
elected by the holders of the Common Stock Outstanding to fill such vacancy
at the next Election Meeting thereafter.
3.3 TERMINATION. This Article 3 shall terminate and be of no further
force and effect immediately upon to the earliest to occur of:
(a) the mutual agreement of the Company and the Majority
Stockholders, or
(b) such time as the aggregate number of Shares held by the
Stockholders (and any Permitted Transferees) is less than the number
equal to five percent (5%) of the Common Stock Outstanding.
3.4 SPECIFIC ENFORCEMENT. The Company expressly agrees that the
Stockholders (and any Permitted Transferees) will be irreparably damaged if
this Article 3 is not specifically enforced. Upon a breach or threatened
breach of the terms, covenants and/or conditions of this Agreement by the
Company, then the Stockholders (and any Permitted Transferees) shall, in
addition to all other remedies, be entitled to seek a temporary or
permanent injunction, without showing any actual damage, and/or a decree
for specific performance, in accordance with the provisions hereof.
22
4. VOTING AGREEMENT.
4.1 VOTING AGREEMENT. Each Stockholder agrees that at all times after
the Effective Time and prior to the termination of this Article 4 pursuant
to Section 4.3, with regard to any matter submitted for consideration of
the stockholders of the Company, such Stockholders shall vote all Shares
held by it in accordance with the instructions given by the Board. Any
instructions given by the Board pursuant to this Section 4.1 shall be given
only upon the vote or consent of at least a majority of the members of the
Board. The voting of Shares pursuant to this Article 4 may be effected in
person, by proxy, by written consent or in any other manner permitted by
applicable law.
4.2 PROXY. In connection with the execution and delivery of this
Agreement, each Stockholder hereby agrees to execute and deliver to the
Company a proxy coupled with an interest in the form attached hereto as
EXHIBIT B (the "Proxy").
4.3 TERMINATION. This Article 4 shall terminate and be of no further
force and effect immediately upon to the earliest to occur of:
(a) the mutual agreement of the Company and the Majority
Stockholders, or
(b) such time as the aggregate number of Shares held by the
Stockholders (and any Permitted Transferees) is less than the number
equal to five percent (5%) of the Common Stock Outstanding.
4.4 SPECIFIC ENFORCEMENT. The Stockholders expressly agree that the
Company will be irreparably damaged if this Article 4 is not specifically
enforced. Upon a breach or threatened breach of the terms, covenants and/or
conditions of this Agreement by any Stockholder (or any Permitted
Transferee), then the Company shall, in addition to all other remedies, be
entitled to seek a temporary or permanent injunction, without showing any
actual damage, and/or a decree for specific performance, in accordance with
the provisions hereof.
5. LEGEND. Each certificate evidencing any of the Shares shall bear a
legend substantially as follows:
"The shares represented by this certificate are subject to certain
restrictions on voting set forth in that certain Stockholder Rights and
Voting Agreement, a copy of which the Company will furnish to the holder of
this certificate upon request and without charge."
6. NOTICES. Except as otherwise provided in this Agreement, all notices,
requests and other communications that are required or otherwise delivered
hereunder shall be in writing and shall be given (a) in the case of the Company,
addressed to the Company at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
facsimile: (000) 000-0000, attn: Chief Executive Officer; or (b) in the case of
a Stockholder, at the address set forth for such Stockholder on EXHIBIT A hereto
or at such other address as such Stockholder shall have furnished to the Company
in writing (or in the case of any Permitted Transferee, at the address that such
Permitted Transferee shall have furnished to the Company in writing). Each such
notice, request or other communication shall be sufficiently given if in writing
and delivered in person, transmitted by facsimile transmission (fax) or sent by
registered or certified mail (return receipt requested) or recognized overnight
delivery service postage pre-paid. A notice or communication will be effective
(i) if delivered in person or by overnight delivery, on the business day it is
delivered, (ii) if transmitted by fax, on the business day of actual confirmed
receipt by the addressee thereof, and (iii) if sent by registered or certified
mail, three (3) business days after dispatch.
7. COURSE OF DEALING; AMENDMENTS, WAIVERS AND CONSENTS. No course of
dealing between the parties shall operate as a waiver of any party's rights
under this Agreement. Each party acknowledges that if any party, without being
required to do so by this Agreement, gives any notice or information to, or
obtains any consent from, the other party, such party shall not by implication
have amended, waived or modified any provision of this Agreement, or created any
duty to give any such notice or information or to obtain any such consent on any
future occasion. No delay or omission on the part of any party in exercising any
right under this Agreement shall operate as a waiver of such right or any other
right hereunder or thereunder. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right or remedy on any future occasion.
No amendment, waiver or consent with respect to this Agreement shall be binding
unless it is in writing and signed by each of the Company and the Majority
Stockholders.
8. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and each of their respective
successors and assigns; PROVIDED, HOWEVER, that the rights of any Stockholder
under this Agreement shall not inure to the benefit of and be enforceable by any
successor or assignee of such Stockholder other than any successor or assignee
that is controlled by, under common control with, or controls such Stockholder
or who is a member of the immediate family of such Stockholder (a "Permitted
Transferee"), PROVIDED, HOWEVER, that any such Permitted Transferee agrees in
writing to be bound by the provisions of this Agreement to which the
Stockholders are subject and executes and delivers the Proxy.
9. DESCRIPTIVE HEADINGS. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for reference only and shall not
limit or otherwise affect the meaning hereof.
23
10. GOVERNING LAW, SUBMISSION TO JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
as applied to contracts entered into by Delaware residents and performed
entirely in Delaware, without giving effect to its principles or rules regarding
conflicts of laws, other than such principles directing application of the laws
of Delaware. Each party hereto 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 another party hereto or its successors
or assigns shall be brought and determined only by either a state court or
federal court sitting in the State of Maryland and each party hereto 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 party hereto hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, counter claim
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 serve process in
accordance with this Section 10, (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.
11. WAIVER OF TRIAL BY JURY. IN ANY ACTION OR PROCEEDING ARISING HEREFROM,
THE PARTIES HERETO CONSENT TO TRIAL WITHOUT A JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER OR THEIR SUCCESSORS
IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
REGARDLESS OF THE FORM OF ACTION OR PROCEEDING.
12. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
13. ENTIRE AGREEMENT. This Agreement and the Proxy embody the entire
agreement and understanding between the Company and each other party hereto
relating to the subject matter hereof and supersede all prior agreements and
understandings relating to such subject matter.
14. SEVERABILITY. If any provision of this Agreement, or the application of
such provisions to any party or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to the parties
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
[Signatures on Following Page]
24
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
COMPANY:
SAFENET, INC.
By: /S/ XXXXXXX X. XXXXXX
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: CEO
STOCKHOLDERS:
PIJNENBURG BEHEER, N.V.
By: /S/ COR PIJNENBURG
-------------------
Name: Cor Pijnenburg
Title: President
/S/ CEES XXX XXXXXX
--------------------
Name: Cees Xxx Xxxxxx
25
EXHIBIT A
STOCKHOLDERS
Pijnenburg Beheer, N.V.
X.X. Xxx 000
0000 XX Xxxxx, Xxx Xxxxxxxxxxx
attn: Cor Pijnenburg
fax: 00 00 000 0000
Cees Xxx Xxxxxx
00 X. Xxxxx Xxxxx Xxx., 000
Xxx Xxxxx, Xxxxxxxxxx 00000
fax: (000) 000-0000
II-1
