Exhibit 2
UNDERTAKING AGREEMENT
This UNDERTAKING AGREEMENT (the "Agreement"), dated as of January 3,
2005 is entered into by and between UGS Corp., a Delaware Corporation,
("Buyer") and Xxxxxx Xxxxxx (the "Shareholder").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Tecnomatix Technologies Ltd., an Israeli corporation (the
"Company"), Buyer and Treasure Acquisition Sub Ltd., an Israeli corporation
and a wholly owned subsidiary of Buyer ("Merger Sub"), are entering into an
Agreement of Merger (the "Merger Agreement"), pursuant to which Merger Sub
will be merged with and into the Company, and the Company will become a wholly
owned subsidiary of Buyer, upon the terms and subject to the conditions set
forth therein;
WHEREAS, as of the date hereof, the Shareholder is (i) the record and
beneficial owner of, and has the sole right to vote and dispose of, 70,000
Ordinary Shares, par value NIS 0.01 per share, of the Company (the "Shares"),
and (ii) is the owner of options to acquire 40,000 Shares (each, an "Option");
and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Buyer and Merger Sub have required that the Shareholder agree, and
the Shareholder is willing to agree, to the matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereto agree as follows:
1. Proxy.
1.1 Voting. Shareholder, on the date hereof, has validly executed and
delivered a proxy, in the form attached hereto as Exhibit A (the "Proxy").
1.2 Fiduciary Responsibilities. Notwithstanding any other provision
of this Agreement to the contrary, nothing contained in this Agreement shall
limit the rights and obligations of the Shareholder in his capacity as a
director or officer of the Company from taking any action in his capacity as a
director or officer of the Company, and no action taken by the Shareholder in
any such capacity shall be deemed to constitute a breach of any provision of
this Agreement.
2. Representations and Warranties of the Shareholder. The Shareholder
represents and warrants to Buyer as follows:
2.1 Binding Agreement. The Shareholder has the capacity to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The Shareholder has duly and validly executed and delivered this
Agreement and this Agreement constitutes a legal, valid and binding obligation
of the Shareholder, enforceable against the Shareholder in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law).
2.2 No Conflict. Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby, nor the
performance of the Shareholder's obligations hereunder will, (a) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination,
cancellation, or acceleration) under any contract, agreement, instrument,
commitment, arrangement or understanding with respect to the Shareholder's
Shares or Options, (b) require any material consent, authorization or approval
of any person other than a governmental entity, or (c) violate or conflict
with any writ, injunction or decree applicable to the Shareholder or the
Shareholder's Shares or Options.
2.3 Ownership of Shares. The Shareholder is the record and
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended, which meaning will apply for all purposes of this
Agreement) of the number of outstanding Shares set forth in the recitals
hereto and is the owner of the number of Options set forth in the recitals
hereto. The Shareholder holds power to vote the number of Shares set forth in
the recitals hereto. As of the date of this Agreement, the number of Shares
and Options set forth in the recitals hereto together with other Shares with
respect to which the Shareholder may be deemed to be a beneficial owner and
are included in Schedules 13D filed by the Shareholder and with respect to
which the Shareholder disclaims beneficial ownership, represents all of the
shares of the Company beneficially owned by the Shareholder.
3. Representations and Warranties of Buyer. Buyer represents and warrants to
the Shareholder as follows:
3.1 Binding Agreement. Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the Merger Agreement by Buyer and
the consummation of the transactions contemplated hereby and thereby have been
duly and validly authorized by the Board of Directors of Buyer, and no other
corporate proceedings on the part of Buyer are necessary to authorize the
execution, delivery and performance of this Agreement and the Merger Agreement
by Buyer and the consummation of the transactions contemplated hereby and
thereby. Buyer has duly and validly executed this Agreement and this Agreement
constitutes a legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally and by general equitable
principles (regardless of whether enforceability is considered in a proceeding
in equity or at law).
3.2 No Conflict. Neither the execution and delivery of this
Agreement, the consummation by Buyer of the transactions contemplated hereby,
nor the compliance by Buyer with any of the provisions hereof will (a)
conflict with or result in a breach of any provision of its certificate of
incorporation or by-laws, (b) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation, or acceleration) under
any contract, agreement, instrument, commitment, arrangement or understanding,
(c) require any material consent, authorization or approval of any person
other than a governmental entity, or (d) violate or conflict with any writ,
injunction or decree applicable to Buyer.
4. Transfer and Other Restrictions. For so long as the Merger Agreement is in
effect:
4.1 Certain Prohibited Transfers. The Shareholder agrees not to,
except as provided for in this Agreement or the Merger Agreement:
(a) sell, sell short, transfer (including gift), 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 Shares or Options
or any interest contained therein, except pursuant to existing obligations
under Options granted to third parties, which have previously been disclosed
to Buyer;
(b) grant any proxies or power of attorney or enter into a
voting agreement or other arrangement with respect to any Shares or Options;
or
(c) deposit any Shares or Options into a voting trust;
provided, however, that Shareholder may transfer Shares for estate planning
purposes or to a nationally (in Israel or the United States) or state
recognized charitable organization if, in each case, any such proposed
transferee first agrees in writing to be bound by the terms of this Agreement
with respect to such Shares to be transferred to it, including by executing
any documentation requested by Buyer in connection therewith.
4.2 Additional Shares. Without limiting the provisions of the Merger
Agreement, in the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of the
Company affecting the Shareholder's Shares or (ii) the Shareholder shall
become the beneficial owner or record owner of any additional shares of the
Company, including pursuant to the exercise of options, or other securities
entitling the holder thereof to vote or give consent with respect to the
matters set forth in Section 1 hereof, in each case, then the terms of this
Agreement shall apply to the shares or other securities of the Company held by
the Shareholder immediately following the effectiveness of the events
described in clause (i), or the Shareholder becoming the beneficial or record
owner thereof, as described in clause (ii), as though they were Shares of the
Shareholder hereunder.
5. Specific Enforcement. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative
with and not exclusive of any other remedy conferred hereby, or by law or
equity upon such party, and the exercise by a party of any one remedy will not
preclude the exercise of any other remedy. The parties hereto agree that
irreparable damage would occur in the event that any provision of this
Agreement were not performed in accordance with its specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be
entitled to seek an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
6. Termination. This Agreement shall terminate on the earliest of (i) the
termination of the Merger Agreement in accordance with its terms, (ii) the
agreement of Buyer and the Shareholder to terminate this Agreement, and (iii)
the Effective Time (as defined in the Merger Agreement). Termination shall not
relieve any party from liability for any intentional breach of its obligations
hereunder committed prior to such termination.
7. Survival. The representations and warranties of the parties contained in
this Agreement shall terminate upon termination of this Agreement.
8. Notices. All notices and other communications hereunder shall be in writing
and shall be deemed given if delivered personally or by commercial delivery
service, or sent via telecopy (receipt confirmed) to the parties at the
following addresses or telecopy numbers (or at such other address or telecopy
numbers for a party as shall be specified by like notice):
if to Buyer, to:
UGS Corp.
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxx, Xxxxx 00000
Fax: 000-000-0000
Attention: Xxxxxx Xxxxxxx, Senior Vice President,
General Counsel & Secretary
with a copy to:
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax: : 000-000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
and to:
Xxxxx Xxxxx & Xx.
00 Xxxxxx Xxxxxx
Xxxxxxxxx 00000 Israel
Fax: 000-0-000-0000
Atention: Xxxxx Xxxxxxxxx, Adv.
If to the Shareholder, to:
Xxxxxx Xxxxxx
Xxxxx Xxxxx, 00 Xxxx Xxxx Xxx.
Xxxxxxxx 00000, Xxxxxx
Fax: 000-0-0000000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
and to:
Meitar, Liquornik, Geva & Leshem Xxxxxxxxx
00 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx Xxx 00000 Israel
Fax: 000-0-000-0000
Attention: Xxx Xxxxxxx, Adv.
9. Entire Agreement. This Agreement and the documents and instruments and
other agreements among the parties hereto as contemplated by or referred to
herein constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof.
10. Amendment; Release. Subject to applicable law, this Agreement may be
amended by the parties hereto at any time by execution of an instrument in
writing signed on behalf of each of the parties.
11. Successors and Assigns. No party may assign either this Agreement or any
of its rights, interests, or obligations hereunder without the prior written
approval of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
12. Counterparts. This Agreement may be executed in one or more counterparts
(including counterparts executed and delivered by facsimile, which shall be as
counterparts executed and delivered manually), all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other party, it being understood that all parties need not sign the same
counterpart.
13. 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 any choice of law or conflict of law provision or rule that would
cause the application of the Laws of any other jurisdiction, provided,
however, that any matter concerning the internal corporate affairs of the
Company or any party hereto shall be governed by the provisions of the
jurisdiction of its incorporation.
14. Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under any present or future law, and if the rights or
obligations of any party hereto under this Agreement will not be materially
and adversely affected thereby, (a) such provision will be fully severable,
(b) this Agreement will be construed and enforced as if such provision had
never comprised a part hereof, (c) the remaining provisions of this Agreement
will remain in full force and effect and will not be affected by such
provision or its severance herefrom and (d) in lieu of such provision, there
will be added automatically as a part of this Agreement a legal, valid and
enforceable provision as similar in terms to such provision as may be
possible.
15. Headings; Capitalized Terms. 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. Capitalized terms used in this Agreement
without definition shall have the meanings assigned to them in the Merger
Agreement.
16. Consent to Jurisdiction and Service of Process. EACH PARTY HERETO CONSENTS
TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE
COUNTY OF NEW YORK IN THE STATE OF NEW YORK AND IRREVOCABLY AGREES THAT ALL
ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY MAY BE LITIGATED ONLY IN SUCH COURTS. EACH PARTY HERETO
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS RESPECTIVE PROPERTIES, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF SUCH COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
SUCH PARTY AT THE ADDRESS SPECIFIED IN THIS AGREEMENT, SUCH SERVICE TO BECOME
EFFECTIVE 15 CALENDAR DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL IN ANY WAY
BE DEEMED TO LIMIT THE ABILITY OF EITHER PARTY HERETO TO SERVE ANY SUCH LEGAL
PROCESS, SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.
17. Waiver of Jury Trial. EACH OF BUYER AND SHAREHOLDER HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF BUYER OR SHAREHOLDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the Shareholder and a duly authorized officer of Buyer on the day
and year first written above.
UGS Corp.
By: /s/ X. X. Xxxxxx
--------------------------------
Name: X. X. Xxxxxx
Title: Chairman, CEO and President
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
