Exhibit 9.1
FORM OF MEMCO
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT (the "Shareholder Agreement"), dated as of
August 13, 1998, is by and between PLATINUM technology, inc., a Delaware
corporation ("Buyer"), and the stockholder or optionholder of MEMCO Software,
Ltd., a corporation organized under the laws of Israel (the "Company") indicated
on the signature page hereof (the "Shareholder").
RECITALS
A. Concurrent with the execution of this Shareholder Agreement, Buyer and
the Company entered into an Agreement, dated of even date herewith (as amended
from time to time, the "Agreement"), pursuant to which Buyer will acquire all of
the outstanding capital stock and options to acquire capital stock of the
Company (the "Arrangement").
B. As an inducement and a condition to entering into the Agreement, Buyer
required that the Shareholder agree, and the Shareholder has agreed, to enter
into this Shareholder Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Certain Definitions. In addition to the terms defined elsewhere
herein, capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Agreement. For purposes of this Shareholder
Agreement:
(a) "Affiliate" means, as to any specified Person, (i) any shareholder,
equity holder, officer, or director of such Person and their family members or
(ii) any other Person which, directly or indirectly, controls, is controlled by,
employed by or is under common control with, any of the foregoing. For the
purposes of this definition, "control" means the possession of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise and
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
(b) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(c) "Existing Shares" means shares of Company Stock Beneficially Owned by
the Shareholder as of the date hereof.
(d) "Securities" means the Existing Shares together with any shares of
Company Stock or other securities of the Company that become Beneficially Owned
by the Shareholder in any capacity after the date hereof and prior to the
termination of this Shareholder Agreement, whether
upon the exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution, split-up, recapitalization, combination, exchange of shares or the
like, gift, bequest, inheritance or as a successor in interest in any capacity
or otherwise.
2. Disclosure. The Shareholder hereby agrees to permit the Company and
Buyer to publish and disclose in the S-4 Registration Statement and the Proxy
Statement/Prospectus (including all documents and schedules filed with the SEC),
and any press release or other disclosure document which Buyer reasonably
determines to be necessary or desirable in connection with the Arrangement and
any transactions related thereto, the Shareholder's identity and ownership of
Company Stock and the nature of the Shareholder's commitments, arrangements and
understandings under this Shareholder Agreement.
3. Voting of Company Stock. The Shareholder hereby agrees that, during
the period commencing on the date hereof and continuing until the first to occur
of (a) the Closing Date, or (b) the valid termination of the Agreement pursuant
to Section 12.2 thereof, (the first to occur of clauses (a) and (b), the
"Termination Date"), at any meeting (whether annual or special and whether or
not an adjourned or postponed meeting) of the holders of Company Stock, however
called, or in connection with any written consent of the holders of Company
Stock, he, she or it will appear at the meeting or otherwise cause the
Securities to be counted as present thereat for purposes of establishing a
quorum and vote or consent (or cause to be voted or consented) the Securities
(A) in favor of the adoption of the Agreement and the approval of the other
actions contemplated by the Agreement and this Shareholder Agreement and any
actions required in furtherance thereof and hereof; (B) against any action or
agreement that would result in a breach in any respect of any covenant,
representation or warranty, or any other obligation or agreement, of the Company
under the Agreement or this Shareholder Agreement; and (C) except as otherwise
agreed to in writing in advance by Buyer in its sole discretion, against the
following actions (other than the Arrangement and the transactions contemplated
by this Shareholder Agreement and the Agreement) or as disclosed in the Company
Schedules: (1) any Acquisition Proposal, (2) (u) any change in a majority of the
individuals who constitute the Company's Board of Directors; (v) any material
change in the present capitalization of the Company, including without
limitation any proposal to sell a substantial equity interest in the Company or
its Subsidiaries or substantial assets of the Company or its Subsidiaries; (w)
any amendment of the Company's Memorandum of Association and Articles of
Association; (x) any other material change in the Company's corporate structure
or business; or (y) any other action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone or materially adversely
affect the Arrangement and the transactions contemplated by this Shareholder
Agreement and the Agreement. The Shareholder agrees that he, she or it will not
enter into any agreement or understanding with any Person the intended or
reasonably anticipated effect of which would be inconsistent with or violative
of any provision contained in this Section 3.
4. Intentionally Omitted.
5. Related Party Transactions. Except as set forth on Schedule 5 hereto,
neither the Shareholder nor any of Shareholder's Affiliates (i) owns, directly
or indirectly, any interest in (excepting not more than 1% stock holdings for
investment purposes in securities of publicly held and traded companies) or is
an officer, director, employee or consultant of any Person which is a
competitor, lessor, lessee, customer or supplier of the Company or any of its
Subsidiaries; (ii)
2
owns, directly or indirectly, in whole or in part, any Intellectual Property or
any other property which the Company or any of its Subsidiaries is using or the
use of which is necessary for the business of the Company or any of its
Subsidiaries; (iii) has any claim, action or cause of action against the Company
or any of its Subsidiaries, except for claims for accrued vacation pay, accrued
benefits under the Benefit Plans, claims for compensation, expense reimbursement
and similar obligations and similar matters and agreements existing on the date
hereof; (iv) has made, on behalf of the Company or any of its Subsidiaries, any
payment or commitment to pay any commission, fee or other amount to, or to
purchase or obtain or otherwise contract to purchase or obtain any goods or
services from, any other person of which any officer or director of the Company
is a partner or shareholder (except stock holdings solely for investment
purposes in securities of publicly held and traded companies); (v) owes any
money to the Company or any of its Subsidiaries; or (vi) is owed any money by
the Company or any of its Subsidiaries.
6. Grant of Proxy; Appointment of Proxy. (a) Until the earlier of the
Closing Date or the Termination Date, the Shareholder hereby irrevocably grants
to, and appoints, _______________________, the Shareholder's proxy and attorney-
in-fact (with full power of substitution), for and in the name, place and stead
of the Shareholder, to vote the Shareholder's Securities, or grant a consent or
approval in respect of such Securities in favor of the Agreement and the various
transactions contemplated thereby, and against any Acquisition Proposal. The
Shareholder shall have no claim against such proxy and attorney-in-fact, for any
action taken, decision made or instruction given by such proxy and attorney-in-
fact in accordance with this Shareholder Agreement.
(b) The Shareholder understands and acknowledges that Buyer is entering
into the Agreement in reliance upon such irrevocable proxy. The Shareholder
hereby affirms that the irrevocable proxy set forth in this Section 6 is given
to secure the performance of the duties of the Shareholder under this
Shareholder Agreement. The Shareholder hereby affirms that the irrevocable proxy
is coupled with an interest and may under no circumstances be revoked. The
Shareholder hereby ratifies and confirms that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof.
7. Covenants, Representations and Warranties of Shareholder. The
Shareholder hereby represents and warrants to, and agrees with, Buyer as
follows:
(a) Ownership of Shares. The Shareholder is the sole record and Beneficial
Owner of the number of Existing Shares opposite the Shareholder's name on the
signature page hereof, and on the date hereof such Existing Shares constitute
all of the shares of Company Stock owned of record or Beneficially Owned by the
Shareholder. The Shareholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Section 3 hereof, sole
power of disposition, sole power of conversion, sole power to demand appraisal
rights and sole power to agree to all of the matters set forth in this
Shareholder Agreement, in each case with respect to all of the Shareholder's
Existing Shares with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws, and the terms of this Shareholder
Agreement.
(b) Authorization. This Shareholder Agreement has been duly and validly
executed and delivered by the Shareholder and constitutes a valid and binding
agreement enforceable against the Shareholder in accordance with its terms
except (i) as may be limited by applicable bankruptcy, insolvency or similar
laws affecting creditors rights and (ii) that the remedy of specific performance
3
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) No Conflicts. Except for filings, authorizations, consents and
approvals as may be required under the Exchange Act and the Securities Act, (i)
no filing with, and no permit, authorization, consent or approval of, any state,
federal or international Governmental Entity is necessary for the execution of
this Shareholder Agreement by the Shareholder and the consummation by the
Shareholder of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Shareholder Agreement by the Shareholder, the
consummation by the Shareholder of the transactions contemplated hereby or
compliance by the Shareholder with any of the provisions hereof will (A)
conflict with or result in any breach of the organizational documents of the
Shareholder (if applicable), (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
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which the Shareholder is a party or by which the
Shareholder or any of its properties or assets may be bound, or (C) violate any
order, written injunction, decree, judgment, statute, rule or regulation
applicable to the Shareholder or any of its properties or assets.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Section 3 and 6 hereof, the Shareholder's Existing
Shares at all times during the term hereof will be Beneficially Owned by the
Shareholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever.
(e) No Solicitation. The Shareholder will not, and will cause its
Affiliates (other than the Company), and officers, directors, employees,
partners, investment bankers, attorneys, accountants and other agents and
representatives of the Shareholder and such affiliates (such Affiliates,
officers, directors, employees, partners, investment bankers, attorneys,
accountants and other agents and representatives of any person are hereinafter
collectively referred to as the "Representatives" of such person) not to,
directly or indirectly (other than with Buyer and its representatives in
connection with the Arrangement), (i) solicit, initiate or encourage (including
by way of furnishing information) any inquiries or the making of any proposal
with respect to any Acquisition Proposal or (ii) negotiate or otherwise engage
in discussions with any Person with respect to any Acquisition Proposal, or
which may reasonably be expected to lead to a proposal for an Acquisition
Proposal, or enter into any agreement, arrangement or understanding (including
any letter of intent, agreement in principle or similar agreement) with respect
to any such Acquisition Proposal. The Shareholder will promptly advise Buyer of
any inquiries or proposals received by, and any information requested from, or
any negotiations or discussions sought to be initiated or continued with agents
or representatives of the foregoing, in each case from a person (other than
Buyer and its representatives) with respect to an Acquisition Proposal, and a
reasonable summary of the terms thereof, including the identity of such third
party, including any financing arrangement or commitment in connection
therewith. The Shareholder will, and will cause its Representatives to,
immediately cease and cause to be terminated any and all existing activities,
discussions or negotiations, if any, with any parties conducted heretofore with
respect to any Acquisition Proposal relating to the Company, other than
discussions or negotiations with Buyer and its affiliates.
4
(f) Restriction on Transfer, Proxies and Non-Interference. From the date
hereof through the earlier of the (i) Termination Date or (ii) the date of the
Company Shareholder Meeting, the Shareholder will not, directly or indirectly
(i) offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Securities or any interest therein, (ii) grant any proxies or powers of
attorney, deposit the Securities into a voting trust or enter into a voting
agreement with respect to the Securities, or (iii) take any action that would
make any representation or warranty of the Shareholder contained herein untrue
or incorrect or would result in a breach by the Shareholder of its obligations
under this Shareholder Agreement.
(g) Reliance by Buyer. The Shareholder understands and acknowledges that
Buyer is entering into the Agreement in reliance upon the Shareholder's
execution and delivery of this Shareholder Agreement.
(h) Non-Solicitation of Employees. The Shareholder agrees that he will not,
without the prior written consent of Buyer, from the date hereof until the
earlier of the Closing Date or the termination of the Shareholder Agreement,
solicit the employment of any employee of the Company, Buyer, or any Subsidiary
or successor thereof.
8. Stop Transfer Legend.
(a) The Shareholder agrees and covenants to Buyer that the Shareholder will
not request that the Company register the transfer (book-entry or otherwise) of
any certificate or uncertificated interest representing any of the Securities,
unless such transfer is made in compliance with this Shareholder Agreement.
(b) In the event of a stock dividend or distribution, or any change in the
Company Stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, other than pursuant to the
Arrangement, the terms "Shares" and "Securities" will be deemed to refer to and
include the shares of Company Stock as well as all such stock dividends and
distributions and any shares into which or for which any or all of the
Securities may be changed or exchanged and appropriate adjustments shall be made
to the terms and provisions of this Shareholder Agreement.
9. Termination. Except for the covenant set forth in Section 4, which
shall survive termination hereof, this Shareholder Agreement will terminate upon
the Termination Date and all further obligations (other than obligations for
breaches occurring prior to the Termination Date) shall terminate as of such
date. All obligations of the Shareholder hereunder and for any breach hereof
shall terminate at the Closing Date.
10. Miscellaneous.
(a) Further Assurances. From time to time, at another party's request and
without further consideration, each party hereto will execute and deliver such
additional documents and take all such further lawful action as may be necessary
or reasonably desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Shareholder Agreement.
5
(b) Entire Shareholder Agreement. This Shareholder Agreement constitutes
the 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.
(c) Capacity, Binding Effect and Certain Permitted Activities. The
Shareholder agrees that this Shareholder Agreement and the obligations hereunder
will attach to the Securities and will be binding upon any Person to which legal
or Beneficial Ownership of such Securities shall pass, whether by operation of
law or otherwise, including without limitation, any Shareholder's legal
representatives or successors or other transferees (for value or otherwise) and
any other successors in interest. Notwithstanding anything to the contrary in
this Shareholder Agreement, the Shareholder is signing this Shareholder
Agreement solely in its capacity as a stockholder of the Company and the
Shareholder shall not be limited or otherwise affected by this Shareholder
Agreement with respect to any action or inaction of the Shareholder taken (i) in
its capacity as a director, officer or employee of the Company, (ii) in its
capacity as a director, officer or employee of, or consultant to, Buyer and/or
its subsidiaries or (iii) in conjunction with, vis-a-vis or in relation to any
other stockholder or family member or any entity (other than, for purposes of
this clause (iii), the Company and Buyer or any of their respective
subsidiaries) as to which such a stockholder or family member serves as a
director, officer, trustee, member, partner, or fiduciary or other similar
position, or as to which the Shareholder exercises any dispositive or voting
control of any Securities held by such entity.
(d) Assignment. Neither this Shareholder Agreement nor any of the rights,
interests or obligations hereunder will be assigned or delegated (whether by
operation of law or otherwise) without the prior written consent of the other
parties, provided that Buyer may assign, in its sole discretion, its rights,
interests and obligations hereunder to any direct or indirect wholly owned
subsidiary of Buyer, but no such assignment will relieve Buyer from any of its
obligations hereunder if such assignee does not perform such obligations.
Subject to the preceding sentence, this Shareholder Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
(e) Amendment and Modification. This Shareholder Agreement may not be
amended, changed, supplemented, waived or otherwise modified, except upon the
execution and delivery of a written agreement executed by the parties hereto.
(f) Notices. Any notice or other communication required or which may be
given hereunder shall be in writing and delivered (i) personally, (ii) via
telecopy, (iii) via overnight courier (providing proof of delivery) or (iv) via
registered or certified mail (return receipt requested). Such notice shall be
deemed to be given, dated and received (i) when so delivered personally, via
telecopy upon confirmation, or via overnight courier upon actual delivery or
(ii) [five] days after the date of mailing, if mailed by registered or certified
mail. Any notice pursuant to this section shall be delivered as follows:
If to the Shareholder to the address set forth for the Shareholder on the
signature page to this Shareholder Agreement
6
if to Buyer:
PLATINUM technology, inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx, Xxxxxxxx 00000
Attn: XXXXX XXXXXXXX
-----------------------------
with a copy to:
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
(g) Severability. If any term, provision, covenant or restriction of this
Shareholder Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against its regulatory policy,
the remainder of the terms, provisions, covenants and restrictions of this
Shareholder Agreement will remain in full force and effect and will in no way be
affected, impaired or invalidated.
(h) Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Shareholder Agreement was not
performed in accordance with the terms hereof and that the parties will be
entitled to the remedy of specific performance of the terms hereof, in addition
to any other remedy at law or equity.
(i) No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this Shareholder Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, will not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This Shareholder Agreement is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
(k) Governing Law. This Shareholder Agreement will be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflict of laws thereof; provided, however, that
with respect to the mechanics and procedures of the corporate action taken by
the Company or matters relating to the Arrangement or properly shall be governed
by the laws of the State of Israel.
(l) Jurisdiction. Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware in any action,
suit or proceeding arising in connection with this Shareholder Agreement, and
agrees that any such action, suit or proceeding will be brought only in such
court (and waives any objection based on forum non conveniens or any other
objection to venue therein); provided, however, that no such consent to
jurisdiction of said
7
court or in the State of Delaware shall be valid other than for such purposes.
Each party hereby waives any right to a trial by jury in connection with any
such action, suit or proceeding.
(m) Description Headings. The description headings used herein are for
reference purposes only and will not affect in any way the meaning or
interpretation of this Shareholder Agreement.
(n) Counterparts. This Shareholder Agreement may be executed in
counterparts, each of which will be considered one and the same agreement and
will become effective when such counterparts have been signed by each of the
parties and delivered to the other parties, it being understood that all parties
need not sign the same counterpart.
(o) Certain Sales and Transfers. Anything to the contrary in this
Shareholder Agreement notwithstanding, the Shareholder may (i) sell, transfer or
otherwise dispose of all or any portion of the Buyer Stock which it may acquire
in the Arrangement or which it may otherwise own and (ii) reorganize its
internal structure and composition and/or transfer all or any portion of the
Securities which it owns for tax, securities or estate planning purposes, for
charitable donation purposes or to another stockholder, as long as the recipient
of the voting and dispositive power with respect to such Securities under this
subsection (ii) agrees to abide by the provisions of and become a party to this
Shareholder Agreement.
(p) Option Shares. Nothing contained herein shall require or compel the
Shareholder to exercise any option to purchase shares of Company Stock.
(q) Governing Language. The English language version of this Shareholder
Agreement shall be the controlling version and any translation to Hebrew shall
be for convenience only.
[SIGNATURE PAGE FOLLOWS]
8
