Exhibit 2.3
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "AGREEMENT"), dated as of November 8,
2002, by and among NE Technologies, Inc., a Georgia corporation ("Parent"), NE
Technologies Acquisition Corporation, a Georgia corporation and a wholly owned
subsidiary of Parent ("Purchaser"), and the individual listed on the Signature
Page hereto (the "Stockholder").
WHEREAS, the Stockholder is, as of the date hereof, the record and
beneficial owner of the shares of common stock, no par value per share
("Company Common Stock"), of DSET Corporation, a New Jersey corporation (the
"Company"), set forth on the Signature Page hereto;
WHEREAS, Parent, Purchaser and the Company concurrently herewith are
entering into an Agreement of Merger, dated as of the date hereof (the "Merger
Agreement"; capitalized terms used but not defined herein have the meanings
ascribed to such terms in the Merger Agreement), which provides, among other
things, for the acquisition of the Company by Parent by means of a merger (the
"Merger") of the Company with and into the Purchaser whereby shares of Company
Common Stock will be exchanged for cash upon the terms and subject to the
conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement, and in order to induce Parent and Purchaser to
enter into the Merger Agreement, the Stockholder has agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent and Purchaser of the Merger Agreement and the foregoing and the
representations, warranties, covenants and agreements set forth herein and
therein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the
Stockholder. The Stockholder (i) is the beneficial owner of the shares
of Company Common Stock and the options and warrants to purchase
shares of Company Common Stock indicated on the Signature Page hereto,
free and clear of any liens, claims, options, rights of first refusal,
co-sale rights, charges or other encumbrances that, in each case,
would deprive Parent of the benefits of this Agreement; (ii) does not
beneficially own any securities of the Company other than the shares
of Company Common Stock and options and warrants to purchase shares of
Company Common Stock indicated on the Signature Page hereto; and (iii)
has full power and authority to make, enter into and carry out the
terms of this Agreement and the proxy contained herein. This Agreement
has been duly authorized, executed and delivered by the Stockholder
and constitutes the legal, valid and binding obligation of the
Stockholder, enforceable against such Stockholder in accordance with
its terms. Neither the execution and delivery of this Agreement nor
the consummation by the Stockholder of the transactions contemplated
hereby will result in a violation of, or a default under or conflict
with, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which such Stockholder is a
party or bound or to which such Stockholder's Shares (as hereinafter
defined) are subject. No trust of which the Stockholder is a trustee
requires the consent of any beneficiary to the execution and delivery
of this Agreement or to the consummation of the transactions
contemplated hereby. If the Stockholder is married and the
Stockholder's Shares constitute community property, then this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's
spouse, enforceable against such person in accordance with its terms.
Consummation by the Stockholder of the transactions contemplated
hereby will not violate, or require any consent, approval, or notice
under, any provision or any judgment, order, decree, statute, law,
title or regulation applicable to the Stockholder or the Stockholder's
Shares.
SECTION 2. Definition of Shares. For purposes of this
Agreement, "Shares" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options,
warrants and other rights to acquire such securities) beneficially
owned by the Stockholder as of the date of this Agreement; and (ii)
all additional securities of the Company (including all shares of
Company Common Stock and all additional options, warrants and other
rights to acquire such securities) of which the Stockholder acquires
beneficial ownership during the period from the date of this Agreement
through the Effective Time. In the event of a stock dividend or
distribution, or any change in Company Common Stock by reason of any
stock dividend, split-up, recapitalization, combination, exchange of
shares or the like, the term "Shares" shall be deemed to refer to and
include the Shares as well as all such stock dividends and
distributions and any securities into which or for which any or all of
the Shares may be changed or exchanged or which are received in such
transaction.
SECTION 3. Transfer of the Shares. Prior to the termination
of this Agreement, except as otherwise provided herein, the
Stockholder shall not: (i) transfer (which term shall include, without
limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of
the Shares; (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Shares
or any interest therein; (iii) grant any proxy, power-of-attorney or
other authorization or consent in or with respect to the Shares except
as provided herein; or (iv) deposit the Shares into a voting trust or
enter into a voting agreement or arrangement with respect to the
Shares. Notwithstanding the foregoing, the Stockholder may transfer
his Shares so long as each person to which any of such Shares or any
interest in any of such Shares is or may be transferred shall have (a)
executed a counterpart to this Agreement and (b) agreed to hold such
Shares or interest in such Shares subject to all of the terms and
provisions of this Agreement.
SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Subject to Section 6 hereof, the
Stockholder hereby irrevocably grants to, and appoints, Parent, and Xxxxx Xxxx
and Xxxx Xxxxx, in their respective capacities as officers of Parent, and any
individual who shall thereafter succeed to such office of Parent, and each of
them individually, its proxy and attorney-in-fact (with full power of
substitution), for and in the name, place, and stead of the Stockholder, to
vote his Shares, or grant a consent or approval in respect of his Shares, in
connection with any meeting of the stockholders of the Company (i) in favor of
the Merger, and (ii) against any action or agreement which would impede,
interfere with
or prevent the Merger, including any Acquisition Proposal. This Agreement is
intended to bind the Stockholder as a stockholder of Company only with respect
to the specific matters set forth herein.
(b) The Stockholder represents that any proxies
heretofore given in respect of the Shares are not irrevocable, and that such
proxies are hereby revoked.
(c) Subject to Section 6 hereof, the
Stockholder hereby affirms that the proxy set forth in this Section 4 is
irrevocable and is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performances
of the duties of the Stockholder under this Agreement. The Stockholder hereby
further affirms that the irrevocable proxy granted hereby is coupled with an
interest in the Shares and, except as set forth in Section 6 hereof, is
intended to be irrevocable in accordance with the provisions of the New Jersey
Business Corporation Act.
SECTION 5. Further Assurances. The Stockholder shall, upon
request of Parent or Purchaser, execute and deliver any additional
documents and take such further actions as may reasonably be deemed by
Parent or Purchaser to be necessary to carry out the provisions hereof
and to vest in Parent the power to vote the Shares as contemplated by
Section 4 hereof.
SECTION 6. Termination. Except as otherwise provided in this
Agreement, this Agreement, and all rights and obligations of the
parties hereunder, including the proxy delivered herein, shall
terminate immediately upon the earlier of (i) the termination of the
Merger Agreement in accordance with its terms including but not
limited to termination by the Company to accept a Superior Proposal or
(ii) the Effective Time; provided, however, that Sections 7 and 10
shall survive any termination of this Agreement.
SECTION 7. Expenses. All fees and expenses incurred by any
one party hereto shall be borne by the party incurring such fees and
expenses.
SECTION 8. Public Announcements. Each of the Stockholder,
Parent and Purchaser agrees that it will not issue any press release
or otherwise make any public statement with respect to this Agreement
or the transactions contemplated hereby without the prior consent of
the other party, which consent shall not be unreasonably withheld or
delayed; provided, however, that such disclosure can be made without
obtaining such prior consent if (i) the disclosure is required by law,
and (ii) the party making such disclosure has first used its best
efforts to consult with the other party about the form and substance
of such disclosure.
SECTION 9. Voidability. If prior to the execution hereof,
the Board of Directors of the Company shall not have duly and validly
authorized and approved by all necessary corporate action, this
Agreement, the Merger Agreement and the transactions contemplated
hereby and thereby, so that by the execution and delivery hereof (a)
Parent or Purchaser would become, or could reasonably be expected to
become an "interested stockholder" with whom the Company would be
prevented for any period pursuant to Section 14A:10A-4 of the New
Jersey Business Corporation Act or the Certificate of
Incorporation of the Company from engaging in any "business
combination" (as such terms are defined in Section 14A:10A-3 of the
New Jersey Business Corporation Act) or (b) the right to exercise
certain options or warrants as provided in certain Senior Executive
Change in Control Agreements would be triggered, then this Agreement
shall be void and unenforceable until such time as such authorization
and approval shall have been duly and validly obtained.
SECTION 10. Miscellaneous.
(a) Severability. If any term or other
provision of this Agreement is invalid, illegal or incapable of being enforced
by any rule of law, or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated herein are not
affected in any manner materially adverse to any party hereto. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner.
(b) Binding Effect and Assignment. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided that,
except as specifically provided herein, no party to this Agreement may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of the other parties hereto.
(c) Amendments and Modification. Except as may
otherwise be provided herein, any provision of this Agreement may be amended,
modified or waived by the parties hereto if, and only if, such amendment or
waiver is in writing and signed, in the case of an amendment, by the parties
hereto, and in the case of a waiver, by the party against whom the waiver is to
be effective.
(d) Specific Performance; Injunctive Relief.
The parties hereto acknowledge that Parent shall be irreparably harmed and that
there shall be no adequate remedy at law for a violation of any of the
covenants or agreements of the 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 without the necessity of proving the
inadequacy of money damages as a remedy.
(e) Notices. All notices, requests, demands,
waivers and other communications required or permitted to be given under this
Agreement to any party hereunder shall be in writing and deemed given upon (a)
personal delivery, (b) transmitter's confirmation of a receipt of a facsimile
transmission, (c) confirmed delivery by a standard overnight carrier or when
delivered by hand or (d) when mailed in the United States by certified or
registered mail, postage prepaid, addressed at the following addresses (or at
such other address for a party as shall be specified by notice given
hereunder):
If to Parent or Purchaser:
NE Technologies, Inc / NE Technologies Acquisition Corporation
0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx, President and Xxxx Xxxxx, Vice President
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxx Xxxxxx, LLC
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Stockholder:
To the address set forth on the signature page hereof.
(f) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of Georgia
(regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof) as to all matters, including, but not limited to,
matters of validity, construction, effect, performance and remedies.
(g) Entire Agreement. This Agreement
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof and supersedes all other prior agreements or
understandings, both written and oral, between the parties or any of them with
respect to the subject matter hereof.
(h) Effect of Headings. The article and section
headings contained in this Agreement are solely for the purpose of reference,
are not part of the agreement of the parties hereto and shall not in any way
affect the meaning or interpretation of this Agreement.
(i) Counterparts. This Agreement may be signed
in any number of counterparts, each of which shall be deemed an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
(j) Action in Stockholder Capacity Only. The
Stockholder makes no agreement or understanding herein in any capacity other
than his capacity as a record holder and beneficial owner of Shares and nothing
herein shall limit or affect any action taken in any other capacity as an
officer or director of the Company.
(k) No Exercise of Options, Warrants or Other
Rights. Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall require the Stockholder to exercise or convert
Shares that do not constitute outstanding shares of Company Common Stock.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The foregoing Agreement is hereby executed as of the date first above
written.
NE TECHNOLOGIES, INC. ("PARENT")
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, President
NE TECHNOLOGIES ACQUISITION CORPORATION
("MERGER SUB"")
By: /s/ Xxxxx Xxxx (Xxxxx Xxxx for Xxxx Xxxxx)
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Xxxx Xxxxx, President
"STOCKHOLDER"
Signed: /s/ Xxxxxxx Xxxxxxx
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Print Name: Xxxxxxx Xxxxxxx
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Address: NV Partners II
00 Xxxxxx Xxxxxxx
Xxxxxx Xxxx, XX 00000
Shares beneficially owned by Stockholder:
737,134 shares of Company Common Stock
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shares of Company Common Stock
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issuable upon exercise of options
shares of Company Common Stock
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issuable upon exercise of warrants
