Exhibit 10.1
STOCKHOLDERS AGREEMENT
This Stockholders Agreement, dated as of October 19, 1999 (this
"Agreement"), is entered into by and among Level 8 Systems, Inc., a Delaware
corporation (the "Parent"), Template Software, Inc., a Virginia corporation (the
"Company"), the parties listed on the signature pages hereto as "Parent
Stockholders" (each, a "Parent Stockholder") and the parties listed on the
signature pages hereto as "Company Stockholders" (each, a "Company Stockholder")
RECITALS:
WHEREAS, each Company Stockholder is the beneficial owner of shares of
common stock, par value $0.01 per share (the "Company Common Stock"), of the
Company;
WHEREAS, each Parent Stockholder is the beneficial owner of shares of
common stock, par value $0.01 per share (the "Parent Common Stock") and/or
shares of Series A 4% Convertible Redeemable Preferred Stock, par value $0.01
per share (the "Parent Preferred Stock" and, together with the Parent Common
Stock, the "Parent Stock"), of the Parent;
WHEREAS, in conjunction with this Agreement, Parent, Company and Level 8
Acquisition Sub, Inc., a Delaware corporation and wholly owned subsidiary of the
Parent (the "Subsidiary"), intend to enter into an Agreement and Plan of Merger
dated as of the date hereof (as the same may be amended or supplemented, the
"Merger Agreement") with respect to the merger of the Company with and into the
Subsidiary (the "Merger"), with the Subsidiary surviving the Merger;
WHEREAS, each Company Stockholder is executing this Agreement as an
inducement to the Parent and the Subsidiary to enter into, execute and deliver
the Merger Agreement; and
WHEREAS, each of Parent and each Parent Stockholder is executing this
Agreement as an inducement to the Company to enter into, execute and deliver the
Merger Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by the
parties thereto of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Voting Agreements of Company Stockholders. In connection with the
-----------------------------------------
efforts of the Company to cause the Merger Agreement and the Merger to receive
the required approval of the stockholders of the Company and to be consummated,
each Company Stockholder, severally and not jointly, agrees with, and covenants
to, the Parent as follows:
(a) At any meeting of stockholders of the Company called to vote upon
the Merger and the Merger Agreement or in any other circumstance upon which
a vote, consent or other approval of stockholders of the Company is sought
with respect to the Merger and the Merger Agreement, such Company
Stockholder shall (i) appear or otherwise take appropriate action to ensure
that such Company Stockholder's Shares (as defined in the Merger Agreement)
are present at such meeting for the purpose of obtaining a quorum and (ii)
vote (or cause to be voted) or execute a written consent with respect to
such Company Stockholder's Shares in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement and each of the other
transactions contemplated by or in any way related to the Merger Agreement.
(b) At any meeting of stockholders of the Company or in any other
circumstance upon which the vote, consent or other approval of stockholders
of the Company is sought, such Company Stockholder shall vote (or cause to
be voted) or execute a written consent in connection with such Company
Stockholder's Shares against (i) any merger agreement or merger (other than
the Merger Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company or (ii) any action or
agreement, including any proposed amendment of the Company's Articles of
Incorporation or Bylaws or other proposal or transaction involving the
Company or any of its subsidiaries which action, agreement, amendment or
other proposal or transaction would in any manner impede, interfere with,
delay, or attempt to frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated thereby (each of
the foregoing in clauses (i) or (ii) above, a "Competing Transaction").
2. Voting Agreements of Parent Stockholders and the Parent. In connection
-------------------------------------------------------
with the efforts of the Parent and the Subsidiary to cause the issuance of
Parent Common Stock pursuant to the Merger Agreement to receive the required
approval of the stockholders of the Parent, each Parent Stockholder, severally
and not jointly, agrees with, and covenants to, the Company as follows:
(a) At any meeting of stockholders of the Parent called to vote upon
the Merger and the Merger Agreement or in any other circumstance upon which
a vote, consent or other approval of stockholders of the Parent is sought
with respect to the Merger and the Merger Agreement, each Parent
Stockholder shall (i) appear or otherwise take appropriate action to ensure
that such Parent Stockholder's shares of Parent Stock are present at such
meeting for the purpose of obtaining a quorum and (ii) vote (or cause to be
voted) or execute a written consent with respect to such Parent
Stockholder's shares of Parent Stock in favor of the Merger, the execution
and delivery by the Parent of the Merger Agreement and each of the other
transactions contemplated by or in any way related to the Merger Agreement.
(b) At any meeting of stockholders of the Parent or in any other
circumstance upon which the vote, consent or other approval of stockholders
of the Parent is sought, each Parent Stockholder shall vote (or cause to be
voted) or execute a written consent in connection with such Parent
Stockholder's shares of Parent Stock held by such Parent
2
Stockholder against any action or agreement, including any proposed
amendment of the Parent's Certificate of Incorporation or Bylaws or other
proposal or transaction involving the Parent or any of its subsidiaries
which action, agreement, amendment or other proposal or transaction would
in any manner impede, interfere with, delay, or attempt to frustrate,
prevent or nullify the Merger, the Merger Agreement or any of the other
transactions contemplated thereby.
3. Parent Voting Agreement.
-----------------------
(a) Parent shall direct each WCAS Party (as defined in the Agreement
dated November 23, 1998 between Parent and Welch, Carson, Xxxxxxxx & Xxxxx
VI, L.P. and the other signatories thereto relating to the acquisition of
Seer Technologies, Inc.) to grant a proxy to vote all that WCAS Party's
shares of Parent Common Stock to one or more individuals designated by
Parent, and Parent shall cause such designee to vote all the shares of
Parent Common Stock for which such proxies have been granted as set forth
in Section 2 hereof.
(b) The Parent, in its capacity as the holder of all of the issued
and outstanding shares of capital stock of the Subsidiary, hereby agrees
that during the time that this Agreement is in effect, the Parent will vote
or execute a written consent in connection with such shares of capital
stock in favor of the Merger, the execution and delivery by the Subsidiary
of the Merger Agreement and each of the other transactions contemplated by
or in any way related to the Merger Agreement.
4. Representations and Warranties of Company Stockholders. Each Company
------------------------------------------------------
Stockholder, severally and not jointly, represents and warrants to the Parent as
follows:
(a) As of the date hereof, such Company Stockholder is the record and
beneficial owner of, or is a trustee of a trust that is the record holder
of, the number of Shares set forth opposite such Company Stockholder's name
in Schedule A hereto. Except for such Company Stockholder's Shares, such
Company Stockholder is not the record or beneficial owner of any shares of
Company Common Stock.
(b) This Agreement has been duly executed and delivered by such
Company Stockholder and such Company Stockholder intends for this to be a
valid and binding agreement and will not take any action to contest the
valid and binding nature of this Agreement. If such Company Stockholder is
a natural person, such Company Stockholder (i) has the full power and
capacity necessary to enter into and perform his or her obligations under
this Agreement, (ii) has read all provisions of this Agreement, has
reviewed such provisions with counsel to the extent such Company
Stockholder deemed appropriate, understands each of such provisions and
voluntarily agrees to be bound thereby and (iii) if such Company
Stockholder is married and such Company Stockholder's Shares constitute
community property, this Agreement has been duly executed and delivered by
and constitutes a valid and binding agreement of such Company Stockholder's
spouse and such Company Stockholder's spouse intends for this to be a valid
and binding agreement and will not take any action to contest the valid and
3
binding nature of this Agreement. If such Company Stockholder is an entity,
such Company Stockholder is duly organized, validly existing and in good
standing under the laws of the state of its organization with full power
and authority necessary to enter into this Agreement and to perform its
obligations hereunder. If such Company Stockholder is a partnership, such
partnership is duly formed, validly existing and in good standing under the
laws of the state of its organization with full partnership power and
authority necessary to enter into this Agreement and to perform its
obligations hereunder.
(c) Neither the execution and delivery of this Agreement nor the
consummation by such Company 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 Company Stockholder is a party or
bound or to which such Company Stockholder's Shares are subject. Neither
the execution and delivery of this Agreement nor the consummation by such
Company Stockholder of the transactions contemplated hereby will violate,
or require any consent, approval or notice under any provision of any
judgment, order, consent, approval or notice applicable to such Company
Stockholder or such Company Stockholder's Shares, except for any necessary
consent, approval or notice under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, or Section 13 of the Securities
Exchange Act of 1934, as amended.
(d) Company Stockholder's Shares and the certificates representing
such Shares are now and at all times during the term hereof will be held by
such Company Stockholder, or by a nominee or custodian for the benefit of
such Company Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising from this Agreement and except with respect
to the rights granted by certain of the Company Stockholders in favor of
Alcatel, N.V. pursuant to the terms of that certain Shareholders Agreement
dated as of November 27, 1996, by and among such parties.
(e) No broker, investment banker, financial advisor or other person
is entitled to any broker's, finder's, financial advisor's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of such Company Stockholder.
(f) Such Company Stockholder understands and acknowledges that the
Parent is entering into the Merger Agreement in reliance upon such Company
Stockholder's execution and delivery of this Agreement.
5. Representations and Warranties of Parent Stockholders. Each Parent
-----------------------------------------------------
Stockholder, severally and not jointly, represents and warrants to the Company
as follows:
(a) As of the date hereof, such Parent Stockholder is the record and
beneficial owner of, or is a trustee of a trust that is the record holder
of, the number and class of shares of Parent Stock set forth opposite such
Parent Stockholder's name in Schedule B
4
hereto. Except for such Parent Stockholder's shares of Parent Stock set
forth on Schedule B, such Parent Stockholder is not the record or
beneficial owner of any shares of Parent Stock.
(b) This Agreement has been duly executed and delivered by such
Parent Stockholder, and such Parent Stockholder intends for this to be a
valid and binding agreement and will not take any action to contest the
valid and binding nature of this Agreement. If such Parent Stockholder is a
natural person, such Parent Stockholder (i) has the full power and capacity
necessary to enter into and perform his or her obligations under this
Agreement, (ii) has read all provisions of this Agreement, has reviewed
such provisions with counsel to the extent such Parent Stockholder deemed
appropriate, understands each of such provisions and voluntarily agrees to
be bound thereby and (iii) if such Parent Stockholder is married and such
Parent Stockholder's shares of Parent Stock constitute community property,
this Agreement has been duly executed and delivered by and constitutes a
valid and binding agreement of such Parent Stockholder's spouse and such
Parent Stockholder's spouse intends for this to be a valid and binding
agreement and will not take any action to contest the valid and binding
nature of this Agreement. If such Parent Stockholder is an entity, such
Parent Stockholder is duly organized, validly existing and in good standing
under the laws of the state of its organization with full power and
authority necessary to enter into this Agreement and to perform its
obligations hereunder. If such Parent Stockholder is a partnership, such
partnership is duly formed, validly existing and in good standing under the
laws of the state of its organization with full partnership power and
authority necessary to enter into this Agreement and to perform its
obligations hereunder. Parent is duly organized, validly existing and in
good standing under the laws of the state of its organization with full
power and authority necessary to enter into this Agreement and to perform
its obligations hereunder.
(c) Neither the execution and delivery of this Agreement nor the
consummation by such Parent 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 Parent Stockholder is a party or
bound or to which such Parent Stockholder's shares of Parent Stock are
subject. Neither the execution and delivery of this Agreement nor the
consummation by such Parent Stockholder of the transactions contemplated
hereby will violate, or require any consent, approval or notice under any
provision of any judgment, order, consent, approval or notice applicable to
such Parent Stockholder or such Parent Stockholder's shares of Parent
Stock, except for any necessary consent, approval or notice under the Xxxx-
Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, or Section 13
of the Securities Exchange Act of 1934, as amended.
(d) Parent Stockholder's shares of Parent Stock and the certificates
representing such shares are now and at all times during the term hereof
will be held by such Parent Stockholder, or by a nominee or custodian for
the benefit of such Parent Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or
5
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising from this
Agreement.
(e) Parent's shares of capital stock of the Subsidiary and the
certificates representing such shares are now and at all times during the
term hereof will be held by Parent free and clear of all liens, claims,
security interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising from this Agreement.
(f) No broker, investment banker, financial advisor or other person
is entitled to any broker's, finder's, financial advisor's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of such Parent Stockholder.
(g) Such Parent Stockholder understands and acknowledges that the
Company is entering into the Merger Agreement in reliance upon such Parent
Stockholder's execution and delivery of this Agreement.
6. Representations and Warranties of Parent. Parent represents and
----------------------------------------
warrants to the Company as follows:
(a) As of the date hereof, Parent is the record and beneficial owner
of all shares of capital stock of the Subsidiary.
(b) This Agreement has been duly executed and delivered by Parent and
Parent intends for this to be a valid and binding agreement and will not
take any action to contest the valid and binding nature of this Agreement.
Parent is duly organized, validly existing and in good standing under the
laws of the state of its organization with full power and authority
necessary to enter into this Agreement and to perform its obligations
hereunder.
(c) Neither the execution and delivery of this Agreement nor the
consummation by the Parent 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 Parent is a party or is subject. Neither
the execution and delivery of this Agreement nor the consummation by Parent
of the transactions contemplated hereby will violate, or require any
consent, approval or notice under any provision of any judgment, order,
consent, approval or notice applicable to, except for any necessary
consent, approval or notice under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, or Section 13 of the Securities
Exchange Act of 1934, as amended.
(d) Parent's shares of capital stock of the Subsidiary and the
certificates representing such shares are now and at all times during the
term hereof will be held by Parent free and clear of all liens, claims,
security interests, proxies, voting trusts or
6
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising from this
Agreement.
(f) Parent understands and acknowledges that the Company is entering
into the Merger Agreement in reliance upon such Parent's execution and
delivery of this Agreement.
7. Covenants of Company Stockholders. Each Company Stockholder, severally
---------------------------------
and not jointly, agrees with, and covenants to, the Parent as follows:
(a) Such Company Stockholder shall not (i) transfer (which terms
shall include, without limitation, for the purposes of this Agreement, any
sale, gift, pledge, alienation, assignment or other disposition, directly
or indirectly, by operation of law, in connection with any merger or
otherwise (collectively, a "Transfer")), or consent to any Transfer of, any
or all of such Company Stockholder's Shares or any interest therein, except
pursuant to the Merger, (ii) enter into any contract, option or other
agreement or understanding with respect to any Transfer of any or all of
such Company Stockholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to such
Company Stockholder's Shares, except for this Agreement and any proxy
granted in connection with any meeting of stockholders of the Company
called to vote upon the Merger and the Merger Agreement or at any
adjournment thereof which contains voting instructions consistent with such
Company Stockholder's obligations under this Agreement, or (iv) deposit
such Company Stockholder's Shares into a voting trust or enter into a
voting agreement or any other arrangement with respect to such Shares;
provided, that any such Company Stockholder may, subject to the provisions
of Section 9 hereof, Transfer any of such Company Stockholder's Shares to
any other Company Stockholder who is on the date hereof a party to this
Agreement, or to any family member of a Company Stockholder, charitable
institution or affiliate (as defined in the Securities Act (as defined in
the Merger Agreement)) of such Company Stockholder which prior to such
Transfer becomes a party to this Agreement bound by all obligations of a
"Company Stockholder" hereunder.
(b) If a majority of the holders of Shares approve the Merger and the
Merger Agreement, upon consummation of the Merger such Company
Stockholder's Shares shall, subject to the terms and conditions of the
Merger Agreement, be converted into the right to receive the consideration
provided in the Merger Agreement. Such Company Stockholder hereby waives
any rights of appraisal, or rights to dissent from the Merger, that such
Company Stockholder may have.
(c) Such Company Stockholder shall not, in its, his or her capacity
as a stockholder of the Company, and shall instruct any investment banker,
attorney or other adviser or representative of such Company Stockholder not
to, directly or indirectly, (i) solicit, initiate, facilitate, or encourage
any Competing Transactions or (ii) participate in any discussions or
negotiations regarding, or furnish to any person any information with
respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to
lead to, a Competing
7
Transaction. Each Company Stockholder shall immediately cease and cause to
be terminated any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing. Without
limiting the foregoing, it is understood that any violation of the
restrictions set forth in the preceding sentence by an investment banker,
attorney or other adviser or representative of such Company Stockholder,
whether or not such person is purporting to act on behalf of such Company
Stockholder or otherwise, shall be deemed to be a violation of this Section
7 by such Company Stockholder.
8. Covenants of Parent and Parent Stockholders.
-------------------------------------------
(a) Parent agrees with, and covenants to, the Company that Parent
shall not (i) Transfer or consent to any Transfer of any or all of the
shares of capital stock of Subsidiary held by Parent or any interest
therein, (ii) enter into any contract, option or other agreement or
understanding with respect to any Transfer of any or all of such shares of
capital stock of Subsidiary or any interest therein, (iii) grant any proxy,
power of attorney or other authorization in or with respect to such shares
of capital stock of Subsidiary, except for this Agreement, or (iv) deposit
such shares of capital stock of Subsidiary into a voting trust or enter
into a voting agreement or any other arrangement with respect to such
shares.
(b) Each Parent Stockholder, severally and not jointly, agrees with,
and covenants to, the Company that such Parent Stockholder shall not (i)
Transfer, or consent to any Transfer of, any or all of such Parent
Stockholder's shares of Parent Stock or any interest therein, (ii) enter
into any contract, option or other agreement or understanding with respect
to any Transfer of any or all of such Parent Stockholder's shares of Parent
Stock or any interest therein, (iii) grant any proxy, power of attorney or
other authorization in or with respect to such Parent Stockholder's shares
of Parent Stock, except for this Agreement and any proxy granted in
connection with any meeting of stockholders of the Parent called to vote
upon the Merger and the Merger Agreement or at any adjournment thereof
which contains voting instructions consistent with such Parent
Stockholder's obligations under this Agreement, or (iv) deposit such Parent
Stockholder's shares of Parent Stock into a voting trust or enter into a
voting agreement or any other arrangement with respect to such shares;
provided, that any such Parent Stockholder may, subject to the provisions
of Section 9 hereof, Transfer any of such Parent Stockholder's shares of
Parent Stock to any other Parent Stockholder who is on the date hereof a
party to this Agreement, or to any family member of a Parent Stockholder,
charitable institution or affiliate (as defined in the Securities Act) of
such Parent Stockholder which prior to such Transfer becomes a party to
this Agreement bound by all obligations of a "Parent Stockholder"
hereunder.
9. Certain Events. Each of the Parent, each Company Stockholder and each
--------------
Parent Stockholder agrees that this Agreement and the obligations hereunder
shall attach to the shares of capital stock of the Subsidiary, such Company
Stockholder's Shares or each Parent Stockholder's shares of Parent Stock,
respectively, and shall be binding upon any person or entity to which legal or
beneficial ownership of such shares of capital stock shall pass, whether
8
by operation of law or otherwise, including without limitation, such
Stockholder's heirs, guardians, administrators or successors. In the event of
any stock split, stock dividend, merger, reorganization, recapitalization or
other change in the capital structure of the Subsidiary, the Company or the
Parent, or the acquisition of additional shares of Company Common Stock or other
voting securities of the Company by any Company Stockholder, or the acquisition
of additional shares of Parent Stock or other voting securities of the Parent by
any Parent Stockholder, Schedule A or Schedule B shall be adjusted appropriately
and this Agreement and the obligations hereunder shall attach to any additional
shares of the Company Common Stock or other voting securities of the Company
issued to or acquired by such Company Stockholder and to any additional shares
of the Parent Stock or other voting securities of the parent issued to or
acquired by such Parent Stockholder. Without limiting the generality of the
foregoing, the term "Such Company Stockholder's Shares" shall include any such
additional shares of Company Common Stock, and the term "Such Parent
Stockholder's shares of Parent Stock" shall include any such additional shares
of Parent Stock.
10. 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 the Merger Agreement and the transactions
contemplated thereby, so that by the execution and delivery hereof the Parent
would become, or could reasonably be expected to become, an "interested
shareholder" with whom the Company would be prevented for any period pursuant to
Section 13.1-725.1 of the Virginia Stock Corporation Act ("VSCA") from engaging
in any "affiliated transaction" (as such terms are defined in Section 13.1-725
of the VSCA), then this Agreement shall be void and unenforceable until such
time as such authorization and approval shall have been duly and validly
obtained.
11. Further Assurances. Each Company Stockholder shall, upon request of
------------------
the Parent, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by the Parent to be necessary or desirable
to carry out the provisions hereof. Each of the Parent and each Parent
Stockholder shall, upon request of the Company, execute and deliver any
additional documents and take such further actions as may reasonably be deemed
by the Company to be necessary or desirable to carry out the provisions hereof.
12. Termination. It is a condition precedent to the effectiveness of this
-----------
Agreement that the Merger Agreement shall have been executed and delivered and
be in full force and effect. In the event the Merger is terminated in accordance
with its terms, this Agreement shall automatically terminate and be of no
further force and effect. This Agreement shall also terminate upon the
occurrence of the Effective Time of the Merger. Upon any such termination,
except for any rights any party may have in respect of any breach by any other
party of its or his obligations hereunder, none of the parties hereto shall have
any further obligation or liability hereunder.
13. Miscellaneous.
-------------
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to them in the Merger
Agreement.
9
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given upon the
same terms as set forth in Section 9.4 of the Merger Agreement, except that
notices to the undersigned Company Stockholders shall be sent to the
address set forth in Schedule A hereto opposite each such Company
Stockholder's name, and notices to the undersigned Parent Stockholders
shall be sent to the address set forth in Schedule B hereto opposite each
such Parent Stockholder's name.
(c) No person executing this Agreement who is, or becomes during the
term hereof, a director or officer of the Company or Parent makes any
agreement or understanding herein in his or her capacity as such director
or officer. Each Company Stockholder and each Parent Stockholder signs
solely in his capacity as the record holder and beneficial holder of shares
of Company Common Stock or Parent Stock, respectively, and nothing
contained herein shall limit or affect any actions taken by such
stockholder in his capacity as an officer or director of Company or Parent
to the extent permitted by the Merger Agreement.
(d) 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.
(e) This Agreement may be executed in two or more counterparts, all
of which shall be considered one and the same agreement and shall become
effective (i) as to any Company Stockholder when one or more counterparts
have been signed by each of Parent and such Company Stockholder and
delivered to Parent and (ii) as to any Parent Stockholder when one or more
counterparts have been signed by each of the Company and such Parent
Stockholder and delivered to Company.
(f) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and undertakings, both written and oral, among the parties with
respect to the subject matter hereof.
(g) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(h) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part,
through any merger, by operation of law or otherwise, by any of the parties
without the prior written consent of the other parties, except by laws of
descent or as expressly contemplated by Sections 5(a), 8(a) or 8(b) hereof.
Any assignment in violation of the foregoing shall be void.
(i) The parties agree that irreparable damage would occur and that
the other parties hereto would not have any adequate remedy at law in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to
10
an injunction or injunctions to prevent breaches or threatened breaches by
any party of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in
the State of Delaware or in Delaware state court, this being in addition to
any other remedy to which they may be entitled at law or in equity. In
addition, each of the parties hereto irrevocably and unconditionally (i)
consents to be subject to the personal jurisdiction of any Federal court
located in the State of Delaware or any Delaware state court in the event
any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (ii) agrees that such party will not attempt to deny
or defeat the personal jurisdiction of such courts by motion or other
request for leave from any such court, (iii) agrees that such party will
not bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Delaware or a Delaware state court and (iv) that service of
process may also be made on such party by prepaid certified mail with a
proof of mailing receipt validated by the United States Postal Service
constituting evidence of, valid service, and that service made pursuant to
this clause (iv) shall have the same legal force and effect as if served
upon such party personally within the State of Delaware.
(j) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and
the application thereof to any other circumstances, shall remain in full
force and effect, shall not in any way be affected, impaired, or
invalidated, and shall be enforced to the fullest extent permitted by law
and the provision found to be invalid, void or unenforceable shall be
immediately revised by the parties hereto so as to be valid, binding and
enforceable to the greatest extent then permitted by applicable law.
(k) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and
signed by such party.
(l) A facsimile of this Agreement containing signatures of the
parties hereto shall constitute an original document for all purposes.
[BALANCE OF PAGE INTENTIONALLY OMITTED]
11
IN WITNESS WHEREOF, the Parent, the Company, each Company Stockholder and
each Parent Stockholder have caused this Stockholders Agreement to be duly
executed and delivered on day and year first above written.
XXXXX 0 SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
-------------------------------------------
Title: President
-------------------------------------------
TEMPLATE SOFTWARE, INC.
By: /s/ Xxxxxx X. Xxx
-------------------------------------------
Name: Xxxxxx X. Xxx
-------------------------------------------
Title: Chairman
-------------------------------------------
COMPANY STOCKHOLDERS:
/s/ J. Xxxxx Xxxxx
--------------------------------------------------
Name: J. Xxxxx Xxxxx
Individually
/s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------------
Name: Xxxxxx X.Xxxxxxxxxx
Individually
/s/ Xxxxxx X. Xxx
--------------------------------------------------
Name: Xxxxxx X. Xxx
Individually
/s/ Xxxxx Xxxxx
--------------------------------------------------
Name: Xxxxx Xxxxx
Individually
/s/ E. Xxxxxxx Xxxxxx
--------------------------------------------------
Name: E. Xxxxxxx Xxxxxx
Individually
12
PARENT STOCKHOLDERS:
Liraz Systems Ltd.
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
-------------------------------------------
Title: Chairman
-------------------------------------------
Liraz Export (1990) Ltd.
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
-------------------------------------------
Title: Chairman
-------------------------------------------
Advanced Systems Europe B.V.
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx
--------------------------------------------
Title: Chairman
------------------------------------------
13
