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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:
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(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
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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
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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
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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
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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
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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
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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
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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.
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(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
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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.
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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.
LEVEL 8 SYSTEMS, INC.
By:
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Name:
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Title:
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TEMPLATE SOFTWARE, INC.
By:
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Name:
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Title:
----------------------------------
COMPANY STOCKHOLDERS:
-------------------------------------------
Name: J. Xxxxx Xxxxx
Individually
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Individually
-------------------------------------------
Name: Xxxxxx X. Xxx
Individually
-------------------------------------------
Name: Xxxxx Xxxxx
Individually
-------------------------------------------
Name: E. Xxxxxxx Xxxxxx
Individually
12
13
PARENT STOCKHOLDERS:
Liraz Systems Ltd.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
Name:
Title:
Liraz Export (1990) Ltd.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
Name:
Title:
Advanced Systems Europe B.V.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
13
14
SCHEDULE A
NUMBER OF SHARES OF COMPANY
COMPANY STOCKHOLDER ADDRESS OF COMPANY STOCKHOLDER COMMON STOCK
---------------------------------------------------------------------------------------------------
J. Xxxxx Xxxxx 00000 Xxxxxxxxxxx Xxxxx o 1,000 shares of Common
Dunkirk, MD 20754 Stock
o Options to purchase
97,000 shares of Common Stock
Xxxxxx X. Xxxxxxxxxx 0000 Xxxxxxxxx Xxxx o 404,857 shares of
Xxxxxxx, XX 00000 Common Stock
Xxxxxx X. Xxx 00000 Xxxxxxx Xxxx Xxxxx
Xxxxx 000 o 356,167 shares of
Xxxxxx, XX 00000 Common Stock
Xxxxx Xxxxx 00000 XxXxxx Xxxxx Xxx o 20,000 shares of Common
Xxxxxxxx, XX 00000 Stock
o Options to purchase
137,500 shares of Common
Stock
E. Xxxxxxx Xxxxxx 00000 Xxxxxxxx Xxxx o 62,464 shares of Common
Xxxxxxxxx, XX 00000 Stock
o Options to purchase
549,680 shares of Common
Stock
15
SCHEDULE B
NUMBER OF SHARES OF PARENT
PARENT STOCKHOLDER ADDRESS OF PARENT STOCKHOLDER CAPITAL STOCK(*)
------------------------------------------------------------------------------------------------------
Liraz Systems Ltd. 0 Xxxxxxxx Xxxxxx 2,861,863 shares of Common Stock
Holon, 58856
Israel
Liraz Export (1990) Ltd. 0 Xxxxxxxx Xxxxxx
Xxxxx, 00000 2,071,257 shares of Common Stock
Israel
Advanced Systems Europe B.V. 0 Xxxxxxxx Xxxxxx 10,000 shares of Preferred Stock
Holon, 00000
Xxxxxx
(*) Excluding shares held by other Parent Stockholders. Liraz Systems Ltd.,
may be deemed to be the beneficial owner of securities held by its
subsidiaries, Liraz Export (1990) Ltd. and Advanced Systems Europe B.V.
