EXHIBIT 2
Voting Agreement
EXECUTION COPY
PARENT VOTING AGREEMENT
This PARENT VOTING AGREEMENT (this "AGREEMENT") is made and entered into as
of September 17, 2000 between Ness Technologies, Inc., a Delaware corporation
("COMPANY"), and the undersigned stockholders (each a "STOCKHOLDER" and
collectively the "STOCKHOLDERS") of Sapiens International Corporation N.V., a
Netherlands Antilles corporation ("PARENT"). Capitalized terms used and not
otherwise defined herein shall have the respective meanings set forth in the
Merger Agreement described below.
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger and Reorganization
dated as of September 17, 2000 by and among Parent, Wisdom Merger Sub, Inc., a
Delaware corporation and a wholly owned subsidiary of Parent ("MERGER SUB"), and
Company (such agreement as it may be amended is hereinafter referred to as the
"MERGER AGREEMENT"), Parent has agreed to acquire the outstanding securities of
Company pursuant to a merger of Merger Sub with and into Company in which
outstanding shares of capital stock of Company will be converted into shares of
common stock of Parent as set forth in the Merger Agreement (the "TRANSACTION");
WHEREAS, in order to induce Company to enter into the Merger Agreement and
consummate the Transaction, Parent has agreed to use its reasonable efforts to
cause certain stockholders of Parent to execute and deliver to Company a Voting
Agreement upon the terms set forth herein; and
WHEREAS, each Stockholder is or may become the owner of shares of capital
stock of Parent (the "SHARES").
NOW, THEREFORE, the parties agree as follows:
1. Agreement to Retain Shares.
1.1. Transfer and Encumbrance. Each Stockholder represents and warrants to
Company that (i) such Stockholder is a record or beneficial owner of the Shares
with power to vote the Shares or cause the Shares to be voted; (ii) the Shares
set forth on the signature page hereto constitute such Stockholder's entire
interest in the outstanding capital stock and voting securities of Parent other
than Shares that are held by others and are subject to similar voting agreements
or shares that are subject to employee stock options; and (iii) such
Stockholder's address is accurately set forth on the signature page hereto.
1.2. New Shares. Each Stockholder agrees that any shares of capital stock
or voting securities of Parent ("NEW SHARES") that such Stockholder purchases or
with respect to which Stockholder otherwise acquires beneficial ownership after
the date of this Agreement and prior to the Expiration Date (as hereinafter
defined) shall be subject to the terms and conditions of this Agreement to the
same extent as if they constituted Shares. As used herein, the term
"EXPIRATION DATE" shall mean the earlier to occur of (i) the Effective Time or
(ii) termination of the Merger Agreement in accordance with the terms thereof.
2. Agreement to Vote Shares and Take Certain Other Action. Prior to the
Expiration Date, at every meeting of the stockholders of Parent at which any of
the following matters is considered or voted upon, and at every adjournment or
postponement thereof, and on every action or approval by written consent of the
stockholders of Parent with respect to any of the following matters, each
Stockholder shall vote, or, using such Stockholder's best efforts, and to the
full extent legally permitted, cause the holder of record to vote the Shares and
any New Shares (except those Shares or New Shares which are not voting
securities), in favor of adoption of the Articles Amendment, the Share Issuance
and the Domestication of Parent and any proposal or action presented to a
stockholder vote which would, or could reasonably be expected to, facilitate the
Merger.
Prior to the Expiration Date, each Stockholder, as the holder of voting
stock of Parent, shall be present, in person or by proxy, or, using such
Stockholder's best efforts and to the full extent legally permitted, attempt to
cause the holder of record to be present, in person or by proxy, at all meetings
of stockholders of Parent at which any matter referred to in this Section 2 is
to be voted upon so that all Shares and New Shares are counted for the purposes
of determining the presence of a quorum at such meetings.
Notwithstanding the foregoing, nothing in this Agreement shall limit or
restrict any Stockholder from (i) acting in his or her capacity as a director or
officer of Parent, to the extent applicable, it being understood that this
Agreement shall apply to each Stockholder solely in his or her capacity as a
stockholder of Parent or (ii) voting in his or her sole discretion on any matter
other than those matters referred to in the first paragraph of this Section 2.
3. Irrevocable Proxy. Each Stockholder hereby agrees to timely deliver to
Company a duly executed proxy in the form attached hereto as Annex A (the
"PROXY"), such Proxy to cover the issued and outstanding Shares and all issued
and outstanding New Shares in respect of which such Stockholder is the record
holder and is entitled to vote at each meeting of the stockholders of Parent
(including, without limitation, each written consent in lieu of a meeting) prior
to the Expiration Date. In the event that any Stockholder is unable to provide
any such Proxy in a timely manner, such Stockholder hereby grants Company a
power of attorney to execute and deliver such Proxy for and on behalf of such
Stockholder, such power of attorney, which being coupled with an interest, shall
survive any death, disability, bankruptcy, or any other such impediment of such
Stockholder. Upon the execution of this Agreement by each Stockholder, such
Stockholder hereby revokes any and all prior proxies or powers of attorney given
by such Stockholder with respect to voting of the Shares on the matters referred
to in Section 2 and agrees not to grant any subsequent proxies or powers of
attorney with respect to the voting of the Shares on the matters referred to in
Section 2 until after the Expiration Date.
4. Representations, Warranties and Covenants of Stockholder. Each
Stockholder hereby represents, warrants and covenants to Company as follows:
(a) Such Stockholder has full power and legal capacity to execute and
deliver this Agreement and to perform his or her obligations hereunder. This
Agreement has been duly and
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validly executed and delivered by such Stockholder and constitutes the valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms, except as may be limited by (i) the effect of
bankruptcy, insolvency, conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally, or (ii) the rules
governing the availability of specific performance, injunctive relief or other
equitable remedies and general principles of equity, regardless of whether
considered in a proceeding in equity or at law. The execution and delivery of
this Agreement by such Stockholder does not, and the performance of such
Stockholder's obligations hereunder will not, result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any right to terminate, amend,
accelerate or cancel any right or obligation under, or result in the creation of
any lien or encumbrance on any Shares or New Shares pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which such Stockholder is a party or by which
such Stockholder or the Shares or New Shares are or will be bound or affected.
(b) Each Stockholder has read Section 6.05 of the Merger Agreement and
understands the Parent's restrictions thereunder.
(c) Each Stockholder agrees not to transfer, sell, exchange, pledge or
otherwise dispose of or encumber any of the Shares, or make any offer or
agreement relating thereto, at any time prior to the Expiration Date other than
to a transferee that agrees to be bound by the terms of this voting agreement
and the proxy attached hereto. Each Stockholder understands and agrees that if
such Stockholder attempts to transfer, vote or provide any other person with the
authority to vote any of the Shares other than in compliance with this
Agreement, Parent shall not, and each Stockholder hereby unconditionally and
irrevocably instructs Parent to not, permit any such transfer on its books and
records, issue a new certificate representing any of the Shares or record such
vote unless and until such Stockholder shall have complied with the terms of
this Agreement.
5. Additional Documents. Each Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Company, to carry out the purpose and intent of this
Agreement.
6. Consent and Waiver. Each Stockholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Transaction
under the terms of any agreement to which such Stockholder is a party or
pursuant to any rights such Stockholder may have provided, however, that such
Stockholder shall not be required by this Section 6 to give any consent or
waiver in his capacity as a director or officer of Parent.
7. Termination. This Agreement and the Proxy delivered in connection
herewith and all obligations of each Stockholder hereunder and thereunder, shall
terminate and shall have no further force or effect as of the Expiration Date.
8. Miscellaneous.
8.1. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, then
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the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
8.2. Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without the prior written consent of the other. This Agreement is
intended to bind each Stockholder solely as a securityholder of Parent only with
respect to the specific matters set forth herein.
8.3. Amendment and Modification. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
8.4. Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Company will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
each Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Company upon any such violation,
Company shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
Company at law or in equity and each Stockholder hereby waives any and all
defenses which could exist in its favor in connection with such enforcement and
waives any requirement for the security or posting of any bond in connection
with such enforcement.
8.5. Notices. All notices, requests, demands or other communications that
are required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given (a) when delivered, if
delivered by hand, (b) one business day after transmitted, if transmitted by a
nationally recognized overnight courier service, (c) when telecopied, if
telecopied (which is confirmed), or (d) three business days after mailing, if
mailed by registered or certified mail (return receipt requested), to the
parties at the following addresses:
(a) If to any Stockholder, at the address set forth below such
Stockholder's signature at the end hereof.
(b) if to Company, to:
Ness Technologies, Inc.
Ness Xxxx. 0
X.X.X. 00000
Kiryat Atidim
Xxx Xxxx, 00000
Xxxxxx
Attention: Xxxxx Xxxxx, President and Chief Executive Officer
Facsimile No.: 000-0-000-0000
Telephone No.: 000-0-000-0000
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with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
8.6. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York without giving
effect to the principles of conflicts or choice of law rules of any
jurisdiction.
8.7. Entire Agreement. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
8.8. Counterpart. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
8.9. Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
NESS TECHNOLOGIES, INC. STOCKHOLDER
By: /s/Tsvi Misinai
------------------------ ---------------
Name: (Signature)
------------------
Title:
------------------
Xxxxxxx Software N.V.
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(Print Name of Stockholder)
Landhuis Joonchi, Kaya Xxxxxxx X. Xxxxxxx
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z/n, X.X. Xxx 000
-----------------------------------
(Print Street Address)
Curacao, Netherlands Antilles
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(Print City, State and Zip)
--------------------------------
(Print Telephone Number)
Total Number of Shares of Parent Common Stock owned directly on the date hereof:
Common Stock: 1,800,702
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State of Residence:
-------------------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
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STOCKHOLDER
/s/ Xxxxx Xxxxxx Xx.
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(Signature)
Xxxx Enterprises S.A.
---------------------
(Print Name of Stockholder)
------------------------------
(Print Street Address)
------------------------------
(Print City, State and Zip)
------------------------------
(Print Telephone Number)
Total Number of Shares of Company Common Stock owned directly on the date
hereof:
Common Stock: 488,499
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State of Residence:
----------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
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STOCKHOLDER
/s/ Xxx Xxxxxxxxx
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(Signature)
Xxx Xxxxxxxxx
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(Print Name of Stockholder)
23 Ave. Xxxxxxx Xxxxxxx
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(Print Xxxxxx Xxxxxxx)
Xxxxx, 00000 Xxxxxx
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(Print City, State and Zip)
(0) 00000000
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(Print Telephone Number)
Total Number of Shares of Company Common Stock owned directly on the date
hereof:
Common Stock: 120,000
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State of Residence:
------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
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/s/ Xxxxxxx Xxxxxxx
----------------------------
(Signature)
ADANAC Trust
----------------------------
(Print Name of Stockholder)
----------------------------
(Print Street Address)
----------------------------
(Print City, State and Zip)
----------------------------
(Print Telephone Number)
Total Number of Shares of Company Common Stock owned directly on the date
hereof:
Common Stock: 168,600
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[SIGNATURE PAGE TO VOTING AGREEMENT]
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ANNEX A
IRREVOCABLE PROXY
TO VOTE STOCK OF
SAPIENS INTERNATIONAL CORPORATION N.V.
The undersigned stockholder of Sapiens International Corporation N.V., a
Netherlands Antilles corporation ("Parent"), hereby irrevocably appoints the
members of the Board of Directors of Ness Technologies, Inc., a Delaware
corporation ("COMPANY"), and each of them, or any other designee of Company as
the sole and exclusive attorneys and proxies of the undersigned, with full power
of substitution and resubstitution, to vote and exercise all voting rights (to
the full extent that the undersigned is entitled to do so) with respect to all
of the issued and outstanding shares of capital stock of Parent that now are
owned of record by the undersigned (collectively, the "SHARES"), in accordance
with the terms of this Irrevocable Proxy. The Shares owned of record by the
undersigned stockholder of Parent as of the date of this Irrevocable Proxy are
listed on the final page of this Irrevocable Proxy. Upon the undersigned's
execution of this Irrevocable Proxy, any and all prior proxies given by the
undersigned with respect to the voting of any Shares on the matters referred to
in the third full paragraph of this Irrevocable Proxy are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to such
matters until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable, is coupled with an interest, and is
granted in consideration of Company entering into that certain Agreement and
Plan of Merger and Reorganization (the "MERGER AGREEMENT") by and among Parent,
Wisdom Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent ("MERGER SUB"), and Company, which Merger Agreement provides for the
merger of Merger Sub with and into Company (the "MERGER"). As used herein, the
term "EXPIRATION DATE" shall mean the earlier to occur of (i) such date and time
as the Merger shall become effective in accordance with the terms and provisions
of the Merger Agreement, and (ii) the date of termination of the Merger
Agreement.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting rights of the undersigned with respect to the Shares
(including, without limitation, the power to execute and deliver written
consents), at every annual, special or adjourned meeting of the stockholders of
Parent and in every written consent in lieu of such meeting, in favor of
adoption of the Merger Agreement and any proposal or action which would, or
could reasonably be expected to, facilitate the Merger.
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided above. The undersigned stockholder
may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
[Signature Page Follows]
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: September __, 2000
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(Signature of Stockholder)
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(Print Name of Stockholder)
Shares owned of record:
_______________________ shares of
Parent Common Stock
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
