EXHIBIT 10.1
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "AGREEMENT"), is entered
into as of May 28, 2002, by and among Openwave Systems Inc., a Delaware
corporation ("PARENT"), Sapphire Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Parent ("PURCHASER"), and certain stockholders of
SignalSoft Corporation, a Delaware corporation (the"COMPANY") set forth on
Schedule 1 hereto (each a "STOCKHOLDER" and collectively, the "STOCKHOLDERS").
RECITALS
WHEREAS, each Stockholder is, as of the date hereof, the
record and beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of (i) the number of shares of common stock of
the Company, (the "COMPANY COMMON STOCK"), and (ii) the number of options to
acquire Company Common Stock (the "COMPANY OPTIONS"), set forth opposite the
name of such Stockholder on Schedule 1 hereto; and
WHEREAS, Parent, Purchaser and the Company have entered into
an Agreement and Plan of Merger, dated as of the date hereof (the "MERGER
AGREEMENT"), which provides, among other things, for Purchaser to commence a
tender offer for all of the issued and outstanding shares of the Company Common
Stock (the "OFFER") and the merger of Purchaser with and into the Company with
the Company continuing as the surviving corporation (the "MERGER") upon the
terms and subject to the conditions set forth in the Merger Agreement
(capitalized terms used herein without definition shall have the respective
meanings specified in the Merger Agreement); and
WHEREAS, as a condition to the willingness of Parent and
Purchaser to enter into the Merger Agreement and as an inducement and in
consideration therefor, the Stockholders have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein and in the Merger Agreement,
and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Representations and Warranties of the Stockholders. Each
Stockholder hereby represents and warrants to Parent, severally and not jointly,
as set forth below:
(a) Such Stockholder is the record and beneficial owner of the shares
of Company Common Stock set forth opposite his or its name on Schedule 1 to this
Agreement (such shares of Company Common Stock, together with any Company Common
Stock acquired by the Stockholder after the date of this Agreement, whether upon
the exercise of Company Options or otherwise, all as may be adjusted from time
to time pursuant to Section 8 hereof, the "Shares"). Schedule 1 lists separately
all Company Options issued to such Stockholder. Such Stockholder is the record
and
beneficial owner of the Company Options set forth opposite such Stockholder's
name on Schedule 1 to this Agreement.
(b) Such Stockholder has voting power, power of disposition, and power
to agree to all of the matters regarding such Stockholder set forth in this
Agreement, in each case with respect to all of the Shares. Such Stockholder is
not the record or beneficial owner of any securities of the Company on the date
hereof other than the Shares set forth on Schedule 1 and the Company Options, if
any, specified in Schedule 1.
(c) Such Stockholder has the legal capacity to execute and deliver this
Agreement and to consummate the transactions contemplated hereby regarding such
Stockholder.
(d) This Agreement has been validly executed and delivered by such
Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
(e) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will result in a violation
of, or a default under, or conflict with, any material contract, trust, or
agreement, or restriction of any kind to which such Stockholder is a party or by
which such Stockholder or his Shares are bound. The consummation of the
transactions contemplated hereby will not violate, or require any consent,
approval, or notice (except those required under applicable securities laws)
under, any provision of any judgment, order, decree, statute, law, rule or
regulation applicable to such Stockholder.
(f) In the case of any Stockholder that is a corporation, limited
partnership or limited liability company, such Stockholder is an entity duly
organized and validly existing under the laws of the jurisdiction in which it is
incorporated or constituted, and each such Stockholder has all requisite power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby regarding such Stockholder, and has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement.
(g) The Shares owned by such Stockholder are held by such Stockholder
or by a nominee or custodian for the benefit of such Stockholder, free and clear
of all liens, claims, security interests, proxies, voting trusts, as amended, or
agreements, options, rights, understandings or arrangements or any other
encumbrances whatsoever on title, transfer, or exercise of any rights of a
Stockholder in respect of such Shares (collectively, "ENCUMBRANCES"), except for
any such Encumbrances arising hereunder or that are otherwise de minimis in
nature.
(h) Each Stockholder whose Shares or Company Options are subject to
community property interests under the laws of any relevant jurisdiction has
agreed to have executed and delivered to Parent, such consents, waivers and
approvals as are necessary for the execution of this Agreement and the approval
and consummation of the transactions contemplated hereby regarding such
Stockholder.
(i) Reliance by Parent and Purchaser. Such Stockholder understands and
acknowledges that Parent and Purchaser are entering into the Merger Agreement in
reliance upon such Stockholder's execution and delivery of this Agreement.
Section 2. Representations and Warranties of Parent and Purchaser. Each
of Parent and Purchaser hereby, jointly and severally, represents and warrants
to the Stockholders as follows:
(a) Each of Parent and Purchaser is a corporation duly organized and
validly existing under the laws of the State of Delaware, has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
each of Parent and Purchaser, and constitutes the legal, valid and binding
obligation of each of Parent and Purchaser, enforceable against each of them in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) the availability
of the remedy of specific performance or injunctive or other forms of equitable
relief may be subject to equitable defenses and would be subject to the
discretion of the court before which any proceeding therefor may be brought.
Section 3. Company Options. Each Stockholder agrees that if such
Stockholder holds Company Options, such Stockholder shall, if requested by
Parent, immediately prior to the closing of the Offer (provided that the Minimum
Condition has been met or will be met following the tender by such Stockholder
of the Shares resulting from such exercise) exercise any Company Options that
are exercisable at the time of such request and whose exercise price is less
than the Offer Price, and shall execute all appropriate documentation in
connection with such exercise.
Section 4. Tender of the Shares. Each Stockholder hereby agrees that,
subject to the terms and conditions of Section 11 hereof, (a) such Stockholder
shall tender his, her or its Shares into the Offer as promptly as practicable,
and in any event no later than the fifth business day, following the
commencement of the Offer pursuant to Section 1.1 of the Merger Agreement, and
(b) such Stockholder shall not withdraw any Shares so tendered unless the Offer
is terminated or has expired without Purchaser purchasing all shares of Company
Common Stock validly tendered in the Offer and not withdrawn.
Section 5. Transfer of the Shares.
(a) Prior to the termination of this Agreement and except as otherwise
provided in this Agreement, none of the Stockholders shall: (i) transfer,
assign, sell, gift-over, pledge or otherwise dispose of, or consent to any of
the foregoing ("TRANSFER"), any or all of the Shares, Company Options or any
right or interest therein; (ii) enter into any contract, option or other
agreement, arrangement or understanding with respect to any Transfer; (iii)
grant any proxy, power-of-attorney or other authorization or consent with
respect to any of the Shares; (iv) deposit any of the Shares into a voting
trust, or enter into a voting agreement or arrangement with respect to any of
the Shares or (v) take any other action that would in any way restrict, limit or
interfere with the performance of such Stockholder's obligations hereunder or
the transactions contemplated hereby or make any representation or warranty of
such Stockholder untrue or incorrect.
(b) Each Stockholder agrees, promptly following request of Parent, to
surrender to the Company, or to the transfer agent for the Company, certificates
evidencing the Shares, and shall cause the Company or the transfer agent for the
Company to place the following legend on any and all certificates evidencing the
Shares:
THE SHARES OF SIGNALSOFT CORPORATION COMMON STOCK REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
CERTAIN STOCKHOLDERS AGREEMENT, DATED AS OF MAY 28, 2002, BY AND AMONG OPENWAVE
SYSTEMS INC., SAPPHIRE ACQUISITION CORP. AND CERTAIN STOCKHOLDERS OF SIGNALSOFT
CORPORATION. ANY TRANSFER OF SUCH SHARES OF SIGNALSOFT CORPORATION COMMON STOCK
IN VIOLATION OF THE TERMS AND PROVISIONS OF SUCH AGREEMENT SHALL BE NULL AND
VOID AND OF NO EFFECT WHATSOEVER.
Section 6. Voting Arrangements; Irrevocable Proxy.
(a) Each Stockholder agrees that, during the time this Agreement is in
effect, at any meeting of the stockholders of the Company (a "COMPANY
STOCKHOLDERS' MEETING"), however called, and at every adjournment or
postponement thereof, he, she or it shall (i) appear at the meeting or otherwise
cause his, her or its Shares, to be counted as present thereat for purposes of
establishing a quorum, (ii) vote, or execute consents in respect of, his, her or
its Shares, or cause his, her or its Shares to be voted, or consents to be
executed in respect thereof, in favor of the approval and adoption of the Merger
Agreement (including any revised or amended Merger Agreement that has been
agreed to by the Company), and any action required in furtherance thereof and
(iii) vote, or execute consents in respect of, his, her or its Shares, or cause
his, her or its Shares to be voted, or consents to be executed in respect
thereof, against (A) any agreement or transaction relating to any Acquisition
Proposal (other than as proposed by Parent or Purchaser) or (B) any amendment of
the Company's Certificate of Incorporation or Bylaws or other proposal, action
or transaction involving the Company or any of its Subsidiaries or any of its
Stockholders, which amendment or other proposal, action or transaction that
could reasonably be expected to prevent or materially impede or delay the
consummation of the Offer or Merger or the other Transactions or the
consummation of the transactions contemplated by this Agreement or to deprive
Parent of any material portion of the
benefits anticipated by Parent to be received from the consummation of the
Merger or the other Transactions or the transactions contemplated by this
Agreement, or change in any manner the voting rights of Company Common Stock
(collectively, "FRUSTRATING TRANSACTIONS") presented to the stockholders of the
Company (regardless of any recommendation of the Board of Directors of the
Company) or in respect of which vote or consent of the Stockholder is requested
or sought, unless such transaction has been approved in advance by Parent or
Purchaser.
(b) Subject to the provisions set forth in Section 11 hereof and as
security for the Stockholders' obligations under Section 6(a), each of the
Stockholders hereby irrevocably constitutes and appoints Parent as his, her or
its attorney and proxy in accordance with the Delaware General Corporation Law
(the "DGCL"), with full power of substitution and resubstitution, to cause the
Stockholder's shares to be counted as present at any Company Stockholders'
Meetings, to vote his, her or its Shares at any Company Stockholders' Meeting,
however called, and to execute consents in respect of his, her or its Shares as
and to the extent provided in Section 6(a). SUBJECT TO THE PROVISIONS SET FORTH
IN SECTION 11 HEREOF THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. Each Stockholder hereby agrees not to grant any subsequent
proxy or power of attorney with respect to such Stockholder's Shares.
(c) Each Stockholder represents that any proxies heretofore given in
respect of the Shares, if any, are revocable, and have been revoked.
(d) Each Stockholder hereby affirms that the proxy set forth in this
Section 6 is given in connection with the execution of the Merger Agreement, and
that such proxy is given to secure the performance of the duties of such
Stockholder under this Agreement. Such Stockholder hereby further affirms that
the proxy is coupled with an interest and, except as set forth in this Section
or in Section 11, is intended to be irrevocable in accordance with the
provisions of Section 212 of the DGCL. Each Stockholder hereby agrees that, if
for any reason the proxy granted herein is not irrevocable (subject to the terms
of this Agreement), then such Stockholder agrees to vote his, her or its Shares
in accordance with Section 6(a) above as instructed by Parent in writing. The
parties agree that the foregoing is a voting agreement created under Section 218
of the DGCL.
Section 7. Option.
(a) Subject to the terms and conditions set forth herein, each
Stockholder hereby grants to Parent a continuing option (the "OPTION") to
purchase for cash all or any portion of the Company Common Stock (including,
without limitation, the Shares) beneficially owned by such Stockholder as of the
date hereof, or beneficially owned by such Stockholder at any time hereafter
(including, without limitation, shares acquired by way of exercise of Company
Options or other rights to purchase Company Common Stock or by way of dividend,
distribution, exchange, merger, consolidation, recapitalization, reorganization,
stock split, grant of proxy or otherwise, but excluding shares owned by other
Stockholders) by such Stockholder (as adjusted as set forth herein)
(the "OPTION SHARES") at a purchase price per Option Share equal to the Offer
Price (the "PURCHASE PRICE").
(b) In the event that Parent wishes to exercise the Option, it shall
send to the Stockholder a written notice (the date of each such notice being
herein referred to as a "NOTICE DATE") setting forth its irrevocable election to
that effect, which notice also specifies the total number of Option Shares it
intends to purchase from such Stockholder pursuant to such exercise and a date
not earlier than three business days nor later than 30 business days from the
Notice Date for the closing of such purchase (an "OPTION CLOSING DATE");
provided, however, that (i) if the closing of a purchase and sale pursuant to
the Option (an "OPTION CLOSING") cannot be consummated by reason of any
applicable judgment, decree, order, law or regulation, the period of time that
otherwise would run pursuant to this sentence shall run instead from the date on
which the restriction on consummation has expired or been terminated (but in no
case more than six (6) months from the original Notice Date) and (ii) without
limiting the foregoing, if prior notification to or approval of any regulatory
authority is required in connection with the purchase, Parent and the
Stockholder shall promptly file the required notice or application for approval
and shall cooperate in the expeditious filing of such notice or application, and
the period of time that otherwise would run pursuant to this sentence shall run
instead from the date on which, as the case may be, (A) any required
notification period has expired or been terminated or (B) any required approval
has been obtained, and in either event, any requisite waiting period has expired
or been terminated. Each of Parent and the Stockholder agrees to use
commercially reasonable efforts to cooperate with and provide information to the
other, for the purpose of any required notice or application for approval. Any
exercise of the Option shall be deemed to occur on the Notice Date relating
thereto. The place of any Option Closing shall be at the offices of Parent,
which address is set forth in the Merger Agreement, and the time of the Option
Closing shall be 10:00 a.m. (California time) on the applicable Option Closing
Date. Parent shall not be under any obligation to exercise the Option, and may
allow the Option to terminate without purchasing any Option Shares hereunder
from any Stockholder.
(c) At any Option Closing, Parent shall pay to each Stockholder in
immediately available funds by check or wire transfer to a bank account
designated in writing by the Stockholder an amount equal to the Purchase Price
multiplied by the number of Option Shares being delivered by the Stockholder;
provided, that, with respect to any wire transfer, failure or refusal of the
Stockholder to designate a bank account shall not preclude Parent from
exercising the Option, in whole or in part.
(d) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided above, the Stockholder shall deliver to
Parent a certificate or certificates representing the Option Shares to be
purchased at such Option Closing, which Option Shares shall be free and clear of
all liens, claims, charges and encumbrances of any kind whatsoever (other than
restrictions under applicable securities laws).
Section 8. Certain Events.
(a) In the event of any change in the Company Common Stock or Company
Options by reason of a stock dividend, stock split, split-up, recapitalization,
reorganization, business combination, consolidation, exchange of shares, or any
similar transaction or other change in the capital structure of the Company
affecting the Company Common Stock or the acquisition of additional shares of
Company Common Stock or other securities or rights of the Company by any
Stockholder (whether through the exercise of any Company Options or other rights
to purchase shares of Company Common Stock or otherwise): (a) the number of
Shares owned by such Stockholder shall be adjusted appropriately, (b) the type
and number of shares or securities subject to the Option, and the Purchase Price
therefor, shall be adjusted appropriately, and (c) this Agreement and the
obligations hereunder shall attach to any additional shares of Company Common
Stock or other securities or rights of the Company issued to or acquired by each
of the Stockholders.
(b) In the event that the Company shall (A) enter into an agreement to
consolidate with or merge into any person, other than Parent or one of Parent's
subsidiaries, and shall not be the continuing or surviving corporation of such
consolidation or merger, or (B) enter into an agreement to permit any person,
other than Parent or one of Parent's subsidiaries, to merge into the Company and
the Company shall be the continuing or surviving corporation, but, in connection
with such merger, the Company Common Stock then outstanding shall be changed
into or exchanged for stock or other securities of the Company or of any other
person or cash or any other property or (C) liquidate, then, in the case of any
of (A), (B) and (C), Parent shall thereafter be entitled to receive upon
exercise of the Option the securities or properties to which a holder of the
number of Option Shares then deliverable upon the exercise thereof will have
been entitled to receive upon such consolidation, merger or liquidation, and
such Stockholder shall use its reasonable best efforts to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may be
practicable, in relation to any securities or property thereafter deliverable
upon exercise of the Option.
Section 9. Acquisition Proposals; Non-Solicitation.
(a) Acquisition Proposals. Each Stockholder will notify Parent and
Purchaser immediately if, to the extent known by such Stockholder, any proposals
are received by, any information is requested from, or any negotiations or
discussions are sought to be initiated or continued with such Stockholder, the
Company, the Company's officers, directors, employees, investment bankers,
attorneys, accountants or other agents, if any (each, a "REPRESENTATIVE"), in
each case in connection with any Acquisition Proposal indicating, in connection
with such notice, the name of the person making such proposal, requesting such
information, or seeking to initiate negotiations or discussions with the
Stockholder, the Company or any Representative of the Company that relate to an
Acquisition Proposal and the material terms and conditions of any proposals or
offers. Such Stockholder will keep Parent fully informed, on a current basis, of
the status and terms of any Acquisition Proposal.
(b) Non-Solicitation. Each Stockholder agrees that it shall immediately
cease and cause to be terminated all existing solicitations, initiations,
encouragements, discussions, negotiations and communications with any persons
with respect to any Acquisition Proposal. Such Stockholder shall not and shall
not authorize or permit its Representatives to directly or indirectly (i)
initiate, solicit or knowingly encourage, or knowingly take any action to
facilitate the making of, any offer or proposal which constitutes or is
reasonably likely to lead to any Acquisition Proposal, (ii) enter into any
agreement with respect to any Acquisition Proposal, or (iii) in the event of an
unsolicited Acquisition Proposal for the Company, engage in negotiations or
discussions with, or provide any information or data to, any person (other than
Parent or any of its affiliates or representatives) relating to such Acquisition
Proposal. Any violation of the foregoing restrictions by Stockholder or its
respective Representatives, whether or not such Stockholder or Representative is
so authorized by the Company or by any other Stockholder and whether or not such
Stockholder or Representative is purporting to act on behalf of the Company, any
Stockholder or Stockholders or otherwise, shall be deemed to be a breach of this
Agreement by such Stockholder. It is understood that this Section 9 limits the
rights of each Stockholder only to the extent that such Stockholder is acting in
such Stockholder's capacity as a Stockholder. Nothing herein shall be construed
as preventing a Stockholder who is an officer or director of the Company from
fulfilling the obligations of such office (including, subject to the limitations
contained in Sections 5.2(a) and 5.2(b) of the Merger Agreement, the performance
of obligations required by the fiduciary obligations of such Stockholder acting
solely in his or her capacity as an officer or director).
Section 10. Further Assurances. Each Stockholder shall, upon request of
Parent or Purchaser, execute and deliver any additional documents and take such
further actions as may reasonably be deemed by Parent or Purchaser to be
necessary or desirable to carry out the provisions hereof and to vest in Parent
the power to vote the Shares as contemplated by Section 6.
Section 11. Termination. This Agreement, and all rights and obligations
of the parties hereunder, shall terminate immediately upon the earliest of (a)
December 18, 2002, (b) six months following the termination of the Merger
Agreement in accordance with its terms, if the Merger Agreement is terminated
pursuant to a provision under which Parent is or may become entitled to the
Termination Fee, (c) the termination of the Merger Agreement in accordance with
its terms, if the Merger Agreement is terminated pursuant to any provision under
which Parent is not and will not become entitled to the Termination Fee, and (d)
the Effective Time; provided, however, that in the event that, prior to the
termination of this Agreement pursuant to the terms hereof, Parent has delivered
a Notice to any Stockholder pursuant to Section 7(b), this Agreement shall not
terminate until ten business days following the Closing Date specified in such
Notice, as such Closing Date may be extended pursuant to Section 7(b); provided
further, however, that Sections 10 and 12 shall survive any termination of this
Agreement. Each Stockholder shall have the right to terminate his, her or its
obligations under this Agreement if (x) there is any material modification or
waiver by the Company of the terms of the Merger Agreement and (y) such
modification or waiver is materially adverse to the rights of such Stockholder
(in his, her or its capacity as a Stockholder) under the Merger Agreement (it
being understood that any decrease in the price per share of
Company Common Stock to be received in the Merger shall constitute a materially
adverse modification in respect of each Stockholder).
Section 12. Expenses. Except as otherwise set forth herein, all fees,
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses provided that the Company shall pay the fees and expenses of
counsel for the Stockholders in an amount not exceeding an aggregate of $25,000.
Section 13. Public Announcements. Each of the Stockholders agrees that
it will not issue any press release or otherwise make any public statement with
respect to this Agreement or the transactions contemplated hereby or by the
Merger Agreement without the prior consent of Parent; provided, however, that
such disclosure may be made without obtaining such prior consent if (i) the
disclosure is required by law or is required by any regulatory authority,
including but not limited to any Governmental Entity, or the Nasdaq National
Stock Market and any national securities exchange, trading market or
inter-dealer quotation system on which the Shares trade and (ii) the Stockholder
making such disclosure has first used reasonable efforts to consult with Parent
about the form and substance of such disclosure.
Section 14. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or sent by a nationally recognized overnight courier service, such as
Federal Express (providing proof of delivery), to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
If to any of the Stockholders, at the address set forth opposite the
name of such Stockholder on Schedule 1 hereto:
with a copy to:
Holme Xxxxxxx & Xxxx LLP
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: J. Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Parent or Purchaser, to:
Openwave Systems Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Headings. 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.
(c) Counterparts. This Agreement may be executed manually or by
facsimile by the parties hereto in any number of counterparts, each of which
shall be considered one and the same agreement.
(d) Entire Agreement. This Agreement (together with the Merger
Agreement and any other documents and instruments referred to herein and
therein) constitutes the entire agreement among the parties with respect to the
subject matter hereof and thereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties or any of them with
respect to the subject matter hereof and thereof.
(e) Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof. Each of the parties hereto
(a) consents to submit itself 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, (b) agrees that
it shall not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court and (c) agrees that it shall not
bring any action relating to this Agreement or any of the Transactions in any
court other than a federal or state court sitting in the State of Delaware.
(f) Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties except that Parent or Purchaser may assign, in its sole discretion and
without the consent of any other party, any or all of their rights, interests
and obligations hereunder to each other or to one or more direct or indirect
wholly owned subsidiaries of Parent (each, an "ASSIGNEE"). Any such Assignee may
thereafter assign, in its sole discretion and without the consent of any other
party, any or all of its rights, interests and obligations hereunder to one or
more additional Assignees. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by, the parties
and their
respective successors and assigns, and the provisions of this Agreement are not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
(g) Severability of Provisions. If any term or provision of this
Agreement is invalid, illegal or incapable of being enforced by rule of law or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated by this Agreement is not affected in
any manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions are fulfilled to the extent possible.
(h) Specific Performance. The parties hereto acknowledge that money
damages would be an inadequate remedy for any breach of this Agreement by any
party hereto, and that the obligations of the parties hereto shall be
enforceable by any party hereto through injunctive or other equitable relief.
(i) Amendment. 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.
(j) Binding Nature. This Agreement is binding upon and is solely for
the benefit of the parties hereto and their respective successors, legal
representatives and assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Parent, Purchaser and the Stockholders
have caused this Agreement to be duly executed and delivered as of the date
first written above.
OPENWAVE SYSTEMS INC.
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: President and Chief Executive Officer
SAPPHIRE ACQUISITION CORP.
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: President and Chief Executive Officer
STOCKHOLDER
By: /s/ Xxxxx X. Hose
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Name: Xxxxx X. Hose
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Name: Xxxxxxx X. Xxxxx, Xx.
SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT
Olympic Venture Partners III, L.P.
By: OVMC III, L.P., its General Partner
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Name: Xxxxxxx X. Xxxxx, Xx.
Title: General Partner
OVP III Entrepreneurs Fund
By: OVMC III, L.P., its General Partner
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: General Partner
Olympic Venture Partners IV, L.P.
By: OVMC IV, LLC, its General Partner
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Managing Member
OVP IV Entrepreneurs Fund
By: OVMC IV, LLC, its General Partner
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Managing Member
SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT
SCHEDULE 1
STOCKHOLDER NAME NO. OF SHARES OF NO. OF
AND ADDRESS COMPANY COMMON STOCK COMPANY OPTIONS
---------------- -------------------- ---------------
Xxxxx X. Hose 1,806,166 0
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxxx 1,555,367 0
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxx X. Xxxxxx 843,939 0
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
OVP Venture Partners: 3,222,654 0
Olympic Venture Partners III, L.P.;
OVP III Entrepreneurs Fund;
Olympic Venture Partners IV, L.P.;
OVP IV Entrepreneurs Fund
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Xx. 0 67,500
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
