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 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 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
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]
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
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Name: (Signature)
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Title:
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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
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(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:
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[SIGNATURE PAGE TO VOTING AGREEMENT]
STOCKHOLDER
/s/ Xxxxx Xxxxxx Xx.
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(Signature)
Xxxx Enterprises S.A.
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(Print Name of Stockholder)
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(Print Street Address)
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(Print City, State and Zip)
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(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:
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[SIGNATURE PAGE TO VOTING AGREEMENT]
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)
33-1-53867060
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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:
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[SIGNATURE PAGE TO VOTING AGREEMENT]
/s/ Xxxxxxx Xxxxxxx
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(Signature)
ADANAC Trust
----------------------------
(Print Name of Stockholder)
----------------------------
(Print Street Address)
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(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]
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]
