EXHIBIT 2.2
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of June 19, 2000 (this "Agreement"), among
---------
BROKAT Aktiengesellschaft, a German corporation which is in the process of
changing its name from BROKAT Infosystems Aktiengesellschaft (the "Parent"), and
------
certain stockholders of Blaze Software, Inc., a Delaware corporation (the
"Company"), which are parties hereto (each, a "Stockholder" and, collectively,
------- -----------
the "Stockholders"). Capitalized terms used without definition herein have the
------------
meanings assigned to them in the Merger Agreement (as hereinafter defined).
WITNESSETH:
WHEREAS, the Parent and the Company are, concurrently with the execution
and delivery of this Agreement, entering into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which the
----------------
Parent and the Company intend to combine their businesses by merging Merger Sub
with and into the Company and making the Company a wholly owned subsidiary of
the Parent (the "Merger");
------
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of the number of shares of common stock, par value $0.0001 per
share, of the Company ("Company Common Stock"), the options and rights to
--------------------
purchase the Company Common Stock and any other shares of voting capital stock
of the Company, in each case, as set forth on Schedule A attached hereto (with
----------
respect to each Stockholder, such Stockholder's "Existing Shares" and, together
---------------
with any shares of the Company Common Stock or other voting capital stock of the
Company acquired after the date hereof, whether upon the exercise of warrants,
options, conversion of convertible securities or otherwise, such Stockholder's
"Shares");
------
WHEREAS, pursuant to the Merger Agreement, each Stockholder is entitled to
receive, at the Effective Time of the Merger, American Depositary Shares
("Parent ADSs") representing shares of the Parent ("Parent Shares") (such Parent
----------- -------------
Shares and Parent ADSs, together with any Parent Shares or Parent ADSs acquired
upon the exercise of any warrants or options or upon the conversion of
convertible securities acquired prior to the Effective Time, whether or not such
exercise or conversion occurred prior to the Effective Time, the "Parent
------
Securities").
----------
WHEREAS, approval of the stockholders of the Company is necessary to
consummate the Merger; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, the Parent has required that each Stockholder agree, and each
Stockholder has agreed, to enter into this Agreement, pursuant to which, among
other things, such
1
Stockholder agrees to vote all of its Shares to approve the Merger, upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
VOTING
1.1 Agreement to Vote. Each Stockholder hereby agrees that it shall, and
shall cause the holder of record on any applicable record date to, from time to
time, at the request of the Parent, at any meeting (whether annual or special
and whether or not an adjourned or postponed meeting) of stockholders of the
Company, however called, (a) if a meeting is held, appear at such meeting or
otherwise cause the Shares to be counted as present thereat for purposes of
establishing a quorum, and (b) vote or consent (or cause to be voted or
consented), in person or by proxy, all Shares, and any other voting securities
of the Company (whether acquired heretofore or hereafter) that are beneficially
owned or held of record by such Stockholder or as to which such Stockholder has,
directly or indirectly, the right to vote or direct the voting, in favor of the
approval and adoption of, and against any action or agreement that would
compete, impede or interfere with the approval and adoption of, the Merger
Agreement, the Merger and any action required in furtherance thereof.
1.2 Agreement to Vote. Each Stockholder hereby agrees that it will not,
nor will it permit any entity under its control to, (a) solicit proxies or
become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the U.S. Securities Exchange Act of 1934, as amended (the
"Exchange Act")) in opposition to or in competition with the consummation of the
------------
Merger and the other transactions contemplated by the Merger Agreement or
otherwise encourage or assist any party in taking or planning any action which
would compete with or otherwise serve to interfere with or inhibit the timely
consummation of the Merger in accordance with the terms of the Merger Agreement,
(b) directly or indirectly encourage, initiate or cooperate in a shareholders'
vote or action by consent of the Company's stockholders in opposition to or in
competition with the consummation of the Merger or (c) become a member of a
"group" (as such term is used in Section 13(d) of the Exchange Act) with respect
to any voting securities of the Company for purposes of opposing or competing
with the consummation of the Merger.
1.3 Grant of Proxy. In furtherance and not in limitation of the
foregoing, each Stockholder hereby grants to, and appoints, the Parent and each
of Messrs. Stefan Rover and Xxxxxxx Xxxxxx, in their respective capacities as
officers of the Parent, and any
2
individual who shall hereafter succeed any such officer of the Parent, and any
other designee of the Parent, each of them individually, its irrevocable proxy
and attorney-in-fact (with full power of substitution and resubstitution) to
vote the Shares as indicated in this Article I. Each Stockholder intends this
proxy to be irrevocable and coupled with an interest and will take such further
action and execute such other instruments as may be necessary to effectuate the
intent of this proxy. Each Stockholder hereby revokes any and all previous
proxies with respect to such Stockholder's Shares or any other voting securities
of the Company that relate to the approval of the Merger Agreement.
1.4 No Ownership Interest. Nothing contained in this Agreement shall be
deemed to vest in the Parent any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership and economic
benefits of and relating to the Shares shall remain vested in and belong to the
Stockholders, and the Parent shall have no authority to manage, direct,
superintend, restrict, regulate, govern, or administer any of the policies or
operations of the Company or exercise any power or authority to direct the
Stockholders in the voting of any of the Shares, except as otherwise provided
herein, or in the performance of the Stockholders' duties or responsibilities as
stockholders of the Company.
1.5 Evaluation of Investment. Each Stockholder, by reason of its
knowledge and experience in financial and business matters, believes itself
capable of evaluating the merits and risks of the investment in the Parent ADSs
and the Parent Shares underlying such Parent ADSs as contemplated by the Merger
Agreement.
1.6 Documents Delivered. Each Stockholder acknowledges receipt of copies
of the Merger Agreement and all exhibits and schedules thereto. Each
Stockholder also acknowledges that such Stockholder possesses all the
information relating to the Company and the Parent which such Stockholder deems
relevant or material to such Stockholder's investment in the Parent ADSs and the
underlying Parent Common Stock should the Merger be consummated and to its
entering into this Agreement.
1.7 No Inconsistent Voting Agreements. Each Stockholder hereby covenants
and agrees that, except as contemplated by this Agreement and the Merger
Agreement, the Stockholder (a) has not entered, and shall not enter at any time
while this Agreement remains in effect, into any voting agreement or voting
trust with respect to the Shares and (b) has not granted, and shall not grant at
any time while this Agreement remains in effect, a proxy or power of attorney
with respect to the Shares, in either case, which is inconsistent with such
Stockholder's obligations pursuant to this Agreement.
3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and warrants
to the Parent as follows:
2.1 Authorization; Validity of Agreement; Necessary Action. Such
Stockholder has full power and authority to execute and deliver this Agreement,
to perform such Stockholder's obligations hereunder and to consummate the
transactions contemplated hereby. In the case of any Stockholder that is not a
natural person, the execution, delivery and performance by such Stockholder of
this Agreement and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by such Stockholder and no other
actions or proceedings on the part of such Stockholder are necessary to
authorize the execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by such Stockholder, and, assuming this
Agreement constitutes a valid and binding obligation of the Parent, constitutes
a valid and binding obligation of such Stockholder, enforceable against it in
accordance with its terms.
2.2 Consents and Approval; No Violations. None of the execution, delivery
or performance of this Agreement by such Stockholder nor the consummation by it
of the transactions contemplated hereby nor compliance by it with any of the
provisions hereof will (i) require any filing, registration or declaration with,
or consent, approval, order, or authorization of, any Governmental Entity, (ii)
result in a violation or breach of, or constitute a default under, any contract,
agreement or other instrument or obligation to which such Stockholder is a party
or (iii) violate any judgment, permit, order, decree, statute, ordinance, law,
rule or regulation applicable to it or any of its properties or assets.
2.3 Shares. Such Stockholder's Existing Shares are, and all of its Shares
from the date hereof through and on the Closing Date will be, owned beneficially
and of record by such Stockholder (subject to any dispositions of Shares
permitted by Section 3.1(a)). As of the date hereof, such Stockholder's Existing
Shares constitute all of the shares of the Company Common Stock owned of record
or beneficially by such Stockholder. All of such Stockholder's Existing Shares
are issued and outstanding, and, except as set forth on Schedule A hereto, such
----------
Stockholder does not own, of record or beneficially, any warrants, options or
other rights to acquire any shares of the Company Common Stock or any other
capital stock of the Company. Such Stockholder has sole voting power, sole
power of disposition, sole power to issue instructions with respect to the
matters set forth in Article I, and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of such
Stockholder's Existing Shares, and will have sole voting power, sole power of
disposition, sole power to issue instructions with respect to the matters set
forth in Article I, and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of such Stockholder's Shares on
the
4
record date for and actual date of the Company Shareholders Meeting (subject to
any dispositions of Shares permitted by Section 3.1(a)), with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement. Such Stockholder has good and
marketable title to its Existing Shares and at all times during the term hereof
and at the Effective Time will have good and marketable title to its Shares.
ARTICLE III
COVENANTS
3.1 Limitations on Transfer of Shares Prior to Effective Time.
(a) Each Stockholder, severally and not jointly, hereby agrees not to take
any of the following actions while Article I of this Agreement is in effect,
except in accordance with subsection (b) of this Section 3.1:
(i) tender any of such Stockholder's Shares or any securities
convertible into or exchangeable or exercisable for such Stockholder's Shares to
any person, other than the Exchange Agent, the Parent or the Merger Sub;
(ii) sell, transfer, pledge, encumber, assign or otherwise dispose of
any of such Stockholder's Shares or any securities convertible into or
exchangeable or exercisable for such Stockholder's Shares, other than to the
Exchange Agent, the Parent or the Merger Sub;
(iii) enforce or permit the execution of the provisions of any
redemption, share purchase or sale, recapitalization or other agreement with the
Company; or
(iv) enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
pledge, encumbrance, assignment or other disposition of, any of its Shares, any
securities convertible into or exchangeable or exercisable for Company Common
Stock, any other capital stock of the Company or any interest in any of the
foregoing with any person, other than the Exchange Agent, the Parent or Merger
Sub.
(b) Notwithstanding subsection (a) above, a Stockholder may take an action
described in subsection (a) if (i) the Parent gives its prior written consent to
such action or (ii) the proposed transferee agrees in writing, in an instrument
reasonably acceptable to the Parent, to be bound by this Agreement as a
Stockholder and grants with respect to any Shares so proposed to be acquired the
proxy described in Section 1.3 of this Agreement, and such transfer is
consummated at least thirty (30) days prior to the Effective Time.
5
(c) No Stockholder shall request that the Company or its transfer agent
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares, and each
Stockholder hereby consents to the entry of stop transfer instructions by the
Company of any transfer of such Stockholder's Shares, unless such transfer is
made in compliance with this Agreement.
(d) In the event of a stock dividend or distribution, or any change in
Company Common Stock by reason of any stock dividend or distribution, or any
change, in Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any securities into which or for which any or
all of the Shares may be changed or exchanged or which are received in such
transaction.
(e) Each Stockholder agrees not to, and agrees not to authorize or permit
any affiliate, director, officer, employee, or any investment banker, attorney
or other advisor, agent or representative of such Stockholder (collectively, the
"Representatives") to, directly or indirectly, (i) initiate, solicit, encourage
---------------
or knowingly facilitate, or take any action to initiate, solicit, encourage or
knowingly facilitate, any inquiries or communications or the making of any
proposal or offer that constitutes or may constitute an Acquisition Proposal, or
(ii) have any discussion with or provide any confidential information or data to
any Person relating to an Acquisition Proposal, or engage in any negotiations
concerning an Acquisition Proposal or knowingly facilitate any effort or attempt
to make or implement an Acquisition Proposal. Each Stockholder agrees that it
will, and will cause its Representatives to, immediately cease and cause to be
terminated any activities, discussions or negotiations existing as of the date
hereof with any parties conducted heretofore with respect to any Acquisition
Proposal. Nothing in this Section 3.1(e) is intended to prevent the Company
from taking any action that is expressly permitted pursuant to Section 5.7 of
the Merger Agreement.
3.2 Limitations on Transfer of Parent Securities After Effective Time.
(a) Restrictions on Natural Persons. During (x) the six (6) month period
following the Effective Time and (y) the period specified by the Parent and the
managing underwriter in connection with any underwritten U.S. public offering of
Parent ADSs or other equity securities of the Parent (such period not to extend
more than 14 days prior to the reasonably expected date on which securities will
be issued and sold pursuant to such offering (the "closing") or beyond 90 days
after the actual closing of such offering), each Stockholder who is a natural
person, severally and not jointly, hereby agrees not to take any of the
following actions:
(i) sell, transfer, distribute, pledge, encumber, assign or otherwise
dispose of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any time in the
future of) any Parent Securities;
6
(ii) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of any Parent Securities; or
(iii) deposit any Parent Securities into a facility for Parent ADSs or
withdraw any Parent ADSs from any such facility;
whether, in the case of clause (i) or (ii) above, any such transaction is to be
settled by delivery of Parent Securities or other securities, in cash or
otherwise. Any transaction referred to in clause (i), (ii) or (iii) is
hereinafter referred to as a "Transfer."
--------
(b) Restrictions on Other Stockholders. Each Stockholder that is not a
natural person, severally and not jointly, hereby agrees not to:
(i) Transfer any Parent Securities in violation of Rule 145, deeming
(for purposes of this covenant) such Stockholder to be an "affiliate" of the
Company for purposes of such Rules;
(ii) Transfer any Parent Securities for a period of 60 calendar days
following the Effective Time without the prior written consent of the Parent;
(iii) following such 60 calendar day period, Transfer, in any 90 day
period, (x) Parent ADSs in excess of the average weekly reported volume of
trading in such securities reported through the Nasdaq Stock Market during the
preceding four calendar weeks, or (y) Parent Shares in excess of the greater of
one percent of the total number of such Parent Shares outstanding and the
average weekly reported volume of trading in such securities reported through
the Neuer Markt during the preceding four calendar weeks, except that such
Stockholder may (subject to clauses (i), (iv) and (v)) distribute Parent
Securities to its own securityholders without regard to such volume limitations;
(iv) if the Parent notifies Stockholder prior to the expiration of
the 60 calendar day period referred to above that it has filed a Registration
Statement with the Securities and Exchange Commission with respect to a primary
offering of shares for cash, Transfer any Parent Securities for a period of up
to 45 days from the date of such filing (while preparation for such offering
continues) to the "pricing" of such offering (which period may be followed by
the period contemplated by clause (v)); or
(v) Transfer any Parent Securities during the period specified by
the Parent and the managing underwriter in connection with any underwritten U.S.
public offering of Parent ADSs or other equity securities of the Parent
requested from large or "inside" holders generally (such period not to extend
more than 14 days prior to the reasonably expected closing date for such
offering or beyond 90 days after the actual closing of such
7
offering); provided that not more than one such "market stand-off" period shall
be imposed upon the Stockholders in any twelve-month period.
(c) Share Legends. Each Stockholder consents to the imprinting of a
legend on certificates representing Parent Shares or American Depositary
Receipts representing Parent ADSs of legends reflecting the restrictions set
forth in this Section 4.2.
3.3 Incidental or "Piggy-Back" Offering.
(a) During the term of this Agreement, if the Parent proposes to commence
an underwritten public offering in the United States of Parent Shares or the
Parent ADSs that is registered with the U.S. Securities and Exchange Commission
(other than on a Form X-0, X-0 or F-4, or successor form), for the account of
any securityholder of the Parent, then the Parent shall give written notice of
such proposed offering to each of the Stockholders at least twenty (20) days
before the anticipated commencement of such offering, and such notice shall
describe the proposed distribution and offer such Stockholders the opportunity
to offer the number of Parent Shares or Parent ADSs as each such Stockholder may
request (an "Incidental Offering"). The Parent shall use commercially
reasonable efforts (within twenty (20) days of the notice provided for in the
preceding sentence) to cause the managing underwriter or underwriters to permit
each of the Stockholders who have requested in writing to participate in the
Incidental Offering to include its or his Parent Shares or Parent ADSs in such
secondary underwritten offering on the same terms and conditions as the
securities of such other stockholder. The Parent shall not be required to
include any such Parent Shares or Parent ADSs in such secondary underwritten
offering unless the Stockholder thereof accepts the terms of the underwritten
offering as agreed upon between the Parent and the managing underwriter or
underwriters, and then only in such quantity as the managing underwriter or
underwriters believe will not jeopardize the success of the offering by the
Parent. If the managing underwriter or underwriters determine that the
inclusion of all or part of the Parent Shares or Parent ADSs which the
Stockholders have requested to be included would materially adversely affect the
success of such offering, then the Parent shall be required to include in such
Incidental Offering, to the extent of the amount that the managing underwriter
or underwriters believe may be sold without causing such adverse effect, first,
-----
all of the securities to be offered for the account of the Parent (if any); and
second, the Parent Shares or Parent ADSs to be offered for the account of the
------
Stockholders pursuant to this Section 3.3 and any other securities requested to
be included in such secondary offering, pro rata based on the number of Parent
Shares or Parent ADSs owned by each such stockholder.
(b) The Parent shall bear all expenses in connection with any Incidental
Offering pursuant to this Section 3.3 (except for underwriter commissions or
discounts to be shared on a pro rata basis based on the number of securities
offered by each person).
8
ARTICLE IV
MISCELLANEOUS
4.1 Termination. This Agreement shall terminate and no party shall have
any rights or duties hereunder if the Merger Agreement terminates pursuant to
Section 7.1 thereof. In addition, the Stockholders' obligations under Article I
and Section 3.1 shall terminate at the Effective Time. The obligations under
Sections 3.2 and 3.3 shall survive the Effective time and terminate on the
second anniversary of the Effective Date. Nothing in this Section 4.1 shall
relieve or otherwise limit any party of liability for breach of this Agreement.
4.2 Further Assurances. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate the transactions contemplated by the Merger Agreement
and this Agreement.
4.3 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (a) on the date of delivery if delivered
personally, or by telecopy or facsimile, upon confirmation of receipt, (b) on
the third business day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the tenth business day following
the date of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
(a) if to the Parent to:
BROKAT AG
Xxxxxxxxxxxxxxxx 0
00000 Xxxxxxxxx, Xxxxxxx
Fax:x00-000-000-00-000
Attn: Xxxx-Xxxxx Xxxxxx, Esq.
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000, X.X.X.
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
9
(b) if to a Stockholder, as provided on the signature page hereof,
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx Xxxx Xxxx,
Xxxxxxxxxx 00000-0000, U.S.A.
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxx, Esq.
4.4 Interpretation. When a reference is made in this Agreement to
Sections, Exhibits or Schedules, such reference shall be to a Section of, or
Exhibit or Schedule to, this Agreement unless otherwise indicated. 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. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
4.5 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
4.6 Entire Agreement; No Third Party Beneficiaries.
(a) This Agreement and the other agreements of the parties referred to
herein constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(b) This Agreement shall be binding upon and inure solely to the benefit
of each party hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
4.7 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware (without giving effect to
choice of law principles thereof).
4.8 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any law or public policy, all
other terms 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 hereby is not affected in any manner materially 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
10
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
4.9 Amendment. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
4.10 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto, in whole
or in part (whether by operation of law or otherwise), without the prior written
consent of the other party, and any attempt to make any such assignment without
such consent shall be null and void, except that the Parent may assign, in its
sole discretion, any or all of its rights, interests and obligations under this
Agreement to any direct wholly owned Subsidiary of the Parent or the Exchange
Agent without the consent of any Stockholder, but no such assignment shall
relieve the Parent of any of its obligations under this Agreement. 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. Without limiting the generality of the foregoing, the rights under
Section 4.3 shall not be assignable to any other person, including any purchaser
or other transferee of Parent Shares or Parent ADSs.
4.11 Submission to Jurisdiction; Waivers. Each of the Parent and the
Stockholders irrevocably agrees that any legal action or proceeding with respect
to this Agreement or for recognition and enforcement of any judgment in respect
hereof brought by the other party hereto or its successors or assigns may be
brought and determined in the Chancery or other Courts of the State of Delaware,
and each of the Parent and the Stockholders hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the nonexclusive jurisdiction of the
aforesaid courts. Each of the Parent and the Stockholders hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, counterclaim
or otherwise, in any action or proceeding with respect to this Agreement, (a)
any claim that it is not personally subject to the jurisdiction of the above-
named courts for any reason other than the failure to lawfully serve process,
(b) that it or its property is exempt or immune from jurisdiction of any such
court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and (c) to the fullest extent
permitted by applicable law, that (i) the suit, action or proceeding in any such
court is brought in an inconvenient forum, (ii) the venue of such suit, action
or proceeding is improper and (iii) this Agreement, or the subject matter
hereof, may not be enforced in or by such courts.
4.12 Specific Performance. Each of the parties hereto acknowledge
that it will be impossible to measure in money the damage to the other parties
if a party hereto fails to comply with any of the obligations imposed by this
Agreement, that every
11
such obligation is material and that, in the event of any such failure, the
other parties will not have an adequate remedy at law or damages. Accordingly,
each party hereto agrees that injunctive relief of other equitable remedy, in
addition to remedies at law or damages, is the appropriate remedy for any such
failure and will not oppose the granting of such relief on the basis that the
other parties have an adequate remedy at law. Each party hereto agrees that it
will not seek, and agrees to waive any requirement for, the securing or posting
of a bond in connection with any other party's seeking or obtaining such
equitable relief.
4.13 Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder will impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor will any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive to, and not exclusive
of, any rights or remedies otherwise available.
4.14 Attorney's Fees. In any action or proceeding brought to enforce
any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall, to the extent permitted by
applicable law, be entitled to recover all attorney's fees in addition to any
other available remedy.
[Remainder of this page intentionally left blank]
12
IN WITNESS WHEREOF, the Parent and each of the Stockholders have
caused this Agreement to be signed by their respective officers or other
authorized person thereunto duly authorized as of the date first written above.
BROKAT AKTIENGESELLSCHAFT
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
By: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Executive Vice President
TL VENTURES III INTERFUND L.P.
By: /s/ Xxxx Xx Xxxx
------------------------------
Name: Xxxx Xx Xxxx
Title:
Notices to:
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
TL VENTURES III L.P.
By: /s/ Xxxx Xx Xxxx
--------------------------------
Name: Xxxx Xx Xxxx
Title:
Notices to:
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
13
TL VENTURES III OFFSHORE L.P.
By: /s/ Xxxx Xx Xxxx
-----------------------------
Name: Xxxx Xx Xxxx
Title:
Notices to:
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx 000
Xxxxx, XX 00000, X.X.X.
Fax: ____________________
Attn: ____________________
XXXXXX XXXXXXX VENTURE FUND II, C.V.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title:
Notices to:
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
XXXXXX XXXXXXX VENTURE
CAPITAL FUND II, LP
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title:
Notices to:
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
14
XXXXXX XXXXXXX VENTURE INVESTORS, LP
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title:
Notices to:
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: ____________________
Attn: ____________________
15
/s/ Xxxxxx Xxxxx
---------------------------------
XXXXXX X. XXXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
/s/ Xxxx Xxxxxxx
-----------------------------------
XXXX XXXXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
/s/ Xxxx Xxxxxxx
----------------------------------
XXXX XXXXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
16
/s/ Xxxxxxx Xxxxxxxxxx
------------------------------
XXXXXXX X. XXXXXXXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
/s/ L. Xxxxxx Xxxxx
------------------------------
L. XXXXXX XXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
Fax: x0-000-000-0000
/s/ Xxx Xxxxxxx
--------------------------------
XXX XXXXXXX
Notices to:
c/o Blaze Software, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000, U.S.A
Fax: x0-000-000-0000
17
