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EXHIBIT (c)(7)
STOCK OPTION PLAN
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT, executed this 17th day of December, 1999, by
and among SER Systeme AG, a German Corporation (the "Parent"), SERSys
Acquisition Corporation, a Delaware corporation (the "Corporation") which is a
wholly owned subsidiary of SER (USA), Inc., a Delaware Corporation which is
wholly owned by the Parent, and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Stockholder"). As used
in this Agreement, the term "Stockholder" shall include the permitted
successors, assigns, transferees (whether by sale, gift, or other disposition),
heirs, and personal representatives of the Stockholder.
WHEREAS, shares, or option(s) to acquire shares, of the Common Stock of the
Corporation have been issued to the Stockholder pursuant to a grant agreement
executed this date issued under a Corporation stock option plan (the "Grant
Agreement"); and
WHEREAS, the Parent, the Corporation and the Stockholder desire to assure
continuity and to perpetuate harmony in the Corporation's management, policies
and operations; and
WHEREAS, the Stockholder desires to facilitate the prompt liquidation of
his Stock in the event of his death, or, if necessary, during his lifetime; and
WHEREAS, the Parent, the Corporation and the Stockholder deem it in their
best interests to impose certain restrictions and obligations on themselves in
order to effectuate their foregoing purposes.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below and other good and valuable consideration, the receipt of which is
hereby acknowledged, it is agreed as follows:
1. RECITALS. The foregoing recitals and statements are made a part of this
Agreement.
2. PURCHASE AND SALE OF THE STOCK.
(a) Stock Covered. Except as otherwise provided herein, all of the
provisions of this Agreement shall apply to, and the term "Stock" shall include,
any and all shares of Common Stock of the Corporation that are issued (now or in
the future) pursuant to the rights of the Stockholder under the Grant Agreement
and under any other grant agreement issued under the same Corporation stock
option plan and all other shares of common stock or other equity securities of
the Corporation or any successor corporation which may be issued hereafter to
the Stockholder in consequence of his ownership of such Common Stock of the
Corporation as the result of the exchange or reclassification of shares,
corporate reorganization, or any form of recapitalization, consolidation,
merger, share split, share dividend, or similar event.
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(b) Purchase and Sale. The Parent and the Corporation agree to purchase
and redeem, and the Stockholder agrees to sell and transfer, in the manner and
upon the terms provided in this Agreement, the shares of Stock of the
Corporation. No purchase, sale, gift, endorsement, assignment, transfer, pledge,
encumbrance or other disposition, whether voluntary, involuntary or by operation
of law, including, without limitation, any transfer pursuant to a divorce
decree, (hereinafter collectively referred to as "Transfer") of any shares of
Stock of the Stockholder shall be valid and binding except as provided in, and
in accordance with, the terms and conditions of this Agreement.
3. CALL RIGHTS OF THE CORPORATION.
(a) For a period of three hundred sixty-five (365) days following the
death of the Stockholder or the termination of employment of the Stockholder
with the Corporation for any reason, the Corporation shall have an option to
purchase all or any of the authorized, issued and outstanding shares of Stock,
at the price and upon the terms provided in Sections 7 and 8 of this Agreement.
The Stockholder hereby agrees that in the event the Corporation exercises its
option pursuant to this Section 3(a), the Stockholder and/or his personal
representative shall be bound to take any and all action necessary to enable the
Corporation to purchase said Stock in accordance with this Agreement.
(b) If, for any reason, the Corporation (pursuant to Section 3(a)) does
not purchase all of the authorized, issued and outstanding shares of Stock, such
shares of Stock not purchased shall continue to be subject to the terms and
conditions of this Agreement.
4. CALL RIGHTS UPON AN INVOLUNTARY TRANSFER.
(a) If any portion of the Stockholder's shares of Stock are attached or
taken in execution, or if the Stockholder applies for the benefit of, or files a
case under, any provision of the federal bankruptcy law or any other law
relating to insolvency or relief of debtors, or if a case or proceeding is
brought against the Stockholder under any provision of the federal bankruptcy
law or any other law relating to insolvency or relief of debtors which is not
dismissed within sixty (60) days after the commencement thereof, or if the
Stockholder makes an assignment for the benefit of creditors, or if any portion
of the Stockholder's shares of Stock are made subject to charging order, or if
any portion of the Stockholder's shares of Stock are transferred pursuant to a
divorce decree (each such event shall be referred to as an "Involuntary
Transfer"), such Stockholder (the "Insolvent Stockholder") shall give immediate
written notice of the Involuntary Transfer to the Corporation and the
Corporation shall have the option to purchase any or all of the shares of Stock
of the Insolvent Stockholder at the price and upon the terms provided in
Sections 7 and 8 in accordance with the provisions of this Section 4.
(b) The Corporation shall have the option, exercisable upon written notice
to the Insolvent Stockholder, for a period of one hundred twenty (120) days
following receipt by the Corporation of the written notice of such Involuntary
Transfer, to acquire all or any of the shares of Stock of the Insolvent
Stockholder which are subject to such Involuntary Transfer.
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(c) If the Corporation has actual knowledge of an Insolvent Stockholder's
Involuntary Transfer, the Corporation shall give written notice to such effect
to the Insolvent Stockholder, and giving such written notice shall constitute
the Insolvent Stockholder's giving written notice to the Corporation for
purposes of this Section 4.
(d) The Corporation shall settle with an assignee, trustee in bankruptcy,
attaching court or officer or successor in interest holding shares of Stock
received in an Involuntary Transfer by taking any or all such shares in
execution and paying to them the purchase price for each share as provided in
Section 7, but not exceeding the Insolvent Stockholder's indebtedness and proper
items of expense. The balance of the value of such shares of Stock shall be
distributable to the Insolvent Stockholder in accordance with the provisions of
Section 8.
5. CALL RIGHTS OF THE PARENT.
(a) If a public offering of the Common Stock of the Corporation that
requires registration under the Securities Act of 1933 has not been consummated
by January 1, 2005, the Parent shall have an option for a period of three
hundred sixty five (365) days beginning thereon to purchase the Stock from the
Stockholder at the price and upon the terms provided in Sections 7 and 8 of this
agreement. The Stockholder hereby agrees that in the event the Parent exercises
its option pursuant to this Section 5(a), the Stockholder and/or his personal
representative shall be bound to take any and all action necessary to enable the
Parent to purchase said Stock in accordance with this Agreement.
(b) If, for any reason, the Parent does not exercise the option provided
under Section 5(a), such shares of Stock not purchased shall continue to be
subject to the terms and conditions of this Agreement.
6. PUT RIGHTS OF THE STOCKHOLDER.
(a) If, at January 1, 2003, (i) the fair market value of the Stock is more
than twice the price established by the Merger Agreement by and among SER
Systeme AG, SERSYS Acquisition Corporation and EIS International, Inc., dated as
of December 17, 1999 and (ii) Parent has not within the preceding 120 days
issued a public statement, which is still applicable at such date, describing
the firm intention to cause a public offering of the Common Stock of the
Corporation that requires registration under the Securities Act of 1933 ("an IPO
of the Common Stock") before December 30, 2003, the Stockholder shall have an
option for a period of three hundred sixty five (365) days beginning on January
1, 2003, to sell the Stock to the Parent at the price and upon the terms
provided in Sections 7 and 8 of this agreement. The Parent hereby agrees that in
the event the Stockholder exercises his option pursuant to this Section 6(a),
the Parent shall be bound to take any and all action necessary to enable the
Stockholder to sell said Stock to Parent and to enable Parent to purchase said
Stock.
(b) If (i) at January 1, 2004, the fair market value of the Stock is more
than twice the price established by the Merger Agreement by and among SER
Systems AG, SERSYS
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Acquisition Corporation and EIS International, Inc., dated as of December 17,
1999, (ii) the Put Rights under Section 6(a) did not arise solely because Parent
issued a public statement prior to January 1, 2003 of its intention to cause an
IPO of the Common Stock before December 30, 2003, and (iii) an IPO of the Common
Stock does not in fact occur prior to December 30, 2003, the Stockholder shall
have an option for a period of three hundred sixty-five (365) days beginning on
January 1, 2004, to sell the Stock to the Parent at the price and upon the terms
provided in Sections 7 and 8 of this agreement. The Parent hereby agrees that in
the event the Stockholder exercises his option pursuant to this Section 6(b),
the Parent shall be bound to take any and all action necessary to enable the
Stockholder to sell said Stock to Parent and to enable Parent to purchase said
Stock.
(c) If an IPO of the Common Stock has not been consummated by January 1,
2005, the Stockholder shall have an option for a period of three hundred sixty
five (365) days beginning thereon to sell the Stock to the Parent at the price
and upon the terms provided in Sections 7 and 8 of this agreement. The Parent
hereby agrees that in the event the Stockholder exercises his option pursuant to
this Section 6(c), the Parent shall be bound to take any and all action
necessary to enable the Stockholder to sell said Stock to Parent and to enable
Parent to purchase said Stock. Notwithstanding anything to the contrary in the
Grant Agreement, provided the stock option issued under the Grant Agreement has
not previously terminated or expired, the Grantee shall be permitted to exercise
the vested portion of such stock option in December 2004, conditional upon the
Grantee receiving sufficient consideration from the Parent pursuant to the
exercise of the Put Rights under this Section 6(c) effective as of January 1,
2005, with which to pay the exercise price under such portion of the stock
option issued under the Grant Agreement. The Stockholder may specify in the
notice of exercise pursuant to the preceding sentence that the exercise price is
to be paid from the proceeds of the sale to the Parent of the respective portion
of the Stock purchased pursuant to such exercise.
(d) If, for any reason, the Stockholder does not exercise the options
provided under Sections 6(a), 6(b) or 6(c), such shares of Stock not purchased
shall continue to be subject to the terms and conditions of this Agreement.
7. PURCHASE PRICE OF STOCK.
(a) Agreement of Parties. The purchase price of the Stock payable under
Sections 3, 4, 5 and 6 shall be the fair market value of such Stock as of the
"Disposition Date". The Disposition Date is the date on which the Parent, the
Corporation or the Stockholder, as applicable, exercises the respective option
to purchase shares of Stock.
(b) Fair Market Value. For all purposes herein, the fair market value of
the Stock shall be the value as established by an appraisal of the Corporation
by an appraisal firm that is selected by and mutually agreeable to the Chief
Executive Officer of the Corporation and the Parent. Such appraisals shall not
take into account any minority or liquidity discounts. At the Corporation's
expense such appraiser shall conduct an appraisal of the Corporation within four
months after each of January 1, 2003, January 1, 2004, and January 1, 2005, in
order to assist in facilitating exercise of the Call and Put Rights in Sections
5 and 6, and as of such other dates as
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are necessary to establish the value of the Stock on a Disposition Date.
Notwithstanding anything to the contrary herein, the appraisals conducted on
each of January 1, 2003, January 1, 2004, and January 1, 2005, shall apply for
purposes of determining the fair market value of the Stock that applies to the
exercise of the Put Rights in Section 6(a), 6(b) and 6(c), respectively,
regardless of when the Put Rights are exercised during the respective calendar
year.
8. PAYMENT OF PURCHASE PRICE. The payment of the purchase price for the shares
of Stock as determined pursuant to Section 7 or 9(b), as applicable, shall be
made as follows:
(a) Cash Portion. In the event of any transfer pursuant to Sections 3, 4,
5 and 6 hereof, the total purchase price of the Stock shall be paid by check by
the Parent or the Corporation, as applicable, at the Closing Date, as defined in
Section 8(d) hereof. In the event of any purchase by the Corporation pursuant to
Section 9(b) hereof, the purchase price shall be paid on the terms set forth in
the Stockholder's Offer.
(b) Debt Due From Stockholder. Any debt due by the Stockholder to the
Corporation shall be payable according to its terms, as shall any debt due by
the Corporation to the Stockholder; except, however, that, regardless of the
terms of any such debt due by the Stockholder to the Corporation (including
without limitation any unpaid portion of the exercise price under the exercised
portion of the respective grant agreement under the Plan pursuant to which the
Stock was issued and any unpaid tax withholding due as the result of such
exercise), any cash payment due under Section 8(a) with respect to the purchase
of the Stock shall, instead of being paid to the Stockholder, be first applied
to the discharge of any such indebtedness, until all such indebtedness is fully
discharged.
(c) Involuntary Transfers. The Corporation shall settle with an assignee,
trustee in bankruptcy, attaching court or officer or successor in interest
holding Stock received in an Involuntary Transfer by taking any or all such
Stock in execution and paying to them the purchase price for each share of such
Stock as provided in this Section 8, but not exceeding the Stockholder's
indebtedness and proper items of expense. The balance of the value of such
Stock, if any, shall be distributable to the Stockholder in accordance with the
provisions of this Section 8.
(d) Closing. Closing on the sale of any shares of Stock sold pursuant to
this Agreement shall, unless otherwise agreed to in writing by the parties, be
held at the principal place of business of the Corporation thirty (30) days from
the date of the last to occur of (i) the date of notice to the other party by
the Parent, the Corporation or the Stockholder, as applicable, that an option is
being exercised hereunder to purchase the Stock or (ii) if applicable, the
receipt by the Stockholder, the Corporation and/or the Parent, as applicable, of
the determination of the fair market value of the Stock as provided in Section
7(b) hereof (the "Closing Date"). At the Closing, upon payment of the purchase
price, the certificates representing the Stock to be purchased and sold
hereunder shall be delivered by the Stockholder to the Corporation or the
Parent, as applicable, appropriately endorsed in blank for transfer. If the
certificates representing any shares of Stock to be so transferred have not been
surrendered by the Stockholder, all rights
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of the holder thereof with respect to said Stock (including voting rights)
nonetheless shall cease and terminate.
9. VOLUNTARY TRANSFERS OF STOCK.
(a) The Stockholder agrees that, during his lifetime, he will not Transfer
any of his shares of Stock, except (i) upon the conditions set forth in this
Section 9; or (ii) with the prior written consent of the Corporation.
(b) Offer From Third Party. In the event that the Stockholder receives a
bona fide offer from an independent third party capable of consummating such a
sale to purchase all or any of the authorized, issued and outstanding shares of
Stock then registered in such Stockholder's name, such Stockholder shall first
offer in writing (the "Stockholder's Offer") to sell such shares of Stock (the
"Offered Stock") to the Corporation at the price and on the terms of which such
selling Stockholder proposes to transfer the Offered Stock to the proposed third
party transferee. The Stockholder's Offer shall set forth (i) the number of
shares of the Offered Stock, (ii) the name and address of the proposed
transferee, (iii) the amount of consideration to be received by the selling
Stockholder, and (iv) the method of proposed payment. The Corporation shall have
the option to acquire all or any of the shares of Offered Stock at the price and
upon the terms provided in the Stockholder's Offer. The Corporation shall have
the right to exercise its option for a period of thirty (30) days following its
receipt of the Stockholder's Offer by notifying the selling Stockholder in
writing of its intention to purchase at Closing (as defined in Section 8(d)
hereof) all or any shares of the Offered Stock on the same terms and conditions
set forth in the Stockholder's Offer.
(c) Transfers to Third Parties. In the event that (i) a Stockholder elects
to transfer all or a portion of his shares of Stock; (ii) said Stockholder
strictly complies with the provisions of Section 9(b); (iii) the Corporation
fails to purchase all of such shares of Offered Stock; and (iv) the Stockholder
who desires to transfer such shares of Stock complies with the terms of this
Section 9(c), then any such shares of Stock which are not so purchased by the
Corporation may be sold by the selling Stockholder to the third party named in
the Stockholder's Offer within a period of ninety (90) days after the expiration
of the thirty (30) day period provided in Section 9(b). Such shares of Offered
Stock may be transferred to the third party named in the Stockholder's Offer
provided that such shares are sold at the price and on the terms set forth in
the Stockholder's Offer. Any shares of Offered Stock not actually sold or
transferred to such third party by the selling Stockholder within such ninety
(90) day period at the price and on the terms set forth in the Stockholder's
Offer shall remain subject to all of the provisions of this Agreement.
(d) Sale of Corporation. Notwithstanding the provisions of this Section 9
to the contrary, the restrictions set forth in this Section 9 shall not apply to
shares of a Stockholder sold or otherwise transferred in connection with (i) the
closing of an underwritten public offering by the Corporation of its Stock or
any other securities pursuant to an effective registration statement under the
Securities Act of 1933, as amended, (ii) a sale of the Corporation as a result
of which more than fifty percent (50%) of the total number of outstanding shares
of its Common Stock is
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sold, exchanged, conveyed, or otherwise transferred to a third party in one or a
series of related transactions, or (iii) a merger or consolidation of the
Corporation as a result of which the holders of its Common Stock (immediately
prior to such merger or consolidation) hold less than fifty percent (50%) of the
surviving or new entity, as the case may be.
10. DRAG ALONG RIGHTS
(a) Generally. If at any time the holder(s) of a majority of the shares of
Common Stock of the Corporation desire to sell, exchange, convey, or otherwise
transfer, in one or a series of related transactions to an independent third
party in a bona fide arms length transaction, all of the outstanding shares of
Common Stock of the Corporation ("Selling Stockholder(s)") for consideration
which the Selling Stockholders in good faith believe in their sole discretion to
be adequate consideration for such shares, then the Selling Stockholder(s) may
require the Stockholder to sell, exchange, convey, or otherwise transfer, and
the Stockholder agrees to sell, exchange, convey, or otherwise transfer all of
the shares of Stock at the same price per share of Common Stock (as set forth
below) and on the same terms and conditions, as received by the Selling
Stockholder(s) from the independent third party for the same class of shares.
(b) Conditions to Obligation. The Stockholder's obligation to sell,
exchange, convey or otherwise transfer the Stock under the provisions of this
Section 10 is subject to the requirements that (i) the Selling Stockholder(s)
shall give notice to the Stockholder of such sale, exchange, conveyance, or
transfer at least 30 days prior to the proposed date of such event, specifying
the price and terms upon which shares of Common Stock are to be sold, exchanged,
conveyed, or transferred, and the proposed date of such event, and (ii) upon the
consummation of said sale, exchange, conveyance, or transfer, the Stockholder
will receive the same form and amount of consideration per share of Common Stock
as received by the Selling Stockholder(s) for the same class of shares, or, if
the Selling Stockholder(s) are given an option as to the form and amount of
consideration to be received, the Stockholder will be given the same option.
11. TAG ALONG RIGHTS.
(a) Notice. If at any time, in any transaction or transactions, the Parent
desires to sell, exchange, convey, or otherwise transfer any shares of Common
Stock owned by it, then the Parent shall give notice of such intent to the
Stockholder at least fifteen (15) days prior to the proposed date of such sale.
Such notice shall specify the number of shares and the terms, including price,
upon which such shares of Common Stock are to be sold, exchanged, conveyed, or
otherwise transferred and the proposed date of such sale, exchange, conveyance,
or transfer.
(b) Participation. The Stockholder may elect to participate in such sale
by giving notice to the Parent at least ten (10) days prior to the date of the
proposed sale. Such notice from the Stockholder shall specify the number of
shares of Common Stock which it proposes to sell. If the Stockholder elects to
participate in such sale, and gives timely notice of such election, then the
Parent shall not effect such sale unless either (i) the proposed purchaser of
such shares offers to purchase from the Stockholder, at the same time and on the
same terms
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(including price) as shares of Common Stock that are being purchased from the
Parent, that number of shares of Common Stock owned by the Stockholder which
bears the same proportion to the total number of shares of Stock which he/she
beneficially owns, as the number of shares of Stock being sold by the Parent
bears to the total number of shares of Stock owned by the Parent, or (ii) to the
extent the proposed purchaser is unwilling to purchase shares of the
Stockholders' Common Stock as calculated in Section 11(b)(i) hereof, then the
number of shares of the Stockholders' Common Stock as so calculated, and the
number of shares of Stock of the Parent as otherwise to be sold, shall each be
reduced proportionately to equal the total number of shares to be purchased by
the proposed purchaser, who will thereupon offer to purchase the number of
shares of the Stockholders' Common Stock as so calculated at the same time and
on the same terms (including price) as the number of shares of Common Stock to
be sold by the Parent, as recalculated pursuant to this Section 11(b)(ii).
(c) Exempt Transfers. Notwithstanding the foregoing, the provisions of
this Section 11 shall not apply to (i) any pledge of Common Stock by the Parent
made pursuant to a bona fide loan transaction or (ii) any sale of the shares of
Common Stock to the public pursuant to a registration statement filed under the
Securities Act of 1933.
12. MARKET STAND-OFF AGREEMENT. The Stockholder hereby agrees that he or she
shall not, to the extent reasonably requested by the Corporation and an
underwriter of Common Stock (or other securities) of the Corporation, sell or
otherwise transfer or dispose (other than to donees who agree to be similarly
bound) of any Stock during the one hundred eighty (180)-day period following the
effective date of a registration statement of the Corporation filed under the
Securities Act of 1933; provided, however, that such agreement shall be
applicable only to the first such registration statement of the Corporation
which covers shares (or securities) to be sold on its behalf to the public in an
underwritten public offering. Such agreement shall be in writing in a form
satisfactory to the Corporation and such underwriter. In order to enforce the
foregoing covenant, the Corporation may impose stop-transfer instructions with
respect to the Stock of the Stockholder (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such one
hundred eighty (180)-day period.
13. SEVERABILITY. It is the express intention of the parties that the
agreements contained herein shall have the widest application possible. If any
agreement contained herein is found by a court having jurisdiction to be
unreasonable in scope or character, the agreement shall not be rendered
unenforceable thereby, but rather the scope or character of such agreement shall
be deemed reduced or modified with retroactive effect to render such agreement
reasonable and such agreement shall be enforced as thus modified. If the court
having jurisdiction will not review the agreement, then the parties shall
mutually agree to a revision having an effect as close as permitted by law to
the provision declared unenforceable. The parties further agree that in the
event a court having jurisdiction determines, despite the express intent of the
parties, that any portion of any covenant or agreement contained herein is not
enforceable, the remaining provisions of this Agreement shall nonetheless remain
valid and enforceable.
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14. ENDORSEMENT OF CERTIFICATE. Upon the execution of this Agreement, each
certificate of shares of Stock of the Corporation registered in the name of the
Stockholder and subject hereto shall be endorsed by the Secretary of the
Corporation as follows:
"This certificate is transferable only upon compliance with the
provisions of a restrictive Stockholders Agreement by and among SERSys
Acquisition Corporation and the stockholder, a copy of which is on file in
the office of the Secretary of the Corporation and is available upon
request of the stockholder without charge."
15. TERM. Anything contained herein to the contrary notwithstanding, this
Agreement shall terminate, and all rights and obligations hereunder shall cease
upon the occurrence of any of the following events:
(a) The written agreement of each of the then parties hereto;
(b) The cessation of the Corporation's business;
(c) The bankruptcy, liquidation, receivership, or dissolution of, or
assignment for the benefit of creditors by, the Corporation; or
(d) Except as to Section 12 hereof, the consummation of an initial public
offering of the Corporation's Common Stock pursuant to the filing of an
effective registration statement with the U.S. Securities and Exchange
Commission.
16. NOTICES. All notices, offers, acceptances, requests and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed by certified or registered mail to the
Stockholder, at his address on the Corporation records, and to the Corporation
and/or the Parent at the Corporation's principal place of business. Any party
hereto may change his or its address for notice by giving notice thereof in the
manner hereinabove provided.
17. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and may be amended, modified or canceled only by written agreement of the
parties hereto.
18. SUCCESSORS. This Agreement shall be binding upon, and inure to the benefit
of, and shall be enforceable by, the heirs, successors, assigns, and personal
representatives of the parties hereto.
19. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the state of Delaware without regard to principles
of conflict of laws. In case any term of this Agreement shall be held invalid,
illegal or unenforceable in whole or in part, neither the validity of the
remaining part of such term nor the validity of the remaining terms of this
Agreement shall in any way be affected thereby. Each of the parties agrees that
he
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will consent to and approve any amendments of the Charter or By-Laws of the
Corporation which may be necessary or advisable in order to conform any of the
provisions of this Agreement or any amendments hereto to the applicable laws of
the state of Delaware as now or hereafter enacted, including, without
limitation, the Delaware Corporation Law. The Stockholder further agrees to
execute and deliver such documents as may be necessary in order to implement the
provisions of the preceding sentence.
20 SPECIFIC PERFORMANCE. Because the shares of Stock cannot be readily
purchased or sold in the open market, irreparable damage would result in the
event this Agreement is not specifically enforced. Therefore, the rights to, or
obligations of, the Parent, the Corporation and the Stockholder shall be
enforceable in a court by a decree of specific performance, and appropriate
injunctive relief may be applied for and granted in connection therewith. Such
remedies, and all other remedies provided for in this Agreement, shall, however,
be cumulative and not exclusive and shall be in addition to any other remedies
which any party may have under this Agreement or otherwise.
21. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be considered an original and all of which taken together
shall constitute one and the same instrument.
22. GENDER. The use of the singular shall include the plural, and the use of
the masculine gender shall include the feminine and neutral genders and vice
versa.
IN WITNESS WHEREOF, the parties have executed this agreement the day and
year first above written.
ATTEST: SERSYS ACQUISITION CORPORATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
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WITNESS: STOCKHOLDER:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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