STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "AGREEMENT"), dated as of November 8,
2002, by and among NE Technologies, Inc., a Georgia corporation ("Parent"), NE
Technologies Acquisition Corporation, a Georgia corporation and a wholly owned
subsidiary of Parent ("Purchaser"), and [ ] (the "Stockholder").
WHEREAS, the Stockholder is, as of the date hereof, the record and
beneficial owner of the shares of common stock, no par value per share ("Company
Common Stock"), of DSET Corporation, a New Jersey corporation (the "Company"),
set forth on the Signature Page hereto;
WHEREAS, Parent, Purchaser and the Company concurrently herewith are
entering into an Agreement of Merger, dated as of the date hereof (the "Merger
Agreement"; capitalized terms used but not defined herein have the meanings
ascribed to such terms in the Merger Agreement), which provides, among other
things, for the acquisition of the Company by Parent by means of a merger (the
"Merger") of the Company with and into the Purchaser whereby shares of Company
Common Stock will be exchanged for cash upon the terms and subject to the
conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement, and in order to induce Parent and Purchaser to
enter into the Merger Agreement, the Stockholder has agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent and Purchaser of the Merger Agreement and the foregoing and the
representations, warranties, covenants and agreements set forth herein and
therein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Stockholder. The
Stockholder (i) is the beneficial owner of the shares of Company Common
Stock and the options and warrants to purchase shares of Company Common
Stock indicated on the Signature Page hereto, free and clear of any liens,
claims, options, rights of first refusal, co-sale rights, charges or other
encumbrances that, in each case, would deprive Parent of the benefits of
this Agreement; (ii) does not beneficially own any securities of the
Company other than the shares of Company Common Stock and options and
warrants to purchase shares of Company Common Stock indicated on the
Signature Page hereto, except for Stockholder's interest in and to that
certain Promissory Note by Company to Stockholder, dated January 1, 2002
in the original principal amount of $400,000; and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement
and the proxy contained herein. This Agreement has been duly authorized,
executed and delivered by the Stockholder and constitutes the legal, valid
and binding obligation of the Stockholder, enforceable against such
Stockholder in accordance with its terms. Neither the execution and
delivery of this Agreement nor the consummation by the Stockholder of the
transactions contemplated hereby will result in a violation of, or a
default under or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction
of any kind to which such Stockholder is a party or bound or to which such
Stockholder's Shares (as hereinafter defined) are subject. No trust of
which the Stockholder is a trustee requires the consent of any beneficiary
to the execution and delivery of this Agreement or to the consummation of
the transactions contemplated hereby. If the Stockholder is married and
the Stockholder's Shares constitute community property, then this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such person in accordance with its terms. Consummation
by the Stockholder of the transactions contemplated hereby will not
violate, or require any consent, approval, or notice under, any provision
or any judgment, order, decree, statute, law, title or regulation
applicable to the Stockholder or the Stockholder's Shares.
SECTION 2. Definition of Shares. For purposes of this Agreement,
"Shares" shall mean: (i) all securities of the Company (including all
shares of Company Common Stock and all options, warrants and other rights
to acquire such securities) beneficially owned by the Stockholder as of
the date of this Agreement; and (ii) all additional securities of the
Company (including all shares of Company Common Stock and all additional
options, warrants and other rights to acquire such securities) of which
the Stockholder acquires beneficial ownership during the period from the
date of this Agreement through the Effective Time. In the event of a 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.
SECTION 3. Transfer of the Shares. Prior to the termination of this
Agreement, except as otherwise provided herein, the Stockholder shall not:
(i) transfer (which term shall include, without limitation, for the
purposes of this Agreement, any sale, gift, pledge or other disposition),
or consent to any transfer of, any or all of the Shares; (ii) enter into
any contract, option or other agreement or understanding with respect to
any transfer of any or all of the Shares or any interest therein; (iii)
grant any proxy, power-of-attorney or other authorization or consent in or
with respect to the Shares except as provided herein; or (iv) deposit the
Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares. Notwithstanding the foregoing, the Stockholder
may transfer his Shares so long as each person to which any of such Shares
or any interest in any of such Shares is or may be transferred shall have
(a) executed a counterpart to this Agreement and (b) agreed to hold such
Shares or interest in such Shares subject to all of the terms and
provisions of this Agreement.
SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Subject to Section 6 hereof, the Stockholder hereby
irrevocably grants to, and appoints, Parent, and ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, in
their respective capacities as officers of Parent, and any individual who shall
thereafter succeed to such office of Parent, and each of them individually, its
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place, and stead of the Stockholder, to vote his Shares, or grant a
consent or approval in
respect of his Shares, in connection with any meeting of the stockholders of the
Company (i) in favor of the Merger, and (ii) against any action or agreement
which would impede, interfere with or prevent the Merger, including any
Acquisition Proposal. This Agreement is intended to bind the Stockholder as a
stockholder of Company only with respect to the specific matters set forth
herein.
(b) The Stockholder represents that any proxies heretofore
given in respect of the Shares are not irrevocable, and that such proxies are
hereby revoked.
(c) Subject to Section 6 hereof, the Stockholder hereby
affirms that the proxy set forth in this Section 4 is irrevocable and is given
in connection with the execution of the Merger Agreement, and that such
irrevocable proxy is given to secure the performances of the duties of the
Stockholder under this Agreement. The Stockholder hereby further affirms that
the irrevocable proxy granted hereby is coupled with an interest in the Shares
and, except as set forth in Section 6 hereof, is intended to be irrevocable in
accordance with the provisions of the New Jersey Business Corporation Act.
SECTION 5. Further Assurances. The 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 to carry out the provisions hereof and to vest
in Parent the power to vote the Shares as contemplated by Section 4
hereof.
SECTION 6. Termination. Except as otherwise provided in this
Agreement, this Agreement, and all rights and obligations of the parties
hereunder, including the proxy delivered herein, shall terminate
immediately upon the earlier of (i) the termination of the Merger
Agreement in accordance with its terms including but not limited to
termination by the Company to accept a Superior Proposal or (ii) the
Effective Time; provided, however, that Sections 7 and 10 shall survive
any termination of this Agreement.
SECTION 7. Expenses. All fees and expenses incurred by any one party
hereto shall be borne by the party incurring such fees and expenses.
SECTION 8. Public Announcements. Each of the Stockholder, Parent and
Purchaser 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 without the prior consent of the other
party, which consent shall not be unreasonably withheld or delayed;
provided, however, that such disclosure can be made without obtaining such
prior consent if (i) the disclosure is required by law, and (ii) the party
making such disclosure has first used its best efforts to consult with the
other party about the form and substance of such disclosure.
SECTION 9. Voidability. If prior to the execution hereof, the Board
of Directors of the Company shall not have duly and validly authorized and
approved by all necessary corporate action, this Agreement, the Merger
Agreement and the transactions contemplated hereby and thereby, so that by
the execution and delivery hereof (a) Parent or Purchaser would become, or
could reasonably be expected to become an "interested
stockholder" with whom the Company would be prevented for any period
pursuant to Section 14A:10A-4 of the New Jersey Business Corporation Act
or the Certificate of Incorporation of the Company from engaging in any
"business combination" (as such terms are defined in Section 14A:10A-3 of
the New Jersey Business Corporation Act) or (b) the right to exercise
certain options or warrants as provided in certain Senior Executive Change
in Control Agreements would be triggered, then this Agreement shall be
void and unenforceable until such time as such authorization and approval
shall have been duly and validly obtained.
SECTION 10. Miscellaneous.
(a) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any 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 herein are not affected in any manner
materially adverse to any party hereto. 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 a mutually
acceptable manner.
(b) Binding Effect and Assignment. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that, except as
specifically provided herein, no party to this Agreement may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement without
the prior written consent of the other parties hereto.
(c) Amendments and Modification. Except as may otherwise be
provided herein, any provision of this Agreement may be amended, modified or
waived by the parties hereto if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by the parties hereto, and in
the case of a waiver, by the party against whom the waiver is to be effective.
(d) Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent shall be irreparably harmed and that there shall
be no adequate remedy at law for a violation of any of the covenants or
agreements of the Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Parent upon any such
violation, Parent shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Parent at law or in equity without the necessity of proving the inadequacy of
money damages as a remedy.
(e) Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement to any
party hereunder shall be in writing and deemed given upon (a) personal delivery,
(b) transmitter's confirmation of a receipt of a facsimile transmission, (c)
confirmed delivery by a standard overnight carrier or when delivered by hand or
(d) when mailed in the United States by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by notice given hereunder):
If to Parent or Purchaser:
NE Technologies, Inc / NE Technologies Acquisition Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, President and ▇▇▇▇ ▇▇▇▇▇, Vice President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Stockholder:
[ ]
[ ]
[ ]
Attention: [ ]
Facsimile No.: [ ]
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia (regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws thereof) as to all matters, including, but not limited to, matters of
validity, construction, effect, performance and remedies.
(g) Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements or understandings, both written and oral,
between the parties or any of them with respect to the subject matter hereof.
(h) Effect of Headings. The article and section headings
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the parties hereto and shall not in any way affect the
meaning or interpretation of this Agreement.
(i) Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
(j) Action in Stockholder Capacity Only. The Stockholder makes
no agreement or understanding herein in any capacity other than his capacity as
a record holder and beneficial owner of Shares and nothing herein shall limit or
affect any action taken in any other capacity as an officer or director of the
Company.
(k) No Exercise of Options, Warrants or Other Rights.
Notwithstanding any provision of this Agreement to the contrary, nothing in this
Agreement shall require the Stockholder to exercise or convert Shares that do
not constitute outstanding shares of Company Common Stock.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The foregoing Agreement is hereby executed as of the date first above
written.
NE TECHNOLOGIES, INC. ("PARENT")
By:____________________________________________
▇▇▇▇▇ ▇▇▇▇, President
NE TECHNOLOGIES ACQUISITION CORPORATION
("MERGER SUB"")
By:____________________________________________
▇▇▇▇ ▇▇▇▇▇, President
[ ] ("STOCKHOLDER")
Signed: ____________________________________
Print Name:____________________________________
Shares beneficially owned by Stockholder:
__________shares of Company Common Stock
__________shares of Company Common Stock
issuable upon exercise of options
__________shares of Company Common Stock
issuable upon exercise of warrants
