Exhibit D
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (the "Agreement") is entered into as of
November __, 2002, by and among SofTech, Inc., a Massachusetts corporation
("Parent"), SofTech Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), and certain stockholders of Workgroup
Technology Corporation, a Delaware corporation (the "Company") whose names
appear on SCHEDULE I hereto (each, a "Signatory Stockholder" and collectively,
the "Signatory Stockholders").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Parent, Merger Sub and the Company are entering into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), which
provides for, upon the terms and subject to the conditions set forth therein,
(i) the commencement by Merger Sub of a tender offer (the "Offer") for all of
the issued and outstanding shares of common stock, par value $0.01 per share, of
the Company (the "Shares"), at a price per share equal to the Offer
Consideration (as defined in the Merger Agreement), and (ii) the subsequent
merger of Merger Sub with and into the Company (the "Merger") (capitalized terms
used herein without definitions shall have the meanings ascribed to them in the
Merger Agreement);
WHEREAS, as of the date hereof, each Signatory Stockholder owns
(beneficially and of record) the number of Shares set forth opposite such
Signatory Stockholder's name on SCHEDULE I hereto (all such shares so owned and
which may hereafter be acquired by such Signatory Stockholder prior to the
termination of this Agreement, whether upon the exercise of options or by means
of purchase, dividend, distribution or otherwise, being referred to herein as
such Signatory Stockholder's "Subject Shares");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Merger Sub have requested that the Signatory Stockholders
enter into this Agreement; and
WHEREAS, in order to induce Parent and Merger Sub to enter into the
Merger Agreement, the Signatory Stockholders are willing to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Merger Sub and the Signatory Stockholders hereby agree as
follows:
ARTICLE I.
TRANSFER AND VOTING OF SUBJECT SHARES;
OTHER COVENANTS OF THE STOCKHOLDERS
SECTION 1.1. VOTING OF SUBJECT SHARES. Each Signatory Stockholder
hereby agrees that for so long as this Agreement remains in effect (the "Term"),
at any meeting of the stockholders of the Company, however called, and in any
action by consent of the stockholders of the Company, each Signatory Stockholder
shall vote its Subject Shares (i) in favor of the Merger and the Merger
Agreement (as amended from time to time, provided that no such amendment would
have the effect of reducing the Offer Consideration or the Merger Consideration
or otherwise modify or amend the Merger Agreement to reduce the rights or
benefits of the Company or any of the stockholders of the Company (including the
Signatory Stockholders), (ii) against any action or agreement that would result
in a breach of any covenant, representation or warranty or any other obligation
or agreement of the Company under the Merger Agreement, and (iii) except as
otherwise agreed to in writing in advance by Parent, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement): (A)(1) any change in the directors of the Company other than
contemplated by the Merger Agreement, (2) any change in the present
capitalization of the Company or any amendment to the Company's Certificate of
Incorporation or By-Laws, (3) any other material change in the Company's
corporate structure or business, or (4) any other action which in the case of
each of the matters referred to in clauses (A)(1), (2) or (3) could reasonably
be expected to impede, interfere with, delay, postpone or materially adversely
affect the transactions contemplated by the Merger Agreement; (B) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company ("Extraordinary Transaction"); and
(C) a sale, lease or transfer of a material amount of assets of the Company, or
a reorganization, recapitalization, dissolution or liquidation of the Company.
SECTION 1.2. NO INCONSISTENT ARRANGEMENTS. Except as contemplated by
this Agreement and the Merger Agreement, each Signatory Stockholder shall not
during the Term (i) transfer (which term shall include, without limitation, any
sale, assignment, gift, pledge, hypothecation or other disposition), or consent
to any transfer of, any or all of such Signatory Stockholder's Subject Shares or
any interest therein, or create or permit to exist any Encumbrance (as defined
below) on such Subject Shares, (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of such
shares or any interest therein, (iii) grant any proxy, power-of-attorney or
other authorization in or with respect to such Subject Shares, (iv) deposit such
Subject Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Subject Shares, or (v) take any other action
that would in any way restrict, limit or interfere with the performance of its
obligations hereunder or the transactions contemplated hereby or by the Merger
Agreement.
SECTION 1.3. PROXY. Each Signatory Stockholder hereby revokes any and
all prior proxies or powers of attorney in respect of any of such Signatory
Stockholder's Subject Shares and constitutes and appoints Parent, or any nominee
of Parent, with full power of substitution
2
and resubstitution as its true and lawful attorney and proxy, for and in its
name, place and stead, to vote the Subject Shares of each such Signatory
Stockholder solely as and to the extent set forth in Section 1.1(i) through
(iii); PROVIDED, HOWEVER, that without limiting the foregoing, in any such vote
or other action pursuant to such proxy, Parent shall not in any event have the
right (and such proxy shall not confer the right) to vote against the Merger, to
vote to reduce the Offer Consideration or the Merger Consideration or otherwise
modify or amend the Merger Agreement to reduce the rights or benefits of the
Company or any stockholders of the Company (including the Signatory
Stockholders) under the Offer or the Merger Agreement or to reduce the
obligations of Parent and/or Merger Sub thereunder; and provided, further, that
the proxy granted pursuant to this Section 1.3 shall cease and shall be of no
further force or effect upon (i) any material breach by Parent and/or Merger Sub
of any of their obligations under Section 1.01 of the Merger Agreement, (ii) any
material violation by Parent and/or Merger Sub of any of the terms of this
Agreement or (iii) the termination of the Merger Agreement or this Agreement in
accordance with their respective terms.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST THROUGHOUT THE TERM.
SECTION 1.4. WAIVER OF APPRAISAL RIGHTS. Each Signatory Stockholder
hereby waives any rights of appraisal or rights to dissent from the Merger.
SECTION 1.5. STOP TRANSFER. Each Signatory Stockholder agrees not to
request that the Company register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of such Signatory
Stockholder's Subject Shares, unless such transfer is made in compliance with
this Agreement.
SECTION 1.6. NO SOLICITATION. During the Term, each Signatory
Stockholder shall not, nor shall it permit or authorize any of its officers,
directors, employees, agents or representatives (collectively, the
"Representatives") to, (i) solicit or initiate, or encourage, directly or
indirectly, any inquiries regarding or the submission of, any Extraordinary
Transaction, (ii) participate in any discussions or negotiations regarding, or
furnish to any Person any information or data with respect to, or take any other
action to knowingly facilitate the making of any proposal that constitutes, or
may reasonably be expected to lead to, any Extraordinary Transaction or (iii)
enter into any agreement with respect to any Extraordinary Transaction or
approve or resolve to approve any Extraordinary Transaction. Upon execution of
this Agreement, each Signatory Stockholder shall, and it shall cause its
Representatives to, immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any of the
foregoing. Each Signatory Stockholder will promptly notify Parent of the
existence of any proposal, discussion, negotiation or inquiry received by such
Signatory Stockholder, and each Signatory Stockholder will immediately
communicate to Parent the terms of any proposal, discussion, negotiation or
inquiry which it may receive (and will promptly provide to Parent copies of any
written materials received by it in connection with such proposal, discussion,
negotiation or inquiry) and the identity of the Person making such proposal or
inquiry or engaging in such discussion or negotiation.
3
ARTICLE II.
TENDER OF SHARES
SECTION 2.1. TENDER. Each Signatory Stockholder hereby agrees to
validly tender (or cause the record owner of such shares to validly tender) such
Signatory Stockholder's Subject Shares pursuant to and in accordance with the
terms of the Offer, not later than the fifth (5th) business day after
commencement of the Offer pursuant to Section 1.01 of the Merger Agreement and
Rule 14d-2 under the Exchange Act, and not thereafter withdraw such tender. Each
Signatory Stockholder hereby acknowledges and agrees that Merger Sub's
obligation to accept for payment and pay for such Signatory Stockholder's
Subject Shares in the Offer is subject to the terms and conditions of the Offer.
Parent acknowledges and agrees that this Agreement shall not be binding upon
such Signatory Stockholder in the event that the Merger Agreement shall be
amended by the parties thereto to lower or change the form of consideration
constituting the Offer Consideration (as defined in the Merger Agreement). For
all its Subject Shares validly tendered in the Offer and not withdrawn, each
Signatory Stockholder will be entitled to receive the highest price paid by
Merger Sub pursuant to the Offer. Upon the terms and subject to the conditions
of the Offer, Parent shall cause Merger Sub to accept for payment and pay for
all shares of Common Stock (including all of the Signatory Stockholders' Subject
Shares) validly tendered and not withdrawn pursuant to the Offer as soon as
Merger Sub is permitted to do so under applicable law.
SECTION 2.2. CERTAIN WARRANTIES. Without limiting the generality or
effect of any other term or condition of the Offer, upon full payment by Parent
or Merger Sub for the Subject Shares tendered, the transfer by a Signatory
Stockholder of such Signatory Stockholder's Subject Shares to Merger Sub in the
Offer shall pass to and unconditionally vest in Merger Sub good and valid title
to the Subject Shares, free and clear of all Encumbrances whatsoever.
SECTION 2.3. DISCLOSURE. Each Signatory Stockholder hereby authorizes
Parent and Merger Sub to publish and disclose in the Offer Documents and, if
approval of the Company's stockholders is required under applicable law, the
Proxy Statement (including all documents and schedules filed with the SEC), its
identity and ownership of the Shares and the nature of its commitments,
arrangements and understandings under this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Signatory Stockholder hereby represents and warrants to Parent and
Merger Sub as follows:
SECTION 3.1. DUE AUTHORIZATION, ETC. Such Signatory Stockholder has all
requisite power and authority to execute, deliver and perform this Agreement, to
appoint Merger Sub and Parent as its Proxy and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
the appointment of Merger Sub and Parent as
4
Signatory Stockholder's Proxy and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of Signatory Stockholder. This Agreement has been duly executed and
delivered by or on behalf of such Signatory Stockholder and constitutes a legal,
valid and binding obligation of such Signatory Stockholder, enforceable against
such Signatory Stockholder in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, moratorium or other similar laws and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding for such remedy may be brought. There is no beneficiary or holder of
a voting trust certificate or other interest of any trust of which such
Signatory Stockholder is trustee whose consent is required for the execution and
delivery of this Agreement of the consummation by such Signatory Stockholder of
the transactions contemplated hereby.
SECTION 3.2. NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by such
Signatory Stockholder does not, and the performance of this Agreement by such
Signatory Stockholder will not, (i) conflict with or violate any trust agreement
or other similar documents relating to any trust of which such Signatory
Stockholder is trustee, (ii) conflict with or violate any law applicable to such
Signatory Stockholder or by which such Signatory Stockholder or any of such
Signatory Stockholder's properties is bound or affected or (iii) 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 rights of
termination, acceleration or cancellation of, or result in the creation of a
lien or encumbrance on any assets of such Signatory Stockholder, including,
without limitation, such Signatory Stockholder's Subject Shares, pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which such Signatory
Stockholder is a party or by which such Signatory Stockholder or any of such
Signatory Stockholder's assets is bound or affected, except, in the case of
clauses (ii) and (iii), for any such breaches, defaults or other occurrences
that would not prevent or delay the performance by such Signatory Stockholder of
such Signatory Stockholder's obligations under this Agreement.
(b) The execution and delivery of this Agreement by such
Signatory Stockholder does not, and the performance of this Agreement by such
Signatory Stockholder will not, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or regulatory
authority (other than any necessary filing under the Exchange Act), domestic or
foreign, except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent or delay the performance by such Signatory Stockholder of such Signatory
Stockholder's obligations under this Agreement.
SECTION 3.3. TITLE TO SUBJECT SHARES. Such Signatory Stockholder is the
sole record and beneficial owner of its Subject Shares, free and clear of any
pledge, lien, security interest, mortgage, charge, claim, equity, option, proxy,
voting restriction, voting trust or agreement, understanding, arrangement, right
of first refusal, limitation on disposition, adverse claim of ownership or use
or encumbrance of any kind ("Encumbrances"), other than restrictions imposed by
the securities laws or pursuant to this Agreement and the Merger Agreement.
5
SECTION 3.4. NO FINDER'S FEES. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Signatory Stockholder. Such Signatory Stockholder, on behalf of itself and its
affiliates, hereby acknowledges that it is not entitled to receive any broker's,
finder's, financial advisor's or other similar fee or commission in connection
with the transactions contemplated hereby or by the Merger Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERER SUB
Parent and Merger Sub hereby, jointly and severally, represent and
warrant to the Signatory Stockholders that each of Merger Sub and Parent are
duly organized, validly existing and in good standing under the laws of their
jurisdiction of incorporation. Merger Sub and Parent have all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby by
each of Merger Sub and Parent have been duly authorized by all necessary
corporate action on the part of Merger Sub and Parent, respectively. This
Agreement has been duly executed and delivered by each of Merger Sub and Parent
and constitutes a legal, valid and binding obligation of each of Merger Sub and
Parent, enforceable against Merger Sub and Parent in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws and except that the availability of equitable remedies,
including specific performance, is subject to the discretion of the court before
which any proceeding for such remedy may be brought.
ARTICLE V.
MISCELLANEOUS
SECTION 5.1. DEFINITIONS. For purposes of this Agreement:
(a) "COMMON STOCK" shall mean at any time the common stock,
$.01 par value, of the Company.
(b) "PERSON" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or
other entity.
SECTION 5.2. TERMINATION. This Agreement shall terminate and be of no
further force and effect upon the earlier to occur of (i) the written mutual
consent of the parties hereto, (ii) the consummation of the Merger or (iii) the
termination of the Merger Agreement in accordance with its terms. In addition,
this Agreement may be terminated by the Signatory Stockholders if Parent and/or
Merger Sub shall have failed to comply in any material respect with its
obligations
6
under Section 1.01 of the Merger Agreement. This Agreement shall also terminate
upon the issuance of a final, non-appealable decree, injunction or order by a
court or governmental entity which prevents the consummation of the transactions
contemplated hereby. No such termination of this Agreement shall relieve any
party hereto from any liability for any breach of this Agreement prior to
termination.
SECTION 5.3. FURTHER ASSURANCE. From time to time, at another party's
request and without 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 and make effective, in the most expeditious manner
practicable, the transaction contemplated by this Agreement.
SECTION 5.4. CERTAIN EVENTS. Each Signatory Stockholder agrees that
this Agreement and such Signatory Stockholder's obligations hereunder shall
attach to such Signatory Stockholder's Subject Shares and shall be binding upon
any person or entity to which legal or beneficial ownership of such Subject
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, such Signatory Stockholder's heirs, guardians, administrators, or
successors. Notwithstanding any transfer of Subject Shares, the transferor shall
remain liable for the performance of all its obligations under this Agreement.
SECTION 5.5. NO WAIVER. The failure of any party hereto to exercise any
right, power, or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
SECTION 5.6. SPECIFIC PERFORMANCE. Each Signatory Stockholder
acknowledges that if such Signatory Stockholder fails to perform any of its
obligations under this Agreement immediate and irreparable harm or injury would
be caused to Parent and Merger Sub for which money damages would not be an
adequate remedy. In such event, each Signatory Stockholder agrees that each of
Parent and Merger Sub shall have the right, in addition to any other rights it
may have, to specific performance of this Agreement. Accordingly, if Parent or
Merger Sub should institute an action or proceeding seeking specific enforcement
of the provisions hereof, each Signatory Stockholder hereby waives the claim or
defense that Parent or Merger Sub, as the case may be, has an adequate remedy at
law and hereby agrees not to assert in any such action or proceeding the claim
or defense that such a remedy at law exists. Each Signatory Stockholder further
agrees to waive any requirements for the securing or posting of any bond in
connection with obtaining any such equitable relief.
SECTION 5.7. NOTICE. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (i) as of the date delivered or sent by facsimile if delivered
personally or by facsimile; provided that confirmation of such delivery
(electronic or otherwise) is obtained; (ii) on the first Business Day after
delivery by overnight courier; and (iii) on the third business day after deposit
in the U.S. mail, if mailed by registered or certified mail (postage prepaid,
return receipt requested), in each case to
7
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice, except that notices of changes of address
shall be effective upon receipt):
(a) If to Parent or Merger Sub:
SofTech, Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President and Chief Operating Officer
Facsimile:
With a copies to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Green, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: 617 342-4001
(b) If to a Signatory Stockholder, at the address set forth
below such Signatory Stockholder's name on SCHEDULE I hereto.
SECTION 5.8. EXPENSES. Except as otherwise expressly set forth herein,
all fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses.
SECTION 5.9. HEADINGS. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 5.10. 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 hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the maximum extent
possible.
SECTION 5.11. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement constitutes the entire agreement and supersede any and all other prior
agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof, and this Agreement is not
intended to confer upon any other person any rights or remedies hereunder.
8
SECTION 5.12. ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise.
SECTION 5.13. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed entirely within that State.
SECTION 5.14. AMENDMENT. This Agreement may not be amended except by
an instrument in writing signed by the parties hereto.
SECTION 5.15. WAIVER. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(c) waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
SECTION 5.16. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
shall constitute one and the same agreement.
SECTION 5.17 CONFIDENTIALITY. Each Signatory Stockholder agrees not to
disclose or discuss this Agreement, the Merger Agreement or any matter that is
the subject hereof or thereof, including the Merger and the Offer (until public
disclosure thereof) with anyone not a party to this Agreement (other than such
Signatory Stockholder's counsel and advisors, if any) without the prior written
consent of Parent, except for filings required pursuant to the Exchange Act and
the rules and regulations thereunder or disclosures such Signatory Stockholder's
counsel advises are necessary in order to fulfill such Signatory Stockholder's
obligations imposed by law or legal process in connection with obtaining any
requisite governmental approvals, or in connection with obligations pursuant to
any requirement of any national securities exchange or national securities
quotation system. If any such filings or disclosures are required, such
Signatory Stockholder shall give notice thereof to Parent as promptly as
practicable so as to enable Parent to seek a protective order from a court of
competent jurisdiction if necessary with respect thereto.
9
IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholders have caused
this Agreement to be executed as of the date first written above.
SOFTECH, INC.
By:
-------------------------------------
Name:
Title:
SOFTECH ACQUISITION CORP.
By:
-------------------------------------
Name:
Title: President
[STOCKHOLDERS]
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
10
SCHEDULE I
NUMBER OF SHARES
NAME AND ADDRESS OF SIGNATORY STOCKHOLDER OWNED
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 247,867
11