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EXHIBIT 10.12
AMENDED AND RESTATED
SHAREHOLDER AGREEMENT
by and among
TANNING TECHNOLOGY CORPORATION
and
the parties listed as signatories hereto
Dated as of July 20, 1999
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TABLE OF CONTENTS
ARTICLE I: DEFINITIONS............................................... 1
Section 1.1. Definitions........................................... 1
ARTICLE II: REPRESENTATIONS AND WARRANTIES............................ 3
Section 2.1. Representations and Warranties........................ 3
ARTICLE III: CORPORATE GOVERNANCE...................................... 4
Section 3.1. Voting of Shares...................................... 4
Section 3.2. Composition of the Board of Directors................. 4
Section 3.3. Committees............................................ 5
Section 3.4. Certificate of Incorporation and By-Laws.............. 5
ARTICLE IV: TERMINATION............................................... 6
ARTICLE V: GENERAL PROVISIONS........................................ 6
Section 5.1. Effective Date........................................ 6
Section 5.2. Exclusive Agreement; No Third-Party Beneficiaries..... 6
Section 5.3. Governing Law, Etc.................................... 6
Section 5.4. Successors and Assigns................................ 7
Section 5.5. Severability.......................................... 7
Section 5.6. Notices............................................... 7
Section 5.7. Counterparts; Facsimile Signatures.................... 8
Section 5.8. Interpretation........................................ 8
Section 5.9. Amendment............................................. 9
Section 5.10. Extension; Waiver..................................... 9
Section 5.11. Enforcement of Agreement.............................. 9
Section 5.12. Further Assurances.................................... 9
AMENDED AND RESTATED
SHAREHOLDER AGREEMENT
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THIS AMENDED AND RESTATED SHAREHOLDER AGREEMENT, is made as of July
20, 1999 (this "Agreement"), by and among Tanning Technology Corporation, a
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Delaware corporation (the "Company"), ▇▇▇▇▇▇▇▇ ▇▇▇▇ Corporation, a Colorado
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corporation ("▇▇▇▇▇▇▇▇"), WinSoft Corporation, a Colorado corporation
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("WinSoft"), ▇▇▇▇▇▇▇ Enterprises, Inc., a Colorado corporation ("▇▇▇▇▇▇▇"),
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(▇▇▇▇▇▇▇▇, WinSoft and ▇▇▇▇▇▇▇ are collectively referred to herein as the
"Original Members"), Tanning Family Partnership, L.L.L.P. ("TFP"), ▇▇▇▇▇ ▇.
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Tanning, ▇▇▇▇▇▇▇▇▇ ▇. Tanning, ▇▇▇▇▇ ▇. Tanning Irrevocable Trust for the
Benefit of His Lineal Descendants ("LGT Trust"), ▇▇▇▇▇▇▇▇▇ ▇. Tanning
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Irrevocable Trust for the Benefit of Her Lineal Descendants ("CAT Trust"), ▇▇▇▇▇
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Agarwal, ▇▇▇▇ ▇▇▇▇▇▇▇ (the Original Members and TFP, ▇▇▇▇▇ ▇. Tanning, ▇▇▇▇▇▇▇▇▇
▇. Tanning, LGT Trust, CAT Trust, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ are referred to
herein as the "Tanning Parties"), AEA Tanning Investors Inc., a Delaware
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corporation ("AEA"), TTC Investors I LLC, a Delaware limited liability company
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("TTC I"), TTC Investors II LLC, a Delaware limited liability company ("TTC
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II"), TTC Investors IA LLC, a Delaware limited liability company ("TTC IA") and
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TTC Investors IIA LLC, a Delaware limited liability company ("TTC IIA") (AEA,
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TTC I, TTC II, TTC IA and TTC IIA are collectively referred to herein as "TTC").
---
WHEREAS, the parties are party to a Shareholder Agreement dated as of
January 31, 1997, as amended prior to the date hereof (the "Original Shareholder
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Agreement");
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WHEREAS, the parties desire to make certain changes to the Original
Shareholder Agreement, and to amend and restate such Original Shareholder
Agreement to read in its entirety as set forth below;
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows, effective as of
the Effective Date:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
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"Agreement": as defined in the preamble to this Agreement.
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"Audit Committee": means such committee as established by the Board
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of Directors.
"Board of Directors": the board of directors of the Company.
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"By-Laws": means the Amended and Restated By-Laws of the Company as
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in effect on the date hereof, as they may be amended from time to time
hereafter.
"CAT Trust": as defined in the preamble to this Agreement.
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"Certificate of Incorporation": means the Amended and Restated
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Certificate of Incorporation of the Company as in effect on the date hereof, as
it may be amended from time to time hereafter.
"Common Stock": the common stock of the Company (all classes) now or
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hereafter authorized to be issued.
"Company": as defined in the preamble to this Agreement.
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"Compensation Committee": means such committee as established by the
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Board of Directors.
"▇▇▇▇▇▇▇▇": as defined in the preamble to this Agreement.
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"Director": a member of the Board of Directors.
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"Effective Date": as defined in Section 5.1.
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"▇▇▇▇▇▇▇": as defined in the preamble to this Agreement.
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"LGT Trust": as defined in the preamble to this Agreement.
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"Litigation": as defined in Section 4.2.
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"Original Shareholder Agreement": as defined in the preamble to this
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Agreement.
"Person": any natural person, corporation, partnership, firm,
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association, trust, government, governmental agency or other entity, whether
acting in an individual, fiduciary or other capacity.
"Shareholders": the Tanning Parties and TTC.
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"Shares": shares of Common Stock.
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"Stock Purchase Agreement": the Stock Purchase Agreement, dated as of
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December 24, 1996, as amended and supplemented, among the Company, the Tanning
Parties, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and TTC.
"Tanning Parties": as defined in the preamble to this Agreement.
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"TFP": as defined in the preamble to this Agreement.
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"TTC": as defined in the preamble to this Agreement.
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"Voting Common Stock": Common Stock the holders of which are
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generally entitled to vote for the election of the board of directors of the
Company.
"WinSoft": as defined in the preamble to this Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties. (a) Each of the parties
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hereto hereby represents and warrants to each other party hereto as follows: It
has all requisite power (corporate or otherwise) and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery by it of this Agreement, and the consummation by it of
the transactions contemplated hereby, have been duly authorized by all necessary
action (corporate or otherwise) on its part. This Agreement has been duly
executed and delivered by it and constitutes a valid and binding obligation
enforceable against it in accordance with its terms except to the extent such
enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws relating to creditors'
rights generally and to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law). No consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, is required by, or with
respect to, it in connection with the execution and delivery of this Agreement
by it or the consummation by it of the transactions contemplated hereby. The
execution and delivery of this Agreement by it and the consummation of the
transactions contemplated hereby by it does not conflict with, or result in a
breach of, any law or regulation of any governmental authority applicable to it
or any material agreement to which it is a party.
(b) Each of the Shareholders hereby represents and warrants to each
other Shareholder and the Company, that he or it is the record and beneficial
owner of the Shares as set forth on Schedule 2.1, free and clear of all liens
and encumbrances.
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ARTICLE III
CORPORATE GOVERNANCE
Section 3.1. Voting of Shares. (a) From and after the date hereof,
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each Shareholder shall vote all Shares owned or controlled by him or it and
shall take all other necessary or desirable actions within his or its control
(including, without limitation, attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings), to effectuate the provisions of this Agreement including, without
limitation, causing the composition of the Company's Board of Directors and
committees to be as contemplated by Sections 3.2 and 3.3 and to cause the
election of the nominees described therein.
(b) From and after the date hereof, the Company and its Subsidiaries
shall take all necessary or desirable actions within its control (including,
without limitation, calling special board and stockholder meetings) to
effectuate the provisions of this Agreement.
Section 3.2. Composition of the Board of Directors. (a) On and after
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the date hereof, the Board of Directors shall initially be comprised of seven
Directors, subject to expansion after the date hereof by action of the Board of
Directors.
(b) The Shareholders acknowledge that Article VII of the Company's
Certificate of Incorporation provides for staggered terms of the Directors, with
Directors serving in Class I, Class II, or Class III. The Shareholders agree
that until the first annual meeting of shareholders following the date hereof,
the Board of Directors shall be composed as follows:
(i) Class I - ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(ii) Class II - ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(iii) Class III - ▇▇▇▇▇ Tanning, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇
(c) From and after the date hereof, Directors shall be nominated as
follows (it being understood that such nomination shall include any nomination
of any incumbent Director for reelection to the Board of Directors):
(i) TTC shall have the right to designate one Director in
Class II of the Board of Directors (it being understood that ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
is TTC's initial designee as set forth in clause (b) above);
(ii) TFP shall have the right to designate one Director, in any
class, to the Board of Directors (it being understood that ▇▇▇▇▇ Tanning is
TFP's initial designee as set forth in clause (b) above);
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(iii) WinSoft shall have the right to designate one Director, in
any class, to the Board of Directors (it being understood that ▇▇▇▇▇ ▇▇▇▇▇▇▇ is
WinSoft's initial designee as set forth in clause (b) above);
(d) If there are insufficient vacancies in a particular class of
directors, the available positions shall be allocated first to the nominee of
TTC (as to Class II only), second to the nominee of TFP, and third to the
nominee of WinSoft (it being understood that each of TTC, TFP and WinSoft shall
not have the right to have more than one nominee on the Board of Directors at
any time).
(e) Each of TTC, TFP and WinSoft, respectively, shall have the right
(i) to remove, with or without cause, any Director nominated in accordance with
this Section 3.2 by each of TTC, TFP or Winsoft, respectively, and (ii) to
designate any replacement for a Director nominated in accordance with this
Section 3.2 by TTC, TFP or Winsoft, respectively, (including the initial
designees during the period prior to the first annual meeting of shareholders
following the date hereof) upon the death, resignation, retirement,
disqualification or removal from office of such Director. The Board of Directors
shall duly appoint as a Director each person so designated to fill a vacancy on
the Board of Directors.
Section 3.3. Committees. TTC shall have the right to designate one
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member of each of the Audit Committee and the Compensation Committee of the
Board of Directors.
Section 3.4. Certificate of Incorporation and By-Laws. The parties to
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this Agreement shall take or cause to be taken all lawful action necessary to
ensure at all times that the Company's Certificate of Incorporation and By-Laws
are not at any time inconsistent with the provisions of this Agreement.
ARTICLE IV
TERMINATION
The rights and obligations of any Shareholder contained in this
Agreement, including the rights to nominate a director and/or to appoint
committee members, shall terminate if, at any time from and after the date
hereof, such Shareholder either (a) owns less than 10% of the issued and
outstanding Common Stock or, (b) in the case of TTC, owns less than 10% of the
issued and outstanding Common Stock or its constituent limited liability
companies have been terminated, liquidated or dissolved.
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ARTICLE V
GENERAL PROVISIONS
Section 5.1. Effective Date. The effective date of this Agreement
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shall be the closing date of the Company's initial public offering (the
"Effective Date"). Notwithstanding the foregoing, the provisions of Section
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3.2(a) increasing the size of the Company's board of directors to seven persons
shall be effective as of the date hereof. If the Effective Date does not occur
on or prior to October 31, 1999, or the transactions contemplated thereby are
abandoned, this Agreement shall be of no further force and effect and the
Original Shareholders Agreement shall continue to be in full force and effect.
Section 5.2. Exclusive Agreement; No Third-Party Beneficiaries. This
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Agreement, the Stock Purchase Agreement and the Related Agreements (as defined
in the Stock Purchase Agreement) constitute the sole understanding of the
parties with respect to the subject matter hereof and any verbal or written
communication between the parties prior to the adoption of this Agreement shall
be deemed merged herein and of no further force and effect. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
express or implied, is intended to confer on any Person other than the parties
hereto or their respective heirs, successors, executors, administrators and
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
Section 5.3. Governing Law, Etc. This Agreement shall be construed in
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accordance with and governed by the laws of the State of Delaware applicable to
agreements made and to be performed wholly within such jurisdiction. Each of the
parties hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of Delaware and of the United
States of America in each case located in the County of New Castle for any
action, proceeding or investigation in any court or before any governmental
authority ("Litigation") arising out of or relating to this Agreement and the
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transactions contemplated hereby (and agrees not to commence any Litigation
relating thereto except in such courts), and further agrees that service of any
process, summons, notice or document by U.S. registered mail to its respective
address set forth in Section 5.6 shall be effective service of process for any
Litigation brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any Litigation arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of Delaware or the United States
of America in each case located in the County of New Castle and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such Litigation brought in any such court has been brought
in an inconvenient forum.
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Section 5.4. Successors and Assigns. Neither this Agreement nor any
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of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the holders of 75% of the issued and outstanding Voting
Common Stock held by the parties hereto. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 5.5. Severability. If any term or other provision of this
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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 adverse
manner 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 so that the
transactions contemplated hereby are fulfilled to the greatest extent possible.
Section 5.6. Notices. Any notice, request, instruction or other
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document to be given hereunder by any party hereto to any other party shall be
in writing and shall be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by electronic facsimile transmission, cable,
telegram, telex or other standard forms of written telecommunications, by
overnight courier or by registered or certified mail, postage prepaid:
(a) If to any of the Tanning Parties, to:
Tanning Technology Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇ ▇▇▇-▇▇▇▇
(b) If to TTC, to:
AEA Tanning Investors Inc.
c/o AEA Investors Inc.
Park Avenue Tower
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: ▇▇▇ ▇▇▇-▇▇▇▇
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with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy: 212 859-4000
or at such other address for a party as shall be specified by like notice.
Section 5.7. Counterparts; Facsimile Signatures. This Agreement may
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be executed in any number of counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute but one and the same
agreement. Delivery of a photocopy or transmission by telecopy of a signed
signature page of this Agreement shall constitute delivery of such signed
signature page; provided, however, that each party shall provide each other
party an originally executed copy of such signature page as promptly as
practicable.
Section 5.8. Interpretation. When a reference is made in this
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Agreement to Articles, Sections, Schedule or Exhibits, such reference is to an
Article or a Section of, Schedule to, or an Exhibit to, this Agreement, unless
otherwise indicated. The table of contents and 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 understood
to be followed by the words "without limitation."
Section 5.9. Amendment. This Agreement may not be amended except by
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an instrument in writing signed on behalf of the holders of 75% of the issued
and outstanding Voting Common Stock held by the parties hereto; provided
however, that no amendment may be made which adversely affects the rights of a
party hereto without the written agreement of such party (except to the extent
affecting all Shareholders equally with respect to rights granted to all
Shareholders equally).
Section 5.10. Extension; Waiver. At any time the parties may extend
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the time for the performance of any of the obligations or other acts of the
other parties, waive any inaccuracies in the representations and warranties
contained in this Agreement and waive compliance with any of the agreements or
conditions contained in this Agreement. Any agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an instrument
signed on behalf of such party. The waiver by any party hereto of a breach of
any provision hereunder shall not operate to be construed as a waiver of any
prior or subsequent breach of the same or any other provision hereunder.
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Section 5.11. Enforcement of Agreement. The parties hereto agree that
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irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to any injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any Delaware court, this
being in addition to any other remedy to which they may be entitled at law or in
equity.
Section 5.12. Further Assurances. At any time, or from time to time,
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after the date hereof, the parties agree to cooperate with each other, and at
the request of any other party, to execute and deliver any further instruments
or documents and to take al such further actions as any party may reasonably
request in order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
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IN WITNESS WHEREOF, this Agreement has been signed on behalf of each
of the parties hereto as of the date first above written.
TANNING TECHNOLOGY CORPORATION
/s/ ▇▇▇▇▇ ▇. Tanning
By:---------------------------------------
Name: ▇▇▇▇▇ ▇. Tanning
Title: President
▇▇▇▇▇▇▇▇ ▇▇▇▇ CORPORATION
/s/ ▇▇▇▇▇ ▇. Tanning
By:---------------------------------------
Name: ▇▇▇▇▇ ▇. Tanning
Title: President
WINSOFT CORPORATION
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
By:---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ ENTERPRISES, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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TANNING FAMILY PARTNERSHIP, L.L.L.P.
By ▇▇▇▇▇▇▇▇ ▇▇▇▇ Corporation,
its general partner
/s/ ▇▇▇▇▇ ▇. Tanning
By:------------------------------------
Name: ▇▇▇▇▇ ▇. Tanning
Title: President
/s/ ▇▇▇▇▇ ▇. Tanning
----------------------------------------
▇▇▇▇▇ ▇. Tanning
/s/ ▇▇▇▇▇▇▇▇▇ ▇. Tanning
----------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. Tanning
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
AEA TANNING INVESTORS INC.
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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TTC INVESTORS I LLC
By AEA Tanning Investors Inc.,
its managing member
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
TTC INVESTORS II LLC
By AEA Tanning Investors Inc.,
its managing member
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
TTC INVESTORS IA LLC
By AEA Tanning Investors Inc.,
its managing member
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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TTC INVESTORS IIA LLC
By AEA Tanning Investors Inc.,
its managing member
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇. TANNING IRREVOCABLE TRUST FOR THE BENEFIT
OF HIS LINEAL DESCENDANTS
By: ▇▇▇▇ ▇. Tanning,
its trustee
/s/ ▇▇▇▇ ▇. Tanning
------------------------------------
Name: ▇▇▇▇ ▇. Tanning
Title: Trustee
▇▇▇▇▇▇▇▇▇ ▇. TANNING IRREVOCABLE TRUST FOR THE
BENEFIT OF HER LINEAL DESCENDANTS
By: ▇▇▇▇ ▇. Tanning,
its trustee
/s/ ▇▇▇▇ ▇. Tanning
------------------------------------
Name: ▇▇▇▇ ▇. Tanning
Title: Trustee
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