EXHIBIT 1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
June 3, 2010 by and among Jacobs Engineering Group Inc., a Delaware corporation
("BUYER PARENT"), Jacobs Technology Inc., a Tennessee corporation and a
wholly-owned subsidiary of Buyer Parent ("BUYER," and together with Buyer
Parent, the "BUYER PARTIES"), and the undersigned stockholder ("STOCKHOLDER") of
TechTeam Global, Inc., a Delaware corporation (the "SELLER"). Each of Buyer
Parent, Buyer and Stockholder is sometimes referred to herein as a "PARTY" and
collectively as the "PARTIES."
W I T N E S S E T H:
WHEREAS, concurrently with the execution of this Agreement, Buyer Parent,
Buyer and Seller have entered into a Stock Purchase Agreement (as it may be
amended from time to time, the "STOCK PURCHASE AGREEMENT"), which provides for,
among other things, the acquisition by Buyer from Seller of 100% of the shares
of capital stock (the "SHARE ACQUISITION") of TechTeam Government Solutions,
Inc., a Virginia corporation (the "COMPANY"), which constitute all of the issued
and outstanding shares of capital stock of the Company;
WHEREAS, as of the date hereof, Stockholder Beneficially Owns such number
of shares of the outstanding common stock of Seller, par value $.01 per share
("SELLER COMMON STOCK"), as is indicated on the signature page of this
Agreement;
WHEREAS, as a condition and material inducement to entering into the
Stock Purchase Agreement, Buyer Parent and Buyer have required that Stockholder
agree, and Stockholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained in this
Agreement and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties to this Agreement,
intending to be legally bound hereby, agree as follows:
1. CERTAIN DEFINITIONS. All capitalized terms that are used but not defined
herein shall have the respective meanings ascribed to them in the Stock Purchase
Agreement. For all purposes of and under this Agreement, the following terms
shall have the following respective meanings:
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" within the
meaning of Section 13(d)(3) of the Exchange Act and Rule 13d-5(b)(1) under the
Exchange Act.
(b) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any successor law, and the regulations and rules issued pursuant to
that Act or any successor law.
(c) "EXPIRATION DATE" shall mean the earliest to occur of (i) such date
and time as the Stock Purchase Agreement shall have been validly terminated
pursuant to Article X thereof, (ii) such date and time as the Contemplated
Transactions, including the Share Acquisition, shall have been consummated in
accordance with the terms and conditions of the Stock Purchase Agreement, (iii)
such date and time as the Seller Board Recommendation is withdrawn or modified
in a manner adverse to Buyer in accordance with Section 7.11(d) of the Stock
Purchase Agreement, or (iv) such date and time as any waiver, amendment or other
change to the Stock Purchase Agreement is effected without Stockholder's written
consent (such written consent not to be subject to the terms of this Agreement)
that (A) decreases the Purchase Price, changes the form of consideration in
whole or in part, delays the timing of the payment of the Purchase Price,
extends the termination date of the Stock Purchase Agreement or (B) otherwise
materially and adversely affects the interests of Stockholder.
(d) "GOVERNMENTAL AUTHORITY" shall mean any foreign, domestic, federal,
territorial, state or local government, governmental authority or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including, without limitation, any
agency, department, board, branch, commission or instrumentality of any of the
foregoing or any court, arbitrator or similar tribunal or forum.
(e) "PERSON" shall mean any individual, corporation (including any
non-profit corporation), professional corporation, general or limited
partnership, professional limited liability partnership, limited liability
company, joint venture, estate, trust, association, organization, labor union,
or other entity or Governmental Authority.
(f) "REPRESENTATIVES" shall mean with respect to a particular Person,
any director, officer, employee, agent, consultant, advisor, or other
representative of such Person, including legal counsel, accountants, and
financial advisors.
(g) "SHARES" shall mean (i) all securities of Seller (including all
shares of Seller Common Stock and, to the extent transferable by their terms,
all options, warrants and other rights to acquire shares of Seller Common Stock)
owned by Stockholder as of the date hereof, and (ii) all additional securities
of Seller (including all additional shares of Seller Common Stock and, to the
extent transferable by their terms, all additional options, warrants and other
rights to acquire shares of Seller Common Stock) of which Stockholder acquires
ownership during the period from the date of this Agreement through the
Expiration Date (including by way of stock dividend or distribution, split-up,
recapitalization, combination, exchange of shares or the like).
(h) "TRANSFER" shall mean, with respect to any security, the direct or
indirect assignment, sale, transfer, tender, pledge, hypothecation, or the
grant, creation or sufferage of a lien or encumbrance in or upon, or the gift,
placement in trust or other disposition of such security (including transfers by
testamentary or intestate succession or otherwise by operation of Applicable
Law) of any right, title or interest therein (including, but not limited to, any
right or power
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to vote to which the holder thereof may be entitled, whether such right or power
is granted by power of attorney, proxy or otherwise), or the record or
Beneficial Ownership thereof, the offer to make such a sale, transfer or other
disposition, and each agreement, arrangement or understanding, whether or not in
writing, to effect any of the foregoing.
2. RESTRICTIONS ON TRANSFER OF VOTING RIGHTS.
(a) Prior to the Expiration Date, Stockholder shall not, except as
contemplated by this Agreement and except as the result of the death of
Stockholder, Transfer any Shares unless each Person to which any of such Shares,
or any interest in any of such Shares, is or may be Transferred shall have: (i)
executed a counterpart of this Agreement and (ii) agreed in writing to hold such
Shares (or interest in such Shares) subject to all of the terms and provisions
of this Agreement.
(b) Prior to the Expiration Date, except as otherwise permitted by this
Agreement or except as prohibited by order of a court of competent jurisdiction,
Stockholder will not commit any act that could restrict or otherwise limit
Stockholder's legal power, authority and right to vote all of the Shares then
owned of record or Beneficially Owned by Stockholder. Without limiting the
generality of the foregoing, except for this Agreement, prior to the Expiration
Date, Stockholder will not enter into any voting agreement with any Person with
respect to any of the Shares, grant any Person any proxy (revocable or
irrevocable) or power of attorney with respect to any of the Shares, deposit any
of the Shares in a voting trust or otherwise enter into any agreement or
arrangement with any Person restricting or limiting Stockholder's legal power,
authority or right to vote the Shares in favor of the approval of the Share
Acquisition.
3. AGREEMENT TO VOTE SHARES.
(a) Prior to the Expiration Date, at every meeting of Stockholders of
Seller called, and at every adjournment, postponement or rescheduling thereof,
and on every action or approval by written consent of stockholders of Seller,
Stockholder (in Stockholder's capacity as such and not in any other capacity)
shall, or shall cause the holder of record of any or all of the Shares on any
applicable record date to, vote the Shares:
(i) in favor of the approval and adoption of the Stock Purchase
Agreement, and in favor of the Contemplated Transactions, including the Share
Acquisition;
(ii) against approval or adoption of any Competing Transaction
Proposal or any proposal made in opposition to or in competition with the
Contemplated Transactions; and
(iii) against any actions (other than those actions that relate to
the Contemplated Transactions or are otherwise permitted by the Stock Purchase
Agreement, including, but not limited to, Section 5.07 of the Stock Purchase
Agreement) to the extent that such actions are intended, or could reasonably be
expected to, in any material respect, impede, interfere with, delay, postpone,
discourage or adversely affect the Contemplated Transactions.
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(b) Prior to the Expiration Date, at any meeting of the stockholders of
Seller held to approve the Stock Purchase Agreement and the Contemplated
Transactions, Stockholder shall, or shall cause the holder of record on any
applicable record date to, appear at such meeting or otherwise cause the Shares
to be counted as present thereat for purposes of establishing a quorum.
(c) Prior to the Expiration Date, Stockholder shall not enter into any
agreement or understanding with any Person to vote or give instructions in any
manner inconsistent with the terms of this Section 3.
(d) Notwithstanding the foregoing and any other provision of this
Agreement, nothing in this Agreement shall be deemed to restrict in any way the
ability of Stockholder to encourage, solicit, initiate or engage in discussions
or negotiations with any Person, or encourage or solicit proposals from any
Person, with respect to either (i) any purchase, sale or other disposition of
Seller's commercial business (which, for the avoidance of doubt, does not
include any of the current operations of the Acquired Companies or any of its
Subsidiaries), or (ii) any merger, acquisition, consolidation or similar
business combination involving the sale of Seller subsequent to a sale of the
Acquired Companies to Buyer, provided that, in the case of any transaction
referred to in clause (i) or (ii) above, neither the execution, delivery and/or
performance of any definitive agreement with respect to such transaction, nor
the consummation of such transaction, would be reasonably expected to prevent or
render impractical, or otherwise frustrate or impede in any material respect,
the Contemplated Transactions. For purposes of this Agreement, no inquiry,
proposal, indication of interest or offer from any Person with respect to any of
the transactions referred to in clauses (i) and (ii) of the preceding sentence
(as limited by the proviso set forth in the preceding sentence) shall be deemed
to be a Competing Transaction Proposal.
(e) Notwithstanding any other provision of this Agreement, Stockholder
will not be required to vote in favor of the Share Acquisition if the Buyer
Parties and Seller amend the Stock Purchase Agreement and such amendment is not
unanimously approved by the Board of Directors of Seller.
4. STOCKHOLDER CAPACITY. Notwithstanding anything contained in this
Agreement to the contrary, nothing in this Agreement shall in any way (a)
restrict or limit the Stockholder or any designee or Representative of
Stockholder who is a director or officer of Seller from taking (or omitting to
take) any action in his or her capacity as a director or officer of Seller or
otherwise fulfilling his or her fiduciary obligations as a director or officer
of Seller, or (b) restrict or limit (or require Stockholder to attempt to
restrict or limit) any designee or Representative of Stockholder who is a
director or officer of Seller from acting in such capacity or voting in such
capacity in his or her sole discretion on any matter. It is expressly understood
that (i) Stockholder is not making any agreement or understanding herein in his,
her or its capacity as, or on behalf of any designee or Representative of
Stockholder who is, a director or officer of Seller and (ii) Stockholder is
signing this Agreement solely, and this Agreement shall apply to Stockholder
solely, in his, her or its capacity as a record or Beneficial Owner of Shares.
5. NO OWNERSHIP INTEREST. Nothing contained in this Agreement shall be
deemed to vest in Buyer Parent or Buyer any direct or indirect ownership or
incidence of ownership of or
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with respect to any Shares. All rights, ownership and economic benefits of and
relating to the Shares shall remain vested in and belong to Stockholder, and
neither Buyer Parent nor Buyer shall have any authority to manage, direct,
superintend, restrict, regulate, govern, or administer any of the policies or
operations of Seller or exercise any power or authority to direct Stockholder in
the voting of any of the Shares, except as otherwise provided herein.
6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. As of the date of this
Agreement, Stockholder hereby represents and warrants to the Buyer Parties as
follows:
(a) POWER; BINDING AGREEMENT. Stockholder has the full legal capacity,
power and authority to enter into and perform all of Stockholder's obligations
under this Agreement. The execution, delivery and performance by Stockholder of
this Agreement and the performance by Stockholder of his, her or its obligations
hereunder have been duly and validly authorized by Stockholder and no other
actions or proceedings on the part of Stockholder are necessary to authorize the
execution and delivery by Stockholder of this Agreement and the performance by
Stockholder of his, her or its obligations hereunder. The execution, delivery
and performance of this Agreement by Stockholder will not violate any other
agreement to which Stockholder is a party including any voting agreement,
stockholders' agreement or voting trust. This Agreement has been duly and
validly executed and delivered by Stockholder and constitutes a valid and
binding agreement of Stockholder, enforceable against Stockholder in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization and
other laws relating to creditors' rights and to general principles of equity.
There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which Stockholder is trustee whose consent is required
for the execution and delivery of this Agreement or the performance by
Stockholder of his, her or its obligations hereunder. If Stockholder is married
and Stockholder's Shares constitute community property, this Agreement has been
duly authorized, executed and delivered by, and constitutes a valid and binding
agreement of, Stockholder's spouse, enforceable against such person in
accordance with its terms.
(b) NO CONFLICTS. Except for filings that may be required under the
Exchange Act, (i) no filing with, and no permit, authorization, consent or
approval of, any Governmental Authority is necessary for the execution of this
Agreement by Stockholder and the performance by Stockholder of his, her or its
obligations hereunder, and (ii) none of the execution and delivery of this
Agreement by Stockholder, the consummation by Stockholder of the transactions
contemplated hereby or compliance by Stockholder with any of the provisions
hereof shall (A) conflict with or result in any breach of any applicable
organizational documents of Stockholder, if any, (B) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any Contract or other instrument or obligation of any kind to
which Stockholder is a party or by which Stockholder or any of Stockholder's
properties or assets may be bound, or (C) violate any Applicable Law or Order
applicable to Stockholder or any of Stockholder's properties or assets.
(c) OWNERSHIP OF SHARES. Stockholder (i) is the record or Beneficial
Owner of the shares of Seller Common Stock indicated on the signature page of
this Agreement, all of which are free and clear of any and all pledges, liens,
security interests, claims, charges, restrictions, options, encumbrances,
proxies, voting trusts, voting agreements or similar
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understandings, arrangements or agreements (other than such agreements arising
hereunder or under the Stock Purchase Agreement) that would limit or restrict
the ability of Stockholder to enter into this Agreement and perform his, her or
its obligations hereunder through the Expiration Date ("VOTING ENCUMBRANCES"),
(ii) is the owner of options that are exercisable for the number of shares of
Seller Common Stock indicated on the signature page of this Agreement, all of
which options and shares of Seller Common Stock issuable upon the exercise of
such options are free and clear of any Voting Encumbrances (except any Voting
Encumbrances arising hereunder or under the Stock Purchase Agreement), and (iii)
does not own, beneficially or otherwise, any securities of Seller other than the
shares of Seller Common Stock, options to purchase shares of Seller Common
Stock, and shares of Seller Common Stock issuable upon the exercise of such
options, indicated on the signature page of this Agreement.
(d) VOTING POWER. Stockholder has, and until the Expiration Date will
have, sole voting power (including the full legal power, authority and right to
vote all of the Shares in favor of the approval and adoption of the Stock
Purchase Agreement and in favor of the Contemplated Transactions without the
consent or approval of, or any other action on the part of, any other Person),
sole power of disposition, sole power to issue instructions with respect to the
matters set forth herein, and sole power to agree to perform all of his, her or
its obligations under this Agreement, in each case with respect to all of the
Shares, with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this Agreement.
Notwithstanding anything in this Agreement to the contrary, nothing herein shall
require Stockholder to exercise any option, warrant or any other right to
purchase any shares of Seller Common Stock.
(e) NO FINDER'S FEES. No broker, investment banker, financial adviser
or other Person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission from Stockholder in connection with the
transactions contemplated hereby based upon arrangements made by Stockholder.
(f) RELIANCE BY BUYER PARENT AND BUYER. Stockholder understands and
acknowledges that Buyer Parent and Buyer are entering into the Stock Purchase
Agreement in reliance upon Stockholder's execution and delivery of this
Agreement and acknowledges that this Agreement is granted in consideration for
the execution and delivery of the Stock Purchase Agreement by Buyer Parent and
Buyer.
7. NO SOLICITATION.
(a) Prior to the Expiration Date, Stockholder (in his, her or its
capacity as such and not in any other capacity) shall not, and shall not
authorize or permit any of its Representatives to (i) solicit, initiate, or
knowingly encourage, induce or facilitate the making, submission or announcement
of, a Competing Transaction Proposal, (ii) furnish to any Person (other than
Buyer Parent, Buyer or any Representatives of Buyer Parent or Buyer or to a
Governmental Authority) any non-public information relating to the Company or
any of its Subsidiaries, or afford access to the business, properties, assets,
books, records or personnel of the Company or any of its Subsidiaries to any
Person (other than Buyer Parent, Buyer or any Representatives of Buyer Parent or
Buyer or to a Governmental Authority) in connection with, in response to, or
knowingly take any other action with the intent to assist or facilitate any
inquiries
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or the making of, any proposal that constitutes or would be reasonably expected
to lead to a Competing Transaction Proposal, (iii) participate or engage in
discussions or negotiations with any Person with respect to a Competing
Transaction Proposal, or (iv) enter into any letter of intent, memorandum of
understanding or other agreement contemplating or otherwise relating to an
Acquisition Transaction; PROVIDED, HOWEVER, that notwithstanding anything in
this Agreement to the contrary, nothing contained in this Agreement shall
prevent Stockholder or its Representatives from engaging in any activities if
and to the extent that Seller is permitted to engage in such activities pursuant
to Section 5.07 of the Stock Purchase Agreement.
(b) Stockholder shall immediately cease any and all existing
activities, discussions or negotiations with any Persons conducted heretofore
with respect to any Competing Transaction Proposal.
8. CERTAIN RESTRICTIONS. Prior to the Expiration Date, Stockholder shall
not, directly or indirectly, take any action that would make any representation
or warranty of Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling Stockholder from performing Stockholder's
obligations under this Agreement.
9. DISCLOSURE. Subject to reasonable prior notice and approval (which shall
not be unreasonably withheld, delayed or conditioned), Stockholder shall permit
and hereby authorizes Seller, Buyer Parent and Buyer to publish and disclose in
all documents and schedules filed with the SEC, including, but not limited to,
(a) the Proxy Statement (including any supplement or amendment thereto), (b) any
Current Report on Form 8-K of Seller or Buyer Parent, (c) the press release
contemplated by the Stock Purchase Agreement, and (d) any other disclosure
document that Seller, Buyer Parent and Buyer determines to be necessary or
desirable in connection with the Contemplated Transactions, his, her or its
identity and ownership of Shares and the nature of his, her or its obligations,
commitments, arrangements and understandings under this Agreement.
10. TERMINATION. This Agreement shall automatically terminate and shall
have no further force or effect, with no liability on the part of any Party
hereto, as of 5:00 p.m., New York City time, on the Expiration Date; PROVIDED,
that notwithstanding the foregoing, nothing set forth in this Section 10 or
elsewhere in this Agreement shall relieve either Party hereto from liability, or
otherwise limit the liability of either Party hereto, for any intentional breach
of this Agreement and this Section 10 and Section 11 shall survive any
termination of this Agreement.
11. MISCELLANEOUS.
(a) BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations of the Parties hereto
may be assigned by either of the Parties without the prior written consent of
the other.
(b) FURTHER ASSURANCES. From time to time, at any Party's request and
without further consideration, each Party hereto shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to
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consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement.
(c) AMENDMENTS AND MODIFICATIONS. Any provision of this Agreement may
be amended or modified only by a written instrument signed by all of the Parties
hereto.
(d) SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The Parties hereto
acknowledge that Buyer Parent and Buyer 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 Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Buyer Parent and Buyer
upon any such violation, Buyer Parent and Buyer shall have the right to enforce
such covenants and agreements by specific performance, injunctive relief or by
any other means available to Buyer Parent and Buyer at law or in equity and
Stockholder hereby waives any requirement for the security or posting of any
bond in connection with any such remedies.
(e) NOTICES. All notices, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly given (a) when
delivered by hand or by Federal Express or a similar overnight courier, (b) five
(5) days after being deposited in any United States Post Office enclosed in a
postage prepaid, registered or certified envelope addressed, or (c) when
successfully transmitted by fax (with a confirming copy of such communication to
be sent as provided in clauses (a) or (b) above) to the Party for whom intended,
at the address or fax number for such Party set forth below (or at such other
address or telecopier number for a Party as shall be specified by like notice,
provided, however, that the day any notice of change of address or telecopier
number shall be effective only upon receipt):
If to Buyer Parent or Buyer:
Jacobs Engineering Group Inc.
1111 South Arroyo Parkway
Pasadena, California 91105
(for personal delivery and overnight courier)
P.O. Box 7084
Pasadena, California 91109-7084
(for U.S. Mail)
Attention: Mike Udovic, Esq.
Facsimile: (626) 568-7144
Email: Mike.Udovic@jacobs.com
with a copy (which shall not constitute notice) to:
Paul, Hastings, Janofsky & Walker LLP
515 S. Flower Street
Los Angeles, California 90071
Attention: Robert A. Miller, Esq.
Facsimile: (213) 996-3254
Email: RobertMiller@Paulhastings.com
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If to Stockholder:
Emancipation Capital LLC
825 Third Avenue,
33rd Floor New York, NY 10022
Attention: Charles Frumberg
Facsimile: 212-605-0667
Email: cf@emancipationcapital.com
with copies (which shall not constitute notice) to:
Schulte Roth & Zabel LLP
919 Third Avenue
New York, NY 10022
Attention: Michael R. Littenberg
Facsimile: (212) 593-5955
Email: Michael.Littenberg@srz.com
and
TechTeam Global, Inc.
27335 West 11 Mile Road
Southfield, MI 48033
Facsimile No.: (248) 357-2570
Attention: Michael A. Sosin, Esq.
MSosin@techteam.com
(f) NO WAIVER. No waiver hereunder shall be valid or binding unless set
forth in writing and duly executed by the Party against whom enforcement of the
waiver is sought. Any such waiver shall constitute a waiver only with respect to
the specific matter described in such writing and shall in no way impair the
rights of the Party granting such waiver in any other respect or at any other
time. Neither the waiver by any of the Parties of a breach of or a default under
any of the provisions of this Agreement, nor the failure by any of the Parties,
on one or more occasions, to enforce any of the provisions of this Agreement or
to exercise any right or privilege hereunder, shall be construed as a waiver of
any other breach or default of a similar nature, or as a waiver of any of such
provisions, rights or privileges hereunder.
(g) NO THIRD PARTY BENEFICIARIES. The agreements of the Parties
contained herein are intended solely for the benefit of the Party to whom such
agreements are made, shall confer no rights hereunder, whether legal or
equitable, in any other Person, and no other Person shall be entitled to rely
thereon. The representations and warranties of the Stockholder contained herein
are intended solely for the benefit of the Buyer Parties, shall confer no rights
hereunder, whether legal or equitable, in any other Person, and no other Person
shall be entitled to rely thereon. The representations and warranties of the
Stockholder contained herein shall expire on the Expiration Date.
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(h) GOVERNING LAW. This Agreement shall be governed, construed,
performed and enforced in accordance with the laws of the State of Delaware
(without giving effect to its principles or rules of conflict of laws to the
extent such principles or rules would require or permit the application of the
laws of another jurisdiction) as to all matters, including, but not limited to,
matters of validity, construction, effect, performance and remedies.
(i) SUBMISSION TO JURISDICTION.
(i) Each of the Parties irrevocably agrees that any legal action
or proceeding with respect to this Agreement and the rights and obligations
arising hereunder, or for recognition and enforcement of any judgment in respect
of this Agreement and the rights and obligations arising hereunder brought by
the other Party hereto or its successors or permitted assigns, shall be brought
and determined exclusively in the Delaware Court of Chancery and any state
appellate court therefrom within the State of Delaware (or, if the Delaware
Court of Chancery declines to accept jurisdiction over a particular matter, any
state or federal court within the State of Delaware). Each of the Parties hereby
irrevocably submits with regard to any such action or proceeding for itself and
in respect of its property, generally and unconditionally, to the personal
jurisdiction of the aforesaid courts and agrees that, except for the enforcement
of any judgment entered by any of the aforesaid courts arising from any such
action or proceeding, it will not bring any action relating to this Agreement in
any court other than the aforesaid courts.
(ii) Each of the Parties hereby irrevocably waives, and agrees not
to assert as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement, (a) any claim that it is not personally subject
to the jurisdiction of the above named courts for any reason other than the
failure to serve in accordance with Section 11(e) hereof, (b) any claim that it
or its property is exempt or immune from jurisdiction of any such court or from
any legal process commenced in such courts (whether through service of notice,
attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise) and (c) to the fullest extent permitted by
Applicable Law, any claim that (i) the suit, action or proceeding in such court
is brought in an inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper or (iii) this Agreement, or the subject matter hereof,
may not be enforced in or by such courts.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(k) SERVICE OF PROCESS. The Parties agree that the delivery of process
or other papers in connection with any such action or proceeding in the manner
provided in Section 11(e) hereof, or in such other manner as may be permitted by
Applicable Law, shall be valid and sufficient service thereof.
(l) RULES OF CONSTRUCTION. The Parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any Applicable Law, holding or rule of
construction providing that
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ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
(m) ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the Parties hereto in respect of the subject matter hereof, and supersede all
prior discussions, negotiations, agreements, arrangements and understandings,
both written and oral, between the Parties hereto with respect to the subject
matter hereof and thereof. There are no warranties, representations or other
agreements between the Parties in connection with the subject matter of this
Agreement, except as specifically set forth in this Agreement.
(n) SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any Applicable Law, 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. In the event any Governmental Authority of competent jurisdiction
holds any provision of this Agreement to be invalid, illegal or incapable of
being enforced, the Parties hereto shall negotiate in good faith and execute and
deliver an amendment to this Agreement in order, as nearly as possible, to
effectuate, to the extent permitted by Applicable Law, the intent of the Parties
hereto with respect to such provision.
(o) INTERPRETATION.
(i) The phrases "the date of this Agreement," "the date hereof"
and terms of similar import, unless the context otherwise requires, shall be
deemed to refer to the date set forth in the first paragraph of this Agreement
(in which "this Agreement" is defined).
(ii) Whenever the words "include," "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation."
(iii) As used in this Agreement, the term "affiliate" shall have
the meaning set forth in Rule 12b-2 promulgated under the Exchange Act.
(iv) Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular.
(v) "Writing," "written" and comparable terms refer to printing,
typing and other means of reproducing words (including electronic media) in a
visible form.
(vi) References to any Person include the successors and permitted
assigns of that Person.
(vii) References from or through any date mean, unless otherwise
specified, from and including or through and including, respectively.
(viii) References to "law," "laws" or to a particular statute or
law shall be deemed to refer to such statute or law as amended from time to
time, and to the rules and regulations promulgated thereunder.
11
(p) 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.
(q) EXPENSES. All costs and expenses incurred in connection with this
Agreement shall be paid by the Party incurring the expenses.
(r) COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. In the
event that any signature to this Agreement is delivered by facsimile
transmission or by e-mail delivery of a portable document format (.pdf or
similar format) data file, such signature shall create a valid and binding
obligation of the Party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or ".pdf"
signature page were an original thereof. This Agreement shall become effective
when each Party hereto shall have received a counterpart hereof signed by all of
the other Parties hereto. Until and unless each Party has received a counterpart
hereof signed by the other Party hereto, this Agreement shall have no effect and
no Party shall have any right or obligation hereunder (whether by virtue of any
other oral or written agreement or other communication).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their respective duly authorized officers to be effective as of the
date first above written.
JACOBS ENGINEERING GROUP INC.
By: /s/ John W. Prosser, Jr.
------------------------
Name: John W. Prosser, Jr.
Title: Executive Vice President, Finance
and Administration and Treasurer
JACOBS TECHNOLOGY INC.
By: /s/ John W. Prosser, Jr.
------------------------
Name: John W. Prosser, Jr.
Title: Treasurer
STOCKHOLDER:
EMANCIPATION CAPITAL LLC
By: /s/ Charles Frumberg
------------------------
Name: Charles Frumberg
Title: Managing Member
SHARE BENEFICIALLY OWNED:
738,807 shares of Seller Common Stock
26,000 shares of Seller Common Stock issuable upon exercise of
------- outstanding options or warrants