Exhibit 10.46
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT, dated as of January 26, 2000 (this
"Agreement"), is made by and among Breakaway Solutions, Inc., a Delaware
corporation (the "Buyer"), Benedict Acquisition Corp., a Delaware corporation
and a wholly owned subsidiary of the Buyer ("Transitory Subsidiary"), and the
holders (the "Stockholders") of the shares of Common Stock, $0.01 par value per
share (collectively, the "Shares"), of Eggrock Partners, Inc., a Delaware
corporation (the "Company"), listed on SCHEDULE A hereto. Capitalized terms not
defined herein shall have the meaning set forth in the Merger Agreement (as
defined below).
WHEREAS, concurrently herewith, the Buyer, Transitory Subsidiary and
the Company are entering into an Agreement and Plan of Merger (as it may be
amended from time to time in the future in accordance with its terms, the
"Merger Agreement") providing for the merger of Transitory Subsidiary with and
into the Company (the "Merger"), with the Company being the entity surviving the
Merger and becoming a wholly owned subsidiary of the Buyer; and
WHEREAS, in order to induce the Buyer and Transitory Subsidiary to
enter into the Merger Agreement, the Buyer and Transitory Subsidiary have
requested that the Stockholders, and the Stockholders have agreed to, enter into
this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT; IRREVOCABLE GRANT OF PROXY
Section 1.1 VOTING AGREEMENT. Each Stockholder hereby agrees to vote
all Shares that such Stockholder is entitled to vote to approve and adopt the
Merger Agreement, the Merger and all agreements related to the Merger and any
actions related thereto at any meeting of the stockholders of the Company, and
at any adjournment thereof (or by written consent in lieu of a meeting), at
which such Merger Agreement and other related agreements (or any amended version
thereof), or such other actions, are submitted for the consideration and vote of
the stockholders of the Company. Each Stockholder hereby agrees that it will not
vote (or give a written consent with respect to) any Shares in favor of the
approval of any (i) Acquisition Proposal by any person other than Buyer or its
affiliates; or (ii) reorganization, recapitalization, liquidation or winding up
of the Company or any other extraordinary transaction involving the Company.
Section 1.2 IRREVOCABLE PROXY. Each Stockholder hereby revokes any and
all previous proxies granted with respect to such Stockholder's Shares. Each
Stockholder hereby grants a proxy appointing Transitory Subsidiary as such
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in such Stockholder's name, to vote all Shares that such Stockholder is
entitled to vote in accordance with the obligations of the Stockholders set
forth in Section 1.1 above. The proxy granted by each Stockholder pursuant to
this Section 1.2 is irrevocable and is granted in consideration of Transitory
Subsidiary's entering into this Agreement and the Merger Agreement and incurring
certain related fees and expenses. The
proxy grant by each Stockholder shall be revoked upon termination of this
Agreement in accordance with its terms. At Transitory Subsidiary's request, each
Stockholder shall perform such further acts and execute such further documents
as may be required to vest in Transitory Subsidiary the sole power to vote the
Shares during the term of the proxy granted herein in accordance with the terms
of the proxy granted herein.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders severally, and not jointly, represents and
warrants to Transitory Subsidiary that:
Section 2.1 VALID TITLE. Such Stockholder is the sole, true, lawful
record and beneficial owner of Shares set forth next to such Stockholder's name
on SCHEDULE A attached hereto with no restrictions on such Stockholder's voting
rights or rights of disposition pertaining thereto except as may be disclosed in
the Disclosure Schedule attached to the Merger Agreement or with respect to
restrictions imposed by federal or state securities laws. At any Closing, such
Stockholder will convey good and valid title to such Stockholder's Shares being
purchased free and clear of any and all claims, liens, charges, encumbrances and
security interests. None of such Stockholder's Shares is subject to any voting
trust or other agreement or arrangement with respect to the voting of such
Shares.
Section 2.2 NON-CONTRAVENTION. The execution, delivery and performance
by such Stockholder of this Agreement and the voting of the Shares by the
stockholder in accordance with Section 1.1 hereof (i) are within such
Stockholder's powers, have been duly authorized by all necessary action
(including any consultation, approval or other action by or with any other
person) and (ii) require no action by or in respect of, or filing with, any
governmental body, agency, official or authority.
Section 2.3 BINDING EFFECT. This Agreement has been duly executed and
delivered by such Stockholder and is the valid and binding agreements of such
Stockholder, enforceable against such Stockholder in accordance with its
respective terms except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally. If
this Agreement is being executed in a representative or fiduciary capacity, the
person signing this Agreement, has full power and authority to enter into and
perform this Agreement.
Section 2.4 TOTAL SHARES. The number of Shares set forth next to each
Stockholder's name on Schedule A hereto are the only Shares legally or
beneficially owned by such Stockholder and, except as set forth on SCHEDULE A,
such Stockholder owns no options to purchase or rights to subscribe for or
otherwise acquire any securities of the Company and has no other interest in or
voting rights with respect to any securities of the Company.
Section 2.5 FINDER'S FEES. No investment banker, broker or finder is
entitled to a commission or fee from the Buyer, Transitory Subsidiary or the
Company in respect of this
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Agreement based upon any arrangement or agreement made by or on behalf of such
Stockholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
BUYER AND TRANSITORY SUBSIDIARY
Section 3.1 BUYER'S REPRESENTATIONS. Buyer represents and warrants to
each of the Stockholders that Buyer has all requisite corporate power and
authority to enter into this Agreement and to perform its obligations hereunder.
The execution, delivery and performance by Buyer of this Agreement and the
consummation by Buyer of the transactions contemplated hereby (i) have been duly
authorized by the Board of Directors of Buyer and no other corporate action on
the part of Buyer is necessary to authorize the execution, delivery or
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby, and (ii) require no action by or in respect
of, or filing with, any governmental body, agency, official or authority. This
Agreement has been duly executed and delivered by Buyer and is a valid and
binding agreement of Buyer, enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally.
Section 3.2 TRANSITORY SUBSIDIARY'S REPRESENTATIONS. Transitory
Subsidiary represents and warrants to each of the Stockholders that Transitory
Subsidiary has all requisite corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. The execution, delivery and
performance by Transitory Subsidiary of this Agreement and the consummation by
Transitory Subsidiary of the transactions contemplated hereby (i) have been duly
authorized by the Board of Directors of Transitory Subsidiary and no other
corporate action on the part of Transitory Subsidiary is necessary to authorize
the execution, delivery or performance by Transitory Subsidiary of this
Agreement and the consummation by Transitory Subsidiary of the transactions
contemplated hereby, and (ii) require no action by or in respect of, or filing
with, any governmental body, agency, official or authority. This Agreement has
been duly executed and delivered by Transitory Subsidiary and is a valid and
binding agreement of Transitory Subsidiary, enforceable against it in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
ARTICLE IV
COVENANTS OF THE STOCKHOLDERS
Each of the Stockholders hereby covenants and agrees that:
Section 4.1 NO PROXIES FOR OR ENCUMBRANCES ON STOCKHOLDER SHARES.
Except as provided in this Agreement, such Stockholder shall not, during the
term of this Agreement, without the prior written consent of Transitory
Subsidiary, directly or indirectly, (i) grant any proxies or enter into any
voting trust or other agreement or arrangement with respect to the voting of any
Shares or (ii) sell, assign, transfer, encumber or otherwise dispose of, or
enter into
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any contract, option or other arrangement or understanding with respect to the
direct or indirect sale, assignment, transfer, encumbrance or other disposition
of, any Shares. Such Stockholder shall not seek or solicit any such sale,
assignment, transfer, encumbrance or other disposition or any such contract,
option or other arrangement or assignment or understanding and agrees to notify
Transitory Subsidiary promptly, and to provide reasonable details requested by
Transitory Subsidiary, if such Stockholder shall be approached or solicited,
directly or indirectly, by any person with respect to any of the foregoing.
Section 4.2 NO SHOP. Such Stockholder shall not (i) solicit, initiate
or encourage (or authorize any person to solicit, initiate or encourage on such
Stockholder's behalf) any inquiry, proposal or offer from any person concerning
any merger, reorganization, consolidation, recapitalization, business
combination, liquidation, dissolution, share exchange, sale of stock, sale of
material assets or similar business transaction involving the Company (an
"Acquisition Proposal"), (ii) furnish any non-public information concerning the
business, properties or assets of the Company, to any party (other than the
Buyer) in connection with any potential Acquisition Proposal, or (iii) engage in
discussions or negotiations with any party (other than the Buyer) concerning any
potential Acquisition Proposal. Such Stockholder shall promptly advise
Transitory Subsidiary of the terms of any communications it may receive relating
to any potential Acquisition Proposal.
Section 4.3 CONDUCT OF STOCKHOLDERS. Such Stockholder will not (i)
take, agree or commit to take any action that would make any representation and
warranty of such Stockholder hereunder inaccurate in any material respect as of
any time prior to the termination of this Agreement or (ii) omit, or agree or
commit to omit, to take any action necessary to prevent any such representation
or warranty from being inaccurate in any material respect at any such time.
ARTICLE V
MISCELLANEOUS
Section 5.1 EXPENSES. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
Section 5.2 SPECIFIC PERFORMANCE. The parties hereto agree that
Transitory Subsidiary may be irreparably damaged if for any reason any
Stockholder failed to perform any of its other obligations under this Agreement,
and that Transitory Subsidiary would not have any adequate remedy at law for
money damages in such event. Accordingly, Transitory Subsidiary shall be
entitled to specific performance and injunctive and other equitable relief to
enforce the performance of this Agreement by each Stockholder. This provision is
without prejudice to any other rights that Transitory Subsidiary may have
against any Stockholder for any failure to perform its obligations under this
Agreement.
Section 5.3 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered four
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent for next-day
delivery via a reputable nationwide overnight courier service, in each case to
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the intended recipient as set forth below the signature of such recipient. Any
party may give any notice, request, demand, claim, or other communication
hereunder using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim or other communication shall be deemed to
have been duly given unless and until it actually is received by the party for
whom it is intended. Any party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Parties notice in the manner herein set forth.
Section 5.4 Intentionally Omitted.
Section 5.5 AMENDMENTS; TERMINATION; EXPIRATION. This Agreement may not
be modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This Agreement
may be terminated by the Buyer and Transitory Subsidiary upon written notice to
the Stockholders. This Agreement and the Stockholder's obligations hereunder
shall expire on the first to occur of (a) the Effective Time (as such term is
defined in the Merger Agreement) or (b) the termination of the Merger Agreement
in accordance with its terms.
Section 5.6 SUCCESSORS AND ASSIGNS. 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 Transitory Subsidiary may
assign its rights and obligations to any affiliate of Transitory Subsidiary who
becomes a party to this Agreement and agrees in writing to perform and assume
the obligations of Transitory Subsidiary hereunder, but no such assignment shall
relieve either Buyer or Transitory Subsidiary of their respective obligations
hereunder if such assignee does not perform such obligations; provided, further,
that no Stockholder may assign, delegate or otherwise transfer any of its rights
or obligations under this Agreement without the consent of Transitory
Subsidiary.
Section 5.7 GOVERNING LAW AND VENUE. All disputes, claims or
controversies arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement, or the transactions contemplated
hereby shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to its rules of conflict of laws. Each of Buyer
and Transitory Subsidiary and the Stockholders hereby irrevocably and
unconditionally consents to submit to the sole and exclusive jurisdiction of the
courts of the State of Delaware and of the United States District Court for the
District of Delaware (the "DELAWARE COURTS") for any litigation arising out of
or relating to this Agreement, or the negotiation, validity or performance of
this Agreement, or the transactions contemplated hereby (and agrees not to
commence any litigation relating thereto except in such courts), waives an
objection to the laying of venue of any such litigation in the Delaware Courts
and agrees not to plead or claim in any Delaware Court that such litigation
brought therein has been brought in an inconvenient forum. Each of the parties
hereto agrees, (a) to the extent such party is not otherwise subject to service
of process in the State of Delaware, to appoint and maintain an agent in the
State of Delaware as such party's agent for acceptance of legal process, and (b)
that service of process may also be made on such party by prepaid certified mail
with a proof of mailing receipt validated by the United States Postal Service
constituting evidence of valid service. Service made pursuant to (a)
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or (b) above shall have the same legal force and effect as if served upon such
party personally within the State of Delaware.
Section 5.8 COUNTERPARTS. This Agreement may be signed 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 instruments.
Section 5.9 BUYER GUARANTY. Buyer hereby unconditionally guarantees
Transitory Subsidiary's obligations under this Agreement and agrees to be liable
for any breach of this Agreement by Transitory Subsidiary.
Section 5.10 HEADINGS. The headings and captions used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
Section 5.11 OBLIGATIONS SEPARATE; STOCKHOLDER CAPACITY. The
obligations of the Stockholders hereunder are several and not joint. Each
Stockholder who is an individual signs solely in his capacity as the record
holder and beneficial owner of, or the trustee of a trust whose beneficiaries
are the beneficial owners of, such Stockholder's Shares and nothing herein shall
limit or affect any actions taken by a Stockholder in his capacity as an officer
or director of the Company.
Section 5.12 DEFINED TERMS. Capitalized terms used in this Agreement
and not otherwise defined shall have the meaning given to such terms in the
Merger Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Stockholder
Agreement to be duly executed as of the day and year first above written.
BUYER:
BREAKAWAY SOLUTIONS, INC.
By: /s/ Gordon Brooks
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Name: Gordon Brooks
Title: President and Chief Executive Officer
Address: 50 Rowes Wharf
Boston, Massachusetts 02109
copy to: Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attention: Thomas L. Barrette, Jr., Esq.
TRANSITORY SUBSIDIARY:
BENEDICT ACQUISITION CORP.
By: /s/ Kevin Comerford
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Name: Kevin Comerford
Title: President
Address: 50 Rowes Wharf
Boston, Massachusetts 02109
copy to: Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attention: Thomas L. Barrette, Jr., Esq.
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STOCKHOLDERS:
/s/ Maureen Ellenberger
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Maureen Ellenberger
/s/ Vijay Manwani
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Vijay Manwani
/s/ Michael Mordas
----------------------------
Michael Mordas
Address: c/o Eggrock Partners, Inc.
30 Monument Square
Concord, MA 01742
copy to: Goodwin, Procter & Hoar LLP
Exchange Place, 53 State Street
Boston, MA 02109
Attention: Jeffrey C. Hadden, P.C.
and Joseph L. Johnson III, P.C.
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SCHEDULE A
STOCKHOLDER NAME NUMBER OF SHARES
Maureen Ellenberger 2,250,000
Vijay Manwani 2,250,000
Michael Mordas 2,250,000