EXHIBIT 4.2
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STOCKHOLDERS' AGREEMENT
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(Any exhibits or schedules that are omitted, are omitted pursuant to Item
601(b)(2) of Regulation S-K. The Registrant agrees, however, to furnish
supplementary a copy of such omitted items to the Commission upon request).
STOCKHOLDERS' AGREEMENT
Among
JKBAKER LLC,
JMBAKER LLC,
SEAGATE, LLC,
ROTH SPECIAL LLC,
CFB GILBERT LLC,
RGB RUMPOLE LLC,
JAMES K. BAKER,
JANET M. BAKER,
ROBERT ROTH,
SEAGATE TECHNOLOGY, INC.,
THE PAUL G. BAMBERG TRUST,
THE CHERRY F. BAMBERG TRUST,
LEHA,
L&H HOLDING N.V.,
L&H HOLDING III,
OLDCO N.V.,
L&H INVESTMENT COMPANY,
and
LERNOUT & HAUSPIE SPEECH PRODUCTS N.V.
Dated as of June 7, 2000
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of June 7, 2000 (this "Agreement"),
among JKBAKER LLC, JMBAKER LLC, SEAGATE, LLC, ROTH SPECIAL LLC, CFB GILBERT LLC,
and RGB RUMPOLE LLC, each a Delaware limited liability company (collectively,
the "LLCs"), JAMES K. BAKER, JANET M. BAKER, ROBERT ROTH, SEAGATE TECHNOLOGY,
INC., the PAUL G. BAMBERG TRUST and the CHERRY F. BAMBERG TRUST (collectively,
the "Principal Stockholders"), LEHA, a Netherlands foundation, L&H HOLDING N.V.,
a Belgian corporation, L&H HOLDING III, a Luxembourg corporation, OLDCO N.V., a
Belgian corporation, and L&H INVESTMENT COMPANY, a Belgian corporation
(collectively, LEHA, L&H Holding N.V., L&H Holding III, Oldco N.V., and L&H
Investment Company are hereinafter referred to as the "L&H Control Group") and
LERNOUT & HAUSPIE SPEECH PRODUCTS N.V., a Belgian corporation (the "Company").
WHEREAS, the execution and delivery of this Agreement is a condition
to the obligations of the Company and Dragon Systems, Inc., a Delaware
corporation ("Dragon") under the Agreement and Plan of Merger dated as of March
27, 2000, among the Company, L&H Holdings USA, Inc., a Delaware corporation and
a direct wholly owned subsidiary of the Company ("Merger Sub"), Dragon and the
Principal Stockholders (the "Merger Agreement"), pursuant to
X-i
which Dragon shall merge with and into Merger Sub, all upon the terms and
subject to the conditions set forth in the Merger Agreement;
WHEREAS, upon consummation of the transactions contemplated by the
Merger Agreement, the Principal Stockholders will beneficially own 9,807,489
shares of common stock of the Company, BEF 10.77 fractional value (together with
any common stock of the Company issued as a dividend or other distribution with
respect thereto, or in exchange therefor, or in replacement thereof, the
"Company Common Stock") and the L&H Control Group will beneficially own
22,352,984 shares of the Company Common Stock (the "L&H Shares");
WHEREAS, the Company, the L&H Control Group, the LLCs and the
Principal Stockholders now wish to enter into this Agreement to set forth their
understanding as to the matters set forth herein with respect to, among other
things, representation on the Company's Board of Directors (the "Board") and the
holding, acquisition and transfer of Company Common Stock by the Principal
Stockholders and their Affiliates (as defined below); and
WHEREAS, the parties agree that the arrangements contained in this
Agreement are in the corporate interest of the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the parties hereto hereby agree
as follows:
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ARTICLE I
Definitions
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SECTION 1.01. Definitions. (a) As used in this Agreement, the
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following terms shall have the following meanings:
"Affiliate" means a Person that directly, or indirectly through one or
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more intermediaries, controls, is controlled by, or is under common control
with, a specified person.
"beneficially own" has the meaning set forth in Rule 13d-3, as in
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effect on the date hereof, under the Exchange Act.
"Business Day" means any day that is not a Saturday, Sunday or other
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day on which banks are closed in the city of New York, New York, or the city of
Boston, Massachusetts, or in Belgium.
"Change of Control Transaction" means any transaction in which any
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Person or two or more Persons acting in concert shall have acquired, or shall
have entered into a definitive agreement providing for the acquisition of,
beneficial ownership, directly or indirectly, of the voting securities of the
Company representing fifty percent (50%) or more of the combined voting power of
all voting securities of the Company.
"Closing" has the meaning set forth in the Merger Agreement.
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"Closing Date" has the meaning set forth in the Merger Agreement.
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"control" (including the terms "controlled by" or "under common
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control with") means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the Company,
whether through the ownership of voting securities, by contract, or otherwise.
"Director" means a member of the Board.
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"Exchange Act" means the United States Securities Exchange Act of
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1934, as amended.
"Group" has the meaning set forth in Rule 13d-5, as in effect on the
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date hereof, under the Exchange Act.
"Holder" means any of the LLCs, the Principal Stockholders and any
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Permitted Transferee.
"Indemnity Escrow Agreement" means the Indemnity Escrow Agreement, of
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even date herewith, among the Company, Merger Sub, the Principal Stockholders
and an escrow agent.
"Initial Shares" means the number of Stockholder Shares acquired by
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the Principal Stockholders at the Closing, taking into account any increase or
decrease thereof by reason of any
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securities issued or issuable with respect to any such Stockholder Shares by way
of conversion, exchange, replacement, stock dividend, stock split or other
distribution or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise.
"LLC Agreement" means each of the Agreements of Limited Liability
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Company of each of the LLCs, each of even date herewith, between each of the
Principal Stockholders and L&H Holding N.V.
"Permitted Transferee" means any Affiliate of the Principal
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Stockholders.
"Person" means any individual, firm, corporation, partnership, limited
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partnership, limited liability company, association, trust, unincorporated
organization or other entity, as well as any syndicate or group acting for the
purpose of acquiring, holding, or disposing of securities.
"Stockholder Shares" means the Initial Shares, any other Company
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Common Stock now or hereafter beneficially owned by the Principal Stockholders
or a Permitted Transferee and any securities issued or issuable with respect to
any such Common Stock by way of conversion, exchange, replacement, stock
dividend, stock split or other distribution or in connection with a combination
of shares, recapitalization, merger, consolidation or other reorganization or
otherwise.
"Third Party Offer" means an unsolicited bona fide offer by a Person
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other than the Holder to acquire more than fifty percent (50%) of the
outstanding voting securities of the Company.
"Transfer" means transfer of a right in rem in shares, for valuable
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consideration or for free, even when carried out by way of public auction,
voluntarily or by virtue of a judicial decision, including, but not limited to,
contributions, exchange transactions, transfers of substantially all of assets,
mergers, demergers, absorptions, liquidations or similar transactions, as well
as the granting of options to purchase or sell shares or the conclusion of a
swap or other agreement, that completely or partly transfers the economic
benefits or the ownership of the shares, regardless of whether such a
transaction is realized by means of delivery of securities, in cash or
otherwise.
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(b) The following terms have the meanings set forth in the Sections set
forth below:
Term Location
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Agreement.................................... Preamble
Baker........................................ (S)2.01(a)
BCLCC........................................ (S)2.03(a)
Board........................................ Recitals
Cause........................................ (S)2.04(a)
Company...................................... Preamble
Company Common Stock......................... Recitals
Dragon....................................... Recitals
Initial Restriction Period................... (S)3.02(a)
L&H Control Group............................ Preamble
L&H Shares................................... Recitals
LLCs......................................... Preamble
Lockup Period................................ (S)3.01
Merger Agreement............................. Recitals
Merger Sub................................... Recitals
Principal Stockholders....................... Preamble
ARTICLE II
Governance
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SECTION 2.01. Initial Board Representation. (a) As and from the
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date hereof, and until she is elected to the Board, Janet Baker ("Baker") shall
have the right to: (i) attend meetings of the Board pursuant to a resolution of
the Board dated ______________ _____, 2000; and (ii) receive copies of all
materials provided by the Company to its directors, as and when such directors
receive such materials.
(b) At the next annual meeting of stockholders of the Company, the
Company will seek approval to elect Baker to the Board for one year. In
connection with such annual stockholders meeting, the LLCs may nominate Baker
for election to the Board, and the Company agrees to cause the slate of
Directors presented to the stockholders of the Company for election to the Board
to include Baker.
SECTION 2.02. Continuing Board Representation. As long as (i)
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Baker continues to be an officer of the Company, and (ii) Baker (or her LLC)
owns at least twenty percent (20%) of her (or her LLC's) Initial Shares, the
LLCs or Principal Stockholders, as the case may be, may nominate Baker for
appointment to the Board and the parties hereto shall exercise all authority
under applicable law to cause any slate of Directors presented to the
stockholders of the Company for election to the Board to include Baker. In the
event Baker ceases to serve as an officer of the Company, she shall immediately
resign her directorship. In the event Baker (or her LLC) sells more than eighty
percent (80%) of her (or her LLC's) respective Initial Shares, she may continue
to serve as a director until the expiration of her then current term.
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SECTION 2.03. Voting Agreement. (a) The L&H Control Group shall
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take all actions necessary to vote all the L&H Shares entitled to vote and owned
or held of record by the L&H Control Group at any annual or special stockholders
meeting at which one or more directors are elected in favor of, or shall take
all actions by written consent in lieu of any such meeting necessary to cause,
the election of Baker to the Board, so long as Baker is entitled to be nominated
as a member of the Board pursuant to this Article II. If the L&H Control Group
shall refuse to vote the L&H Shares as provided in this Section 2.03(a) at any
meeting of stockholders of the Company, or shall refuse to give its written
consent in lieu of a meeting, thereupon, without further action by the Principal
Stockholders, Baker shall be, and hereby is, irrevocably constituted the
attorney-in-fact and proxy of the L&H Control Group solely for the purpose of
voting, and shall vote such L&H Shares at such meeting as provided in this
Section 2.03(a) or give such consent, as the case may be. In connection
herewith, the L&H Control Group agrees to execute such proxy documents as may be
necessary to comply with the provisions of Article 74, Section 2 of the Belgium
Coordinated Laws on Commercial Companies (the "BCLCC").
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(b) The Principal Stockholders shall take all actions necessary to
vote all the Stockholder Shares entitled to vote and owned or held of record by
the LLCs or the Principal Stockholders at any annual or special stockholders
meeting at which one or more directors are elected in favor of, or shall take
all actions by written consent in lieu of any such meeting necessary to cause,
the election of the designees of the L&H Control Group to the Board, so long as
Baker is entitled to attend meetings of the Board pursuant to Section 2.01(a)
hereof or is entitled to be nominated as a member of the Board pursuant to this
Article II. If the LLCs or the Principal Stockholders shall refuse to vote the
Stockholder Shares as provided in this Section 2.03(b) at any meeting of
stockholders of the Company, or shall refuse to give its written consent in lieu
of a meeting, thereupon, without further action by the L&H Control Group, any
representative of the L&H Control Group shall be, and hereby is, irrevocably
constituted the attorney-in-fact and proxy of the LLCs and the Principal
Stockholders for the purpose of voting, and shall vote such Stockholder Shares
at such meeting as provided in this Section 2.03(b) or give such consent, as the
case may be. In connection therewith, the LLCs and the Principal Stockholders
agree to execute such proxy documents as may be necessary to comply with the
provisions of Article 74, Section 2 of the BCLCC.
SECTION 2.04. Removal. (a) The L&H Control Group agrees that, if,
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at any time, the L&H Control Group is then entitled to vote for the removal of
directors of the Company, so long as Baker is entitled to be a member of the
Board pursuant to this Article II, the L&H Control Group will not vote any L&H
Shares in favor of the removal of Baker unless such removal shall be for Cause.
Removal for "Cause" shall mean removal of a director because of such director's
(A) willful or persistently repeated material non-performance of the director's
duties to the Company (other than by reason of the incapacity of the director
due to physical or mental illness) after notice by the Board of such failure and
the director's non-performance and continued, willful or persistently repeated
material non-performance after such notice, (B) the indictment of the director
for a felony offense, or (C) the commission by the director of fraud or any
willful misconduct that brings the reputation of the Company into serious
disrepute or causes the director to cease to be able to perform his duties.
(b) The Principal Stockholders agree that, if, at any time, the LLCs
or the Principal Stockholders are entitled to vote for the removal of directors
of the Company, so long as Baker is entitled to be a member of the Board
pursuant to this Article II, the LLCs and the Principal
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Stockholders will not vote any Stockholder Shares in favor of the removal of any
director nominated to the Board by the L&H Control Group unless such removal
shall be for Cause.
ARTICLE III
Lockup Provisions
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SECTION 3.01. Lockup Period. The "Lockup Period" shall mean the
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period beginning on the Closing Date and continuing until the first anniversary
of the Closing Date. Without limiting the rights of the Principal Stockholders
set forth in Article II, the Lockup Period shall be suspended:
(a) during such time as the Company is engaged in a process calculated
to result in a Change of Control Transaction, but only so long as the
Company has not terminated such process; provided that the Principal
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Stockholders will be notified promptly by the Company of its determination
to engage in any such process; or
(b) during such time as a Third Party Offer is outstanding.
SECTION 3.02. Transfer Restrictions. (a) During the Lockup Period,
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the LLCs shall not, directly or indirectly, Transfer any Initial Shares except
pursuant to (i) the terms of the Indemnity Escrow Agreement, (ii) the terms of
the LLC Agreements, or (iii) a Third Party Offer.
(b) After the end of the Lockup Period, Holders may Transfer any
Stockholder Shares free of any restrictions contained in Section 3.02(a) of this
Agreement.
(c) To the extent that any Stockholder Shares owned by the LLCs or the
Principal Stockholders other than James K. Baker and Janet M. Baker (or their
respective LLCs) are or become transferable pursuant to Sections 3.02(a) or (b)
above, such Stockholder Shares shall no longer be subject to the provisions of
this Agreement (regardless of whether such Stockholder Shares are actually
transferred).
(d) The shares received by any transferee to whom Stockholder Shares
are transferred in accordance with Sections 3.02(a) or (b) above shall no longer
be subject to the provisions of this Agreement.
(e) Each certificate representing the Stockholder Shares shall, except
as otherwise provided in this Section 3.02, be stamped or otherwise be imprinted
with legends substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON DISPOSITION AND OTHER RESTRICTIONS OF A STOCKHOLDERS'
AGREEMENT DATED AS OF JUNE 7, 2000, AMONG THE HOLDER HEREOF AND
LERNOUT & HAUSPIE SPEECH PRODUCTS N.V., AMONG OTHERS."
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Such legend shall be removed with respect to any Stockholder Shares which are no
longer subject to the provisions of this Agreement.
SECTION 3.03. Acquisition of Additional Shares; Other Restrictions.
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During the Lockup Period (excluding such period during which the Lockup Period
may be suspended pursuant to Section 3.01), the LLCs and the Principal
Stockholders shall not, directly or indirectly, and shall cause their Affiliates
not to, directly or indirectly:
(a) Except upon exercise of options or warrants granted by Company to
the Principal Stockholders or as otherwise permitted in the LLC Agreements,
acquire, announce an intention to acquire, offer to acquire, or enter into any
agreement, arrangement or undertaking of any kind the purpose of which is to
acquire, by purchase, exchange or otherwise, (i) any shares of Company Common
Stock or (ii) any other security convertible into, or any option, warrant or
right to acquire, Company Common Stock or (iii) all or substantially all of the
assets of the Company or any of its Affiliates; provided that Sections
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3.03(a)(i) and (ii) shall not be applicable if the aggregate percentage of
outstanding Company Common Stock is increased solely as a result of corporate
action taken by the Company and not caused by any action taken by the Principal
Stockholders or any of their Affiliates.
(b) Solicit, or participate in any solicitation of, proxies with
respect to any Company Common Stock, or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A of the Exchange Act)
in opposition to any matter that has been recommended by a majority of the
Directors or in favor of any matter that has not been approved by a majority of
the Directors.
(c) Propose or otherwise solicit stockholders of the Company for the
approval of one or more stockholder proposals, seek or solicit support for
(whether publicly or privately) any written consent of stockholders of the
Company, attempt to call a special meeting of stockholders, nominate or attempt
to nominate any Person for election as a Director (except in accordance with
Article II), or seek the removal or resignation of any Director (other than
Baker) (except in accordance with Article II), in each case in opposition to any
matter that has been recommended by a majority of the Directors (and such
recommendation has not been revoked or withdrawn) or in favor of any matter that
has not been approved by a majority of the Directors.
(d) Deposit any Company Common Stock in a voting trust or similar
agreement or subject any Company Common Stock to any arrangement or agreement
with respect to the voting of such Company Common Stock.
(e) Take any action to form, join or in any way participate in any
partnership, limited partnership, syndicate or other Group with respect to
Company Common Stock or otherwise act in concert with any Person for the purpose
of circumventing the provisions or purposes of this Agreement.
(f) Propose (or publicly announce or otherwise disclose an intention
to propose), solicit, offer, seek to effect, negotiate with or provide any
confidential information relating to the Company or its business to any other
Person with respect to, any tender or exchange offer, merger, consolidation,
share exchange, business combination, restructuring, recapitalization or similar
transaction involving the Company or fail to withdraw from any such proposal
that, in the opinion
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of counsel to the Company, would require the Company to make a public
announcement with respect thereto; provided, that nothing set forth in this
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Section 3.03(f) shall prohibit the Principal Stockholders from soliciting,
offering, seeking to effect and negotiating with any Person with respect to
Transfers of Company Common Stock otherwise permitted by this Article III;
provided further, that in so doing the LLCs and the Principal Stockholders shall
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not (x) issue any press release or otherwise make any public statements (other
than statements made in response to any request by any Person for confirmation
by the Principal Stockholders or any of their Affiliates of information
contained in any statement on Schedule 13D under the Exchange Act) with respect
to such action (provided that the Principal Stockholders may, and may permit
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their Affiliates to, make any statement required by applicable law, including
without limitation, the amendment of any statement on Schedule 13D under the
Exchange Act); provided, however, that in doing so the Principal Stockholders
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shall not provide any confidential information relating to the Company or its
business to any such Person, and; provided, further, that nothing in this
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Section 3.03(f), shall apply to discussions between or among officers, employees
or agents of the Principal Stockholders and Baker.
(g) Assist, advise, encourage or influence in any respect any third
party to seek to control management of the Company including, without limitation
assisting such third party in (i) influencing the Board or the management or
policies of the Company or (ii) acquiring, holding, voting or disposing of
voting securities of the Company.
(h) Take any other action to seek control of the Company.
(i) Make or in any way advance any request or proposal to amend,
modify or waive any provision of this Agreement except in a nonpublic and
confidential manner.
(j) Announce an intention to do, or solicit, assist, prompt, induce or
attempt to induce any Person to do, any of the actions restricted or prohibited
under subparagraphs (a) through (i) above.
Notwithstanding the restrictions contained in this Section 3.03, none
of the actions taken by Baker as a member of the Board pursuant to her
responsibilities in such capacity or the exercise by any Holder of its voting
rights with respect to any Stockholder Shares shall be deemed to violate this
Section 3.03.
SECTION 3.04. Additional Shares. All shares of Company Common
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Stock acquired by a Holder pursuant to this Article III or as a result of a
recapitalization of the Company or any other action taken by the Company, shall
be subject to all of the terms, covenants and conditions of this Agreement.
ARTICLE IV
Miscellaneous
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SECTION 4.01. Interpretation. (a) The headings contained in this
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Agreement and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
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(b) In the event of an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
(c) The definitions of the terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include the Person's successors and
permitted assigns, (iii) the words "herein", "hereof" and "hereunder", and words
of similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, and (iv) all references herein to
Articles and Sections shall be construed to refer to Articles and Sections of
this Agreement.
SECTION 4.02. Amendments. No amendment, modification or waiver in
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respect of this Agreement shall be effective unless it shall be in writing and
signed by all parties hereto.
SECTION 4.03. Assignment. Except where otherwise expressly
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provided herein, this Agreement and the rights and obligations hereunder shall
not be assignable or transferable by the parties hereto (except by operation of
law in connection with a merger, or sale of substantially all the assets, of the
parties hereto) without the prior written consent of the other parties hereto;
provided, however, that the Principal Stockholders may assign their rights and
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obligations hereunder to a Permitted Transferee. Any attempted assignment in
violation of this Section 4.03 shall be void.
SECTION 4.04. No Third-Party Beneficiaries. This Agreement is for
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the sole benefit of the parties hereto and their permitted assigns and nothing
herein expressed or implied shall give or be construed to give to any Person,
other than the parties hereto and such assigns, any legal or equitable rights
hereunder.
SECTION 4.05. Notices. All notices or other communications
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required or permitted to be given hereunder shall be in writing and shall be
delivered by hand or sent by prepaid telex, cable or telecopy or sent, postage
prepaid, by registered, certified or express mail or reputable overnight courier
service and shall be deemed given when so delivered by hand, telexed, cabled or
transmitted via facsimile, receipt telephonically confirmed, or if mailed, five
days after mailing (two Business Days in the case of express mail or overnight
courier service), as follows:
(i) if to the Company:
Lernout & Hauspie Speech Products N.V.
Flanders Language Valley 50
B-8900 Ieper
Belgium
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Attention: General Counsel and Chief Financial Officer
Telephone: 011 32 57 228 888
Facsimile: 011 32 57 208 489
with a copy to:
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, MA 02111
Attention: Philip J. Flink
Telephone: (617) 826-8200
(ii) if to the L&H Control Group
c/o Lernout & Hauspie Speech Products N.V.
Flanders Language Valley 50
B-8900 Ieper
Belgium
Attention: Chantal Mestdagh
Telephone: 011 32 57 228 888
Facsimile: 011 32 57 208 489
with a copy to:
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, MA 02111
Attention: Philip J. Flink
Telephone: (617) 826-8200
(iii) if to the LLCs or the Principal Stockholders:
Janet M. Baker
173 Highland Street
West Newton, MA 02465
Seagate Technology, Inc.
920 Disc Drive
Scotts Valley, CA 05006
Attention: Donald Waite
with a copy to:
Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attention: Sarah Rothermel
Telephone: (617) 526-6000
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SECTION 4.06. Counterparts. This Agreement may be executed in one
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or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other party. Copies of
executed counterparts transmitted by telecopy, telefax or other electronic
transmission service shall be considered original executed counterparts for
purposes of this Section 4.06; provided that receipt of copies of such
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counterparts is confirmed.
SECTION 4.07. Severability. If any provision of this Agreement (or
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any portion thereof) or the application of any such provision (or any portion
thereof) to any Person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof (or the remaining portion thereof) or the application of such provision
to any other Persons or circumstances.
SECTION 4.08. Consent to Jurisdiction. Each of the parties hereto
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irrevocably submits to the exclusive jurisdiction of (a) the Federal courts of
the United States of America for the District of Massachusetts and (b) the state
courts of the Commonwealth of Massachusetts located in the County of Suffolk,
for the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby. Each of the parties hereto
agrees to commence any action, suit or proceeding relating hereto either in a
Federal court of the United States of America for the District of Massachusetts
or in a state court of the Commonwealth of Massachusetts located in the County
of Suffolk. The Company and the L&H Control Group further agrees that service
of any process, summons, notice or document by U.S. registered mail to the
offices of Brown Rudnick Freed & Gesmer, P.C., One Financial Center, Boston, MA
02111, Attention: Philip J. Flink, shall be effective service of process for any
action, suit or proceeding in Massachusetts with respect to any matters to which
it has submitted to jurisdiction in this Section 4.08. Each of the parties
hereto irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (i) any Federal court of the United States
of America for the District of Massachusetts or (ii) any state court of the
Commonwealth of Massachusetts located in the County of Suffolk, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
SECTION 4.09. Termination. This Agreement shall expire on the
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first anniversary hereof except that the provisions of Article II shall
terminate on the date on which Baker (i) no longer serves as a director of the
Company (after she has been elected to serve on such Board) and (ii) no longer
has the right to require the L&H Control Group to vote the L&H Shares to elect
Baker to the Board pursuant to Article II hereof.
SECTION 4.10. Specific Performance. The parties hereto agree that
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irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
SECTION 4.11. Governing Law. Subject to the mandatory requirements
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of the internal laws of the Kingdom of Belgium, this Agreement shall be governed
by and construed in accordance
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with the internal laws of the Commonwealth of Massachusetts without regard to
the conflicts of law principles thereof.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
LERNOUT & HAUSPIE SPEECH PRODUCTS N.V.
By: /s/ Jo Lernout
-----------------------------
Name: Jo Lernout
Title: Managing Director
By: /s/ Pol Hauspie
-------------------------------
Name: Pol Hauspie
Title: Managing Director
JKBAKER LLC
By: /s/ James K. Baker
--------------------------------
Name: James K. Baker
Title:
JMBAKER LLC
By: /s/ Janet M. Baker
---------------------------------
Name: Janet M. Baker
Title:
SEAGATE LLC
By:/s/ Donald L. Waite
------------------------------------
Name: Donald L. Waite
Title:
14
ROTH SPECIAL LLC
By:/s/ Robert Roth
------------------------------------
Name: Robert Roth
Title:
CFB GILBERT LLC
By: /s/ Cherry F. Bamberg
-----------------------------------
Name: Cherry F. Bamberg
Title: Member
RGB RUMPOLE LLC
By: /s/ Paul G. Bamberg
-------------------------------------
Name: Paul G. Bamberg
Title: Member
PRINCIPAL STOCKHOLDERS:
/s/ James K. Baker
-------------------------------------------
James K. Baker
/s/ Janet K. Baker
-------------------------------------------
Janet M. Baker
/s/ Robert Roth
-------------------------------------------
Robert Roth
SEAGATE TECHNOLOGY, INC.
By: /s/ Donald L. Waite
-------------------------------------------
Donald L. Waite
Executive Vice President
15
PAUL G. BAMBERG AND DONALD B. FLETCHER, JR. AS
TRUSTEES OF THE PAUL G. BAMBERG TRUST U/A DATED
8/18/89, AS AMENDED 10/20/93
By: /s/ Paul G. Bamberg
---------------------------------------
Paul G. Bamberg
LERNOUT & HAUSPIE SPEECH PRODUCTS N.V.
By: /s/ Donald B. Fletcher, Jr.
--------------------------------------
Donald B. Fletcher, Jr.
CHERRY F. BAMBERG AND DONALD B. FLETCHER, JR. AS
TRUSTEES OF THE CHERRY F. BAMBERG TRUST U/A DATED
8/18/89, AS AMENDED 10/20/93
By: /s/ Cherry F. Bamberg
----------------------------------
Cherry F. Bamberg
By: /s/ Donald B. Fletcher, Jr.
-----------------------------------
Donald B. Fletcher, Jr.
LEHA
By: /s/ Jo Lernout
-----------------------------------
Name: Jo Lernout
Title: Director
By: /s/ Pol Hauspie
-----------------------------------
Name: Pol Hauspie
Title: Director
16
L&H HOLDING N.V.
By: /s/ Jo Lernout
-----------------------------------
Name: Jo Lernout
Title: Managing Director
By: /s/ Pol Hauspie
-----------------------------------
Name: Pol Hauspie
Title: Managing Director
L&H HOLDING III
By: /s/ Jo Lernout
-----------------------------------
Name: Jo Lernout
Title: Director
By: /s/ Norbert Schmitz
-----------------------------------
Name: Norbert Schmitz
Title: Managing Director
OLDCO N.V.
By: /s/ Jo Lernout
-----------------------------------
Name: Jo Lernout
Title: Managing Director, N.V. Lernout &
Hauspie Investment Holding, Liquidator
of Oldco, N.V.
L&H INVESTMENT COMPANY
By: /s/ Jo Lernout
-----------------------------------
Name: Jo Lernout
Title: Co-Chairman
By: /s/ Chantal Mestdaghdude
-----------------------------------
Name: Chantal Mestdaghdude
Title: Director
17