Exhibit 4.1
AGREEMENT AMONG STOCKHOLDERS
This Agreement Among Stockholders (this "Agreement"), dated December 8,
2000, is by and among Emergisoft Holding, Inc., a Delaware corporation (the
"Company"), Woodcrest Capital L.L.C., a Texas limited liability company
("Woodcrest"), and Berlwood V, L.P. ("Berlwood").
WHEREAS, Woodcrest is a holder of shares of the Company's common stock, par
value $.001 per share (the "Common Stock"); and
WHEREAS, the Company and Berlwood are parties to a Common Stock Purchase
Agreement, dated December 8, 2000 (the "Purchase Agreement"), pursuant to which
Berlwood intends to make a significant investment in the Company and to also
become a holder of shares of the Company's common stock; and
WHEREAS, it is a condition to closing of the transaction covered by the
Purchase Agreement that this Agreement be executed and delivered by the Company,
Woodcrest and Berlwood;.
NOW, THEREFORE, in consideration of the promises, the parties hereto agree
as follows:
1. Board Representation of Woodcrest.
(a) The Company, subject to its fiduciary duties under applicable state
law, and Berlwood agree and acknowledge that Woodcrest and/or its Permitted
Transferees (defined below) shall have the right, exercisable at any time and
acting alone (or, if more than one, in concert with each other), to elect one
member of the Board of Directors of the Company, until such time (the "Woodcrest
Termination Date") as Woodcrest and/or its Permitted Transferees hold less than
a five percent (5%) interest in the issued and outstanding Common Stock. Any
director elected by Woodcrest and/or its Permitted Transferees pursuant to this
Section 1 may be removed only by Woodcrest and/or its Permitted Transferees, as
applicable, and any vacancy resulting from the resignation, removal or death of
any director elected by Woodcrest and/or its Permitted Transferees may be filled
only by Woodcrest and/or its Permitted Transferees, and neither the Company nor
Berlwood shall take any action to remove any such director or fill any such
vacancy.
(b) In order to facilitate the rights of Woodcrest and/or its Permitted
Transferees set forth in paragraph (a) of this Section 1, Berlwood hereby grants
to Woodcrest its proxy, which (being coupled with an interest) shall be
irrevocable, to take any of the following actions, either by written consent or
at a meeting of the Company's stockholders: (i) to elect the one director that
Woodcrest and/or its Permitted Transferees are entitled to elect pursuant to
paragraph (a) of this Section 1; (ii) to remove a director elected by Woodcrest
and/or its Permitted Transferees; and (iii) to fill any vacancy on the Board of
Directors resulting from the removal, resignation or death of a director elected
by Woodcrest and/or its Permitted Transferees. The proxy granted hereby shall
terminate upon the Woodcrest Termination Date.
2. Board Representation of Berlwood.
(a) The Company, subject to its fiduciary duties under applicable state
law, and Woodcrest agree and acknowledge that Berlwood and/or its Permitted
Transferees shall have the right, exercisable at any time and acting alone (or,
if more than one, in concert with each other), to elect one member of the Board
of Directors of the Company, until such time (the "Berlwood Termination Date")
as
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Berlwood and/or its Permitted Transferees hold less than a five percent (5%)
interest in the issued and outstanding Common Stock. Any director elected by
Berlwood and/or its Permitted Transferees pursuant to this Section 2 may be
removed only by Berlwood and/or its Permitted Transferees, and any vacancy
resulting from the resignation, removal or death of any director elected by
Berlwood and/or its Permitted Transferees may be filled only by Berlwood and/or
its Permitted Transferees, and neither the Company nor Woodcrest shall take any
action to remove any such director or fill any such vacancy.
(b) It is the intent of the Company to elect Mr. Jason Sear as the Berlwood
representative at the December 8, 2000, Board of Directors' Meeting. In the
event the Company does not elect Mr. Sear, Purchaser has the right to rescind
the transaction.
(c) In order to facilitate the rights of Berlwood and/or its Permitted
Transferees set forth in paragraph (a) of this Section 1, Woodcrest hereby
grants to Berlwood its proxy, which (being coupled with an interest) shall be
irrevocable, to take any of the following actions, either by written consent or
at a meeting of the Company's stockholders: (i) to elect the one director that
Berlwood and/or its Permitted Transferees are entitled to elect pursuant to
paragraph (a) of this Section 2; (ii) to remove a director elected by Berlwood
and/or its Permitted Transferees; and (iii) to fill any vacancy on the Board of
Directors resulting from the removal, resignation or death of a director elected
by Berlwood and/or its Permitted Transferees. The proxy granted hereby shall
terminate upon the Berlwood Termination Date.
3. Miscellaneous.
(a) This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto, except that no transferee of
Common Stock from Berlwood and/or Woodcrest and/or its Permitted Transferees
(except Permitted Transferees) shall have any rights or obligations hereunder
and no transferee (except Permitted Transferees) of Common Stock from any party
shall have any rights or obligations under Section 1 or 2. It is expressly
acknowledged and agreed by the parties that in the event of a merger involving
the Company in which the Company is not the survivor, the provisions of this
Agreement shall continue in effect and be binding on the Company's successor and
upon Woodcrest, Berlwood and their Permitted Transferees, with references herein
to the Company becoming references to such successor and with references herein
to Common Stock becoming references to the securities of the Company's
successor.
(b) Each of the parties hereto acknowledges and agrees that the other
parties would be damaged irreparably in the event any of the provisions of this
Agreement are not performed in accordance with their specific terms or otherwise
are breached. Accordingly, each of the parties agrees that the other parties
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any court of the United
States or any state thereof having jurisdiction over the parties and the matter
in addition to any other remedy to which it may be entitled, at law or in
equity, and if any action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
(c) This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Agreement.
(d) The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
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(e) The laws of the State of Texas shall govern this Agreement
without regard to principles of conflict of laws.
(f) Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting or impairing the validity or enforceability of
such provision in any other jurisdiction.
(g) All notices and other communications provided for or permitted
hereunder shall be made in writing by telecopy, courier service or personal
delivery at the respective addresses of the parties as shown below or to such
other address as any such party may designate by notice in the manner provided
above. All notices and other communications to a Permitted Transferee will be
given to such party and to such address as Berlwood and/or Woodcrest, as
applicable, shall have notified all other parties hereto in writing. All such
notices shall be deemed to have been delivered and received at the time
delivered by hand, if personally delivered, when receipt acknowledged, if
telecopied, and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
(h) The obligations of the parties to this Agreement are several and not
joint, and no party shall be liable for a breach by any other party of such
other party's obligations hereunder.
(i) This Agreement may be amended only by means of a written amendment
signed by all of the parties hereto.
(j) All references in this Agreement to shares of Common Stock shall apply
to such shares as adjusted to take into account subdivisions, distributions,
reclassifications, and stock splits, dividends or combinations.
(k) As used in this Agreement the term "Permitted Transferee" shall mean
(i) an Affiliate (defined below) of Berlwood and/or Woodcrest, as applicable, to
which Berlwood and/or Woodcrest or another of its Affiliates, as applicable,
shall have transferred all or any portion of shares of Common Stock held by each
of Berlwood and/or Woodcrest, as applicable, on the date of this Agreement, and
(ii) any transferee from Berlwood and/or Woodcrest of all or any portion of such
shares by operation of law or judicial decree. For purposes of this Agreement,
"Affiliate," when used to refer to Affiliates of Berlwood and/or Woodcrest, as
applicable, shall exclude the Company and its Affiliates. As used herein
"Affiliate" of any person means any other person directly or indirectly
controlling, controlled by or under direct or indirect common control with such
person and, in the case of an individual, his descendants or trusts established
and existing for the benefit of his descendants. For purposes of this definition
"control" when used with respect to any person, means the power to direct the
management and policies of such person, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have correlative meanings.
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Executed effective as of the date first written above.
EMERGISOFT HOLDING, INC.
By: /s/ Dan Witte
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Name: Dan Witte
Title: Chief Operating Officer/Chief Financial
Officer
WOODCREST CAPITAL L.L.C.
By: /s/ Douglas K. Miller
---------------------------------
Name: Douglas K. Miller
Title: Manager
BERLWOOD V, L.P.
By: BERLWOOD III, L.P.,
Its General Partner
By: /s/ Linda Thomas
---------------------------------
Name: Linda Thomas
Title: Manager
4. Number of Directors. Woodcrest and Berlwood shall at all times cause the
number of members of the Company's whole Board of Directors to be no greater
than nine.
/s/ Dan Witte
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/s/ Douglas K. Miller
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