Stockholders Agreement among Brokat Aktiengesellschaft and Certain Stockholders of Blaze Software, Inc. (June 19, 2000)

Summary

This agreement is between Brokat Aktiengesellschaft (the Parent) and certain stockholders of Blaze Software, Inc. It requires the stockholders to vote their shares in favor of a proposed merger between Blaze Software and Brokat, and not to take actions that would oppose or interfere with the merger. The agreement also grants Brokat an irrevocable proxy to vote the stockholders’ shares in support of the merger. The stockholders confirm they have received all relevant documents and information about the merger and agree not to enter into conflicting voting agreements.

EX-2.2 3 0003.txt STOCKHOLDERS AGREEMENT EXHIBIT 2.2 STOCKHOLDERS AGREEMENT STOCKHOLDERS AGREEMENT, dated as of June 19, 2000 (this "Agreement"), among --------- BROKAT Aktiengesellschaft, a German corporation which is in the process of changing its name from BROKAT Infosystems Aktiengesellschaft (the "Parent"), and ------ certain stockholders of Blaze Software, Inc., a Delaware corporation (the "Company"), which are parties hereto (each, a "Stockholder" and, collectively, ------- ----------- the "Stockholders"). Capitalized terms used without definition herein have the ------------ meanings assigned to them in the Merger Agreement (as hereinafter defined). WITNESSETH: WHEREAS, the Parent and the Company are, concurrently with the execution and delivery of this Agreement, entering into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger Agreement"), pursuant to which the ---------------- Parent and the Company intend to combine their businesses by merging Merger Sub with and into the Company and making the Company a wholly owned subsidiary of the Parent (the "Merger"); ------ WHEREAS, as of the date hereof, each Stockholder is the record and beneficial owner of the number of shares of common stock, par value $0.0001 per share, of the Company ("Company Common Stock"), the options and rights to -------------------- purchase the Company Common Stock and any other shares of voting capital stock of the Company, in each case, as set forth on Schedule A attached hereto (with ---------- respect to each Stockholder, such Stockholder's "Existing Shares" and, together --------------- with any shares of the Company Common Stock or other voting capital stock of the Company acquired after the date hereof, whether upon the exercise of warrants, options, conversion of convertible securities or otherwise, such Stockholder's "Shares"); ------ WHEREAS, pursuant to the Merger Agreement, each Stockholder is entitled to receive, at the Effective Time of the Merger, American Depositary Shares ("Parent ADSs") representing shares of the Parent ("Parent Shares") (such Parent ----------- ------------- Shares and Parent ADSs, together with any Parent Shares or Parent ADSs acquired upon the exercise of any warrants or options or upon the conversion of convertible securities acquired prior to the Effective Time, whether or not such exercise or conversion occurred prior to the Effective Time, the "Parent ------ Securities"). - ---------- WHEREAS, approval of the stockholders of the Company is necessary to consummate the Merger; and WHEREAS, as an inducement and a condition to entering into the Merger Agreement, the Parent has required that each Stockholder agree, and each Stockholder has agreed, to enter into this Agreement, pursuant to which, among other things, such 1 Stockholder agrees to vote all of its Shares to approve the Merger, upon the terms and subject to the conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto agree as follows: ARTICLE I VOTING 1.1 Agreement to Vote. Each Stockholder hereby agrees that it shall, and shall cause the holder of record on any applicable record date to, from time to time, at the request of the Parent, at any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company, however called, (a) if a meeting is held, appear at such meeting or otherwise cause the Shares to be counted as present thereat for purposes of establishing a quorum, and (b) vote or consent (or cause to be voted or consented), in person or by proxy, all Shares, and any other voting securities of the Company (whether acquired heretofore or hereafter) that are beneficially owned or held of record by such Stockholder or as to which such Stockholder has, directly or indirectly, the right to vote or direct the voting, in favor of the approval and adoption of, and against any action or agreement that would compete, impede or interfere with the approval and adoption of, the Merger Agreement, the Merger and any action required in furtherance thereof. 1.2 Agreement to Vote. Each Stockholder hereby agrees that it will not, nor will it permit any entity under its control to, (a) solicit proxies or become a "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act")) in opposition to or in competition with the consummation of the ------------ Merger and the other transactions contemplated by the Merger Agreement or otherwise encourage or assist any party in taking or planning any action which would compete with or otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, (b) directly or indirectly encourage, initiate or cooperate in a shareholders' vote or action by consent of the Company's stockholders in opposition to or in competition with the consummation of the Merger or (c) become a member of a "group" (as such term is used in Section 13(d) of the Exchange Act) with respect to any voting securities of the Company for purposes of opposing or competing with the consummation of the Merger. 1.3 Grant of Proxy. In furtherance and not in limitation of the foregoing, each Stockholder hereby grants to, and appoints, the Parent and each of Messrs. Stefan Rover and Andreas Kinsky, in their respective capacities as officers of the Parent, and any 2 individual who shall hereafter succeed any such officer of the Parent, and any other designee of the Parent, each of them individually, its irrevocable proxy and attorney-in-fact (with full power of substitution and resubstitution) to vote the Shares as indicated in this Article I. Each Stockholder intends this proxy to be irrevocable and coupled with an interest and will take such further action and execute such other instruments as may be necessary to effectuate the intent of this proxy. Each Stockholder hereby revokes any and all previous proxies with respect to such Stockholder's Shares or any other voting securities of the Company that relate to the approval of the Merger Agreement. 1.4 No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in the Parent any direct or indirect ownership or incidence of ownership of or with respect to any Shares. All rights, ownership and economic benefits of and relating to the Shares shall remain vested in and belong to the Stockholders, and the Parent shall have no authority to manage, direct, superintend, restrict, regulate, govern, or administer any of the policies or operations of the Company or exercise any power or authority to direct the Stockholders in the voting of any of the Shares, except as otherwise provided herein, or in the performance of the Stockholders' duties or responsibilities as stockholders of the Company. 1.5 Evaluation of Investment. Each Stockholder, by reason of its knowledge and experience in financial and business matters, believes itself capable of evaluating the merits and risks of the investment in the Parent ADSs and the Parent Shares underlying such Parent ADSs as contemplated by the Merger Agreement. 1.6 Documents Delivered. Each Stockholder acknowledges receipt of copies of the Merger Agreement and all exhibits and schedules thereto. Each Stockholder also acknowledges that such Stockholder possesses all the information relating to the Company and the Parent which such Stockholder deems relevant or material to such Stockholder's investment in the Parent ADSs and the underlying Parent Common Stock should the Merger be consummated and to its entering into this Agreement. 1.7 No Inconsistent Voting Agreements. Each Stockholder hereby covenants and agrees that, except as contemplated by this Agreement and the Merger Agreement, the Stockholder (a) has not entered, and shall not enter at any time while this Agreement remains in effect, into any voting agreement or voting trust with respect to the Shares and (b) has not granted, and shall not grant at any time while this Agreement remains in effect, a proxy or power of attorney with respect to the Shares, in either case, which is inconsistent with such Stockholder's obligations pursuant to this Agreement. 3 ARTICLE II REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER Each Stockholder hereby, severally and not jointly, represents and warrants to the Parent as follows: 2.1 Authorization; Validity of Agreement; Necessary Action. Such Stockholder has full power and authority to execute and deliver this Agreement, to perform such Stockholder's obligations hereunder and to consummate the transactions contemplated hereby. In the case of any Stockholder that is not a natural person, the execution, delivery and performance by such Stockholder of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly authorized by such Stockholder and no other actions or proceedings on the part of such Stockholder are necessary to authorize the execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Stockholder, and, assuming this Agreement constitutes a valid and binding obligation of the Parent, constitutes a valid and binding obligation of such Stockholder, enforceable against it in accordance with its terms. 2.2 Consents and Approval; No Violations. None of the execution, delivery or performance of this Agreement by such Stockholder nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the provisions hereof will (i) require any filing, registration or declaration with, or consent, approval, order, or authorization of, any Governmental Entity, (ii) result in a violation or breach of, or constitute a default under, any contract, agreement or other instrument or obligation to which such Stockholder is a party or (iii) violate any judgment, permit, order, decree, statute, ordinance, law, rule or regulation applicable to it or any of its properties or assets. 2.3 Shares. Such Stockholder's Existing Shares are, and all of its Shares from the date hereof through and on the Closing Date will be, owned beneficially and of record by such Stockholder (subject to any dispositions of Shares permitted by Section 3.1(a)). As of the date hereof, such Stockholder's Existing Shares constitute all of the shares of the Company Common Stock owned of record or beneficially by such Stockholder. All of such Stockholder's Existing Shares are issued and outstanding, and, except as set forth on Schedule A hereto, such ---------- Stockholder does not own, of record or beneficially, any warrants, options or other rights to acquire any shares of the Company Common Stock or any other capital stock of the Company. Such Stockholder has sole voting power, sole power of disposition, sole power to issue instructions with respect to the matters set forth in Article I, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Stockholder's Existing Shares, and will have sole voting power, sole power of disposition, sole power to issue instructions with respect to the matters set forth in Article I, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Stockholder's Shares on the 4 record date for and actual date of the Company Shareholders Meeting (subject to any dispositions of Shares permitted by Section 3.1(a)), with no limitations, qualifications or restrictions on such rights, subject to applicable federal securities laws and the terms of this Agreement. Such Stockholder has good and marketable title to its Existing Shares and at all times during the term hereof and at the Effective Time will have good and marketable title to its Shares. ARTICLE III COVENANTS 3.1 Limitations on Transfer of Shares Prior to Effective Time. (a) Each Stockholder, severally and not jointly, hereby agrees not to take any of the following actions while Article I of this Agreement is in effect, except in accordance with subsection (b) of this Section 3.1: (i) tender any of such Stockholder's Shares or any securities convertible into or exchangeable or exercisable for such Stockholder's Shares to any person, other than the Exchange Agent, the Parent or the Merger Sub; (ii) sell, transfer, pledge, encumber, assign or otherwise dispose of any of such Stockholder's Shares or any securities convertible into or exchangeable or exercisable for such Stockholder's Shares, other than to the Exchange Agent, the Parent or the Merger Sub; (iii) enforce or permit the execution of the provisions of any redemption, share purchase or sale, recapitalization or other agreement with the Company; or (iv) enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, sale, transfer, pledge, encumbrance, assignment or other disposition of, any of its Shares, any securities convertible into or exchangeable or exercisable for Company Common Stock, any other capital stock of the Company or any interest in any of the foregoing with any person, other than the Exchange Agent, the Parent or Merger Sub. (b) Notwithstanding subsection (a) above, a Stockholder may take an action described in subsection (a) if (i) the Parent gives its prior written consent to such action or (ii) the proposed transferee agrees in writing, in an instrument reasonably acceptable to the Parent, to be bound by this Agreement as a Stockholder and grants with respect to any Shares so proposed to be acquired the proxy described in Section 1.3 of this Agreement, and such transfer is consummated at least thirty (30) days prior to the Effective Time. 5 (c) No Stockholder shall request that the Company or its transfer agent register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of such Stockholder's Shares, and each Stockholder hereby consents to the entry of stop transfer instructions by the Company of any transfer of such Stockholder's Shares, unless such transfer is made in compliance with this Agreement. (d) In the event of a stock dividend or distribution, or any change in Company Common Stock by reason of any stock dividend or distribution, or any change, in Company Common Stock by reason of any stock dividend, split-up, recapitalization, combination, exchange of shares or the like, the term "Shares" shall be deemed to refer to and include the Shares as well as all such stock dividends and distributions and any securities into which or for which any or all of the Shares may be changed or exchanged or which are received in such transaction. (e) Each Stockholder agrees not to, and agrees not to authorize or permit any affiliate, director, officer, employee, or any investment banker, attorney or other advisor, agent or representative of such Stockholder (collectively, the "Representatives") to, directly or indirectly, (i) initiate, solicit, encourage --------------- or knowingly facilitate, or take any action to initiate, solicit, encourage or knowingly facilitate, any inquiries or communications or the making of any proposal or offer that constitutes or may constitute an Acquisition Proposal, or (ii) have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal, or engage in any negotiations concerning an Acquisition Proposal or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal. Each Stockholder agrees that it will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date hereof with any parties conducted heretofore with respect to any Acquisition Proposal. Nothing in this Section 3.1(e) is intended to prevent the Company from taking any action that is expressly permitted pursuant to Section 5.7 of the Merger Agreement. 3.2 Limitations on Transfer of Parent Securities After Effective Time. (a) Restrictions on Natural Persons. During (x) the six (6) month period following the Effective Time and (y) the period specified by the Parent and the managing underwriter in connection with any underwritten U.S. public offering of Parent ADSs or other equity securities of the Parent (such period not to extend more than 14 days prior to the reasonably expected date on which securities will be issued and sold pursuant to such offering (the "closing") or beyond 90 days after the actual closing of such offering), each Stockholder who is a natural person, severally and not jointly, hereby agrees not to take any of the following actions: (i) sell, transfer, distribute, pledge, encumber, assign or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Parent Securities; 6 (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of any Parent Securities; or (iii) deposit any Parent Securities into a facility for Parent ADSs or withdraw any Parent ADSs from any such facility; whether, in the case of clause (i) or (ii) above, any such transaction is to be settled by delivery of Parent Securities or other securities, in cash or otherwise. Any transaction referred to in clause (i), (ii) or (iii) is hereinafter referred to as a "Transfer." -------- (b) Restrictions on Other Stockholders. Each Stockholder that is not a natural person, severally and not jointly, hereby agrees not to: (i) Transfer any Parent Securities in violation of Rule 145, deeming (for purposes of this covenant) such Stockholder to be an "affiliate" of the Company for purposes of such Rules; (ii) Transfer any Parent Securities for a period of 60 calendar days following the Effective Time without the prior written consent of the Parent; (iii) following such 60 calendar day period, Transfer, in any 90 day period, (x) Parent ADSs in excess of the average weekly reported volume of trading in such securities reported through the Nasdaq Stock Market during the preceding four calendar weeks, or (y) Parent Shares in excess of the greater of one percent of the total number of such Parent Shares outstanding and the average weekly reported volume of trading in such securities reported through the Neuer Markt during the preceding four calendar weeks, except that such Stockholder may (subject to clauses (i), (iv) and (v)) distribute Parent Securities to its own securityholders without regard to such volume limitations; (iv) if the Parent notifies Stockholder prior to the expiration of the 60 calendar day period referred to above that it has filed a Registration Statement with the Securities and Exchange Commission with respect to a primary offering of shares for cash, Transfer any Parent Securities for a period of up to 45 days from the date of such filing (while preparation for such offering continues) to the "pricing" of such offering (which period may be followed by the period contemplated by clause (v)); or (v) Transfer any Parent Securities during the period specified by the Parent and the managing underwriter in connection with any underwritten U.S. public offering of Parent ADSs or other equity securities of the Parent requested from large or "inside" holders generally (such period not to extend more than 14 days prior to the reasonably expected closing date for such offering or beyond 90 days after the actual closing of such 7 offering); provided that not more than one such "market stand-off" period shall be imposed upon the Stockholders in any twelve-month period. (c) Share Legends. Each Stockholder consents to the imprinting of a legend on certificates representing Parent Shares or American Depositary Receipts representing Parent ADSs of legends reflecting the restrictions set forth in this Section 4.2. 3.3 Incidental or "Piggy-Back" Offering. (a) During the term of this Agreement, if the Parent proposes to commence an underwritten public offering in the United States of Parent Shares or the Parent ADSs that is registered with the U.S. Securities and Exchange Commission (other than on a Form S-8, S-4 or F-4, or successor form), for the account of any securityholder of the Parent, then the Parent shall give written notice of such proposed offering to each of the Stockholders at least twenty (20) days before the anticipated commencement of such offering, and such notice shall describe the proposed distribution and offer such Stockholders the opportunity to offer the number of Parent Shares or Parent ADSs as each such Stockholder may request (an "Incidental Offering"). The Parent shall use commercially reasonable efforts (within twenty (20) days of the notice provided for in the preceding sentence) to cause the managing underwriter or underwriters to permit each of the Stockholders who have requested in writing to participate in the Incidental Offering to include its or his Parent Shares or Parent ADSs in such secondary underwritten offering on the same terms and conditions as the securities of such other stockholder. The Parent shall not be required to include any such Parent Shares or Parent ADSs in such secondary underwritten offering unless the Stockholder thereof accepts the terms of the underwritten offering as agreed upon between the Parent and the managing underwriter or underwriters, and then only in such quantity as the managing underwriter or underwriters believe will not jeopardize the success of the offering by the Parent. If the managing underwriter or underwriters determine that the inclusion of all or part of the Parent Shares or Parent ADSs which the Stockholders have requested to be included would materially adversely affect the success of such offering, then the Parent shall be required to include in such Incidental Offering, to the extent of the amount that the managing underwriter or underwriters believe may be sold without causing such adverse effect, first, ----- all of the securities to be offered for the account of the Parent (if any); and second, the Parent Shares or Parent ADSs to be offered for the account of the - ------ Stockholders pursuant to this Section 3.3 and any other securities requested to be included in such secondary offering, pro rata based on the number of Parent Shares or Parent ADSs owned by each such stockholder. (b) The Parent shall bear all expenses in connection with any Incidental Offering pursuant to this Section 3.3 (except for underwriter commissions or discounts to be shared on a pro rata basis based on the number of securities offered by each person). 8 ARTICLE IV MISCELLANEOUS 4.1 Termination. This Agreement shall terminate and no party shall have any rights or duties hereunder if the Merger Agreement terminates pursuant to Section 7.1 thereof. In addition, the Stockholders' obligations under Article I and Section 3.1 shall terminate at the Effective Time. The obligations under Sections 3.2 and 3.3 shall survive the Effective time and terminate on the second anniversary of the Effective Date. Nothing in this Section 4.1 shall relieve or otherwise limit any party of liability for breach of this Agreement. 4.2 Further Assurances. From time to time, at the other party's request and without further consideration, each party hereto shall execute and deliver such additional documents and take all such further action as may be necessary or desirable to consummate the transactions contemplated by the Merger Agreement and this Agreement. 4.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or by telecopy or facsimile, upon confirmation of receipt, (b) on the third business day following the date of dispatch if delivered by a recognized next-day courier service, or (c) on the tenth business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (a) if to the Parent to: BROKAT AG Industriestrasse 3 70565 Stuttgart, Germany Fax:+49-711-788-44-784 Attn: Hans-Peter Berger, Esq. with a copy to: Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019-6064, U.S.A. Fax: (212) 373-2042 Attn: David K. Lakhdhir, Esq. 9 (b) if to a Stockholder, as provided on the signature page hereof, with a copy to: Wilson Sonsini Goodrich & Rosati 650 Page Mill Road Palo Alto, California ###-###-####, U.S.A. Fax: (650) 845-5000 Attn: Larry Sonsini, Esq. 4.4 Interpretation. When a reference is made in this Agreement to Sections, Exhibits or Schedules, such reference shall be to a Section of, or Exhibit or Schedule to, this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." 4.5 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that both parties need not sign the same counterpart. 4.6 Entire Agreement; No Third Party Beneficiaries. (a) This Agreement and the other agreements of the parties referred to herein constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. (b) This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. 4.7 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware (without giving effect to choice of law principles thereof). 4.8 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the 10 parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. 4.9 Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. 4.10 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto, in whole or in part (whether by operation of law or otherwise), without the prior written consent of the other party, and any attempt to make any such assignment without such consent shall be null and void, except that the Parent may assign, in its sole discretion, any or all of its rights, interests and obligations under this Agreement to any direct wholly owned Subsidiary of the Parent or the Exchange Agent without the consent of any Stockholder, but no such assignment shall relieve the Parent of any of its obligations under this Agreement. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Without limiting the generality of the foregoing, the rights under Section 4.3 shall not be assignable to any other person, including any purchaser or other transferee of Parent Shares or Parent ADSs. 4.11 Submission to Jurisdiction; Waivers. Each of the Parent and the Stockholders irrevocably agrees that any legal action or proceeding with respect to this Agreement or for recognition and enforcement of any judgment in respect hereof brought by the other party hereto or its successors or assigns may be brought and determined in the Chancery or other Courts of the State of Delaware, and each of the Parent and the Stockholders hereby irrevocably submits with regard to any such action or proceeding for itself and in respect to its property, generally and unconditionally, to the nonexclusive jurisdiction of the aforesaid courts. Each of the Parent and the Stockholders hereby irrevocably waives, and agrees not to assert, by way of motion, 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 lawfully serve process, (b) 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, that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper and (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. 4.12 Specific Performance. Each of the parties hereto acknowledge that it will be impossible to measure in money the damage to the other parties if a party hereto fails to comply with any of the obligations imposed by this Agreement, that every 11 such obligation is material and that, in the event of any such failure, the other parties will not have an adequate remedy at law or damages. Accordingly, each party hereto agrees that injunctive relief of other equitable remedy, in addition to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose the granting of such relief on the basis that the other parties have an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with any other party's seeking or obtaining such equitable relief. 4.13 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the part of any party hereto in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All rights and remedies existing under this Agreement are cumulative to, and not exclusive to, and not exclusive of, any rights or remedies otherwise available. 4.14 Attorney's Fees. In any action or proceeding brought to enforce any provision of this Agreement or where any provision hereof is validly asserted as a defense, the successful party shall, to the extent permitted by applicable law, be entitled to recover all attorney's fees in addition to any other available remedy. [Remainder of this page intentionally left blank] 12 IN WITNESS WHEREOF, the Parent and each of the Stockholders have caused this Agreement to be signed by their respective officers or other authorized person thereunto duly authorized as of the date first written above. BROKAT AKTIENGESELLSCHAFT By: /s/ Michael Janssen ------------------------------- Name: Michael Janssen Title: Chief Financial Officer By: /s/ Michael Schumacher ------------------------------- Name: Michael Schumacher Title: Executive Vice President TL VENTURES III INTERFUND L.P. By: /s/ Mark De Nino ------------------------------ Name: Mark De Nino Title: Notices to: 435 Devon Park Drive Building 700 Wayne, Pennsylvania 19087, U.S.A. Fax: ____________________ Attn: ____________________ TL VENTURES III L.P. By: /s/ Mark De Nino -------------------------------- Name: Mark De Nino Title: Notices to: 435 Devon Park Drive Building 700 Wayne, Pennsylvania 19087, U.S.A. Fax: ____________________ Attn: ____________________ 13 TL VENTURES III OFFSHORE L.P. By: /s/ Mark De Nino ----------------------------- Name: Mark De Nino Title: Notices to: 435 Devon Park Drive Building 700 Wayne, PA 19087, U.S.A. Fax: ____________________ Attn: ____________________ MORGAN STANLEY VENTURE FUND II, C.V. By: /s/ William Harding ------------------------------ Name: William Harding Title: Notices to: 3000 Sand Hill Road Building 4, Suite 250 Menlo Park, California 94025, U.S.A. Fax: ____________________ Attn: ____________________ MORGAN STANLEY VENTURE CAPITAL FUND II, LP By: /s/ William Harding ------------------------------- Name: William Harding Title: Notices to: 3000 Sand Hill Road Building 4, Suite 250 Menlo Park, California 94025, U.S.A. Fax: ____________________ Attn: ____________________ 14 MORGAN STANLEY VENTURE INVESTORS, LP By: /s/ William Harding ------------------------------- Name: William Harding Title: Notices to: 3000 Sand Hill Road Building 4, Suite 250 Menlo Park, California 94025, U.S.A. Fax: ____________________ Attn: ____________________ 15 /s/ Thomas Kelly --------------------------------- THOMAS F. KELLEY Notices to: c/o Blaze Software, Inc. 150 Almaden Boulevard San Jose, California 95113, U.S.A. Fax: +1 ###-###-#### /s/ Gary Shroyer ----------------------------------- GARY SHROYER Notices to: c/o Blaze Software, Inc. 150 Almaden Boulevard San Jose, California 95113, U.S.A. Fax: +1 ###-###-#### /s/ Eric Kintzer ---------------------------------- ERIC KINTZER Notices to: c/o Blaze Software, Inc. 150 Almaden Boulevard San Jose, California 95113, U.S.A. Fax: +1 ###-###-#### 16 /s/ Charles Boesenberg ------------------------------ CHARLES M. BOESENBERG Notices to: c/o Blaze Software, Inc. 150 Almaden Boulevard San Jose, California 95113, U.S.A. Fax: +1 ###-###-#### /s/ L. George Klaus ------------------------------ L. GEORGE KLAUS Notices to: c/o Blaze Software, Inc. 150 Almaden Boulevard San Jose, California 95113, U.S.A. Fax: +1 ###-###-#### /s/ Ken Goldman -------------------------------- KEN GOLDMAN Notices to: c/o Blaze Software, Inc. 150 Almaden Boulevard San Jose, California 95113, U.S.A Fax: +1 ###-###-#### 17