Exhibit 99.5
PARENT AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT (this "AGREEMENT") is dated as of March 1, 1998,
by and between SIEBEL SYSTEMS, INC., a Delaware corporation ("PARENT"), SCOPUS
TECHNOLOGY, INC., a California corporation ("Company") and ___________________
("AFFILIATE").
WHEREAS, Affiliate is a shareholder and an officer and director of Parent.
WHEREAS, Parent, Syracuse Acquisition Sub, Inc., a California corporation
and a wholly-owned subsidiary of Parent ("MERGER SUB"), and Company have entered
into an Agreement and Plan of Merger and Reorganization dated as of March 1,
1998 (the "MERGER AGREEMENT"), providing for the merger of Merger Sub with and
into the Company (the "MERGER"). The Merger Agreement contemplates that, upon
consummation of the Merger, (i) the holders of the common stock of the Company
("COMPANY COMMON STOCK") will receive shares of common stock of Parent ("PARENT
COMMON STOCK") in exchange for their shares of Company Common Stock and (ii) the
Company will become a wholly-owned subsidiary of Parent.
WHEREAS, it is a condition to the consummation of the Merger pursuant to
the Merger Agreement that the independent accounting firms that audit the annual
financial statements of Parent and the Company will have delivered the written
concurrences with the conclusions of management of Parent and the Company to the
effect that the Merger will be accounted for as a pooling of interests under
Accounting Principles Board Opinion No. 16.
NOW, THEREFORE, intending to be legally bound, in order to induce the
Company and Parent to consummate the transactions contemplated by the Merger
Agreement, and for other valuable consideration, the receipt and sufficiently of
which are hereby acknowledged by Affiliate, Affiliate hereby covenants and
agrees as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES. Affiliate represents and
warrants to Parent as follows:
(a) Affiliate is the holder and "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended) of the number of
shares of the Parent Common Stock set forth under Affiliate's signature below
(the "PARENT SHARES"), and Affiliate has good and valid title to the Parent
Shares, free and clear of any liens, pledges, security interests, adverse
claims, equities, options, proxies, charges, encumbrances or restrictions of any
nature.
(b) Affiliate has carefully read this Agreement, and has discussed
with Affiliate's own independent counsel to the extent Affiliate felt necessary
the limitations imposed on Affiliate's ability to sell, transfer or otherwise
dispose of the shares of Parent Common Stock. Affiliate fully understands the
limitations this Agreement places upon Affiliate's ability to sell, transfer or
otherwise dispose of the Parent Shares.
1.
(c) Affiliate understands that the representations, warranties and
covenants set forth herein will be relied upon by Parent, the Company, and their
respective affiliates, counsel and accounting firms for purposes of determining
Parent's eligibility to account for the Merger as a "pooling of interests," and
that substantial losses and damages may be incurred by these persons if
Affiliate's representations, warranties or covenants are breached.
SECTION 2. COVENANTS RELATED TO POOLING OF INTERESTS. In accordance with
SEC Staff Accounting Bulletin No. 65 ("SAB 65"), during the period contemplated
by SAB 65, until the earlier of (i) Parent's public announcement of financial
results covering at least 30 days of combined operations of Parent and the
Company or (ii) the Merger Agreement is terminated in accordance with its terms,
Affiliate will not sell, exchange, transfer, pledge, distribute or otherwise
dispose of or grant any option, establish any "short" or put-equivalent position
with respect to or enter into any similar transaction (through derivatives or
otherwise) intended or having the effect, directly or indirectly, to reduce its
risk relative to any Parent Common Stock. Parent may, at its discretion, place
a stock transfer notice consistent with the restrictions referred to in this
Section 2 with its transfer agent with respect to such certificates, provided
such restrictive legend shall be removed and/or notice shall be countermanded
promptly upon expiration of the necessity therefor at the request of Affiliate.
SECTION 3. PERMITTED TRANSFERS. Notwithstanding anything to the contrary
contained in this Agreement, Affiliate may (i) transfer Affiliate's pro rata
portion (of the total number of shares available under the "de minimis"
exception referred to in this clause (i) to all affiliates of Parent and
Company) of the "de minimis" amount of Company Common Stock and Parent Common
Stock available for sale in accordance with SEC Staff Accounting Bulletin No. 76
(the "DE MINIMIS POOL") contingent upon confirmation by legal counsel for Parent
and independent auditors for Parent and the Company as to whether such transfer
qualifies as within Affiliate's pro rata portion of the De Minimis Pool and (ii)
may (with the written consent of Parent, not to be unreasonably withheld): (A)
transfer shares of Parent Common Stock in payment of the exercise price of
options to purchase Parent Common Stock; (B) transfer shares of Parent Common
Stock to any organization qualified under Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended, so long as such organization has traditionally
been supported by contributions from the general public (as opposed to being
supported largely by a specific donor); and (C) transfer shares of Parent Common
Stock to a trust established for the benefit of Affiliate and/or for the benefit
of one or more members of Affiliate's family, or make a bona fide gift of Parent
Common Stock to one or more members of Affiliate's family, provided that in the
case of a transfer or gift pursuant to this clause (B) or (C), a transferee of
such shares agrees to be bound by the limitations set forth in this Agreement.
SECTION 4. SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement was not
performed in accordance with its specific terms or was otherwise breached.
Affiliate agrees that, in the event of any breach or threatened breach by
Affiliate of any covenant or obligation contained in this Agreement, each of
Parent and the Company shall be entitled (in addition to any other remedy that
may be available to it, including monetary damages) to seek and obtain (a) a
decree or order of specific performance to enforce the observance and
performance of such covenant or obligation, and (b) an injunction restraining
such breach or threatened breach.
2.
SECTION 5. INDEPENDENCE OF OBLIGATIONS. The covenants and obligations of
Affiliate set forth in this Affiliate Agreement shall be construed as
independent of any other agreement or arrangement between Affiliate, on the one
hand, and Parent or the Company , on the other. The existence of any claim or
cause of action by Affiliate against Parent or the Company shall not constitute
a defense to the enforcement of any of such covenants or obligations against
Affiliate.
SECTION 6. NOTICES. Any notice or other communication required or
permitted to be delivered under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile
confirmation) to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
party):
IF TO PARENT: SIEBEL SYSTEMS, INC.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Vice President Legal Affairs
Fax: (000) 000-0000
WITH A COPY TO: XXXXXX GODWARD LLP
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
IF TO THE COMPANY: SCOPUS TECHNOLOGY, INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
WITH A COPY TO: XXXXXX, XXXXXXX XXXXXXXX & XXXXXX
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
(000) 000-0000
if to Affiliate:
at the address or facsimile phone number set forth below Affiliate's
signature on the signature page hereof.
SECTION 7. SEVERABILITY. If any provision of this Agreement or any part of
any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part
3.
thereof under such circumstances and in such jurisdiction shall not affect the
validity or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Agreement. Each provision of this
Agreement is separable from every other provision of this Agreement, and each
part of each provision of this Agreement is separable from every other part of
such provision.
SECTION 8. GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed in all respects by, the laws of the State of California
(without giving effect to principles of conflicts of laws).
SECTION 9. WAIVER. No failure on the part of Parent or the Company to
exercise any power, right, privilege or remedy under this Agreement, and no
delay on the part of Parent or the Company in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver of such
power, right, privilege or remedy; and no single or partial exercise of any such
power, right, privilege or remedy shall preclude any other or further exercise
thereof or of any other power, right, privilege or remedy. Neither Parent nor
the Company shall be deemed to have waived any claim arising out of this
Agreement, or any power, right, privilege or remedy under this Agreement, unless
the waiver of such claim, power, right, privilege or remedy is expressly set
forth in a written instrument duly executed and delivered on behalf of the party
to be charged; and any such waiver shall not be applicable or have any effect
except in the specific instance in which it is given.
SECTION 10. CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
SECTION 11. FURTHER ASSURANCES. Affiliate shall execute and/or cause to
be delivered to Parent and the Company such instruments and other documents and
shall take such other actions as Parent or the Company may reasonably request to
effectuate the intent and purposes of this Agreement.
SECTION 12. ENTIRE AGREEMENT. This Agreement, the Merger Agreement and any
Voting Agreement between Affiliate and the Company constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto.
SECTION 13. NON-EXCLUSIVITY. The rights and remedies of Parent and the
Company hereunder are not exclusive of or limited by any other rights or
remedies which Parent or the Company may have, whether at law, in equity, by
contract or otherwise, all of which shall be cumulative (and not alternative).
Nothing in this Agreement shall limit any of Affiliate's obligations, or the
rights or remedies of Parent or the Company under any Voting Agreement between
Company, Parent and Affiliate and nothing in such Voting Agreement shall limit
any of Affiliate's obligations, or any of the rights or remedies of Parent or
the Company, under this Agreement.
4.
SECTION 14. AMENDMENTS. This Agreement may not be amended, modified,
altered, or supplemented other than by means of a written instrument duly
executed and delivered on behalf of Parent, the Company and Affiliate.
SECTION 15. BINDING NATURE. This Agreement will be binding upon Affiliate
and Affiliate's representatives, executors, administrators, estate, heirs,
successors and assigns, and shall inure to the benefit of Parent, the Company
and their respective and its successors and assigns.
SECTION 16. ATTORNEYS' FEES AND EXPENSES. If any legal action or other
legal proceeding relating to the enforcement of any provision of this Agreement
is brought against Affiliate, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
SECTION 17. ASSIGNMENT. This Agreement and all obligations of Affiliate
hereunder are personal to Affiliate and may not be transferred or delegated by
Affiliate at any time. Parent or the Company may freely assign any or all of its
rights under this Affiliate Agreement in whole or in part, to any other person
or entity without obtaining the consent or approval of Affiliate.
SECTION 18. SURVIVAL. Each of the representations, warranties, covenants
and obligations contained in this Agreement shall survive the consummation of
the Merger.
5.
The undersigned have executed this Agreement as of the date first set
forth above.
SIEBEL SYSTEMS, INC.
By:_____________________________________
Title:__________________________________
AFFILIATE:
Address:________________________________
________________________________________
________________________________________
Facsimile:______________________________
SIEBEL SYSTEMS, INC.
STOCK BENEFICIALLY OWNED BY AFFILIATE AS
OF JANUARY 31, 1998:
__________ shares of Common Stock
__________ shares of Common Stock
issuable upon exercise of outstanding
options
SCOPUS TECHNOLOGY, INC.
By:_____________________________________
Title:__________________________________
AFFILIATE AGREEMENT SIGNATURE PAGE
