EXHIBIT 2
EXECUTION COPY
AGREEMENT, dated as of March 29, 1999, among HardMetal, Inc., a Delaware
corporation ("Buyer"), and the holders (the "Stockholders") of the shares
of common stock, $0.001 par value (the "Shares") of PLATINUM TECHNOLOGY
International, INC., a Delaware corporation (the "Company"), listed on the
signature PAGES HEREOF.
In order to induce Buyer and certain of its affiliates to enter into an
agreement and plan of merger (the "Merger Agreement") with the Company, Buyer
has requested the Stockholders, and the Stockholders have agreed, to enter into
this Agreement.
The parties hereto agree as follows:
ARTICLE I
STOCK OPTION
SECTION 1.1. GRANT OF STOCK OPTION. Each of the Stockholders hereby grants
to Buyer an irrevocable option (the "Option") to purchase the number of Shares
(including the associated Rights, as defined in the Merger Agreement) opposite
such Stockholder's name on the signature pages hereto and any additional Shares
(including such associated Rights) acquired by such Stockholder in any capacity
(whether by exercise of options, warrants or rights, the conversion or exchange
of convertible or exchangeable securities or by means of a purchase, dividend,
distribution or otherwise) (such "Stockholder's Shares" and, collectively, the
"Stockholder Shares") at a purchase price of $29.25 per Stockholder Share
(including such associated Rights) (as adjusted pursuant to Section 1.6, the
"Purchase Price").
SECTION 1.2. EXERCISE OF OPTION. (a) Subject to the conditions set forth in
Section 1.5 hereof, the Option may be exercised by Buyer, in whole or in part,
at any time or from time to time after the date hereof and prior to the 30th
business day after the termination of the Merger Agreement in accordance with
the terms thereof. In the event Buyer wishes to exercise the Option for all or
some of the Stockholder Shares other than pursuant to the Offer (as defined in
the Merger Agreement), Buyer shall send a written notice (the "Exercise Notice")
to the Stockholders specifying the total number of Stockholder Shares it wishes
to purchase pursuant to such exercise (and the corresponding number of each such
Stockholder's Shares) and the place, the date (not less than one nor more than
20 business days from the date of the Exercise Notice) and the time for the
closing of such purchase, provided that such date and time may be earlier than
one day after the Exercise Notice if reasonably practicable. Each closing of a
purchase of Stockholder Shares pursuant to this Section 1.2(a) (a "Closing")
shall take place at the place, on the date and at the time designated by Buyer
in its Exercise Notice, provided that if, at the date of the Closing herein
provided for, the conditions set forth in Section 1.5 shall not have been
satisfied (or waived), Buyer may postpone the Closing until a date within five
business days after such conditions are satisfied.
(b) Except to the extent otherwise provided in Section 1.2(c) below, Buyer
shall not be under any obligation to deliver any Exercise Notice and may allow
the Option to terminate without purchasing any Stockholder Shares hereunder;
provided however that once Buyer has
delivered to the Stockholders an Exercise Notice, subject to the terms and
conditions of this Agreement, Buyer shall be bound to effect the purchase as
described in such Exercise Notice.
(c) Buyer agrees that, if Buyer shall have accepted Shares for payment and
purchased Shares pursuant to the Offer, Buyer shall, within ten business days of
such purchase, exercise the Option in its entirety (or any remaining portion of
the Option).
SECTION 1.3. CLOSING. At the Closing, (a) each Stockholder shall deliver to
Buyer (in accordance with Buyer's instructions) a certificate or certificates
(the "Certificates") representing all of such Stockholder's Shares, duly
endorsed or accompanied by stock powers duly executed in blank and (b) Buyer
shall deliver to such Stockholder by wire transfer an amount equal to (i) the
number of such Stockholder's Shares being purchased at such Closing multiplied
by (ii) the Purchase Price (the "Purchase Amount").
SECTION 1.4. AGREEMENT TO TENDER. Subject to the footnote at the end of
this Agreement, each of the Stockholders may tender and hereby agrees to validly
tender (or cause the record owner of such shares to validly tender) upon the
request of Buyer such Stockholder Shares. Upon receipt of instructions from the
Buyer, each Stockholder shall deliver to the depositary (the "Depositary")
designated in the Offer (i) a letter of transmittal with respect to such
Stockholder's Shares complying with the terms of the Offer together with
instructions directing the Depositary to make payment for such Shares directly
to the Stockholder (but if such Shares are not accepted for payment or are
withdrawn and are to be returned pursuant to the Offer, to return such Shares to
such Stockholder whereupon they shall continue to be held by such Stockholder
subject to the terms and conditions of this Agreement), (ii) the Certificates
and (iii) all other documents or instruments required to be delivered pursuant
to the terms of the Offer (such documents in clauses (i) through (iii)
collectively being hereinafter referred to as the "Tender Documents"). No tender
pursuant to this Section 1.4 will excuse any of the obligations of the
Stockholders hereunder.
SECTION 1.5. CONDITIONS. The obligation of each Stockholder to sell
Stockholder Shares at any Closing is subject to the following conditions:
(i) The representations and warranties of Buyer contained in Article
IV shall be true and correct in all material respects on the date thereof
as if made on such date;
(ii) All waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder (the "HSR Act") applicable to such exercise of the
Option shall have expired or been terminated;
(iii) There shall be no preliminary or permanent injunction or other
order, decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, nor any
statute, rule, regulation or order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining such exercise
of the Option; and
(iv) The Buyer shall have commenced the Offer.
SECTION 1.6. ADJUSTMENT UPON CHANGES IN CAPITALIZATION OR MERGER. (a) In
the event of (i) any change in the Company's capital stock by reason of stock
dividends, stock splits,
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mergers, consolidations, recapitalizations, combinations, conversions, exchanges
of shares, extraordinary or liquidating dividends, or (ii) other changes in the
corporate or capital structure of the Company which would have the effect of
diluting or changing the Buyer's rights hereunder and which generally
proportionately affect the stockholders of the Company, then the number and kind
of shares or securities subject to the Option and the purchase price per
Stockholder Share (but not the total purchase price) shall be appropriately and
equitably adjusted so that the Buyer shall receive upon exercise of the Option
the number and class of shares or other securities or property that the Buyer
would have received in respect of the Stockholder Shares purchasable upon
exercise of the Option if the Option had been exercised immediately prior to
such event. Each Stockholder shall take such steps in connection with such
consolidation, merger, liquidation or other such action as may be necessary to
assure that the provisions hereof shall thereafter apply as nearly as possible
to any securities or property thereafter deliverable upon exercise of the
Option.
(b) In the event the consideration per Share to be paid by Buyer pursuant
to the Offer is increased, the Purchase Price shall be similarly increased and
in the event the Closing hereunder shall have occurred, Buyer shall promptly pay
to each Stockholder the product of the amount of such increase in the Purchase
Price multiplied by the number of such Stockholder's Shares as to which the
Option has been exercised.
ARTICLE II
GRANT OF PROXY
SECTION 2.1. PROXY. Each Stockholder hereby revokes any and all previous
proxies granted with respect to such Stockholder's Shares. Each Stockholder, by
this Agreement, with respect to such Stockholder's Shares, does hereby
constitute and appoint Buyer, or any nominee of Buyer, with full power of
substitution, as its true and lawful attorney and proxy, for and in its name,
place and stead, to vote each of such Stockholder's Shares as its proxy, at
every annual, special or adjourned meeting, or solicitation of consents, of the
stockholders of the Company (including the right to sign its name (as
stockholder) to any consent, certificate or other document relating to the
Company that the law of the State of Delaware may permit or require) (i) in
favor of the adoption of the Merger Agreement and this Agreement and approval of
the Merger and the other transactions contemplated hereby and by the Merger
Agreement, (ii) against any proposal for any recapitalization, merger, sale of
assets or other business combination between the Company and any person or
entity (other than the Merger) or any other action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement not being
fulfilled, and (iii) in favor of any other matter relating to consummation of
the transactions contemplated by the Merger Agreement and this Agreement. Each
Stockholder further agrees to cause such Stockholder's Shares that are
outstanding and owned by it beneficially to be voted in accordance with the
foregoing. The proxy granted by each Stockholder pursuant to this Article II is
irrevocable and is granted in consideration of Buyer's entering into this
Agreement and the Merger Agreement; PROVIDED, HOWEVER, that such proxy shall be
revoked upon termination of the Option's exercise period in accordance with its
terms other than for Shares which are the subject of a pending Closing
hereunder.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each of the Stockholders severally represents and warrants to the Buyer
that:
SECTION 3.1. VALID TITLE. Except as set forth in the footnotes at the end
of this Agreement, such Stockholder is the sole, true, lawful and beneficial
owner of such Stockholder's Shares with no restrictions on such Stockholder's
voting rights or rights of disposition pertaining thereto. At any Closing, such
Stockholder will convey good and valid title to such Stockholder's Shares being
purchased free and clear of any and all claims, liens, charges, encumbrances and
security interests. Except as may be the case under the arrangements referenced
in the footnotes at the end of this Agreement, none of such Stockholder's Shares
is subject to any voting trust or other agreement or arrangement with respect to
the voting of such Shares.
SECTION 3.2. NON-CONTRAVENTION. The execution, delivery and performance by
such Stockholder of this Agreement and the consummation of the transactions
contemplated hereby (i) are within such Stockholder's powers, have been duly
authorized by all necessary action (including any consultation, approval or
other action by or with any other person), (ii) require no action by or in
respect of, or filing with, any governmental body, agency, official or authority
(except as required under the HSR Act), and (iii) do not and will not contravene
or constitute a default under, or give rise to a right of termination,
cancellation or acceleration of any right or obligation of such Stockholder or
to a loss of any benefit of such Stockholder under, any provision of applicable
law or regulation or of any agreement, judgment, injunction, order, decree, or
other instrument binding on such Stockholder or result in the imposition of any
lien on any asset of such Stockholder.
SECTION 3.3. BINDING EFFECT. This Agreement has been duly executed and
delivered by such Stockholder and is the valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally. If this Agreement is
being executed in a representative or fiduciary capacity, the person signing
this Agreement has full power and authority to enter into and perform such
Agreement.
SECTION 3.4. TOTAL SHARES. Except as may be the case under the arrangements
referenced in the footnotes at the end of this Agreement, each Stockholder is
the record and Beneficial Owner of the number of Shares set forth next to such
Stockholder's name on the signature pages hereto. Such Shares constitute all of
the Shares owned of record or Beneficially Owned by such Stockholder. Except as
set forth on such signature pages, neither such Stockholder nor any beneficial
owner or owners of such Stockholder's Shares own any options to purchase or
rights to subscribe for or otherwise acquire any securities of the Company.
Except as may be the case under the arrangements referenced in the footnotes at
the end of this Agreement, each Stockholder has sole voting power and sole power
to issue instructions with respect to the matters set forth in Article II of
this Agreement, sole power of disposition, sole power of conversion, sole power
to demand appraisal rights and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the Shares
beneficially owned by such Stockholder with no limitations, qualifications or
restrictions on such rights, subject to
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applicable securities laws and the terms of this Agreement. The terms
"Beneficially Own" or "Beneficial Ownership" with respect to any securities
shall mean having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended.
SECTION 3.5. FINDER'S FEES. No investment banker, broker or finder is
entitled to a commission or fee from Buyer or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of such
Stockholder.
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF BUYER
The Buyer represents and warrants to each of the Stockholders:
SECTION 4.1. CORPORATE POWER AND AUTHORITY. Buyer has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by Buyer of this
Agreement and the consummation by Buyer of the transactions contemplated hereby
have been duly authorized by the board of directors of Buyer and no other
corporate action on the part of Buyer is necessary to authorize the execution,
delivery or performance by Buyer of this Agreement and the consummation by Buyer
of the transactions contemplated hereby. This Agreement has been duly executed
and delivered by Buyer and is a valid and binding agreement of Buyer,
enforceable against it in accordance with its terms, except as enforcement may
be limited by bankruptcy, insolvency, moratorium or other similar laws relating
to creditors' rights generally.
SECTION 4.2. ACQUISITION FOR BUYER'S ACCOUNT. Any Stockholder Shares to be
acquired upon exercise of the Option will be acquired by Buyer for its own
account and not with a view to the public distribution thereof and will not be
transferred except in compliance with the Securities Act of 1933.
ARTICLE V
COVENANTS OF THE STOCKHOLDERS
Each of the Stockholders hereby covenants and agrees that:
SECTION 5.1. NO PROXIES FOR OR ENCUMBRANCES ON STOCKHOLDER SHARES. Except
pursuant to the terms of this Agreement, such Stockholder shall not, without the
prior written consent of Buyer, directly or indirectly, (i) grant any proxies or
enter into any voting trust or other agreement or arrangement with respect to
the voting of any Shares or (ii) acquire, sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect acquisition or sale,
assignment, transfer, encumbrance or other disposition of, any Shares during the
term of this Agreement, other than (y) the exercise of Options already owned by
such Stockholder and (z) transfers to family members or grantor trusts for the
benefit of family members where the transferee agrees in writing to be bound by
the terms hereof in an agreement satisfactory in form and substance to Parent.
Except as permitted by clauses (y) and (z) of the preceding sentences,
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such Stockholder shall not seek or solicit any such acquisition or sale,
assignment, transfer, encumbrance or other disposition or any such contract,
option or other arrangement or assignment or understanding and agrees to notify
Buyer promptly and to provide all details requested by Buyer if such Stockholder
shall be approached or solicited, directly or indirectly, by any person with
respect to any of the foregoing.
SECTION 5.2. NO SHOPPING. Such Stockholder shall not directly or indirectly
(i) solicit, initiate or encourage (or authorize any person to solicit, initiate
or encourage) any inquiry, proposal or offer from any person to acquire the
business, property or capital stock of the Company or any direct or indirect
subsidiary thereof, or any acquisition of a substantial equity interest in, or a
substantial amount of the assets of, the Company or any direct or indirect
subsidiary thereof, whether by merger, purchase of assets, tender offer or other
transaction or (ii) subject to the fiduciary duty under applicable law of such
Stockholder as a director of the Company (if such Stockholder is such a
director) as further provided in the Merger Agreement, participate in any
discussion or negotiations regarding, or furnish to any other person any
information with respect to, or otherwise cooperate in any way with, or
participate in, facilitate or encourage any effort or attempt by any other
person to do or seek any of the foregoing. Such Stockholder shall promptly
advise Buyer of the terms of any communications it may receive relating to any
of the foregoing.
SECTION 5.3. CONDUCT OF STOCKHOLDERS. Such Stockholder will not (i) take,
agree or commit to take any action that would make any representation and
warranty of such Stockholder hereunder inaccurate in any respect as of any time
prior to the termination of this Agreement or (ii) omit, or agree or commit to
omit, to take any action necessary to prevent any such representation or
warranty from being inaccurate in any respect at any such time.
SECTION 5.4. DISCLOSURE. Each Stockholder hereby permits Buyer to publish
and disclose in the offer documents and, if approval of the Company's
shareholders is required under applicable law, a proxy statement (including all
documents and schedules filed with the SEC) their identity and ownership of the
Shares and the nature of their commitments, arrangements and understandings
under this Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. EXPENSES. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
SECTION 6.2. FURTHER ASSURANCES. In the event the Buyer exercises the
Option, the Buyer and the Stockholders will each execute and deliver or cause to
be executed and delivered all further documents and instruments and use its best
efforts to secure such consents and take all such further action as may be
reasonably necessary in order to consummate the transactions contemplated hereby
or to enable the Buyer and any assignee to exercise and enjoy all benefits and
rights of the Stockholders with respect to the Option and the Stockholder
Shares.
SECTION 6.3. ADDITIONAL AGREEMENTS. Subject to the terms and conditions of
this Agreement, each of the parties hereto agrees to use all reasonable efforts
to take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under
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applicable laws and regulations and which may be required under any agreements,
contracts, commitments, instruments, understandings, arrangements or
restrictions of any kind to which such party is a party or by which such party
is governed or bound, to consummate and make effective the transactions
contemplated by this Agreement.
SECTION 6.4. SPECIFIC PERFORMANCE. The parties hereto agree that the Buyer
may be irreparably damaged if for any reason any Stockholder failed to sell such
Stockholder's Shares (or other securities deliverable pursuant to Section 1.5)
upon exercise of the Option or to perform any of its other obligations under
this Agreement, and that the Buyer would not have an adequate remedy at law for
money damages in such event. Accordingly, the Buyer shall be entitled to
specific performance and injunctive and other equitable relief to enforce the
performance of this Agreement by each Stockholder. This provision is without
prejudice to any other rights that the Buyer may have against any Stockholder
for any failure to perform its obligations under this Agreement.
SECTION 6.5. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 6.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Stockholder Shares.
SECTION 6.7. AMENDMENTS. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
SECTION 6.8. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, PROVIDED that Buyer may assign its rights and
obligations to any affiliate of Buyer and PROVIDED, FURTHER, that no Stockholder
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the Buyer.
SECTION 6.9. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the law of New York without giving effect to the principles
of conflicts of laws thereof.
SECTION 6.10. JURISDICTION. Each of the parties hereto (a) consents to
submit itself to the exclusive personal jurisdiction of any court of the United
States located in the State of New York or of any New York state court in the
event any dispute arises out of this Agreement or the transactions contemplated
by this Agreement, and (b) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any such
court.
SECTION 6.11. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
HardMetal, Inc.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
In care of Computer Associates
International Inc.
Xxx Xxxxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxx
President and
Chief Operating Officer
Fax: 000-000-0000
SHARES OPTIONS
2,594,566* 3,998,752 /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxxx **
000 Xxxxx Xxxx Xxxx
Xxxxxxx-Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
--------
* Number of Shares includes 547,994 Shares held by a limited partnership
(Platinum Ventures) of which Xx. Xxxxxxxxxx is a limited partner and over
which Xx. Xxxxxxxxxx has voting control (the "LP Shares"). The LP Shares
will be tendered in the Offer if requested by Buyer, and are subject to the
proxy granted in this Agreement, but are not subject to the Option unless
they are withdrawn from the limited partnership.
** Xx. Xxxxxxxxxx has represented to the Buyer that the Options and Shares
owned by Xx. Xxxxxxxxxx are (i) deposited in a brokerage account pursuant to
which they have been pledged to secure margin loans upon standard terms and
(ii) are subject to a "put/call collar" arrangement with the brokerage (or
its affiliate) in which such shares are so deposited. Buyer's rights under
this Agreement are subject to such arrangements so long as they remain in
effect, it being understood that, to the extent of rights or other benefits
of ownership retained by Xx. Xxxxxxxxxx in such Options (or the Shares
issuable upon the exercise thereof) and the other Shares owned by him, this
Agreement is not subject to such arrangements.
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SHARES OPTIONS
/s/ Xxxx X. Xxxxxxxxxx
34,989 1,896,623 ------------------------------------------
Xxxx X. Xxxxxxxxxx
000 Xxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
SHARES OPTIONS
/s/ Xxxxxxx Xxxxxxxxx
none 1,748,750 ------------------------------------------
Xxxxxxx Xxxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
