EXHIBIT 2
Xxxxxxx Xxxxx
00000 Xxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
February 18, 2000
Nemetschek AG
Xxxxxxxxxxxx Xxxxxxx 0
X-00000 Xxxxxx
Xxxxxxx
Attn: Xxxxxxx Xxxxx
Re: Support/Voting Agreement
Gentlemen:
The undersigned understands that Xxxxx Graphsoft, Inc. (the
"Company") and Nemetschek AG and/or an affiliate thereof (in either case, the
"Acquiror") are entering into an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), providing for, among other things, the
merger of Acquiror with and into the Company (the "Merger").
The undersigned is a stockholder of the Company (the
"Stockholder") and is entering into this letter agreement to induce the Acquiror
to enter into the Merger Agreement and to consummate the transactions
contemplated thereby. Capitalized terms used herein and not otherwise defined
herein shall have the meaning set forth in the Merger Agreement.
The Stockholder confirms its agreement with the Acquiror as
follows:
1. The Stockholder represents, warrants and agrees that
Schedule A annexed hereto sets forth all the shares of Company Common Stock that
the Stockholder and his affiliates (as defined under the Securities Exchange Act
of 1934, as amended) are the record or beneficial owner of (the "Shares") and
that the Stockholder and his affiliates are on the date hereof the lawful owners
of the number of Shares set forth in Schedule A, free and clear of all liens,
charges, encumbrances, voting agreements and commitments of any kind, except as
disclosed in Schedule A. Except as set forth in Schedule A, neither the
Stockholder nor any of his affiliates own or hold any rights to acquire any
additional shares of the capital stock of the Company (by exercise of stock
options or otherwise) or any interest therein or any voting rights with respect
to any additional shares.
2. The Stockholder agrees that he will not, will not permit
any Person controlled by the Stockholder to, and will not permit any of his
affiliates to, contract to sell, sell or otherwise transfer or dispose of any of
the Shares or any interest therein or securities
Nemetschek AG
February 18, 2000
Page 2
convertible therein or any voting rights with respect thereto, other than (i)
pursuant to the Merger, or (ii) with the prior written consent of Acquiror;
provided, however, that notwithstanding any other provision of this Agreement,
the Stockholder is expressly permitted to transfer up to 200,000 shares of
Company Common Stock in the aggregate to the individuals listed on Schedule B
prior to or concurrent with the Closing; provided, further that concurrently
with any such transfer to Messrs. Xxxxxxx and Xxxxxxxx, such parties shall each
execute and deliver to Acquiror a Support/Voting Agreement, substantially
similar to this Agreement, except that such agreements shall not include the
right of Nemetschek to an option for such stock. The Stockholder shall be
permitted to (x) vote in favor of any other bona fide written Acquisition
Proposal by any other Person that has been recommended by the Company's Board of
Directors as contemplated by Section 7.09 of the Merger Agreement, if and only
to the extent that, (i) the Company's stockholders meeting with respect to the
Merger Agreement shall not have occurred, and (ii) the Company's Board of
Directors concludes in good faith (following receipt of the advice of its
financial advisor and outside counsel) that (A) such acquisition proposal
constitutes a Superior Proposal, and (B) the failure to take such action would
be inconsistent with its fiduciary duties under applicable law, and (y) subject
to the option granted in Paragraph 5 of this letter agreement, sell the Shares
in connection with such Acquisition Proposal that constitutes a Superior
Proposal.
3. The Stockholder agrees to, will cause any Person controlled
by the Stockholder to, and will cause his affiliates to, cooperate fully with
Acquiror in connection with the Merger Agreement and the transactions
contemplated thereby. The Stockholder agrees that he will not, will not permit
any Person controlled by the Stockholder to, and will not permit any of his
affiliates to, directly or indirectly (including through its officers,
directors, employees or other representatives), solicit any inquiries or the
making of any proposal with respect to, or negotiate with any other Person with
respect to, any Acquisition Proposal with any Person other than Acquiror (a
"Competing Transaction"); provided, however, that nothing herein shall prevent
the Stockholder from taking any action or omitting to take any action (i) solely
as a member of the Board of Directors of the Company required so as not to
violate such Stockholder's fiduciary obligations as a director as so advised by
outside counsel in writing, or (ii) as directed by the Board of Directors of the
Company so long as such direction is not made in violation of any of the terms
of the Merger Agreement or any other provision of this letter agreement.
4. The Stockholder agrees that all of the Shares beneficially
owned by the Stockholder or his affiliates, or over which the Stockholder or any
of his affiliates has voting power or control, directly or indirectly (including
any common shares of the Company acquired after the date hereof), at the record
date for any meeting of stockholders of the Company called to consider and vote
to approve the Merger and the Merger Agreement and/or the transactions
contemplated thereby will be voted by the Stockholder or his affiliates in favor
thereof except as otherwise permitted by the final sentence of Paragraph 2.
5. (a) Subject to the terms of this Section 5, the Stockholder
hereby grants to Nemetschek an irrevocable option (the "Option") to purchase, in
whole but not in part, at the
Nemetschek AG
February 18, 2000
Page 3
election of Nemetschek, such number of the Stockholder's Shares such that after
such exercise, Nemetschek would own not less than 30% of the outstanding common
stock of the Company. The purchase price for such shares (the "Purchase Price")
shall be paid in cash, with each Share being deemed to have a value equal to the
greater of the Merger Consideration (as defined in the Merger Agreement) or the
average trading price of the Company Common Stock during the five day period
immediately prior to the exercise of the Option, which average shall be reduced
by 50% of the difference between the value of the Merger Consideration and such
average trading price.
(b) Subject to the terms and conditions of this Agreement, if
Nemetschek elects to exercise the Option in accordance with Section 5(a) hereof,
the Stockholder will, at the closing (as defined in Section 5(c)), sell,
transfer, assign and deliver the Stockholder's Shares to Nemetschek, and
Nemetschek will acquire, accept, purchase and pay for the Stockholder's Shares.
(c) The Option may only be exercised by Nemetschek, in whole
but not in part, following the occurrence of a Purchase Event (as defined
below); provided, however, that the Option shall terminate upon the earlier of
(i) the Effective Time, (ii) termination of the Merger Agreement in accordance
with its terms (other than upon or during the continuance of a Purchase Event),
and (iii) three months following any termination of the Merger Agreement upon or
during the continuance of a Purchase Event (or, if, at the expiration of such
three month period the Option cannot be exercised by reason of any applicable
judgment, decree or order, 20 Business Days after such impediment to exercise
shall have been removed or shall become final and not subject to appeal) at
which time all rights and obligations under this Agreement shall terminate. The
term "Purchase Event" shall mean any of the following events or transactions
occurring after the date hereof: (i) the Company shall have entered into an
agreement to engage in an Acquisition Proposal; or (ii) the Merger Agreement
shall have been terminated by Nemetschek or the Company under circumstances that
would entitle Nemetschek to termination fees under the Merger Agreement. In the
event Nemetschek wishes to exercise the Option, Nemetschek shall send a written
notice (a "Closing Notice") to the Stockholder specifying a place and time (the
"Closing Date") between one and ten Business Days inclusive from the date of the
Closing Notice for the closing of such purchase (the "Closing").
(d) Subject to the terms and conditions of this Agreement, in
reliance on the representations, warranties and covenants of the Stockholder
contained herein and in full payment for the Shares, at the Closing, Nemetschek
will deliver, or cause to be delivered, to the Stockholder, the Purchase Price
to be paid pursuant to Section 5(a). At the Closing, the Stockholder will
deliver, or cause to be delivered, to Nemetschek certificates representing such
Stockholder's Shares duly endorsed to Nemetschek or accompanied by stock powers
duly executed by the Stockholder in blank, together with any necessary stock
transfer stamps properly affixed.
(e) In the event of any change in the Company Common Stock by
reason of stock dividends, split-ups, mergers, recapitalizations, combinations,
conversions, exchanges of shares or the like, (i) the number and kind of Shares
subject to this Section 5 of this
Nemetschek AG
February 18, 2000
Page 4
Agreement and the purchase price per Share pursuant to the Option shall be
appropriately adjusted to reflect changes made in the Company Common Stock so
that Nemetschek shall receive, upon exercise of the Option and payment of the
Purchase Price, the number and class of shares that Nemetschek would have
received in respect of the Shares if the Option had been exercised and the
Shares had been issued to Nemetschek immediately prior to such event or the
record date therefor, as applicable, and (ii) 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 and such dividends, distributions and shares,
as the case may be, shall be paid to Nemetschek at the Closing or promptly
following the receipt of such dividend or distribution, if the Closing
theretofore shall have occurred.
6. The Stockholder has all necessary power and authority to
enter into this letter agreement. This letter agreement is the legal, valid and
binding agreement of the Stockholder and is enforceable against the Stockholder
in accordance with its terms.
7. The Stockholder agrees that money damages would be an
inadequate remedy for the breach by Stockholder of any term or condition of this
letter agreement and that Acquiror shall be entitled to a temporary restraining
order and preliminary and permanent injunctive relief in order to enforce the
agreements set forth herein. This letter agreement will be governed by and
constructed in accordance with Maryland law.
[SIGNATURE PAGE FOLLOWS]
Nemetschek AG
February 18, 2000
Page 5
This letter agreement may be executed by facsimile signature
and in counterparts and may be terminated by Acquiror at any time. Please
confirm that the foregoing correctly states the understanding between us by
signing and returning a counterpart hereof.
Sincerely,
XXXXXXX XXXXX
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Confirmed as of the date
first above written:
NEMETSCHEK AG
By: /s/ Georg Nemetschek
---------------------------
Name: Nemetschek
Title: CEO
Schedule A
----------
Name Number of Shares
---- ----------------
Xxxxxxx Xxxxx 1,933,055
Schedule B
----------
Name Number of Shares
---- ----------------
Xxxxxx Xxxxxxx 70,000
Xxxx Xxxxxxxx 70,000
Other Xxxxx Graphsoft, Inc. Employees 60,000
