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EXHIBIT (C)(2)
SHAREHOLDER TENDER AND VOTING AGREEMENT
AGREEMENT dated as of July 14, 1999 among CV Acquisition,
Inc., a Delaware corporation ("Buyer"), and the holders (the "Shareholders") of
the shares of Common Stock, no par value (the "Shares"), of Viasoft, Inc., a
Delaware corporation (the "Company"), listed on the signature pages hereof.
In order to induce Buyer and Compuware Corporation, a Michigan
corporation ("Parent") and the owner of 100% of the outstanding capital stock of
Buyer, to enter into an Agreement and Plan of Merger with the Company of even
date herewith (the "Merger Agreement"), Buyer has requested the Shareholders,
and the Shareholders have agreed, to enter into this Agreement. Capitalized
terms used and not defined herein have the meanings given in the Merger
Agreement.
The parties hereto agree as follows:
ARTICLE I
TENDER OFFER AND MERGER
SECTION 1.1. Tender of Shares. (a) Each Shareholder hereby
agrees, pursuant to the terms and subject to the conditions set forth herein, to
tender in the Offer all Shares currently owned by such Shareholder as set forth
on the signature pages hereto and any additional Shares acquired by such
Shareholder (whether by purchase or otherwise) after the date of this Agreement
(with respect to each Shareholder, the "Shareholder's Shares" and, collectively,
the "Shareholder Shares").
(b) Within five business days of the commencement of the Offer
and within one business day of any acquisition by each Shareholder of any
additional Shares, each Shareholder shall deliver to the depositary (the
"Depositary") designated in the Offer (i) a letter of transmittal with respect
to such Shareholder's Shares complying with the terms of the Offer together with
instructions directing the Depositary to make payment for such Shares directly
to the Shareholder, (ii) a certificate or certificates representing such
Shareholder's Shares 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").
(c) Unless and until the Merger Agreement shall have been
terminated pursuant to its terms, no Shareholder shall, subject to applicable
law, withdraw any tender effected in accordance with Section 1.1(b).
SECTION 1.2. Voting of Shares. If the Offer, and Shareholder's
tender pursuant thereto, is not consummated, and the approval by the Company's
shareholders of the Merger Agreement and the Merger is sought, until termination
of the Merger Agreement pursuant to its terms, at every meeting of the
shareholders of the Company called with respect to any of the following, and at
every adjournment thereof, and on every action or approval by written consent of
the shareholders of Company with respect to any of the following, each
Shareholder shall cause all Shares owned of record or beneficially (over which
beneficially-owned Shares Shareholder
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exercises voting power) to be voted (i) in favor of adoption and approval of the
Merger Agreement and approval of the Merger and (ii) against approval of (a) any
proposal made in opposition to or in competition with consummation of the
Merger, (b) any merger, consolidation, sale of assets, reorganization or
recapitalization with any party other than Parent or its affiliates or (c) any
liquidation or winding up of Company.
SECTION 1.3. No Transfer. Until the earlier of the termination
of this Agreement or the record date for the meeting at which shareholders of
the Company are asked to vote upon adoption and approval of the Merger Agreement
and approval of the Merger, except pursuant to Shareholder's tender in the
Offer, or as may be required by the foreclosure on any encumbrance secured by
such Shareholder's Shares as of the date hereof or court order, each Shareholder
agrees not to sell, pledge, encumber, transfer, dispose of, or grant an option
with respect to, any of such Shareholder's Shares.
SECTION 1.4. No Option Exercise. During the period commencing
with the consummation of the Offer and ending at the Effective Time of the
Merger, each Shareholder agrees not to exercise any stock option issued by the
Company, or any other security exercisable for, or convertible into, Shares or
other capital stock of the Company.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDERS
Each of the Shareholders severally represents and warrants to
Buyer that:
SECTION 2.1. Valid Title. Such Shareholder is the sole, true,
lawful and beneficial owner of such Shareholder's Shares with no restrictions on
such Shareholder's rights of disposition pertaining thereto.
SECTION 2.2. Authority; Noncontravention. Such Shareholder has
the requisite power and authority to enter into this Agreement and to consummate
the transactions contemplated by this Agreement. The execution and delivery of
this Agreement by such Shareholder and the consummation by such Shareholder of
the transactions contemplated by this Agreement have been duly authorized by all
necessary action (including any consultation, approval or other action by or
with any other person). This Agreement has been duly executed and delivered by
such Shareholder and constitutes a valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with its terms.
The execution and delivery of this Agreement does not, and the consummation of
the transactions contemplated by this Agreement and compliance with the
provisions of this Agreement will not, conflict with, or result in any violation
of, or default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any obligation
or to loss of a material benefit under, or result in the creation of any lien
upon any of the properties or assets of such Shareholder under, any provision of
applicable law or regulation or of any agreement, judgment, injunction, order,
decree, or other instrument binding on such Shareholder or result in the
imposition of any lien on any asset of such Shareholder. No consent, approval,
order or authorization of, or registration, declaration or filing with or
exemption by any Federal, state or local government or any court, administrative
or regulatory agency or commission or other
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governmental authority or agency, domestic or foreign, is required by or with
respect to such Shareholder in connection with the execution and delivery of
this Agreement by such Shareholder or the consummation by such Shareholder of
the transactions contemplated by this Agreement, except for applicable
requirements, if any, of Sections 13 and 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder. 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 2.3. Total Shares. The number of Shares set forth on
the signature pages hereto are the only Shares beneficially owned by such
Shareholder and, except as set forth on such signature pages, the beneficial
owner or owners of such Shareholder's Shares owns or own no options to purchase
or rights to subscribe for or otherwise acquire any securities of the Company
and has or have no other interest in or voting rights with respect to any
securities of the Company.
SECTION 2.4. No Brokers. Except as set forth in the Merger
Agreement and the Viasoft Disclosure Letter, 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 Shareholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF BUYER
Buyer represents and warrants to each of the Shareholders
that:
SECTION 3.1. Corporate Power and Authority. Buyer has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
by this Agreement have been duly authorized by all necessary corporate action on
the part of Buyer. This Agreement has been duly executed and delivered by Buyer
and constitutes a valid and binding obligation of Buyer, enforceable against it
in accordance with its terms.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
SECTION 4.2. Conduct of Shareholders. Such Shareholder will
not (a) take, agree or commit to take any action that would make any
representation and warranty of such Shareholder hereunder inaccurate in any
respect as of any time prior to the termination of this Agreement or (b) 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 4.3. Specific Performance. The parties hereto agree
that Buyer may be irreparably damaged if for any reason any Shareholder failed
to tender in the Offer, and to not
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withdraw, such Shareholder's Shares in accordance with the terms of this
Agreement or to perform any of its other obligations under this Agreement, and
that Buyer would not have an adequate remedy at law for money damages in such
event. Accordingly, Buyer shall be entitled to specific performance and
injunctive and other equitable relief to enforce the performance of this
Agreement by each Shareholder. This provision is without prejudice to any other
rights that Buyer may have against any Shareholder for any failure to perform
its obligations under this Agreement.
SECTION 4.4. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be deemed given
if delivered personally or sent by overnight courier (providing proof of
delivery) or by telecopy (with copies by overnight courier) to such party at its
address set forth on the signature page hereto or to such other address as such
party may have furnished to the other parties in writing in accordance herewith.
SECTION 4.5. Amendments; Termination. 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. This Agreement
may be terminated by any of the parties hereto upon written notice to the other
parties hereto on or after the earlier of (a) the date that Shares are accepted
for payment in the Offer and (b) the date that the Merger Agreement terminates
in accordance with its terms.
SECTION 4.6. 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
Shareholder may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the prior written consent of Buyer.
SECTION 4.7. Governing Law. This Agreement shall be construed
in accordance with and governed by the law of Delaware without giving effect to
the principles of conflicts of laws thereof.
SECTION 4.8. 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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The parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
CV ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, President
c/o Compuware Corporation
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx
00000
Attention: General Counsel
Facsimile: (000) 000-0000
Shares Subject
to Options Shares Owned SHAREHOLDERS:
36,000 23,495 /s/ Xxxx X. Xxxxx, III
-----------------------------
Name: Xxxx X. Xxxxx, III
c/o Viasoft, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
96,333 9,116 /s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxxxx Xxxxxxxx
c/o Viasoft, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
121,666 1,212 /s/ Xxxxx Xxx
-----------------------------
Name: Xxxxx Xxx
c/o Viasoft, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
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62,668 3,000 /s/ Xxxxxxxxx Xxxx
-----------------------------
Name: Xxxxxxxxx Xxxx
c/o Viasoft, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
49,668 668 /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
c/o Viasoft, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
62,668 47,913 /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
c/o Viasoft, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
219,999 10,043 /s/ X.X. Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
c/o Viasoft, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
195,333 12,900 /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
c/o Viasoft, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
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/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
233,333 205,693 /s/ Xxxxxx X. Xxxxxxxx
38,000* -----------------------------
Name: Xxxxxx X. Xxxxxxxx
c/o Viasoft, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
* Owned in Trust - Trust Name: The Xxxxxxxx Family Trust dated August 12,
1993 Trustees: Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx
80,401 2,771 /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
49,167 1,528** /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
** 95 shares are owned jointly with Xx. Xxxxxx'x spouse.
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