EXHIBIT 2.3
EXECUTION COPY
SUPPORT AGREEMENT
This SUPPORT AGREEMENT (this "Agreement"), is entered into as of
July 18, 2003 by and among Business Objects S.A., a societe anonyme organized
under the laws of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a
Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub
1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3" and,
collectively with Merger Sub 1 and Merger Sub 2, "Merger Subs"), and New SAC
("Majority Stockholder"). Capitalized terms used in this Agreement but not
otherwise defined shall have the meanings ascribed to them in the Merger
Agreement (defined below).
RECITALS
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, Merger Subs, Seagate Software (Cayman) Holdings, an exempted
company incorporated in the Cayman Islands with limited liability (together with
any successor by deregistration and domestication, "HoldCo") and Crystal
Decisions, Inc., a Delaware corporation (the "Company"), are entering into an
Agreement and Plan of Merger, dated as of July 18, 2003 (the "Merger Agreement")
which provides for a transaction pursuant to which (1) Merger Sub 1 will merge
with and into HoldCo (the "HoldCo Merger"), (2) immediately following the HoldCo
Merger, the surviving corporation of the HoldCo Merger will merge with and into
Merger Sub 2 (the "Second HoldCo Merger" and collectively with the HoldCo
Merger, the "Holdco Mergers"), (3) immediately following the Second HoldCo
Merger, Merger Sub 3 will merge with and into the Company (the "Company
Merger"), and (4) immediately following the Company Merger, the surviving
corporation of the Company Merger will merge with and into the surviving
corporation of the Second HoldCo Merger, all on the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, Majority Stockholder beneficially
owns (as such term is defined pursuant to Rule 13d-3(a) promulgated under the
Securities Exchange Act of 1934, as amended), 2,000 shares of capital stock of
HoldCo, par value $1.00 per share (the "HoldCo Shares"), representing 100% of
the current voting power of HoldCo; and
WHEREAS, as a condition and inducement to Parent's and Merger Subs'
willingness to enter into the Merger Agreement, Majority Stockholder is entering
into this Agreement to cause HoldCo to (i) deregister pursuant to Section 226 of
the Companies Law (2003 Revision) of the Cayman Islands as an exempted limited
liability company incorporated under the Companies Law (2003 Revision) and be
domesticated pursuant to Section 388 of the Delaware General Corporation Law as
a Delaware corporation (the "Deregistration and Domestication") and (ii)
immediately after the Deregistration and Domestication (x) execute and deliver
the written consent of stockholders attached to this Agreement as Exhibit A (the
"Written Consent") and (y) deliver to Parent the irrevocable proxy with respect
to the all of the outstanding voting capital stock of HoldCo after the
Deregistration and Domestication (the "Subject Shares") attached to this
Agreement as Exhibit B (the "Proxy").
NOW, THEREFORE, in consideration of the foregoing and the covenants,
agreements, representations and warranties set forth herein, intending to be
legally bound, the parties agree as follows:
Section 1. Deregistration and Domestication. Immediately following
execution of the Merger Agreement, but in any event no later than seven (7) days
after the date of the Merger Agreement, Majority Stockholder will cause HoldCo
to deregister pursuant to Section 226 of the Companies Law (2003 Revision) of
the Cayman Islands as an exempted limited liability company incorporated under
the Companies Law (2003 Revision) and be domesticated pursuant to Section 388 of
the Delaware General Corporation Law as a Delaware corporation.
Section 2. Written Consent. Majority Stockholder agrees to execute
and deliver the Written Consent immediately following the completion of the
Deregistration and Domestication.
Section 3. Voting of Subject Shares. At every meeting of HoldCo's
shareholders and at every adjournment thereof, and on every action or approval
by written consent of HoldCo's shareholders, Majority Stockholder agrees to
vote, or cause to be voted, to the extent not voted by Parent as appointed by
the Proxy, all of the HoldCo Shares or the Subject Shares, as the case may be:
(a) in favor of the approval and adoption of the Merger
Agreement and the approval of the HoldCo Mergers and the transactions
contemplated by the Merger Agreement;
(b) against approval of any proposal made in opposition to, or
in competition with, the HoldCo Mergers and the transactions contemplated by the
Merger Agreement; and
(c) against any actions (other than those actions that relate
to the HoldCo Mergers and the transactions contemplated by the Merger Agreement)
that are intended to, or could be reasonably expected to, impair the ability of
HoldCo to consummate the HoldCo Mergers or otherwise impede, interfere with,
delay, postpone, discourage or adversely affect the consummation of the HoldCo
Mergers in accordance with the terms of the Merger Agreement.
Majority Stockholder further agrees not to enter into any agreement or
understanding with any person to vote or give instructions in any manner
inconsistent with or violative of the terms of this Section 3.
Section 4. Irrevocable Proxy. Immediately following the completion
of the Deregistration and Domestication, Majority Stockholder agrees to deliver
the Proxy to Parent, which shall be irrevocable to the fullest extent
permissible by applicable law, with respect to the Subject Shares. The parties
agree that by reason of the Merger Agreement, the Proxy is a proxy coupled with
an interest. At Parent's request, Majority Stockholder will perform such further
acts and execute such further documents as may be required to vest in Parent or
its Representatives the sole power to vote the Subject Shares during the term of
the Proxy in accordance with its terms.
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Section 5. Transfer of Subject Shares. Except as otherwise
contemplated by the Merger Agreement or this Agreement, from and after the date
of this Agreement until the termination of this Agreement, Majority Stockholder
will not, directly or indirectly, without the prior written consent of Parent:
(a) offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise in any way dispose of, or enter into any contract, option or
other agreement (oral or written) with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or any other
disposition of, any or all of the HoldCo Shares or the Subject Shares, or any
interest therein;
(b) grant any proxies or powers of attorney, deposit any of
the HoldCo Shares or the Subject Shares into a voting trust or enter into a
voting agreement with respect to any of the HoldCo Shares or the Subject Shares;
(c) take any action that would reasonably be expected to have
the effect of preventing or disabling Majority Stockholder from performing
Majority Stockholder's obligations under this Agreement or making any
representation or warranty of Majority Stockholder contained in this Agreement
untrue or incorrect; or
(d) enter into any agreement or arrangement providing for any
of the actions described in clause (a), (b) or (c) above.
For the avoidance of doubt, nothing in this Section 5 shall restrict the ability
of HoldCo to conduct the Deregistration and Domestication.
Section 6. Representations, Warranties and Covenants. Majority
Stockholder hereby represents and warrants to Parent and Merger Subs as follows:
(a) Ownership. Majority Stockholder (i) is, and at all times
prior to the Deregistration and Domestication will be, the beneficial owner of
the HoldCo Shares and (ii) at all times after the Deregistration and
Domestication and prior to the termination of this Agreement will be, the
beneficial owner of the Subject Shares. The HoldCo Shares do, and upon issuance
the Subject Shares will, constitute all of the issued and outstanding shares of
HoldCo capital stock owned of record or beneficially owned by Majority
Stockholder. Majority Stockholder has the sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
HoldCo Shares and Subject Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and the terms
of this Agreement.
(b) Power; Binding Agreement. Majority Stockholder has all
requisite legal capacity, power and authority to enter into and perform all of
Majority Stockholder's obligations under this Agreement. This Agreement has been
duly and validly executed and delivered by Majority Stockholder and when duly
and validly executed and delivered by Parent and Merger Subs will constitute a
valid and binding agreement of Majority Stockholder, enforceable against
Majority Stockholder in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally and by general equitable principles.
There is no
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beneficiary or holder of a voting trust certificate or other interest of any
trust of which Majority Stockholder is trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by Majority
Stockholder of the transactions contemplated hereby.
(c) No Conflicts. Except for the Deregistration and
Domestication or as otherwise contemplated by the Merger Agreement, no filing or
registration with, and no permit, authorization, order, filing, registration
consent or approval of, any federal, state, local, municipal, foreign or other
public body or authority is necessary for the execution of this Agreement by
Majority Stockholder and the consummation by Majority Stockholder of the
transactions contemplated hereby, and none of the execution and delivery of this
Agreement by Majority Stockholder, the consummation by Majority Stockholder of
the transactions contemplated hereby or compliance by Majority Stockholder with
any of the provisions hereof will (i) conflict with or result in any breach of
any applicable organizational documents applicable to Majority Stockholder, (ii)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Majority Stockholder is a party or
by which Majority Stockholder or any of Majority Stockholder's properties or
assets may be bound, except as could not reasonably be expected to impair the
Majority Stockholder's ability to perform its obligations hereunder, (iii)
require any material consent, authorization or approval of any Person or
Governmental Entity that has not been obtained, or (iv) violate any order, writ,
injunction, decree, judgment, statute, rule or regulation applicable to Majority
Stockholder or any of the HoldCo Shares or Subject Shares.
(d) No Encumbrances. All of the HoldCo Shares are, and at all
times prior to the Deregistration and Domestication will be, held by Majority
Stockholder free and clear of any Encumbrances other than any Encumbrances
created under this Agreement, the Proxy or the Merger Agreement. All of the
Subject Shares will be, at all times after the Deregistration and Domestication
and prior to the termination of this Agreement, held by Majority Stockholder
free and clear of any Encumbrances other than any Encumbrances created under
this Agreement, the Proxy or the Merger Agreement.
Section 7. Legends. Majority Stockholder hereby agrees that it shall
not transfer the HoldCo Shares or Subject Shares during the term hereof, if and
to the extent permitted pursuant to Section 5 of this Agreement, without first
having a legend affixed to the certificates representing such HoldCo Shares or
Subject Shares stating that they are subject to this Agreement and the Proxy.
Section 8. Further Assurances. From time to time, at Parent's
reasonable request and without further consideration, Majority Stockholder will
perform such further acts and execute and deliver such additional documents as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by the Merger
Agreement, this Agreement and the Proxy.
Section 9. Termination. This Agreement will terminate upon the
earlier to occur of (i) the date on which the Merger Agreement is terminated,
(ii) the HoldCo Merger Effective Time, and (iii) the mutual agreement of the
parties hereto in writing to terminate this
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Agreement. Following termination, this Agreement will be of no further force and
effect except that nothing herein will relieve any party from liability for any
material breach of this Agreement.
Section 10. Stock Splits, Dividends, Etc. The "HoldCo Shares" and
the "Subject Shares" shall be deemed to include any HoldCo Shares or Subject
Shares issued as (or issuable upon the conversion or exercise of any warrant,
right, option or other convertible security which is issued as) a dividend,
stock split or other distribution, recapitalization or reclassification with
respect to, or in exchange for, or in replacement of, such HoldCo Shares or
Subject Shares.
Section 11. Miscellaneous.
(a) Amendments. Subject to applicable law, this Agreement may
not be amended except by execution of an instrument in writing signed on behalf
of each of Parent, Merger Subs and Majority Stockholder.
(b) Notices. All notices and other communications hereunder
will be in writing and will be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of receipt (or, the first
business day following such receipt if the date is not a business day) of
transmission by telecopy or telefacsimile, or (iii) on the date of confirmation
of receipt (or, the first business day following such receipt if the date is not
a business day) if delivered by a nationally recognized courier service. All
notices hereunder will 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:
(i) if to Majority Stockholder, to:
New SAC
c/o Silver Lake Partners
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxx Xxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy at the same address to the attention of the General Counsel and
Secretary and with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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(ii) if to Parent or Merger Subs, to:
Business Objects S.A.
c/o Business Objects Americas, Inc.
0000 Xxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy at the same address to the attention of the General Counsel and
Secretary and with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) Counterparts. This Agreement may be executed in two or
more counterparts, and by facsimile, all of which will be considered one and the
same agreement and will 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 all parties need not sign the same counterpart.
(d) Entire Agreement; Third Party Beneficiaries. This
Agreement and the documents and instruments and other agreements among the
parties hereto as contemplated by or referred to herein, including the exhibits
hereto, (a) constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, and (b) are not intended to confer upon any other Person any rights or
remedies hereunder.
(e) Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
(f) Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties will be entitled
to seek an injunction or injunctions to prevent breaches of
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this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
(g) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof. In addition, each of the parties hereto (i) consents to submit
itself to the personal jurisdiction of any Delaware state court in the event any
dispute arises out of this Agreement or any of the other transactions
contemplated by this Agreement, (ii) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (iii) agrees that it will not bring any action relating to this
Agreement or any of the other transactions contemplated by this Agreement in any
court other than a state court sitting in the State of Delaware.
(h) Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
(i) Assignment. This Agreement may not be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that Parent may assign, in its sole
discretion and without the consent of Majority Stockholder, any or all of its
rights, interests and obligations hereunder to any of its direct or indirect
wholly-owned subsidiaries. Subject to the preceding sentence, but without
relieving any party hereto of any obligation hereunder, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
(j) No 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.
(k) Waiver of Jury Trial. EACH OF PARENT, MAJORITY STOCKHOLDER
AND EACH MERGER SUB HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF
PARENT, MAJORITY STOCKHOLDER OR EACH MERGER SUB IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
(l) Expenses. All fees and expenses incurred in connection
with this Agreement and the transactions contemplated hereby will be paid by the
party incurring such expenses whether or not the HoldCo Mergers are consummated.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized respective officers as of the date first
written above.
BUSINESS OBJECTS S.A
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
BORG MERGER SUB I, INC.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
and President
BORG MERGER SUB II, INC.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
and President
BORG MERGER SUB III, INC.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
and President
[SIGNATURE PAGE TO SUPPORT AGREEMENT]
NEW SAC
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President, General
Counsel and Corporate Secretary
[SIGNATURE PAGE TO SUPPORT AGREEMENT]
EXHIBIT A
WRITTEN CONSENT IN LIEU OF A MEETING OF
THE STOCKHOLDERS OF
SEAGATE SOFTWARE (CAYMAN) HOLDINGS CORPORATION
New SAC (the "Majority Stockholder"), a stockholder of Seagate
Software (Cayman) Holdings Corporation, a Delaware corporation (the "HoldCo"),
acting pursuant to Section 228 of the General Corporation Law of the State of
Delaware, does hereby consent to the adoption, and does hereby adopt, the
following resolutions with the same force and effect as if adopted by a vote at
a duly convened meeting of the stockholders of HoldCo:
WHEREAS, the Majority Stockholder holds of record 2,000 shares of
the HoldCo's common stock, par value $1.00 per share (the "Common Stock"),
which is the only class of capital stock of HoldCo issued and outstanding;
WHEREAS, the Common Stock held of record by the Majority Stockholder
represents 100% of the voting power of HoldCo;
WHEREAS, Crystal Decisions, Inc. (the "Company") has entered into
the Agreement and Plan of Merger by and among Business Objects S.A., a societe
anonyme organized under the laws of the Republic of France ("Parent"), Borg
Merger Sub I, Inc., a Delaware corporation and a direct wholly-owned subsidiary
of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and
a direct wholly-owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub
III, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent
("Merger Sub 3"), HoldCo and the Company in substantially the form attached
hereto as Exhibit A (the "Merger Agreement") which provides for a transaction
pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo
Merger"), (2) immediately following the HoldCo Merger, the surviving corporation
of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo
Merger" and collectively with the HoldCo Merger, the "Holdco Mergers"), (3)
immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and
into the Company (the "Company Merger"), and (4) immediately following the
Company Merger, the surviving corporation of the Company Merger will merge with
and into the surviving corporation of the Second HoldCo Merger, all on the terms
and subject to the conditions set forth in the Merger Agreement;
WHEREAS, the board of directors of HoldCo has recommended that the
stockholders of HoldCo approve and adopt the Merger Agreement and approve the
HoldCo Mergers; and
WHEREAS, Majority Stockholder has resolved to approve and adopt the
Merger Agreement and to approve the HoldCo Mergers.
NOW, THEREFORE, BE IT:
RESOLVED, that the Merger Agreement is hereby approved and adopted,
and the HoldCo Mergers are hereby approved, in all respects.
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IN WITNESS WHEREOF, the undersigned has executed this Written
Consent as of the ____ day of July, 2003.
NEW SAC
By:
--------------------------
Name:
Title:
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EXHIBIT B
IRREVOCABLE PROXY
NEW SAC ("Majority Stockholder") of Seagate Software (Cayman)
Holdings Corporation, a Delaware corporation ("HoldCo"), hereby irrevocably
appoints Xxxxxxx Xxxxxxxx and Xxxx Xxxxx and each of them and any designee
thereof, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the voting of the Subject Shares, as such
term is defined in the Support Agreement entered into concurrently herewith by
and among of Business Objects S.A., a societe anonyme organized under the laws
of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"),
Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3" and,
collectively with Merger Sub 1 and Merger Sub 2, "Merger Subs"), and Majority
Stockholder (the "Support Agreement") with respect to the matters set forth
below, until the earlier of (1) the date on which that certain Agreement and
Plan of Merger entered into concurrently herewith (the "Merger Agreement"), by
and among Parent, Merger Subs, HoldCo and Crystal Decisions, Inc. (the
"Company"), which provides for a transaction pursuant to which (1) Merger Sub 1
will merge with and into HoldCo (the "HoldCo Merger"), (2) immediately following
the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge
with and into Merger Sub 2 (the "Second HoldCo Merger" and collectively with the
HoldCo Merger, the "Holdco Mergers"), (3) immediately following the Second
HoldCo Merger, Merger Sub 3 will merge with and into the Company (the "Company
Merger"), and (4) immediately following the Company Merger, the surviving
corporation of the Company Merger will merge with and into the surviving
corporation of the Second HoldCo Merger, all on the terms and subject to the
conditions set forth in the Merger Agreement, is terminated or (2) the HoldCo
Merger Effective Time (as defined in the Merger Agreement) (such earlier date,
the "Termination Date").
Until the Termination Date, this proxy is irrevocable to the extent
permitted under Section 212 of the Delaware General Corporation Law, is coupled
with an interest, is granted pursuant to the Support Agreement, and is granted
in consideration of Parent and Merger Subs entering into the Merger Agreement.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Subject Shares are hereby revoked and no subsequent proxies will
be given. The attorneys and proxies named above will be empowered at any time
prior to the Termination Date to vote or cause to be voted all of the Subject
Shares at every meeting of HoldCo's stockholders and at every adjournment
thereof, and on every action or approval by written consent of HoldCo's
stockholders:
1. in favor of the approval and adoption of the Merger Agreement and
the approval of the HoldCo Mergers and the transactions contemplated by the
Merger Agreement;
2. against approval of any proposal made in opposition to, or in
competition with, the HoldCo Mergers and the transactions contemplated by the
Merger Agreement; and
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3. against any actions (other than those actions that relate to the
HoldCo Mergers and the transactions contemplated by the Merger Agreement) that
are intended to, or could be reasonably expected to, impair the ability of
HoldCo to consummate the HoldCo Mergers or otherwise impede, interfere with,
delay, postpone, discourage or adversely affect the consummation of the HoldCo
Mergers in accordance with the terms of the Merger Agreement.
Notwithstanding anything contained in this Proxy, this Proxy shall
terminate when the Support Agreement terminates.
B-2
Any obligation of the undersigned hereunder will be binding upon the successors
and assigns of the undersigned.
Dated: July __, 2003
NEW SAC
By:
------------------------------
Name:
Title:
**************THIS PROXY IS IRREVOCABLE.*************
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