Exhibit 3
TENDER AND STOCKHOLDER SUPPORT AGREEMENT
TENDER AND STOCKHOLDER SUPPORT AGREEMENT, dated as of April 23, 2002
(the "Agreement"), by and among Mentor Graphics Corporation, an Oregon
corporation ("Parent"), Indiana Merger Corporation, a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and _________ (the
"Stockholder").
RECITALS
WHEREAS, Parent, Merger Sub and Innoveda, Inc., a Delaware corporation
(the "Company"), propose to enter into an Agreement and Plan of Merger, dated as
of April 23, 2002 (as the same may be amended or supplemented from time to time,
the "Merger Agreement"), which provides, among other things, that Merger Sub
will make a cash tender offer (the "Offer") for all of the outstanding capital
stock of the Company and, after expiration of the Offer, will merge with and
into the Company (the "Merger"), in each case upon the terms and subject to the
conditions in the Merger Agreement (with all capitalized terms used but not
defined herein having the meanings set forth in the Merger Agreement);
WHEREAS, the Stockholder owns the number of shares of common stock, par
value $0.01 per share, of the Company (the "Common Stock") set forth and further
described on Annex A hereto (such shares of Common Stock, together with any
other shares of capital stock of the Company acquired (whether beneficially or
of record) by the Stockholder after the date hereof and prior to the earlier of
the Effective Time and the termination of all of the Stockholder's obligations
under this Agreement, including any shares acquired by means of purchase,
dividend or distribution, or issued upon the exercise of any warrants or
options, and the conversion of any convertible securities or otherwise being
collectively referred to herein as, the "Subject Shares"); and
WHEREAS, as a condition to the willingness of Parent and Merger Sub to
enter into the Merger Agreement and make the Offer, Parent has required that the
Stockholder agree and, in order to induce Parent and Merger Sub to enter into
the Merger Agreement, the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, to induce Parent and Merger Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent and Merger Sub as of the date hereof as
follows:
(a) Organization. To the extent applicable, the Stockholder is a
corporation, partnership or limited liability company, duly organized,
validly existing and in good standing under the laws of the jurisdiction
of the Stockholder's organization.
(b) Authority. The Stockholder has the legal capacity and all
requisite power and authority to execute and deliver this Agreement and
to perform the Stockholder's obligations hereunder and consummate the
transactions contemplated
hereby. To the extent applicable, the execution, delivery and
performance by the Stockholder of this Agreement and the consummation by
the Stockholder of the transactions contemplated hereby have been duly
and validly authorized by the Stockholder (or its board of directors or
similar governing body, as applicable), and no other actions or
proceedings on the part of the Stockholder are necessary to authorize
the execution and delivery by the Stockholder of this Agreement and the
consummation by the Stockholder of the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by the
Stockholder, and constitutes a valid and binding obligation of the
Stockholder enforceable in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law).
(c) The Subject Shares. Except as set forth on Annex A hereto,
(i) the Stockholder is the record and beneficial owner of, and has good
and marketable title to, the Subject Shares set forth on Annex A hereto,
free and clear of any and all liens and other encumbrances; (ii) the
Stockholder does not own, of record or beneficially, any shares of
capital stock of the Company (or rights to acquire any such shares)
other than the Subject Shares set forth on Annex A hereto; and (iii) the
Stockholder has the sole right to vote, sole power of disposition, sole
power to issue instructions with respect to the matters set forth in
Sections 3, 4, 5 and 6 hereof, 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
Stockholder's Subject Shares, with no material limitations,
qualification or restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement.
(d) No Conflicts. (A) Except (i) for the filings required under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the Securities Act of 1933, as amended (the "Securities Act"), (ii)
for any filings required under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and any other
applicable law governing antitrust or competition matters, (iii) for the
filings required under the rules and regulations of the National
Association of Securities Dealers, Inc. (the "NASD"), (iv) for the
applicable requirements of state securities, takeover or Blue Sky laws,
no filing with, and no permit, authorization, consent or approval of,
any state, federal or foreign public body or authority is necessary for
the execution of this Agreement by the Stockholder and the consummation
by the Stockholder of the transactions contemplated hereby, and (v) as
set forth on Annex A hereto, (B) the execution and delivery of this
Agreement by the Stockholder do not, and the consummation by the
Stockholder of the transactions contemplated hereby and compliance with
the terms hereof will not, conflict with, or result in any violation of,
or breach or default (with or without notice or lapse of time or both)
under, (1) to the extent applicable, any provisions of the
organizational documents of the Stockholder, (2) any provision of any
material trust, loan or credit agreement, note, bond, mortgage,
indenture, guarantee, lease, license, contract or other agreement to
which the Stockholder is a party or by which the Stockholder is bound,
or (3) any material franchise, judgment, order, writ, injunction,
notice, decree, statute, law, ordinance, rule or regulation applicable
to
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the Stockholder or the Stockholder's property or assets, and (C) the
execution and delivery of this Agreement by the Stockholder do not, and
the consummation by the Stockholder of the transactions contemplated
hereby will not, violate any material laws applicable to the Stockholder
or result in Parent or Merger Sub becoming non-exempt interested
stockholders under Section 203 of the DGCL.
2. Representations and Warranties of Parent and Merger Sub. Each of
Parent and Merger Sub hereby represents and warrants to the Stockholder as of
the date hereof as follows:
(a) Organization. Each of Parent and Merger Sub is a corporation
duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization.
(b) Authority. Each of Parent and Merger Sub has the requisite
corporate power and authority to execute and deliver this Agreement and
to perform its respective obligations hereunder and consummate the
transactions contemplated hereby. The execution, delivery and
performance by Parent and Merger Sub of this Agreement and the
consummation by them of the transactions contemplated hereby, have been
duly and validly authorized by the Board of Directors of Parent and
Merger Sub and no other corporate or other action or proceedings on the
part of Parent and Merger Sub are necessary to authorize the execution
and delivery by them of this Agreement and the consummation by them of
the transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Parent and Merger Sub, and constitutes
a valid and binding obligation of Parent and Merger Sub enforceable in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law).
(c) No Conflicts. Except for (i) the filings required under the
Exchange Act and the Securities Act, (ii) the filings required under the
HSR Act, and any other applicable law governing antitrust or competition
matters, (iii) the filings required under the rules and regulations of
the NASD, and (iv) the applicable requirements of state securities,
takeover or Blue Sky laws, and (iv) such notifications, filings,
authorizing actions, orders and approvals as may be required under other
laws, (A) no material filing with, and no material permit,
authorization, consent or approval of, any state, federal or foreign
public body or authority is necessary for the execution of this
Agreement by Parent and Merger Sub and the consummation by Parent and
Merger Sub of the transactions contemplated hereby, (B) the execution
and delivery of this Agreement by Parent and Merger Sub do not, and the
consummation by them of the transactions contemplated hereby and
compliance with the terms hereof will not, conflict with, or result in
any violation of, or breach or default (with or without notice or lapse
of time or both) under (1) the charter documents of Parent or Merger
Sub, (2) any provision of any material trust, loan or credit agreement,
note, bond, mortgage, indenture, guarantee, lease, license, contract or
other agreement to which Parent or Merger Sub is a party or by which
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it is bound, or (3) any material franchise, judgment, order, writ,
injunction, notice, decree, statute, law, ordinance, rule or regulation
applicable to Parent or Merger Sub or their respective properties or
assets, and (C) the execution and delivery of this Agreement by Parent
and Merger Sub do not, and the consummation by them of the transactions
contemplated hereby will not, violate any laws applicable to Parent or
Merger Sub, except in the case of clauses (B)(2), (B)(3) and (C) above,
for any such conflicts, violations, breaches or defaults that would not
have a material adverse effect on the ability of Parent or Merger Sub to
consummate the transactions contemplated hereby.
3. Tender of Subject Shares.
(a) Parent and Merger Sub agree, subject to the conditions of
the Offer set forth in Annex I to the Merger Agreement and the other
terms and conditions of the Merger Agreement, that (i) Merger Sub will
commence the Offer as promptly as practicable (and in any event within
five business days after the date of the Merger Agreement); and (ii)
Merger Sub will accept for payment, purchase and pay for, in accordance
with the terms of the Offer and the Merger Agreement, all shares of
Common Stock validly tendered pursuant to the Offer.
(b) The Stockholder agrees (i) to tender the Subject Shares into
the Offer promptly, and in any event no later than the fifth business
day following the commencement of the Offer, or, if any Stockholder has
not received the Offer Documents by such time, within two business days
following receipt of such documents but in any event prior to the date
of expiration of such Offer, in each case, free and clear of any liens
or other encumbrances except as disclosed herein or those arising from
this Agreement and (ii) not to withdraw any Subject Shares so tendered
so long as there is no decrease in the Offer Price and the Offer Price
is payable in cash. If any Stockholder acquires Subject Shares after the
date hereof, the Stockholder shall tender (or cause the record holder to
tender) such Subject Shares on or before such fifth business day
following the commencement of the Offer, or, if later, on or before the
second business day after such acquisition. The Stockholder acknowledges
and agrees that Parent's and Merger Sub's obligation to accept for
payment and pay for the Subject Shares in the Offer is subject to the
terms and conditions of the Offer.
(c) The Stockholder will receive the same Offer Price received
by other stockholders of the Company in the Offer with respect to
Subject Shares tendered by the Stockholder in the Offer. In the event
that, notwithstanding the provisions of the first sentence of Section
3(b), any Subject Shares are for any reason withdrawn from the Offer,
such Subject Shares will remain subject to the terms of this Agreement.
(d) The Stockholder agrees to permit Parent and the Company to
publish and disclose in the Offer Documents and Schedule 14D-9 and, if
approval of the stockholders of the Company is required under applicable
law, the Proxy Statement (including all documents and schedules filed
with the Securities and Exchange Commission (the "SEC"), the
Stockholder's identity and ownership of Common Stock and the nature of
the Stockholder's commitments, arrangements and understandings under
this Agreement.
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4. Agreement to Vote. The Stockholder agrees that:
(a) At any meeting of stockholders of the Company called to vote
upon the Merger Agreement and the transactions contemplated thereby,
however called, or at any adjournment or postponement thereof or in
connection with any written consent of the holders of Common Stock or in
any other circumstances upon which a vote, consent or other approval
with respect to the Merger Agreement and the transactions contemplated
thereby is sought, the Stockholder shall be present (in person or by
proxy) and shall vote (or cause to be voted) all Subject Shares then
held of record or beneficially owned by the Stockholder in favor of the
Merger and the Merger Agreement and the transactions contemplated
thereby.
(b) At any meeting of stockholders of the Company, however
called, or at any adjournment or postponement thereof or in any other
circumstances upon which a vote or other approval is sought from the
Company's stockholders, the Stockholder shall vote (or cause to be
voted) all Subject Shares then held of record or beneficially owned by
the Stockholder against any action or agreement (other than the Merger
Agreement or the transactions contemplated thereby) that would impede,
interfere with, delay, postpone or attempt to discourage the Merger, the
Offer or the other transactions contemplated by this Agreement and the
Merger Agreement, including, but not limited to any of the following
which have such an effect: (i) any Acquisition Proposal; (ii) any action
that is reasonably likely to result in a breach in any respect of any
representation, warranty, covenant or any other obligation or agreement
of the Company under the Merger Agreement or result in any of the
conditions set forth in Annex I to the Merger Agreement not being
fulfilled; (iii) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the
Company and its subsidiaries; (iv) a sale, lease or transfer of a
material amount of assets of the Company and its subsidiaries or a
reorganization, recapitalization, dissolution, winding up or liquidation
of the Company and its subsidiaries; (v) any change in the management or
board of directors of the Company, except as otherwise agreed to in
writing by Parent; (vi) any other material change in the Company's
corporate structure, business, certificate of incorporation or bylaws
that is not agreed to by Parent in the exercise of Parent's discretion;
and (vii) any material change in the present capitalization or dividend
policy of the Company.
(c) The Stockholder hereby irrevocably grants to, and appoints
Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxxx (the "Proxyholders"), or either
of them, in their respective capacities as officers or directors of
Parent, and any individual who shall hereafter succeed to any such
office or directorship of Parent, and each of them individually, the
Stockholder's proxy and attorney-in-fact (with full power of
substitution and re-substitution), for and in the name, place and stead
of the Stockholder, to vote the Subject Shares in favor of the Merger,
the Merger Agreement and the transactions contemplated thereby, against
any Acquisition Proposal and as otherwise required by this Section 4,
subject to the limitations contained herein. The Stockholder represents
that any proxies heretofore given in respect of the Subject Shares are
revocable, and that any such proxies are hereby, or have previously
been, revoked. This proxy will terminate
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upon the termination of this Agreement in accordance with its terms. The
Stockholder authorizes the Proxyholders to file this proxy and any
substitution or revocation of substitution with the Secretary of the
Company and with any Inspector of Elections at any meeting of the
stockholders of the Company.
(d) The Stockholder understands and acknowledges that Parent and
Merger Sub are entering into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Agreement. The Stockholder
hereby affirms that the irrevocable proxy set forth in this Section 4 is
given in connection with the execution of the Merger Agreement, and that
such irrevocable proxy is given to secure the performance of the duties
of the Stockholder under this Agreement. The Stockholder hereby further
affirms that the irrevocable proxy is coupled with an interest. Such
irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 212(e) of the Delaware General
Corporation Law.
5. The Option; Exercise; Adjustments.
(a) The Stockholder hereby grants to Parent an irrevocable
option (the "Option") to purchase from time to time the Subject Shares,
upon the terms and subject to the conditions set forth herein (the
"Optioned Shares"). The Option may be exercised by Parent in whole or
from time to time in part, at any time following the occurrence of a
Triggering Event (as defined below) and prior to the termination of the
Option in accordance with Section 9. In the event Parent wishes to
exercise the Option, Parent shall send a written notice to the
Stockholder (the "Stock Exercise Notice") specifying the total number of
Optioned Shares it wishes to purchase and a date (not later than 10
business days and not earlier than one business day from the date such
notice is given; provided, however, that if Rule 14e-5 under the
Exchange Act is applicable at the time of exercise of the Option, the
period in this clause shall not begin before the expiration or
termination of the tender offer and shall extend for 10 business days
after the expiration or termination of the tender offer) for the closing
of such purchase (the "Closing Date"). Parent may revoke an exercise of
the Option at any time prior to the Closing Date by written notice to
the applicable Stockholder; provided, that Parent may make no more than
a total of one such revocation with respect to any and all exercises
relating to the Optioned Shares. In the event of any change in the
number of issued and outstanding shares of Subject Shares by reason of
any stock dividend, stock split, split-up, recapitalization, merger or
other change in the corporate or capital structure of the Company, the
number of Optioned Shares subject to the Option and the Exercise Price
(as hereinafter defined) per Optioned Share shall be appropriately
adjusted.
(b) Parent's right to exercise the Option is subject to the
following conditions:
(i) Neither Parent nor Merger Sub shall have breached
any of its material obligations under the Merger Agreement;
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(ii) No preliminary or permanent injunction or other
order issued by any federal or state court of competent
jurisdiction in the United States invalidating the grant or
prohibiting the exercise of the Option or the delivery of the
Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act
shall have expired or been terminated; and
(iv) One or more of the following events (each, a
"Triggering Event") shall have occurred on or after the date
hereof: (A) the Company Board shall have withdrawn or adversely
modified (including by amendment to the Schedule 14D-9), or
failed upon Parent's request to reconfirm, its approval or
recommendation of the Offer, the Merger or the Merger Agreement
(or determined to do so); (B) the Company Board shall have
determined to recommend to the Company's stockholders that they
approve an Acquisition Proposal other than the Offer and the
Merger or shall have determined to accept a Superior Proposal;
(C) a tender offer or exchange offer that, if successful, would
result in any person or group becoming a beneficial owner of 15%
or more of the outstanding Shares is commenced (other than by
Parent or an affiliate of Parent); or (D) there is a public
announcement with respect to a plan or intention by the Company,
other than with respect to Parent or its affiliates, to effect
any of the foregoing transactions. For purposes of this
subparagraph (iv), the terms "group" and "beneficial owner"
shall be defined by reference to Section 13(d) of the Exchange
Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares
following the exercise of the Option, and the Stockholder's obligation
to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other
order issued by any federal or state court of competent
jurisdiction in the United States prohibiting the delivery of
the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not
violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act
shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver
to Parent a certificate or certificates for any shares that are
certificated representing the Optioned Shares in the denominations
designated by Parent in its Stock Exercise Notice, and Parent will
purchase the Optioned Shares from the Stockholder at a price per
Optioned Share equal to the Offer Price (the "Exercise Price"), payable
in cash. Payment made by Parent to the Stockholder pursuant to this
Agreement shall be made by wire transfer of federal funds to a bank
designated by the Stockholder. After payment of the Exercise Price for
the Optioned Shares covered by the Stock Exercise Notice, the Option
shall be deemed
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exercised to the extent of the Optioned Shares specified in the Stock
Exercise Notice as of the date such Stock Exercise Notice is given to
the Stockholder.
(e) Any closing hereunder shall take place on the Closing Date
specified by Parent in its Stock Exercise Notice pursuant to Section
5(a) at 10:00 a.m., local time, or the first business day thereafter on
which all of the conditions in Section 5(b) and 5(c) are met, at the
principal executive office of the Company, or at such other time and
place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or
otherwise transfers any Optioned Share to a party which is not an
affiliate of Parent ("Third Party Purchaser") at any time within twelve
months of Parent's acquisition of such Optioned Share, Parent shall
promptly pay to the Stockholder the amount, if any, by which the
consideration for such Optioned Share received by Parent from such Third
Party Purchaser exceeds the Exercise Price less (i) Parent's cost per
share, including without limitation applicable brokerage commissions and
other actual transaction costs, associated solely with such sale to such
Third Party Purchaser and (ii) Parent's cost of investment in such
Optioned Share, as measured by applying the prime rate of the Bank of
America as measured from time to time from the date of Parent's purchase
of the Optioned Share to the date of Parent's receipt of such
consideration from such Third Party Purchaser, to the Exercise Price.
6. Restriction on Transfer. Other than pursuant to this Agreement, the
Stockholder agrees not (a) to sell, transfer, pledge, encumber, assign or
otherwise dispose of (collectively, "Transfer"), or enter into any contract,
option or other arrangement or understanding with respect to the Transfer by the
Stockholder of, any of the Subject Shares or offer any interest in any thereof
to any person other than pursuant to the terms of the Offer, the Merger or this
Agreement, (b) to enter into any voting arrangement or understanding, whether by
proxy, power of attorney, voting agreement, voting trust or otherwise with
respect to the Subject Shares, or (c) to take any action that would make any
representation or warranty of the Stockholder contained herein untrue or
incorrect in any material respect or have the effect of preventing or disabling
the Stockholder from performing its obligations under this Agreement.
7. No Solicitation of Acquisition Proposals. The Stockholder shall not,
and shall not authorize, permit or cause any of its, directors, officers,
employees, agents, representatives and advisors (including any investment
banker, attorney or accountant retained by the Company or any of its
Subsidiaries or the Stockholder) to, directly or indirectly, (i) encourage
(including by way of furnishing non-public information), solicit, initiate or
facilitate any Acquisition Proposal, or (ii) participate in any way in
discussions or negotiations with, or furnish any information to, any person in
connection with, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or could reasonably be expected to lead
to, any Acquisition Proposal, or otherwise cooperate in any way with, or
participate in or assist, facilitate or encourage any effort or attempt by any
other person to do or seek any of the foregoing. The Stockholder shall promptly
communicate to Parent, to the same extent as is required by the Company pursuant
to, and subject to the same conditions contained in, the Merger Agreement, the
terms, and other information concerning, any proposal,
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discussion, negotiation or inquiry and the identity of the party making such
proposal or inquiry which the Stockholder may receive in respect of any such
Acquisition Proposal.
8. Further Assurances. Upon the terms and subject to the conditions
hereof and of the Merger Agreement and the Offer, each of the parties hereto
shall use its reasonable best efforts to take, or cause to be taken, all
appropriate action, and to do or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement. Without limiting the
foregoing, each party hereto will, from time to time and without further
consideration, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments and shall take
all such other action as any other party may reasonably request for the purpose
of effectively carrying out the transactions contemplated by this Agreement,
including (a) vesting good title to the Subject Shares in Merger Sub and (b)
using its reasonable best efforts to obtain all consents and approvals of
governmental authorities and parties to contracts as are necessary for the
consummation of the transactions contemplated by this Agreement.
9. Termination. All obligations, agreements and waivers hereunder, will
terminate and be of no further force and effect on the earlier of: (a)
forty-five days after the date the Merger Agreement is terminated in accordance
with its terms; and (b) the Effective Time; provided, however, that (i) the
obligations, agreements and waivers of the Stockholder under this Agreement
shall terminate immediately upon termination of the Merger Agreement pursuant
Section 7.1.1, 7.1.2 or 7.1.4 of the Merger Agreement; (ii) the obligations of
the Stockholder under Section 4 of this Agreement shall terminate in the event
of the termination of the Merger Agreement if and only if the Company gives
Parent and Merger Sub notice of a record date for a vote on an Acquisition
Proposal other than the Merger Agreement at least 13 business days prior the
date of such record date, such termination of obligations under Section 4 of
this Agreement to be effective at the close of business on such 13th business
day; and (iii) nothing herein shall relieve any party from liability for any
breach hereof.
10. Waiver of Appraisal and Dissenter's Rights. The Stockholder waives
and agrees not to exercise any rights of appraisal or rights to dissent from the
Merger that the Stockholder may have with respect to the Stockholder's Subject
Shares.
11. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein or is obligated hereunder in his or her
capacity as such director or officer. The Stockholder signs solely in its
capacity as the record holder and beneficial owner (as further set forth on
Annex A hereto) of the Stockholder's Subject Shares, and nothing herein shall
limit or affect any actions taken by any Stockholder in the Stockholder's
capacity as an officer or director of the Company to the extent specifically
permitted by the Merger Agreement.
12. Parent Guarantee. Parent hereby guarantees the due and punctual
payment and performance of any and all obligations and liabilities of Merger Sub
under or arising out of this Agreement and the transactions contemplated hereby.
13. Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance
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with their specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to the remedy of specific performance of such
provisions and to an injunction or injunctions and/or such other equitable
relief as may be necessary to prevent breaches of this Agreement.
14. Stop Transfer Order; Legend. In furtherance of this Agreement,
concurrently herewith, the Stockholder shall, and hereby does authorize the
Company or its counsel to, notify the Company's transfer agent that there is a
stop transfer order with respect to all of the Subject Shares (and that this
Agreement places limits on the voting and transfer of such shares). The
Stockholder agrees as promptly as is reasonably practicable to apply a legend to
all certificates representing the Subject Shares referring to any and all rights
granted to Parent by this Agreement; provided that, no such legend shall
restrict the transfer of the Subject Shares if such transfer is made pursuant to
the Offer.
15. Adjustments to Prevent Dilution, Etc. In the event of any change in
the number of issued and outstanding shares of Subject Shares by reason of any
stock dividend, stock split, split-up, recapitalization, merger or other change
in the corporate or capital structure of the Company, the term "Subject Shares"
shall be deemed to refer to and include the Subject Shares as well as all such
stock dividends and distributions and any shares into which or for which any or
all of the Subject Shares may be changed or exchanged. In such event, the amount
to be paid per share by Parent pursuant to this Agreement shall be
proportionately adjusted.
16. General Provisions.
(a) Amendments. This Agreement may not be modified, altered,
supplemented or amended except by an instrument in writing signed by
each of the parties hereto.
(b) Notice. All notices 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) to Parent or Merger
Sub in accordance with Section 8.3 of the Merger Agreement and to the
Stockholder at the Stockholder's address set forth in Annex A hereto (or
to such other address as any party may have furnished to the other
parties in writing in accordance herewith).
(c) Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section to this Agreement
unless otherwise indicated. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the
counterparts have been signed by each of the parties and delivered to
the other party, it being understood that each party need not sign the
same counterpart.
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(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including, without limitation, the documents and instruments
referred to herein), (i) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof and (ii) is not
intended to confer upon any person or entity other than the parties
hereto any rights or remedies hereunder; provided that the Company is an
intended third-party beneficiary of Section 3(d).
(f) Binding Agreement. This Agreement and the obligations
hereunder shall attach to the Subject Shares and shall be binding upon
the parties and any person or entity to which legal or beneficial
ownership of the Subject Shares shall pass, whether by operation of law
or otherwise, including, without limitation, the Stockholder's
administrators or successors. Notwithstanding any transfer of Subject
Shares, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement.
(g) Governing Law; Consent to Jurisdiction. This Agreement and
the legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Delaware, without regard to its conflict of laws rules. All parties to
this Agreement hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this Agreement
shall be brought only in the Chancery Court of the State of Delaware
(the "Delaware Court"), and not in any other state or federal court in
the United States of America or any court in any other country, (ii)
consent to submit to the exclusive jurisdiction of the Delaware Court
for purposes of any action or proceeding arising out of or in connection
with this Agreement or any of the transactions contemplated hereby,
(iii) appoint, to the extent such party is not otherwise subject to
service of process in the State of Delaware, irrevocably RL&F Service
Corp., One Xxxxxx Square, 10th Floor, 10th and King Streets, Wilmington,
Delaware 19801 as its agent in the State of Delaware as such party's
agent for acceptance of legal process in connection with any such action
or proceeding against such party with the same legal force and validity
as if served upon such party personally within the State of Delaware,
(iv) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court, and (v) waive, and agree not to plead
or to make, any claim that any such action or proceeding brought in the
Delaware Court has been brought in an improper or inconvenient forum or
is subject to a jury trial. A prevailing party in any action or
proceeding arising out of or in connection with this Agreement or any of
the transactions contemplated hereby shall be entitled to reimbursement
of its attorneys' fees and costs incurred in such action or proceeding
by the other party.
(h) Costs and Expenses. Whether or not the Offer or the Merger
is consummated, except as otherwise expressly set forth in this
Agreement, all costs and expenses incurred in connection with this
Agreement and the consummation of the transactions contemplated hereby
shall be paid by the party incurring such expenses.
11
(i) Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the
Stockholder or Merger Sub and Parent, as the case may be, provided (i)
that Merger Sub or Parent may assign, in its respective sole discretion
its rights and obligations hereunder to any direct or indirect
subsidiary of Parent and (ii) that the Stockholder may assign its rights
and obligations hereunder to a party that is not making any Acquisition
Proposal and is not a competitor of Parent in connection with its
transfer of its Shares to such party (the "Successor") if and only if
the Successor becomes a party to this Agreement as the Stockholder and
assumes all the obligations of the Stockholder hereunder, the
Stockholder hereby agreeing that in connection with any such assignment,
the Stockholder shall remain responsible and liable for the performance
of all obligations under this Agreement by such Successor.
(j) Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule
in any jurisdiction such invalidity, illegality or unenforceability will
not affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been
contained herein.
12
IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholder have caused
this Agreement to be duly executed as of the date first written above.
PARENT
MENTOR GRAPHICS CORPORATION
By:
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MERGER SUB
INDIANA MERGER CORPORATION
By:
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STOCKHOLDER
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ANNEX A
OPTIONS OR OTHER RIGHTS
SHARES OF OUTSTANDING TO ACQUIRE SHARES
STOCKHOLDER'S NAME AND ADDRESS COMMON STOCK OF COMMON STOCK
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