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EXHIBIT 5
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of January 12, 2000 (this "Agreement"),
between The Sage Group plc, a company organized under the laws of England
("Parent"), and Best Software, Inc., a Virginia corporation (the "Company").
WHEREAS, Parent, Bobcat Acquisition Corp., a Virginia corporation and a
wholly owned subsidiary of Parent (the "Purchaser"), and the Company,
concurrently with the execution and delivery of this Agreement, will enter into
an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), providing for, among other things, the merger of the Purchaser with
and into the Company (the "Merger"); and
WHEREAS, as a condition to the willingness of Parent and the Purchaser to
enter into the Merger Agreement, Parent and the Purchaser have required that the
Company agree, and in order to induce Parent and the Purchaser to enter into the
Merger Agreement the Company has agreed, to grant Parent the Option (as
hereinafter defined) upon the terms and subject to the conditions of this
Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE I
THE OPTION
SECTION 1.1 Grant of Option. The Company hereby grants to Parent an
irrevocable option (the "Option") to purchase up to 2,352,024 newly-issued
shares (the "Shares") of the common stock, no par value, of the Company (the
"Company Common Stock") at a purchase price per share of $35.00 (the "Exercise
Price"), exercisable in the manner set forth in Sections 1.2 and 1.3 of this
Agreement. The number of Shares that may be received upon the exercise of the
Option and the Exercise Price are subject to adjustment as herein set forth,
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provided, however, that in no event shall the number of Shares exceed 19.9% of
the Company's issued and outstanding shares of Common Stock (without giving
effect to any Shares subject to or issued pursuant to the Option). This
Agreement shall terminate, and the Option hereby granted shall expire, on the
earliest of (i) the Effective Time (as defined in the Merger Agreement) and (ii)
six (6) months after any termination of the Merger Agreement pursuant to Article
VIII thereof; provided, however, this Agreement shall not terminate, and the
Option shall not expire if an Option Notice (as defined below) has been given by
Parent prior to such date.
SECTION 1.2 Exercise Of Option. At any time or from time to time prior to
the termination of the Option in accordance with the terms of this Agreement,
Parent (or its designee) may exercise the Option, in whole or in part, if on or
after the date hereof only if:
(a) the Purchaser accepts for payment pursuant to the Offer (as
defined in the Merger Agreement) shares of Company Common Stock constituting at
least a majority but less than 90% of the shares of Company Common Stock then
outstanding on a fully diluted basis; or
(b) any corporation, partnership, limited liability company,
individual, trust, unincorporated association, or other entity or "person" (as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), other than Parent or any of its "affiliates" (as defined
in the Exchange Act) (a "Third Party"), shall have:
(i) commenced a bona fide tender offer or
exchange offer for any shares of Company Common Stock, the consummation
of which would result in "beneficial ownership" (as defined under the
Exchange Act) by such Third Party (together with all such Third Party's
affiliates and "associates" (as such term is defined in the Exchange
Act)) of 15% or more of the then outstanding voting equity of the Company
(either on a primary or a fully diluted basis);
(ii) acquired beneficial ownership of shares of
Company Common Stock which, when aggregated with any shares of Company
Common Stock already owned by such Third Party, its affiliates and
associates, would result in the aggregate beneficial ownership by such
Third Party, its affiliates and associates of 15% or more of the then
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outstanding voting equity of the Company (either on a primary or a fully
diluted basis), provided, however, that "Third Party" for purposes of
this clause (ii) shall not include any corporation, partnership, limited
liability company, person or other entity or group which beneficially
owns more than 15% of the outstanding voting equity of the Company
(either on a primary or a fully diluted basis) as of the date hereof and
that does not, after the date hereof, increase such ownership percentage
by more than an additional 1% of the outstanding voting equity of the
Company (either on a primary or a fully diluted basis);
(iii) solicited "proxies" in a "solicitation"
subject to the proxy rules under the Exchange Act or executed any written
consent with respect to, or become a "participant" in, any "solicitation"
(as such terms are defined in Regulation 14A under the Exchange Act), in
each case with respect to the Company Common Stock; or
(c) any of the events described in Section 8.1(c)(ii) or
(e) of the Merger Agreement that would allow Parent to terminate the Merger
Agreement has occurred (but without the necessity of Parent having terminated
the Merger Agreement).
In the event that Parent wishes to exercise all or any part of the
Option, Parent shall give written notice (an "Option Notice," with the date of
the Option Notice being hereinafter called a "Notice Date") to the Company,
specifying the number of Shares it will purchase and a place and date (not
earlier than three (3) nor later than twenty (20) business days from the Notice
Date) for closing such purchase (a "Closing"). Parent's obligation to purchase
Shares and the Company's obligation to deliver Shares upon any exercise of the
Option is subject (at its election) to the conditions that (i) no preliminary or
permanent injunction or other order against the purchase, issuance or delivery
of the Shares issued by any federal, state or foreign court of competent
jurisdiction shall be in effect (and no action or proceeding shall have been
commenced or threatened for purposes of obtaining such an injunction or order)
and (ii) any applicable waiting period under the Xxxx Xxxxx Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and the regulations
thereunder, any applicable antitrust or competition laws of Canada, the European
Union, any member state of the European Union, and any other foreign
jurisdictions shall have expired and (iii) there shall have been no material
breach of the representations, warranties, covenants or agreements of the other
party contained in this Agreement or the Merger Agreement; provided,
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however, that any failure by Parent to purchase Shares upon exercise of the
Option at any Closing as a result of the nonsatisfaction of any of such
conditions shall not affect or prejudice Parent's right to purchase such Shares
upon the subsequent satisfaction of such conditions. Upon request by Parent, the
Company will promptly take all action required to effect all necessary filings
by the Company under the HSR Act and the regulations thereunder.
SECTION 1.3 Purchase of Shares. At any Closing, (i) the Company will
deliver to Parent the certificate or certificates representing the number of
Shares being purchased in proper form for transfer upon exercise of the Option
in the denominations designated by Parent in the Option Notice, and, if the
Option has been exercised in part, a new Option evidencing the rights of Parent
to purchase the balance of the Shares subject thereto, and (ii) Parent shall pay
the aggregate purchase price for the Shares to be purchased by delivery to the
Company of immediately available funds to the order of the Company in the amount
of the Exercise Price times the number of shares to be purchased set forth in
the Option Notice.
SECTION 1.4 Adjustments Upon Share Issuances, Changes in Capitalization,
etc. (a) In the event of any change in Company Common Stock or in the number of
outstanding shares of Company Common Stock by reason of a stock dividend,
split-up, recapitalization, combination, exchange of shares or similar
transaction or any other change in the corporate or capital structure of the
Company (including, without limitation, the declaration or payment of an
extraordinary dividend of cash, securities or other property), the type and
number of the Shares to be issued by the Company upon exercise of the Option and
the Exercise Price shall be adjusted appropriately, and proper provision shall
be made in the agreements governing such transaction, so that Parent shall
receive upon exercise of the Option the number and class of shares or other
securities or property that Parent would have received with respect to the
Company Common Stock if the Option had been exercised immediately prior to such
event or the record date therefor, as applicable, and Parent had elected to the
fullest extent it would have been permitted to elect, to receive such
securities, cash or other property.
(b) In the event that the Company shall enter into an agreement (i) to
consolidate with or merge into any person, other than Parent or one of its
subsidiaries, and shall not be the continuing or surviving corporation of such
consolidation or merger, (ii) to permit any person, other than Parent or one of
its subsidiaries, to merge into the Company and the Company shall be the
continuing
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or surviving corporation, but, in connection with such merger, the then
outstanding shares of Company Common Stock shall be changed into or exchanged
for stock or other securities of the Company or any other person or cash or any
other property, or the then outstanding shares of Company Common Stock shall
after such merger represent less than 50% of the outstanding shares and share
equivalents of the surviving corporation or (iii) to sell or otherwise transfer
all or substantially all of its assets to any person, other than Parent or one
of its subsidiaries, then, and in each such case, proper provision shall be made
in the agreements governing such transaction so that Parent shall receive upon
exercise of the Option the number and class of shares or other securities or
property that Parent would have received with respect to Company Common Stock if
the Option had been exercised immediately prior to such transaction or the
record date therefor, as applicable, and Parent had elected to the fullest
extent it would have been permitted to elect, to receive such securities, cash
or other property.
(c) The rights of Parent under this Section 1.4 shall be in addition
to, and shall in no way limit, its rights against the Company for any breach of
the Merger Agreement.
(d) The provisions of this Agreement shall apply with appropriate
adjustments to any securities for which the Option becomes exercisable pursuant
to this Section 1.4.
SECTION 1.5 Repurchase Obligation.
(a) If, at any time during which the Option may be exercised in
accordance with Section 1.1 hereof, Parent sends to the Company an exercise
notice indicating Parent's election to exercise its right pursuant to this
Section 1.5, then the Company shall pay to Parent on the Closing, in exchange
for the cancellation of the Option with respect to such number of Shares as
Parent specifies in the exercise notice, an amount (the "Cancellation Amount")
in cash equal to such number of Shares multiplied by the difference between (a)
the Market/Offer Price (as defined below) and (b) the Exercise Price.
The term "Market/Offer Price" shall mean the highest of (i) the price per
Share at which a tender offer or exchange offer therefor has been made, (ii) the
price per Share to be paid by any third party pursuant to an agreement with the
Company, (iii) the highest closing price for the Shares as reported on the
Nasdaq National Market System within the 30 trading days immediately preceding
the date
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Parent gives notice of the required repurchase of Shares subject to the Option
or (iv) in the event of a sale of all or a substantial portion of the Company's
assets, the sum of the price paid in such sale of such assets and the current
market value of the remaining assets of the Company (less any liabilities
remaining, including taxes resulting from such sale, after such sale) as
determined by a nationally recognized investment banking firm mutually selected
by Parent and the Company, divided by the number of Shares outstanding at the
time of such sale. In determining the Market/Offer Price, the value of
consideration other than cash shall be determined by a nationally recognized
investment banking firm mutually selected by Parent and the Company.
Notwithstanding the termination of the Option, Parent will be entitled to
exercise its rights under this Section 1.5 if it has exercised such rights in
accordance with the terms hereof prior to the termination of the Option.
(b) Notwithstanding anything to the contrary contained herein, (1)
Parent's Total Payment (as defined below), if any, which Parent may derive
hereunder shall in no event exceed $22,000,000 and Parent shall pay any excess
over such amount to the Company and (2) the Option may not be exercised for a
number of Shares as would, as of the date of exercise, result in a Notional
Total Payment (as defined below), together with the actual Total Payment
immediately preceding such exercise, exceeding $22,000,000; provided that if any
exercise of the option would result in a Notional Total Payment, together with
the actual Total Payment immediately preceding such exercise, exceeding
$22,000,000, then Parent, at its election, may either (A) reduce the number of
Shares subject to the Option, (B) deliver to the Company for cancellation shares
of Company Common Stock previously purchased by Parent, (C) pay cash to the
Company, or (D) take any action representing any combination of the preceding
clauses (A), (B) and (C) so that Parent's Notional Total Payment, when
aggregated with the actual Total Payment immediately preceding such exercise,
does not exceed $22,000,000 after taking into account the foregoing actions. As
used herein (1) "Total Payment" shall mean the sum of the following: (i) any
Cancellation Amount received by Parent pursuant to Section 1.5(a) hereof, (ii)
(x) the net cash amounts received by Parent pursuant to the sale, within twelve
(12) months following exercise of the Option, of Shares (or any other securities
into which such Shares shall be converted or exchanged) to any unaffiliated
party, less (y) the aggregate Exercise Price for such Shares, (iii) any amounts
received by Parent upon transfer of the Option (or any portion thereof) to any
unaffiliated party, and (iv) the amount actually received by Parent pursuant to
Section 8.2(b) of the Merger Agreement; and (2) "Notional Total Payment" with
respect to any number of Shares as to which Parent may propose to exercise the
Option shall be the Total Payment determined as of the date
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of such proposed exercise assuming that the Option were exercised on such date
for such number of Shares and assuming further that such Shares, together with
all other Shares held by Parent as of such date, were sold for cash at the
closing market price for the Company Common Stock as of the close of business on
the preceding trading day (less customary brokerage commissions). For purposes
of this Article 1, references to Parent shall be deemed to include references to
the Purchaser or any other affiliate of Parent.
(c) The Company shall not withhold any United States withholding taxes on
any payment under this Section 1.5 and the provisions of Section 8.3 of the
Merger Agreement shall apply with respect to any payment made under this Section
1.5.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent as follows:
SECTION 2.1 Authority Relative to this Agreement. The Company is a
corporation duly organized and validly existing under the laws of the
Commonwealth of Virginia. The Company has all necessary corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of the Company, and no other corporate proceeding on the part
of the Company is necessary to authorize this Agreement or for the Company to
consummate such transactions. This Agreement has been duly and validly executed
and delivered by the Company and, assuming this Agreement constitutes a valid
and binding obligation of Parent, constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms except that (i) such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or
hereafter in effect, affecting creditors' rights generally, and (ii) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before which
any proceedings therefor may be brought.
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SECTION 2.2 No Conflict; Required Filings and Consents. The execution and
delivery of this Agreement by the Company do not, and the performance of this
Agreement by the Company will not, (i) conflict with or violate the articles of
incorporation or by-laws of the Company, (ii) conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to the Company or by
which the Company is bound or affected, (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance of any kind on any of the Shares pursuant to, any agreement,
contract, indenture, notice or instrument to which the Company is a party or by
which the Company is bound or affected, or (iv) except for applicable
requirements, if any, of the HSR Act and the regulations thereunder, any
applicable antitrust or competition laws of Canada, the European Union, any
member state of the European Union, and any other foreign jurisdiction, the
Exchange Act and the Securities Act of 1933, as amended (the "Securities Act"),
require any filing by the Company with, or any permit, authorization, consent or
approval of, any governmental or regulatory authority, domestic or foreign,
except in the case of the foregoing clauses (ii) through (iv) for any such
conflicts, violations, breaches, defaults, failures to file or obtain the
consent or approval of, or other occurrences that would not reasonably be
expected to have a Company Material Adverse Effect as defined in the Merger
Agreement.
SECTION 2.3 Option Shares. The Company has taken all necessary corporate
action to authorize and reserve for issuance upon exercise of the Option a total
of 2,352,024 Shares, and such Shares, when issued and delivered by the Company
to Parent upon exercise of the Option, will be duly authorized, validly issued,
fully paid and nonassessable shares of Company Common Stock, and will be free
and clear of any security interests, liens, claims, pledges, charges,
encumbrances or preemptive rights of any kind.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to the Company as follows:
SECTION 3.1 Authority Relative to this Agreement. Parent is a corporation
duly organized and validly existing under the laws of England. Parent has all
necessary power and authority (corporate and otherwise) to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation by Parent of the transactions contemplated hereby have been
duly authorized by the Board of Directors of Parent, and no other corporate
proceeding on the part of Parent is necessary to authorize this Agreement or for
Parent to consummate such transactions. This Agreement has been duly executed
and delivered by Parent and, assuming its due authorization, execution and
delivery by the Company, constitutes the legal, valid and binding obligation of
Parent, enforceable against Parent in accordance with its terms except that (i)
such enforcement may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in effect,
affecting creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceedings therefor may be brought.
SECTION 3.2 No Conflict, Required Filing and Consents. The execution and
delivery of this Agreement by Parent do not, and the performance of this
Agreement by Parent will not, (i) conflict with or violate the memorandum and
articles of association of Parent, (ii) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to Parent or by which Parent is
bound or affected, (iii) result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, contract, indenture, note or instrument to which
Parent is a party or by which it is bound or affected or (iv) except for
applicable requirements, if any, of the HSR Act and the regulations thereunder,
any applicable antitrust or competition laws of Canada, the European Union, any
member state of the European Union, and any other foreign jurisdiction, the
Exchange Act, and the Securities Act, require any filing by Parent with, or any
permit, authorization, consent or approval of, any governmental or regulatory
authority, domestic or foreign, except in the
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case of each of the foregoing clauses (i) through (iv) for any such conflicts,
violations, breaches, defaults, failures to file or obtain the consent or
approval of, or other occurrences that would not cause or create a material risk
of non-performance or delayed performance by Parent of its obligations under
this Agreement.
SECTION 3.3 Investment Intent. The purchase of Shares pursuant to this
Agreement is for the account of Parent for the purpose of investment and not
with a view to or for sale in connection with any distribution thereof within
the meaning of the Securities Act and the rules and regulations promulgated
thereunder.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.1 Registration Rights; Listing of Shares. (a) Upon the written
request of Parent, the Company agrees to use reasonable best efforts to effect
up to two registrations under the Securities Act on Form S-3 or other available
form and any applicable state securities laws covering any part or all of the
Option (provided that only Shares will be distributed to the public) and any
part or all of the Shares purchased under this Agreement, which registration
shall be continued in effect for 90 days, unless, in the written opinion of
counsel to the Company, addressed to Parent and reasonably satisfactory in form
and substance to counsel for Parent, such registration is not required for the
sale and distribution of such Shares in the manner contemplated by Parent. The
registration effected under this paragraph shall be effected at the Company's
expense except for any underwriting commissions, brokers' fees and the fees and
expenses of Parent's counsel. If Shares are offered pursuant to a firm
commitment underwriting, the Company will provide reasonable and customary
indemnification to the underwriters. In the event of any demand for registration
pursuant to this Section 4.1, the Company may delay the filing of the
registration statement for a period of up to 90 days if, in the good faith
judgment of the Board of Directors of the Company, such delay is necessary in
order to avoid interference with a planned material transaction involving the
Company. In the event the Company effects a registration of Company Common Stock
for its own account or for any other stockholder of the Company (other than on
Form S-4 or Form S-8, or any successor or similar form), it shall allow Parent
to participate in such registration; provided, however, that if the managing
underwriters in such offering advise the Company in writing that in their
opinion the number of shares of Company
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Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include the securities
requested to be included therein pro rata among the holders requesting to be
included. In connection with any registration statement pursuant to this Section
4.1, Parent agrees to furnish the Company with such information concerning
itself and the proposed sale or distribution as shall be required in order to
ensure compliance with the Securities Act and to provide reasonable and
customary representations, warranties and indemnification to the Company and its
underwriters, if any.
(b) Upon issuance of the Shares, the Company shall, at its expense,
use its reasonable efforts to cause the Shares to be approved for quotation on
the Nasdaq National Market System subject to notice of issuance, as promptly as
practicable, and will provide prompt notice to The Nasdaq Stock Market, Inc. of
the issuance of each Share pursuant to any exercise of the Option.
SECTION 4.2 Transfer of Shares; Restrictive Legend. Prior to the time
Shares are registered under the Securities Act, Parent agrees not to transfer or
otherwise dispose of the Shares, or any interest therein, without first
providing to the Company an opinion of counsel for Parent, reasonably
satisfactory in form and substance to counsel for the Company, to the effect
that such transfer or disposition will not violate the Securities Act or any
applicable state law governing the offer and sale of securities, and the rules
and regulations thereunder. Prior to the time Shares are registered under the
Securities Act, Parent further agrees to the placement on the certificate(s)
representing the Shares of the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE."
provided that upon provision to the Company of any opinion of counsel for
Parent, reasonably satisfactory in form and substance to counsel for the
Company, to the effect that such legend is no longer required under the
provisions of the Securities Act or applicable state securities laws, the
Company shall promptly cause new unlegended certificates representing such
Shares to be issued to Parent against surrender of such legended certificates.
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SECTION 4.3 Reasonable Best Efforts. Subject to the terms and conditions
of this Agreement, Parent and the Company shall each use its reasonable best
efforts to take, or cause to be taken, all actions, 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. Each party shall promptly consult with the other and provide any
necessary information and material with respect to all filings made by such
party with any governmental or regulatory authority in connection with this
Agreement or the transactions contemplated hereby.
SECTION 4.4 Further Assurances. The Company shall perform such further
acts and execute such further documents and instruments as may reasonably be
required to vest in Parent the power to carry out the provisions of this
Agreement. If Parent shall exercise the Option, or any portion thereof, in
accordance with the terms of this Agreement, the Company shall, without
additional consideration, execute and deliver all such further documents and
instruments and take all such further action as Parent may reasonably request
for the purpose of effectively carrying out the transactions contemplated by
this Agreement.
SECTION 4.5 Survival. All of the representations, warranties and
covenants contained herein shall survive a Closing and shall be deemed to have
been made as of the date hereof and as of the date of each Closing.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Specific Performance. The parties hereto agree that if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof, without any requirement for securing or posting any bond, in addition to
any other remedy at law or equity.
SECTION 5.2 Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between the parties, or any of them, with respect to the subject matter hereof.
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SECTION 5.3 Amendment; Assignment. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto and specifically
referencing this Agreement. No party to this Agreement may assign any of its
rights or obligations under this Agreement without the prior written consent of
the other party hereto, except that the rights and obligations of Parent
hereunder may, upon written notice to the Company prior to or promptly following
such action, be assigned by Parent to one or more of its affiliates, and by such
affiliates to one or more other affiliates of Parent, but no such assignment
shall relieve Parent of its obligations hereunder if such transferee does not
perform such obligations.
SECTION 5.4 Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provisions hereof
or thereof shall not affect the validity and enforceability of the other
provisions hereof. If any provision of this Agreement, or the application
thereof to any person or entity or any circumstances, is invalid or
unenforceable, (i) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid and unenforceable provision and (ii) the
remainder of this Agreement and the application of such provision to other
persons, entities or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
SECTION 5.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia without
giving effect to the principles of conflicts of law thereof, provided, however,
that the laws of the respective jurisdictions of incorporation of each of the
parties shall govern the relative rights, obligations, powers, duties and other
internal affairs of such party and its board of directors.
SECTION 5.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
SECTION 5.7 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the addresses specified below (or at such other
address for a party as shall be specified by like notice): (i) if to Parent, to
its address set
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forth in Section 9.4(a) of the Merger Agreement; and (ii) if to the Company, to
the Company's address set forth in Section 9.4(b) of the Merger Agreement.
SECTION 5.8 Binding Effect. This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the successors and assigns of the
parties hereto. Nothing expressed or referred to in this Agreement is intended
or shall be construed to give any person other than the parties to this
Agreement, or their respective successors or assigns, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the Company and Parent have caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the date first above written.
BEST SOFTWARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
THE SAGE GROUP PLC
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
