TENDER AND SUPPORT AGREEMENT
Exhibit (d)(2)
This TENDER AND SUPPORT AGREEMENT (this “Agreement”), dated as of March 17, 2008, is
by and among BMC Software, Inc., a Delaware corporation (“Parent”), Bengal Acquisition
Corporation, a Delaware corporation and an indirect wholly owned subsidiary of Parent
(“Purchaser”), and each of the individuals or entities set forth on Schedule A
hereto (each, a “Stockholder”).
WHEREAS, each Stockholder beneficially owns the shares of common stock, par value $0.001 per
share (“Common Stock”), of BladeLogic, Inc., a
Delaware corporation (“Seller”), set forth
opposite such Stockholder’s name on Schedule A (all such shares set forth on Schedule
A, together with any shares of Common Stock of the Seller that are hereafter issued to or
otherwise acquired or owned by any Stockholder prior to the termination of this Agreement being
referred to herein as the “Subject Shares”);
WHEREAS, Parent, Purchaser and the Seller propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (the “Merger Agreement”), which provides, among other
things, for Purchaser to commence a tender offer for all of the issued and outstanding Common Stock
of the Seller (the “Offer”) and the merger of Purchaser with and into the Seller, with the
Seller continuing as the surviving corporation (the “Merger”), upon the terms and subject
to the conditions set forth in the Merger Agreement (capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement);
and
WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and
Purchaser have required that each Stockholder, and as an inducement and in consideration therefor,
each Stockholder (in such Stockholder’s capacity as a holder of the Subject Shares) has agreed to,
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth below and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be
legally bound, do hereby agree as follows:
ARTICLE I
AGREEMENT TO TENDER
AGREEMENT TO TENDER
Section 1.1. Agreement to Tender. Unless this Agreement shall have been terminated
in accordance with its terms, each Stockholder shall validly tender or cause to be tendered in the
Offer all of such Stockholder’s Subject Shares pursuant to and in accordance with the terms of the
Offer, other than any shares of Common Stock granted to such Stockholder under an employee benefit
plan of the Seller which are unvested and subject to any risk of forfeiture. Without limiting the
generality of the foregoing, as promptly as practicable, but in any event no later than five (5)
Business Days prior to the initial expiration date of the Offer, each Stockholder shall (i) deliver
to the depositary designated in the Offer (the “Depositary”) (A) a letter of transmittal
with respect to such Stockholder’s Subject Shares complying with the terms of the Offer, (B) a
Certificate representing such Subject Shares or an “agent’s message” (or such other evidence, if
any, of transfer as the Depositary may reasonably request) in the case of a Book-Entry Share of any
uncertificated Subject Shares, and (C) all other
documents or instruments required to be delivered by other Seller Stockholders pursuant to the
terms of the Offer, and/or (ii) cause such Stockholder’s broker or such other Person that is the
holder of
record of any Subject Shares beneficially owned by such Stockholder to tender such
Subject Shares pursuant to and in accordance with clause (i) of this Section 1.1 and the terms of
the Offer. Each Stockholder agrees that, once such Stockholder’s Subject Shares are tendered, such
Stockholder will not withdraw any of such Subject Shares from the Offer, unless and until (A) the
Offer shall have been terminated by Purchaser in accordance with the terms of the Merger Agreement
or (B) this Agreement shall have been terminated in accordance with its terms; provided,
however, that (x) a Stockholder shall not be required, for purposes of this Agreement, to
exercise any unexercised Seller Stock Options held by such Stockholder or tender any shares of
Common Stock granted to such Stockholder under an employee benefit plan of the Seller which are
unvested and subject to any risk of forfeiture, and (y) a Stockholder shall not have any obligation
under this Section 1.1 to tender such Stockholder’s Subject Shares into the Offer if that tender
could cause such Stockholder to incur liability under Section 16(b) of the Exchange Act. The
obligations of each Stockholder under this Section 1.1 are several and not joint with any other
Stockholder.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder represents and warrants to Parent and Purchaser as to such Stockholder,
severally and not jointly, that:
Section 2.1. Authorization; Binding Agreement. In the case of any Stockholder that
is a corporation, limited partnership or limited liability company, such Stockholder is an entity
duly organized, validly existing and in good standing under the laws of the jurisdiction in which
it is incorporated or constituted. As applicable to such Stockholder, the consummation of the
transactions contemplated hereby are within such Stockholder’s corporate or organizational powers
and have been duly authorized by all necessary corporate or organizational actions on the part of
such Stockholder. Such Stockholder has full power and authority to execute, deliver and perform
this Agreement. This Agreement has been duly and validly executed and delivered by such
Stockholder, and constitutes a valid and binding obligation of such 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).
Section 2.2. Non-Contravention. The execution, delivery and performance by such
Stockholder of this Agreement and the consummation of the transactions contemplated hereby do not
and will not (i) violate any Laws applicable to such Stockholder or such Stockholder’s Subject
Shares or (ii) except as may be required by federal securities law, require any consent or other
action by, or filing with or notice to, any Person (including any Governmental Authority) under,
constitute a default under, or give rise to any right of termination, cancellation or acceleration
under any agreement or other instrument binding on such Stockholder or any applicable Law, in each
case that would negatively impact Stockholder’s ability to perform its obligations hereunder.
Section 2.3. Ownership of Subject Shares; Total Shares. Such Stockholder is the
record or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of such Stockholder’s
Subject Shares and, as of the date of Purchaser’s acceptance of the shares of Common Stock of the
Seller in the Offer, such Subject Shares will be free and clear of any Encumbrance (including any
restriction on the
right to vote or otherwise transfer such Subject Shares), except as (i) provided hereunder,
(ii) pursuant to any applicable restrictions on transfer under the Securities Act, and (iii)
subject to any risk of
forfeiture with respect to any shares of Common Stock granted to such
Stockholder under an employee benefit plan of the Seller. The Subject Shares listed on
Schedule A opposite such Stockholder’s name constitute all of the shares of Common Stock of
the Seller beneficially owed by such Stockholder as of the date hereof.
Section 2.4. Voting Power. Except as set forth on Schedule A, such
Stockholder has full voting power, with respect to its Subject Shares, and full power of
disposition, full power to issue instructions with respect to the matters set forth herein and full
power to agree to all of the matters set forth in this Agreement, in each case with respect to all
of its Subject Shares. None of such Stockholder’s Subject Shares are subject to any voting trust
or other agreement or arrangement with respect to the voting of such shares, except as provided
hereunder.
Section 2.6. Reliance. Such Stockholder understands and acknowledges that Parent
and Purchaser are entering into the Merger Agreement in reliance upon such Stockholder’s execution,
delivery and performance of this Agreement.
Section 2.7. Finders’ Fees. No investment banker, broker, finder or other
intermediary is entitled to a fee or commission from Parent, Purchaser or Seller in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of such Stockholder in his
capacity as such.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Each of Parent and Purchaser represent and warrant to the Stockholders, jointly and severally,
that:
Section 3.1. Authorization; Binding Agreement. Parent and Purchaser are each duly
organized, validly exiting and in good standing under the laws of their jurisdiction of
organization. The consummation of the transactions contemplated hereby are within each of Parent’s
and Purchaser’s corporate or organizational powers and have been duly authorized by all necessary
corporate or organizational actions on the part of Parent and Purchaser. Parent and Purchaser have
full power and authority to execute, deliver and perform this Agreement. This Agreement has been
duly authorized, executed and delivered by each of Parent and Purchaser, and constitutes a valid
and binding obligation of Parent and Purchaser 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).
Section 3.2. Non-Contravention. The execution, delivery and performance by Parent
and Purchaser of this Agreement and the consummation of the transactions contemplated hereby do not
and will not (i) violate any Laws applicable to Parent or Purchaser or (ii) except as may be
required by federal securities laws, require any consent or other action by, or filing with or
notice to, any Person (including any Governmental Authority) under, constitute a default under, or
give rise to any right of termination, cancellation or acceleration under any agreement or other
instrument binding on Parent or Purchaser or any applicable Law, in each case that would negatively
impact Parent’s or Purchaser’s ability to perform its obligations hereunder or under the Merger
Agreement.
ARTICLE IV
ADDITIONAL COVENANTS OF THE STOCKHOLDERS
ADDITIONAL COVENANTS OF THE STOCKHOLDERS
Each Stockholder hereby covenants and agrees, severally and not jointly, that:
Section 4.1. Voting of Subject Shares. At every meeting of the Seller Stockholders
called, and at every adjournment or postponement thereof, such Stockholder shall, or shall cause
the holder of record on any applicable record date to, vote such Stockholder’s Subject Shares (to
the extent that any of the Subject Shares are not purchased in the Offer) (i) in favor of (A)
approval and adoption of the Merger Agreement and the transactions contemplated by the Merger
Agreement and (B) approval of any proposal to adjourn or postpone the meeting to a later date, if
there are not sufficient votes for the approval and adoption of the Merger Agreement on the date on
which such meeting is held; (ii) against (A) any Acquisition Proposal, or (B) any action, proposal,
transaction or agreement that would reasonably be expected to result in the failure of any Tender
Offer Condition to be satisfied; and (iii) in favor of any other matter necessary for consummation
of the transactions contemplated by the Merger Agreement, which is considered at any such meeting
of the Seller Stockholders, and in connection therewith to execute any documents reasonably
requested by Parent that are necessary or appropriate in order to effectuate the foregoing.
Section 4.2. No Inconsistent Arrangements. Except as provided hereunder or under the
Merger Agreement, such Stockholder shall not, directly or indirectly, (i) create or permit to exist
any Encumbrance on any such Subject Shares, (ii) transfer, sell, assign, gift or otherwise dispose
of (collectively, “Transfer”), or enter into any contract with respect to any Transfer of
such Subject Shares or any interest therein, (iii) grant or permit the grant of any proxy, power of
attorney or other authorization in or with respect to such Subject Shares, (iv) deposit or permit
the deposit of such Subject Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Subject Shares, or (v) take or permit any other action that would
in any way restrict, limit or interfere with the performance of its obligations hereunder or the
transactions contemplated hereby or otherwise make any representation or warranty of such
Stockholder herein untrue or incorrect. Notwithstanding the foregoing, such Stockholder may make
(a) Transfers of Subject Shares by will or by operation of law or other Transfers for estate
planning purposes, in which case the Subject Shares shall continue to be bound by this Agreement
and provided that each transferee agrees in writing to be bound by the terms and conditions of this
Agreement, (b) Transfers of Subject Shares to charitable organizations, provided that the
transferee agrees in writing to be bound by the terms and conditions of this Agreement, and (c) as
Parent may otherwise agree in writing in its sole discretion. In addition, Parent and Purchaser
agree to discuss in good faith any request from such Stockholder to undertake a Transfer of Subject
Shares for tax planning purposes in which the Subject Shares shall continue to be bound by this
Agreement and each transferee agrees in writing to be bound by the terms and conditions of this
Agreement.
Section 4.3. No Exercise of Appraisal Rights. Such Stockholder agrees not to
exercise any appraisal rights or dissenter’s rights in respect of such Stockholder’s Subject Shares
that may arise with respect to the Merger.
Section 4.4. Documentation and Information. Such Stockholder shall permit and hereby
authorizes Parent and Purchaser to publish and disclose in all documents and schedules filed with
the SEC, and any press release or other disclosure document that Parent or Purchaser reasonably
determines to be necessary in connection with the Offer, the Merger and any transactions
contemplated by the Merger Agreement, such Stockholder’s identity and ownership of the Subject
Shares and the nature of such Stockholder’s commitments and obligations under this Agreement.
Parent will consult, to the extent practicable, with counsel to such Stockholder concerning the
disclosure referred to in the preceding sentence.
Section 4.5. No Solicitation. Subject to Section 5.15, such Stockholder shall not
and shall not authorize or permit its Representatives to directly or indirectly (i) initiate,
solicit or knowingly encourage, or knowingly facilitate the submission of any inquiry, indication
of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an
Acquisition Proposal, (ii) participate in any negotiations regarding, or furnish any non-public
information to any Person (other than Parent or Purchaser) in connection with an Acquisition
Proposal, or (iii) enter into any letter of intent or agreement relating to an Acquisition
Proposal. It is understood that this Section 4.5 limits the rights of each Stockholder only to the
extent that such Stockholder is acting in such Stockholder’s capacity as a Stockholder, and nothing
in this Section 4.5 shall be construed as preventing a Stockholder, or a director, officer or
employee of a Stockholder or Affiliate of a Stockholder, who is an officer or director of the
Company from the performance of obligations required by the fiduciary obligations of such
Stockholder, or director, officer or employee of a Stockholder or Affiliate of a Stockholder,
acting solely in his or her capacity as an officer or director of the Company (but subject to the
limitations contained in Section 7.2 of the Merger Agreement).
ARTICLE V
MISCELLANEOUS
MISCELLANEOUS
Section 5.1. Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission) and shall be given, (i) if to
Parent or Purchaser, in accordance with the provisions of the Merger Agreement and (ii) if to a
Stockholder, to such Stockholder’s address or facsimile number set forth on a signature page
hereto, or to such other address or facsimile number as such party may hereafter specify for the
purpose by notice to each other party hereto.
Section 5.2. Termination. This Agreement shall terminate automatically, without any
notice or other action by any Person, upon the earlier of (i) the termination of the Merger
Agreement in accordance with its terms and (ii) the Effective Time. Upon termination of this
Agreement, no party shall have any further obligations or liabilities under this Agreement;
provided, however, that (x) nothing set forth in this Section 5.2 shall relieve any
party from liability for any willful breach of this Agreement prior to termination hereof, and (y)
the provisions of this Article V shall survive any termination of this Agreement.
Section 5.3. Amendments and Waivers. Any provision of this Agreement may be amended
or waived if such amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is
to be effective. No failure or delay by any party in exercising any right, power or privilege
hereunder
shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power or privilege.
Section 5.4. Expenses. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
Section 5.5. Binding Effect; Benefit; Assignment. The provisions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. No provision of this Agreement is intended to confer any rights, benefits,
remedies, obligations or liabilities hereunder upon any person other than the parties hereto and
their respective successors and assigns. No party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the consent of each other party hereto,
except that each of Parent and Purchaser may transfer or assign its rights and obligations under
this Agreement, in whole or from time to time in part, to one or more of its Affiliates at any
time; provided, that such transfer or assignment shall not relieve Parent or Purchaser of
any of its obligations hereunder.
Section 5.6. Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its rules of conflict of laws.
Each of Parent and Purchaser and each Stockholder hereby irrevocably and unconditionally consents
to submit to the exclusive jurisdiction of the Delaware Courts for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and agrees not to commence any
litigation relating thereto except in such courts), waives any objection to the laying of venue of
any such litigation in the Delaware Courts and agrees not to plead or claim in any Delaware Court
that such litigation brought therein has been brought in any inconvenient forum. Each of the
parties hereto agrees (i) to the extent such party is not otherwise subject to service of process
in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s
agent for acceptance of legal process and (ii) that service of process may also be made on such
party by prepaid certified mail with a proof of mailing receipt validated by United States Postal
Service constituting evidence of valid service. Service made pursuant to (i) or (ii) above shall
have the same legal force and effect as if served upon such party personally within the State of
Delaware. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
Section 5.7. Counterparts. This Agreement may be signed, manually or by facsimile,
in any number of counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Section 5.8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with respect to its
subject matter.
Section 5.9. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other Governmental Authority to be
invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions
of this Agreement shall remain in full force and effect and shall in no way be affected, impaired
or invalidated so long as
the economic or legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such a determination, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
Section 5.10. Specific Performance. The parties hereto agree that each of Parent and
Purchaser would be irreparably damaged if for any reason any Stockholder fails to perform any of
its obligations under this Agreement and that each of Parent and Purchaser may not have an adequate
remedy at law for money damages in such event. Accordingly, each of Parent and Purchaser shall be
entitled to specific performance and injunctive and other equitable relief to prevent breaches of
this Agreement or to enforce specifically the performance of the terms and provisions hereof in any
Delaware Court, in addition to any other remedy to which they are entitled at law or in equity.
Section 5.11. Headings. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 5.12. No Presumption. This Agreement shall be construed without regard to
any presumption or rule requiring construction or interpretation against the party drafting or
causing any instrument to be drafted.
Section 5.13. Further Assurances. Parent, Purchaser and each Stockholder will
execute and deliver, or cause to be executed and delivered, all further documents and instruments
and use their respective 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 perform their respective obligations under this Agreement.
Section 5.14. Interpretation. Unless the context otherwise requires, as used in
this Agreement: (i) “or” is not exclusive; (ii) “including” and its variants mean “including,
without limitation” and its variants; (iii) words defined in the singular have the parallel meaning
in the plural and vice versa; (iv) words of one gender shall be construed to apply to each gender;
and (v) the terms “Article,” “Section” and “Schedule” refer to the specified Article, Section or
Schedule of or to this Agreement.
Section 5.15 Capacity as Stockholder. Each Stockholder signs this Agreement solely
in such Stockholder’s capacity as a Stockholder of Seller, and not in such Stockholder’s capacity
as a director, officer or employee of Seller or any of its Subsidiaries or in such Stockholder’s
capacity as a trustee or fiduciary of any employee benefit plan or trust. Notwithstanding anything
herein to the contrary, nothing herein shall in any way restrict a director and/or officer of
Seller in the exercise of his or her fiduciary duties consistent with the terms of the Merger
Agreement as a director and/or officer of Seller or in his or her capacity as a trustee or
fiduciary of any employee benefit plan or trust or prevent or be construed to create any obligation
on the part of any director and/or officer of Seller or any trustee or fiduciary of any employee
benefit plan or trust from taking any action in his or her capacity as such director, officer,
trustee and/or fiduciary.
Section 5.16 No Agreement Until Executed. Irrespective of negotiations among the
parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute or be
deemed to evidence a contract, agreement, arrangement or understanding between the parties hereto
unless and
until (a) the Board of Directors of Seller has approved, for purposes of any applicable
anti-takeover laws and regulations, and any applicable provision of the Seller Articles, the
possible acquisition of the Subject Shares by Parent and Purchaser pursuant to the Merger
Agreement, (b) the Merger Agreement is executed by all parties thereto, and (c) this Agreement is
executed by all parties hereto.
[SIGNATURE PAGE FOLLOWS]
The parties are executing this Agreement on the date set forth in the introductory clause.
| BMC SOFTWARE, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| BENGAL ACQUISITION CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Tender and Support Agreement]
Schedule A
| Name of Stockholder | Shares | |
[Stockholder] |
