EXHIBIT 2.2
AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT (this "Amendment No. 1"),
is made and entered into this 19th day of June, 1997, by and among Texas
Instruments Incorporated, a Delaware corporation with its principal offices in
Dallas, Texas ("Seller"), Sterling Software, Inc., a Delaware corporation with
its principal offices in Dallas, Texas ("Buyer"), Sterling Software (Cayman
Islands), Inc., a Cayman Islands company with its principal offices in Grand
Cayman, British West Indies ("Sterling Cayman"), Sterling Software (U.S.), Inc.,
a Delaware corporation with its principal offices in Dallas, Texas ("Sterling
U.S."), and Sterling Software (Southern), Inc., a Georgia corporation with its
principal offices in Dallas, Texas ("Sterling Southern").
WHEREAS, Seller and Buyer have entered into an Asset Purchase Agreement,
dated April 18, 1997 (the "Asset Purchase Agreement");
WHEREAS, Seller and Buyer desire to reflect the participation of Sterling
Cayman, Sterling U.S. and Sterling Southern as parties to the Asset Purchase
Agreement and to provide for the other matters set forth herein, and Sterling
Cayman, Sterling U.S. and Sterling Southern desire to be designated as parties
to the Asset Purchase Agreement and to provide for the other matters set forth
herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, it is hereby agreed
among Seller, Buyer, Sterling Cayman, Sterling U.S. and Sterling Southern as
follows:
Section 1. Certain Definitions. Except as otherwise defined herein,
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terms used herein with initial capital letters are so used with the respective
meanings ascribed to such terms in the Asset Purchase Agreement.
Section 2. Sale and Purchase of Assets; Assumption of Liabilities. On
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the terms and subject to the conditions of the Asset Purchase Agreement
(including the provisions of Sections 1.2, 1.3, 3.1 and 3.2 thereof), as amended
by this Amendment No. 1, at the Closing:
(a) Seller shall sell, transfer and assign to Buyer, or, as
applicable, cause the Assigning Subsidiaries to sell, transfer and assign
to Buyer, and Buyer shall purchase and acquire, all of Seller's or, as
applicable, the Assigning Subsidiaries' right, title and interest in, to
and under the Patents and the Copyrights and Marks;
(b) Seller shall sell, transfer and assign to Sterling Cayman, or, as
applicable, cause the Assigning Subsidiaries to sell, transfer and assign
to Sterling Cayman, and Sterling Cayman shall purchase and acquire, all of
Seller's or, as applicable, the Assigning Subsidiaries' right, title and
interest in, to and under the rights to market, license, install, maintain
and support the Software in locations outside of the United States of
America and Canada (such rights being collectively referred to as the
"International Distribution Rights");
(c) Seller shall sell, transfer and assign to Sterling U.S., and
Sterling U.S. shall purchase and acquire, all of Seller's right, title and
interest in, to and under the Contract referred to on Schedule 5.4(b) to
the Asset Purchase Agreement as the "MDP Contract," and Sterling U.S. shall
assume and thereafter pay, perform or otherwise discharge, as and when the
same shall become due and payable, all liabilities and obligations of
Seller under the MDP Contract, other than payment and performance of
obligations payable or dischargeable prior to the Closing;
(d) Seller shall sell, transfer and assign to Sterling Southern, and
Sterling Southern shall purchase and acquire, all of Seller's right, title
and interest in, to and under all of the Purchased Assets, save and except
for the Patents, the Copyrights and Marks, the International Distribution
Rights and the MDP Contract, and Sterling Southern shall assume and
thereafter pay, perform or otherwise discharge, as and when the same shall
become due and payable, all liabilities and obligations of Seller that
constitute Assumed Liabilities, save and except for the liabilities and
obligations of Seller under the MDP Contract; and
(e) Seller shall cause each Assigning Subsidiary to sell, transfer and
assign to the subsidiary of Sterling Southern designated opposite the name
of such Assigning Subsidiary on Schedule 2(e) hereto (each, an "Assignee
Subsidiary," and, collectively, the "Assignee Subsidiaries") all of such
Assigning Subsidiary's right, title and interest in, to and under the
Purchased Assets, save and except for the Patents, the Copyrights and Marks
and the International Distribution Rights and (ii) the Assignee Subsidiary
so designated shall assume and thereafter pay, perform or otherwise
discharge, as and when the same shall become due and payable, all
liabilities and obligations of such Assigning Subsidiary that constitute
Assumed Liabilities.
Section 3. Reaffirmation of the Asset Purchase Agreement. To the
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extent that any provision hereof conflicts with any provision of the Asset
Purchase Agreement, the provisions hereof shall control. Except as expressly
modified hereby, the Asset Purchase Agreement shall remain in full force
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and effect in accordance with its original terms. Without limiting the
generality of the foregoing, none of the modifications set forth in Section 2
hereof shall relieve Buyer of any of its obligations under the Asset Purchase
Agreement.
Section 4. Successors and Assigns. This Amendment No. 1 shall inure to
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the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
Section 5. Counterparts. This Amendment No. 1 may be executed in one
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or more counterparts for the convenience of the parties hereto, all of which
together shall constitute one and the same instrument.
Section 6. Headings. The headings of the sections of this Amendment
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No. 1 are inserted for convenience only and shall not be deemed to constitute
part of this Amendment No. 1 or to affect the construction hereof.
Section 7. Choice of Law. This Amendment No. 1 shall be governed by
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and construed in accordance with the laws of the State of Texas, without regard
to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
as of the date first above written.
SELLER:
TEXAS INSTRUMENTS INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
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Name: XXXXX X. XXXXXX
Title: Executive Vice President
BUYER:
STERLING SOFTWARE, INC.
By: /s/ Xxx X. XxXxxxxxx, Xx.
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Name: XXX X. XxXXXXXXX, Xx.
Title: Senior Vice President
STERLING CAYMAN:
STERLING SOFTWARE (CAYMAN ISLANDS), INC.
By: /s/ R. Xxxxx Xxxx
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Name: R. XXXXX XXXX
Title: President
STERLING U.S.:
STERLING SOFTWARE (U.S.), INC.
By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------------
Name: XXXXXXXXX X. XXXXX
Title: Vice President
STERLING SOUTHERN:
STERLING SOFTWARE (SOUTHERN), INC.
By: /s/ Xxx X. XxXxxxxxx, Xx.
---------------------------------
Name: XXX X. XxXXXXXXX, XX.
Title: Vice President
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AMENDMENT NO. 2 TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT (this "Amendment No. 2"),
is made and entered into this 28th day of June, 1997, by and among Texas
Instruments Incorporated, a Delaware corporation with its principal offices in
Dallas, Texas ("Seller"), Sterling Software, Inc., a Delaware corporation with
its principal offices in Dallas, Texas ("Buyer"), Sterling Software (Cayman
Islands), Inc., a Cayman Islands company with its principal offices in Grand
Cayman, British West Indies ("Sterling Cayman"), Sterling Software (U.S.), Inc.,
a Delaware corporation with its principal offices in Dallas, Texas ("Sterling
U.S."), and Sterling Software (Southern), Inc., a Georgia corporation with its
principal offices in Dallas, Texas ("Sterling Southern").
WHEREAS, Seller, Buyer, Sterling Cayman, Sterling U.S. and Sterling
Southern have entered into an Asset Purchase Agreement, dated April 18, 1997, as
amended by Amendment No. 1 thereto (the "Asset Purchase Agreement");
WHEREAS, the parties to the Asset Purchase Agreement desire to modify
certain provisions of the Asset Purchase Agreement and to provide for the other
matters set forth herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, it is hereby agreed
among Seller, Buyer, Sterling Cayman, Sterling U.S. and Sterling Southern as
follows:
Section 1. Certain Definitions. Except as otherwise defined herein,
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terms used herein with initial capital letters are so used with the respective
meanings ascribed to such terms in the Asset Purchase Agreement.
Section 2. Purchase Price. On the terms and subject to the conditions
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set forth in the Asset Purchase Agreement, at the Closing, in consideration of
the conveyance to Buyer of the Purchased Assets, Buyer shall deliver to Seller
and the Assigning Subsidiaries (in lieu of the U.S. $165,000,000 referred to in
Section 2.1 of the Asset Purchase Agreement and the "Purchase Price" referred to
in Section 4.2(b) of the Asset Purchase Agreement), in the manner provided in
Section 2.1 of the Asset Purchase Agreement, an aggregate cash amount equal to
U.S. $164,870,000. As promptly as practicable following the receipt of all
consents and approvals of Governmental Authorities required in connection
therewith, (i) Seller shall cause Texas Instruments India Limited ("TI India")
to sell, transfer and assign to Buyer or the applicable Assignee Subsidiary the
portion of the Purchased Assets relating primarily to the conduct of the
Business in India and (ii) Buyer shall deliver, or cause the applicable Assignee
Subsidiary to deliver, to Seller or TI India,
in the manner provided in Section 2.1 of the Asset Purchase Agreement, an
aggregate cash amount equal to U.S. $130,000.
Section 3. Timing of Employment Offers. All obligations of Buyer
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pursuant to Section 9.4(a) of the Asset Purchase Agreement to extend offers of
employment on or prior to the Closing Date to employees of the Business who are
employed on the Closing Date (other than certain employees specified in such
Section 9.4(a)) shall be deemed satisfied if Buyer or any subsidiary thereof, in
any particular instance, communicates to the applicable individual, prior to
11:59 p.m. (local time, in each applicable jurisdiction) on July 1, 1997 with
respect to employees of the Business in the United States and Europe, or 11:59
p.m. (local time, in each applicable jurisdiction) on July 2, 1997 with respect
to all other employees of the Business, an offer of employment with Buyer or
such subsidiary (or, where applicable, confirmation that Buyer or such
subsidiary deems such individual's employment to have been transferred to Buyer
or such subsidiary). All such offers or confirmations shall be at salary and
benefit levels that Buyer believes are comparable in the aggregate to those
currently enjoyed by employees of the Business employed in the U.S. or, with
respect to employees employed outside the U.S., on terms and conditions of
employment which are required by applicable Laws, collective bargaining
agreements, employment agreements, works councils or other applicable
requirements. If any employee of the Business (other than any such employee who
is employed by an Asian Subsidiary (as hereinafter defined)) shall decline to
accept an offer of employment with, or, as applicable, a transfer of employment
to, Buyer or a subsidiary thereof and, as a result thereof, Seller or any
Assigning Subsidiary incurs any expense for such employee's base compensation or
benefits relating to the period between 11:59 p.m. (Dallas, Texas time) on June
30, 1997 and (i) 11:59 p.m. (local time, in each applicable jurisdiction) on
July 1, 1997 with respect to employees of the Business in the United States and
Europe or (ii) 11:59 p.m. (local time, in each applicable jurisdiction) on July
2, 1997 with respect to all other employees of the Business, Buyer or a
subsidiary thereof will reimburse Seller or such Assigning Subsidiary for such
actual expense (excluding any administrative and overhead costs and expenses);
provided that such reimbursement obligation under this Section 3 shall apply
only to the extent such base compensation and benefits are consistent with
normal ongoing employment and shall in no event include severance, special
bonuses or similar benefits.
Section 4. Employee Services Arrangement. Seller shall cause each of
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Texas Instruments Australia Limited, a Subsidiary of Seller organized under the
laws of New South Wales, Texas Instruments Korea Limited, a Subsidiary of Seller
organized under the laws of Korea, and Texas Instruments Japan Limited, a
Subsidiary of Seller organized under the laws of Japan (collectively, the "Asian
Subsidiaries"), to continue the employment by such Asian Subsidiary of each of
the employees of the Business employed by such Asian Subsidiary in Australia,
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Japan and Korea, respectively, on the Closing Date (each, a "Services Employee")
during the period (the "Services Period") from and including the Closing Date to
and including the earlier to occur of (a) the date on which such employee
accepts an offer of employment by Buyer or (b) 11:59 p.m. (local time, in the
applicable jurisdiction) on July 16, 1997 or such later date to which the
parties may agree. During the Services Period applicable to any particular
Services Employee, Seller shall cause the applicable Asian Subsidiary to (x)
continue to provide to such Services Employee the same base compensation and
benefits consistent with normal ongoing employment, including existing
allowances, and (y) make available to Buyer or a subsidiary thereof the
services, skills and specialized knowledge of such Services Employee on a
substantially similar basis as such Services Employee provided the same to such
Asian Subsidiary immediately prior to the Closing. Promptly after receipt of
an invoice accompanied by substantiating documentation in reasonable detail,
Buyer will (or will cause a subsidiary of Buyer to) reimburse Seller or the
applicable Asian Subsidiary for all costs and expenses (excluding administrative
and overhead costs and expenses) actually incurred by Seller or such Assigning
Subsidiary in performing its obligations under the provisions of this Section 4;
provided that such reimbursement obligation under this Section 4 shall in no
event apply to severance, special bonuses or similar benefits. Unless otherwise
specified, reimbursements required to be made to any Asian Subsidiary shall be
made in the local currency of such Asian Subsidiary.
Section 5. Facilities Leases. Notwithstanding anything to the contrary
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contained in the Asset Purchase Agreement:
(a) all contracts, leases, licenses and other agreements of Seller or any
Subsidiary of Seller under which Seller or any Subsidiary has a
leasehold or other occupancy right or interest in any of the
facilities listed on Schedule 5(a) hereto shall be deemed to be
Contracts;
(b) all contracts, leases, licenses and other agreements of Seller or any
Subsidiary of Seller (the "Retained Facilities Leases") under which
Seller or any such Subsidiary has a leasehold or other occupancy right
or interest in any facilities other than those listed on Schedule 5(a)
hereto (including without limitation those facilities listed on
Schedule 5(b) hereto) shall be deemed not to be Contracts;
(c) all of Seller's or any Assigning Subsidiary's right, title and
interest in, to and under the Retained Facilities Leases shall be
deemed to be Excluded Assets; and
(d) all liabilities and obligations of Seller or any Assigning Subsidiary
under the Retained Facilities Leases shall be deemed to be Retained
Liabilities.
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Section 6. Closing. Notwithstanding the contrary provisions of Section
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4.1 of the Asset Purchase Agreement, the Closing shall take place at the offices
of Buyer's counsel, Xxxxx, Day, Xxxxxx & Xxxxx, 2300 Xxxxxxxx Xxxx Center, 0000
Xxxx Xxxxxx, Xxxxxx, Xxxxx (or at such other place as the parties may
designate), before the close of business (Dallas, Texas time) on June 30, 1997
or such later date as the conditions specified in Articles X and XI of the Asset
Purchase Agreement are fulfilled (or waived by the party entitled to waive any
unfulfilled condition), and (ii) the Closing, once it shall have occurred, will
be deemed effective for tax, accounting and similar computational purposes as of
11:59 p.m. (local time, in each applicable jurisdiction) on the Closing Date.
Section 7. Post-Closing Payments. Within ten business days after the
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Closing Date, Buyer shall deliver to Seller (a) a schedule setting forth, as of
the Closing, (i) the aggregate cash balance of each Transferred Subsidiary, (ii)
all outstanding checks, drafts, overdrafts or similar known charges payable from
such cash balance, (iii) all checks or similar amounts received prior to the
Closing but not yet reflected in such cash balance, and (iv) the aggregate cash
balance of each Transferred Subsidiary, after subtracting the amounts specified
in clause (ii) and adding the amounts specified in clause (iii) (such amount,
aggregated for the Transferred Subsidiaries collectively, the "Seller Receivable
Amount"), and (b) a schedule setting forth the aggregate amount due to Buyer
from Seller pursuant to Schedule 9.4(m) to the Asset Purchase Agreement plus the
sum of U.S. $1,000,000 as consideration for the reclassification of the
PeerLogic assets described in Section 8 hereof as Excluded Assets for all
purposes of the Asset Purchase Agreement (collectively, the "Buyer Receivable
Amount"). Within two business days after the delivery to Seller of the
schedules referred to in the immediately preceding sentence, (x) Buyer will
deliver to Seller, by wire transfer of immediately available funds to an account
designated by Seller for such purpose, cash in an amount equal to the amount by
which the Seller Receivable Amount exceeds the Buyer Receivable Amount, or (y)
Seller will deliver to Buyer, by wire transfer of immediately available funds to
an account designated by Buyer for such purpose, cash in an amount equal to the
amount by which the Buyer Receivable Amount exceeds the Seller Receivable
Amount, as applicable. Within 30 days after the Closing Date, Buyer shall
deliver to Seller, or otherwise make available to Seller and its
representatives, Buyer's work papers (and such other substantiating
documentation as Seller may reasonably request) supporting Buyer's computation
of the Seller Receivable Amount. Seller will have 30 days after delivery by
Buyer of its work papers and other substantiating documentation to notify Seller
that it disagrees with or disputes Buyer's computation of the Seller Receivable
Amount. If Seller fails to so notify Buyer within such 30 day time period, the
Seller Receivable Amount set forth on the schedule delivered pursuant to the
first sentence of this Section 7 will be final and binding on the parties. If
Seller notifies Buyer within such 30 day time period that it disagrees with or
disputes Buyer's computation of
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the Seller Receivable Amount, Seller and Buyer will commence to negotiate in
good faith a resolution of such dispute. If the parties are unable to reach
agreement within 15 days after the notice of objection is given, the dispute
shall be referred for resolution by an independent "Big 6" accounting firm
mutually agreed upon by the parties, whose determination shall be final and
binding on the parties. The fees and expenses of such "Big 6" accounting firm
shall be borne equally by the parties. Within five business days following
resolution of any dispute (whether by a "Big 6" accounting firm or otherwise),
Buyer will promptly deliver to Seller, or Seller will promptly deliver to Buyer,
by wire transfer of immediately available funds to an account designated by the
recipient for such purpose, any additional amounts in respect of the matters
provided for in this Section 7 that are determined to be due to Seller or Buyer,
as the case may be.
Section 8. Excluded Assets. Notwithstanding anything to the contrary
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contained in the Asset Purchase Agreement, the Purchased Assets shall not
include any stock, warrants or promissory notes of PeerLogic owned by Seller or
any Assigning Subsidiary (such stock, warrants and promissory notes, together
with the rights, properties and assets described in Section 1.2 of the Asset
Purchase Agreement, being "Excluded Assets" for all purposes of the Asset
Purchase Agreement).
Section 9. Reaffirmation of the Asset Purchase Agreement. To the
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extent that any provision hereof conflicts with any provision of the Asset
Purchase Agreement, the provisions hereof shall control. Except as expressly
modified hereby, the Asset Purchase Agreement shall remain in full force and
effect in accordance with its original terms.
Section 10. Successors and Assigns. This Amendment No. 2 shall inure to
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the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
Section 11. Counterparts. This Amendment No. 2 may be executed in one
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or more counterparts for the convenience of the parties hereto, all of which
together shall constitute one and the same instrument.
Section 12. Headings. The headings of the sections of this Amendment
--------
No. 2 are inserted for convenience only and shall not be deemed to constitute
part of this Amendment No. 2 or to affect the construction hereof.
Section 13. Choice of Law. This Amendment No. 2 shall be governed by
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and construed in accordance with the laws of the State of Texas, without regard
to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2
as of the date first above written.
SELLER:
TEXAS INSTRUMENTS INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
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Name: XXXXX X. XXXXXX
Title: Executive Vice President
BUYER:
STERLING SOFTWARE, INC.
By: /s/ Xxx X. XxXxxxxxx, Xx.
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Name: XXX X. XxXXXXXXX, Xx.
Title: Senior Vice President
STERLING CAYMAN:
STERLING SOFTWARE (CAYMAN ISLANDS), INC.
By: /s/ R. Xxxxx Xxxx
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Name: R. XXXXX XXXX
Title: President
STERLING U.S.:
STERLING SOFTWARE (U.S.), INC.
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: XXXXXXXXX X. XXXXX
Title: Vice President
STERLING SOUTHERN:
STERLING SOFTWARE (SOUTHERN), INC.
By: /s/ Xxx X. XxXxxxxxx, Xx.
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Name: XXX X. XxXXXXXXX, XX.
Title: Vice President
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