EXHIBIT (d)(3)
STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated as of June __, 2002 (the "AGREEMENT"),
among Novell, Inc., a Delaware corporation ("PARENT"), Delaware Planet Inc., a
Delaware corporation and a direct wholly owned subsidiary of Parent ("MERGER
SUBSIDIARY"), and the Stockholder of SilverStream Software, Inc., a Delaware
corporation (the "COMPANY"), whose name appears on Schedule I hereto (the
"STOCKHOLDER").
RECITALS
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Parent, Merger Subsidiary and the Company are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as the same may be
amended from time to time, the "MERGER AGREEMENT"), which provides for, upon the
terms and subject to the conditions set forth therein, (i) the commencement by
Merger Subsidiary of a tender offer (the "OFFER") for all of the issued and
outstanding shares of common stock, par value $.001 per share, of the Company
(the "COMPANY COMMON STOCK"), and (ii) the subsequent merger of Merger
Subsidiary with and into the Company (the "MERGER");
WHEREAS, as of the date hereof, the Stockholder owns (beneficially (as
determined herein pursuant to Rule 13d-3 under the Securities Exchange Act of
1934 (the "Exchange Act")) and of record) the number of shares of Company Common
Stock set forth opposite the Stockholder's name on Schedule I hereto (all such
shares so owned and which may hereafter be acquired by the Stockholder prior to
the termination of this Agreement, whether upon the exercise of options or by
means of purchase, dividend, distribution or otherwise, but excluding any shares
issuable pursuant to any option exercise unless and until such shares are
actually issued, being referred to herein as the Stockholder's "SHARES");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Merger Subsidiary have required that the Stockholder enter
into this Agreement; and
WHEREAS, in order to induce Parent and Merger Subsidiary to enter into
the Merger Agreement, the Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Merger Subsidiary and the Stockholder hereby agree as follows:
ARTICLE 1
Transfer and Voting of Shares and
Other Covenants of the Stockholder
Section 1.01 Voting of Shares. From the date hereof until the earliest
to occur of (x) termination of this Agreement pursuant to Section 6.01 hereof,
(y) the expiration of the Stock Option (as defined below) with respect to the
Stockholder's Shares and (z) the closing of any exercise of such Stock Option
(the "TERM"), at any meeting of the stockholders of the Company, however called,
and in any action by consent of the stockholders of the Company, the Stockholder
shall vote its Shares (i) in favor of the adoption of the Merger Agreement, (ii)
against any Acquisition Proposal (as defined in the Merger Agreement) and
against any proposal for action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or which is reasonably likely to result
in any of the conditions of the Company's obligations under the Merger Agreement
not being fulfilled, any change in the directors of the Company,
any change in the present capitalization of the Company or any amendment to the
Company's Second Amended and Restated Certificate of Incorporation or Second
Amended and Restated Bylaws, any other material change in the Company's
corporate structure or business or any other action which in the case of each of
the matters referred to in this clause (ii) could reasonably be expected to
impede, interfere with, delay, postpone or materially adversely affect the
transactions contemplated by the Merger Agreement or the likelihood of such
transactions being consummated and (iii) in favor of any other matter necessary
for consummation of the transactions contemplated by the Merger Agreement that
is considered at any such meeting of stockholders or in such consent, and in
connection therewith to execute any documents which are necessary or appropriate
in order to effectuate the foregoing, including the ability for Merger
Subsidiary or its nominees to vote such Shares directly.
Section 1.02 No Inconsistent Arrangements. Except as contemplated by
this Agreement and the Merger Agreement, the Stockholder shall not during the
Term (i) transfer (which term shall include, without limitation, any sale,
assignment, gift, pledge, hypothecation or other disposition), or consent to any
transfer of, any or all of the Stockholder's Shares or any interest therein, or
create or permit to exist any Encumbrance (as defined below) on such Shares,
(ii) enter into any contract, option or other agreement or understanding with
respect to any transfer of any or all of such Shares or any interest therein,
(iii) grant any proxy, power-of-attorney or other authorization in or with
respect to such Shares, (iv) deposit such Shares into a voting trust or enter
into a voting agreement or arrangement with respect to such Shares or (v) take
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 by the Merger Agreement; provided, however, that nothing contained herein
shall prohibit any sale, transfer or assignment of Shares by a Stockholder to
members of such Stockholder's family, a family trust of such Stockholder or a
charitable institution if the transferee of such Shares agrees in writing to be
bound by the terms hereof and notice of such sale, transfer or assignment,
including the name and address of the purchaser, transferee or assignee, is
delivered to Merger Subsidiary.
Section 1.03 Proxy/Power of Attorney. The Stockholder hereby revokes
any and all prior proxies or powers of attorney in respect of any of the
Stockholder's Shares and constitutes and appoints Merger Subsidiary and Parent,
or any nominee of Merger Subsidiary and Parent, with full power of substitution
and resubstitution, at any time during the Term, as its true and lawful attorney
and proxy (its "PROXY"), for and in its name, place and stead, to vote each of
such Shares as its Proxy, at every annual, special, adjourned or postponed
meeting of the stockholders of the Company, including the right to sign its name
(as stockholder) to any consent, certificate or other document relating to the
Company and any matter referred to in Section 1.01 above that Delaware law may
permit or require.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED
WITH AN INTEREST THROUGHOUT THE TERM.
Section 1.04 Waiver of Appraisal Rights. The Stockholder hereby waives
any rights of appraisal in connection with the Merger.
Section 1.05 Stop Transfer. The Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Stockholder's Shares, unless
such transfer is made in compliance with this Agreement (including the
provisions of Article 3 hereof).
Section 1.06 No Solicitation. During the Term, the Stockholder shall
not, and it shall cause its officers, directors, employees, agents or
representatives (collectively, the "REPRESENTATIVES") not to, (i) solicit,
initiate or take any action to facilitate or encourage the submission of any
Acquisition Proposal or any inquiry with respect thereto, (ii) enter into or
participate in any discussions or negotiations with,
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furnish any information relating to the Company or any of its subsidiaries or
afford access to the business, properties, assets, books or records of the
Company or any of its subsidiaries to, otherwise cooperate in any way with, or
knowingly assist, participate in, facilitate or encourage any effort by, any
third party that is seeking to make, or has made, an Acquisition Proposal or
(iii) enter into any letter of intent or similar document or any contract,
agreement or commitment contemplating or otherwise relating to an Acquisition
Proposal. Upon execution of this Agreement, the Stockholder shall, and it shall
cause its Representatives to, immediately cease any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
To the same extent required by the Company pursuant to, and subject to
the same conditions contained in, the Merger Agreement, the Stockholder shall
notify Parent promptly (but in no event later than 24 hours) after receipt by
the Stockholder of any Acquisition Proposal, any indication that any third party
is considering making an Acquisition Proposal or any request for information
relating to the Company or any of its subsidiaries or for access to the
business, properties, assets, books or records of the Company or any of its
subsidiaries by any third party that may be considering making, or has made, an
Acquisition Proposal. To the same extent required by the Company pursuant to,
and subject to the same conditions contained in, the Merger Agreement, the
Stockholder shall provide such notice orally and in writing and shall identify
the third party making, and the terms and conditions of, any such Acquisition
Proposal, indication or request. Notwithstanding any provision of this Section
1.06 to the contrary, if the Stockholder or any of its Representatives is a
member of the Company's Board of Directors, such member of the Company's Board
of Directors may take actions in such capacity to the extent permitted by
Section 7.04 of the Merger Agreement.
Section 1.07 Stockholder Capacity; Fiduciary Duties. No Stockholder
executing this Agreement who is or becomes during the term hereof a director or
officer of the Company or any subsidiary 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 such Stockholder's capacity
as the record holder and beneficial owner (as further set forth on Schedule I
hereto) of the Stockholder's Shares. Nothing in this Agreement shall be
construed to prohibit a Stockholder who is a member of the Board of Directors of
the Company or any subsidiary of the Company or officer of the Company or any
subsidiary of the Company from taking any action or inaction solely in such
capacity or from taking any action or inaction with respect to any Acquisition
Proposal or otherwise, as a member of, or at the direction of, the Board of
Directors of the Company to the extent permitted by the Merger Agreement.
ARTICLE 2
Tender of Shares
Section 2.01 Tender. The Stockholder shall validly tender (or cause the
record owner of such shares to validly tender) the Stockholder's Shares pursuant
to and in accordance with the terms of the Offer, not later than the fifth
business day after commencement of the Offer pursuant to Section 2.01 of the
Merger Agreement and Rule 14d-2 under the Exchange Act, and not thereafter
withdraw such tender during the Term. The Stockholder hereby acknowledges and
agrees that Parent's and Merger Subsidiary's obligation to accept for payment
and pay for the Stockholder's Shares in the Offer is subject to the terms and
conditions of the Offer. For all its Shares validly tendered in the Offer and
not withdrawn, the Stockholder will be entitled to receive the highest price
paid by Merger Subsidiary pursuant to the Offer. Nothing in this Agreement shall
obligate any Stockholder to exercise any option, warrant or other right to
purchase shares of capital stock of the Company.
Section 2.02 Certain Warranties. Without limiting the generality or
effect of any other term or condition of the Offer, the transfer by the
Stockholder of the Shares to Merger Subsidiary in the Offer
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shall pass to and unconditionally vest in Merger Subsidiary good and valid title
to the Shares, free and clear of all Encumbrances whatsoever other than
restrictions under applicable securities laws.
Section 2.03 Disclosure. The Stockholder hereby authorizes Parent and
Merger Subsidiary to publish and disclose in the Offer Documents (as defined in
the Merger Agreement) and, if approval of the Company's stockholders is required
under applicable law, the Proxy Statement (as defined in the Merger Agreement)
(including all documents and schedules filed with the Securities and Exchange
Commission), its identity and ownership of Shares and the nature of its
commitments, arrangements and understandings under this Agreement.
ARTICLE 3
Option
Section 3.01 Option Shares.
(a) In order to induce Parent and Merger Subsidiary to enter
into the Merger Agreement, the Stockholder hereby grants to Parent or Merger
Subsidiary, as Parent may designate (the "OPTIONEE"), an irrevocable option
(each such option, a "STOCK OPTION") to purchase all, but not in any part or
less than all, of the Stockholder's Shares (in such context, the "OPTION
SHARES") at a purchase price per share equal to [deal price] (the "EXERCISE
PRICE"), subject to the terms and conditions set forth herein.
(b) The Stock Option may be exercised by the Optionee 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 Stock
Option in accordance with Section 6.01. In the event the Optionee wishes to
exercise the Stock Option, the Optionee shall send an irrevocable written notice
to the Stockholder (the "Stock Exercise Notice") specifying the total number of
Option Shares it wishes to purchase and a date (not later than 10 business days
and not earlier than three business days 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 Stock 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"). In the event of any
change in the number of issued and outstanding shares of Company Common Stock by
reason of any stock dividend, stock split, split-up, recapitalization, merger or
other similar change in the corporate or capital structure of the Company, the
number of Option Shares subject to the Stock Option and the Exercise Price per
Option Share shall be proportionally adjusted.
(c) The Optionee's right to exercise the Stock Option is
subject to the following conditions:
(i) neither Parent nor Merger Subsidiary shall have
breached any of its obligations under the Merger Agreement such that the breach
was the primary cause or resulted in the failure of the Offer to be consummated;
(ii) no preliminary or permanent injunction or other
order issued by any federal, state or foreign court of competent jurisdiction
invalidating the grant or prohibiting the exercise of the Stock Option or the
delivery of the Option Shares shall be in effect;
(iii) all applicable waiting periods under the HSR
Act (as defined in the Merger Agreement) and any applicable foreign antitrust
law or regulation shall have expired or been terminated; and
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(iv) a Triggering Event shall have occurred.
A "Triggering Event" shall be deemed to have occurred if the Merger Agreement
shall have been terminated pursuant to (x) Section 11.01(b)(iii), 11.01(c) or
11.01(d) thereof, (y) Section 11.01(b)(i) thereof, provided that an Acquisition
Proposal (as defined in the Merger Agreement) shall have been made after the
date hereof and prior to such termination (which shall not have been withdrawn
in good faith prior to such termination) or (z) Section 11.01(e)(i) thereof,
except that such termination shall not be deemed a Triggering Event if the
breach causing such termination occurred through no fault of the Company and as
a result of events occurring after the date hereof.
(d) The Optionee's obligation to purchase the Option Shares
following the exercise of the Stock Option, and the Stockholder's obligation to
deliver the Option Shares, are subject to the conditions that:
(i) no preliminary or permanent injunction or other
order issued by any foreign, federal or state court of competent jurisdiction
prohibiting the delivery of the Option Shares shall be in effect;
(ii) the purchase of the Option Shares will not
violate any material law, rule or regulation; and
(iii) all applicable waiting periods under the HSR
Act (as defined in the Merger Agreement) and any applicable foreign antitrust
law or regulation shall have expired or been terminated.
(e) At any Closing Date, the Stockholder will deliver to the
Optionee a certificate or certificates for any shares that are certificated
representing the Option Shares in the denominations designated by the Optionee
in its Stock Exercise Notice, and the Optionee will purchase the Option Shares
from the Stockholder at a price per Option Share equal to the Exercise Price,
payable in cash. Payment made by the Optionee 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
Option Shares covered by the Stock Exercise Notice, the Stock Option shall be
deemed exercised to the extent of the Option Shares specified in the Stock
Exercise Notice as of the date such Stock Exercise Notice is given to the
Stockholder. Upon the delivery of certificates as described herein, good and
valid title to the Option Shares shall pass to and unconditionally vest in the
Optionee, free and clear of all Encumbrances whatsoever, other than restrictions
imposed by securities laws.
(f) Any closing hereunder shall take place on the Closing Date
specified by the Optionee in its Stock Exercise Notice or the first business day
thereafter on which all of the conditions in Section 3.01(c) and (d) are met, at
the principal executive office of the Company, or at such other time and place
as the parties hereto may agree.
ARTICLE 4
Representations and Warranties of the Stockholder
The Stockholder hereby represents and warrants to Parent and Merger
Subsidiary as follows:
Section 4.01 Due Authorization, etc. The Stockholder has all requisite
power and authority to execute, deliver and perform this Agreement, to appoint
Merger Subsidiary and Parent as its Proxy and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
the appointment of Merger Subsidiary and Parent as the Stockholder's Proxy and
the
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consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Stockholder. This
Agreement has been duly executed and delivered by or on behalf of the
Stockholder and constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms.
There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which the Stockholder is trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
the Stockholder of the transactions contemplated hereby.
Section 4.02 No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the
Stockholder does not, and, subject to compliance with applicable antitrust and
securities laws, the performance of this Agreement by the Stockholder will not,
(i) conflict with or violate any trust agreement or other similar documents
relating to any trust of which the Stockholder is trustee, (ii) conflict with or
violate any law applicable to the Stockholder or by which the Stockholder or any
of the Stockholder's properties are bound or affected or (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, acceleration or cancellation of, or result in the creation of a
lien or encumbrance on any assets of the Stockholder, including, without
limitation, the Stockholder's Shares, pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Stockholder is a party or by which the
Stockholder or any of the Stockholder's assets is bound or affected, except, in
the case of clauses (ii) and (iii), for any such breaches, defaults or other
occurrences that would not prevent or delay the performance by the Stockholder
of the Stockholder's obligations under this Agreement.
(b) Subject to compliance with applicable antitrust and
securities laws, the execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder will not,
require the Stockholder to obtain any consent, approval, authorization or permit
of, or filing by the Stockholder with or notification by the Stockholder to, any
governmental or regulatory authority, domestic or foreign, except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by the Stockholder of the Stockholder's obligations under this Agreement.
Section 4.03 Title to Shares. The Stockholder is the sole record and
beneficial owner of its Shares, free and clear of any pledge, lien, security
interest, mortgage, charge, claim, equity, option, proxy, voting restriction,
voting trust or agreement, understanding, arrangement, right of first refusal,
limitation on disposition, adverse claim of ownership or use or encumbrance of
any kind ("ENCUMBRANCES"), other than restrictions imposed by the securities
laws or pursuant to this Agreement and the Merger Agreement.
Section 4.04 No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Stockholder. The Stockholder, on behalf of itself and its affiliates, hereby
acknowledges that the Stockholder is not entitled to receive any broker's,
finder's, financial advisor's or other similar fee or commission in connection
with the transactions contemplated hereby or by the Merger Agreement.
ARTICLE 5
Representations and Warranties of
Parent and Merger Subsidiary
Parent and Merger Subsidiary hereby, jointly and severally, represent
and warrant to the Stockholder as follows:
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Section 5.01 Due Organization, Authorization, etc. Merger Subsidiary
and Parent are duly organized, validly existing and in good standing under the
laws of their jurisdiction of incorporation. Merger Subsidiary and Parent have
all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby by each of Merger Subsidiary and Parent have been duly
authorized by all necessary corporate action on the part of Merger Subsidiary
and Parent, respectively. This Agreement has been duly executed and delivered by
each of Merger Subsidiary and Parent and constitutes a legal, valid and binding
obligation of each of Merger Subsidiary and Parent, enforceable against Merger
Subsidiary and Parent in accordance with its terms.
Section 5.02 Investment Intent. The Optionee is acquiring each Stock
Option and, if and when it exercises such Stock Option, will be acquiring the
Option Shares issuable upon the exercise thereof for its own account and not
with a view to distribution or resale in any manner which would be in violation
of the Securities Act of 1933, as amended.
ARTICLE 6
Miscellaneous
Section 6.01 Termination. This Agreement shall automatically terminate
and be of no further force and effect upon the earliest of (i) the consummation
of the purchase of all of the Shares pursuant to the Offer, (ii) the termination
of the Merger Agreement, (iii) the written mutual consent of the Purchaser and
the Stockholder, and (iv) the Effective Time (as defined in the Merger
Agreement); provided, however, that in the event this Agreement terminates
pursuant to clause (ii) above as a result of a Triggering Event, the provisions
of Article 3 above shall survive for 90 days following such termination. In the
event of the termination of this Agreement pursuant to this Section 6.01, this
Agreement will become null and void and of no effect with no liability on the
part of any party hereto and all proxies granted hereby will be automatically
revoked; provided, however, that no such termination will relieve any party
hereto from any liability for any breach of this Agreement occurring prior to
such termination.
Section 6.02 Further Assurance. From time to time, at another party's
request and without consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transaction contemplated by this Agreement.
Section 6.03 Certain Events. The Stockholder agrees that this Agreement
and the Stockholder's obligations hereunder shall attach to the Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, the Stockholder's heirs, guardians,
administrators, or successors. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all its obligations under
this Agreement.
Section 6.04 Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof in
any federal court located in the State of Delaware or any Delaware state court,
in addition to any other remedy to which they are entitled at law or in equity.
Section 6.05 Notice. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (i) as of the date delivered or sent by facsimile if delivered
personally or by facsimile, confirmation received, and (ii) on the third
business day
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after deposit in the U.S. mail, if mailed by registered or certified mail
(postage prepaid, return receipt requested), in each case to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice, except that notices of changes of address shall be effective
upon receipt):
(a) If to Parent or Merger Subsidiary:
Novell, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx XxXxxx, Senior Vice President,
General Counsel and Secretary
Facsimile: 617.551.5101
With a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: 212.309.7044
(b) If to the Stockholder, at the address set forth below the
Stockholder's name on Schedule I hereto.
Section 6.06 Expenses. All fees, costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such fees, costs and expenses.
Section 6.07 Headings. The headings herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
Section 6.08 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other 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 6.09 Entire Agreement; No Third-Party Beneficiaries. 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 the
subject matter of this Agreement. 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.
Section 6.10 Assignment. This Agreement shall not be assigned by
operation of law or otherwise, except that Parent and Merger Subsidiary may
assign all or any of their rights hereunder to any Subsidiary (as defined in the
Merger Agreement) of Parent provided that no such assignment shall relieve the
assigning party of its obligations hereunder.
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Section 6.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware, without regard to
the conflicts of law rules of such state.
Section 6.12 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 6.13 Waiver. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(c) waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
Section 6.14 Counterparts. This Agreement may be signed 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 6.15 Parent Guarantee. Parent hereby guarantees the due and
punctual payment and performance of any and all obligations and liabilities of
Merger Subsidiary under or arising out of this Agreement and the transactions
contemplated hereby.
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IN WITNESS WHEREOF, Parent, Merger Subsidiary and the Stockholder have
caused this Agreement to be executed as of the date first written above.
NOVELL, INC.
By:
Name:
Title:
DELAWARE PLANET INC.
By:
Name:
Title:
[STOCKHOLDER]
By:
Name:
Title:
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Schedule I
Number of Shares Owned
Name and Address of Stockholder as of June __, 2002
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