[CONFORMED COPY]
STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated as of February 18, 2000, among SBC
Communications, Inc., a Delaware corporation ("Parent"), SBC Silver, Inc.,
a Delaware corporation and a wholly owned subsidiary of Parent
("Purchaser"), and the stockholders named in Exhibit A hereto (each a
"Stockholder").
WHEREAS, simultaneously herewith, Parent and Purchaser are entering
into an Agreement and Plan of Merger, dated as of the date hereof (as
amended from time to time, the "Merger Agreement"), with Sterling Commerce,
Inc., a Delaware corporation (the "Company"), which contemplates, among
other things, that Parent or Purchaser will commence a tender offer (as
modified from time to time as permitted by the Merger Agreement, the
"Offer") for all of the outstanding shares of common stock, $.0l par value,
of the Company ("Company Common Stock"); and that Purchaser will merge with
the Company pursuant to the merger contemplated by the Merger Agreement
(the "Merger"); capitalized terms used but not defined herein shall have
the meanings set forth in the Merger Agreement, whether or not such Merger
Agreement shall be in effect from time to time;
WHEREAS, as of the date hereof, each Stockholder owns (either
beneficially or of record) the number of shares of Company Common Stock set
forth opposite such Stockholder's name on Exhibit A hereto (all such shares
owned by the Stockholders and any shares of Company Common Stock hereafter
acquired by any Stockholder prior to the termination of this Agreement
being referred to herein as the "Shares"); and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement, Parent and Purchaser have requested that
each Stockholder agree, and in order to induce Parent and Purchaser to
enter into the Merger Agreement, each Stockholder has agreed, severally and
not jointly, to enter into 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 agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.1 Voting Agreement. Each Stockholder hereby agrees that, at
any meeting of the stockholders of the Company, however called, or in
connection with any written consent of the holders of shares of Company
Common Stock, each such Stockholder shall vote his or her Shares (a) in
favor of the approval and adoption of the Merger Agreement, the Merger and
all the transactions contemplated by the Merger Agreement and this
Agreement and any other actions required in furtherance thereof and hereof
and (b) against any Company Takeover Proposal and any actions in
furtherance thereof.
SECTION 1.2 Irrevocable Proxy. Each Stockholder hereby irrevocably
constitutes and appoints Xxxxx XxXxx as his or her attorney and proxy
pursuant to the provisions of Section 212(c) of the Delaware General
Corporation Law ("DGCL"), with full power of substitution, to vote and
otherwise act (by written consent or otherwise) with respect to the Shares
which such Stockholder is entitled to vote at any meeting of stockholders
of the Company (whether annual or special and whether or not an adjourned
or postponed meeting) or consent in lieu of any such meeting or otherwise,
on, and only on, the matters described in Section 1.1 and to execute and
deliver any and all consents, instruments or other agreements or documents
in order to take any and all such actions in connection with or in
furtherance of the obligations of such Stockholder set forth in this
Agreement and each of the transactions contemplated by this Agreement or
the Merger Agreement. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE,
SUBJECT TO SECTION 4.5, AND COUPLED WITH AN INTEREST. Each Stockholder
hereby revokes all other proxies and powers of attorney with respect to
such Stockholder's Shares that it may have heretofore appointed or granted,
and no subsequent proxy or power of attorney shall be given or written
consent executed (and if given or executed, shall not be effective) by such
Stockholder with respect thereto. All authority herein conferred or agreed
to be conferred shall survive the death or incapacity of a Stockholder and
any obligation of such Stockholder under this Agreement shall be binding
upon the heirs, personal representatives, successors and assigns of such
Stockholder.
ARTICLE II
AGREEMENT TO TENDER
SECTION 2.1 Agreement to Tender. Each Stockholder hereby agrees that,
if Parent or Purchaser commences the Offer, such Stockholder will validly
tender, or cause to be validly tendered, all of the Shares then
beneficially owned by such Stockholder to Parent or Purchaser, as
applicable, as soon as practicable (and in any event within five business
days) after the commencement of the Offer in accordance with the terms and
conditions of the Offer. Each Stockholder further agrees that it will not
withdraw such tendered Shares unless the Offer is terminated by Parent or
Purchaser, as applicable. Each Stockholder will be entitled, upon
consummation of the Offer, subject to and in accordance with the Offer's
terms and conditions, to receive an amount equal to the Offer Price with
respect to the tendered Shares. Each Stockholder hereby agrees to permit
Parent and Purchaser to publish and disclose in the Offer Documents and, if
Company Stockholder Approval is required under applicable law, the Proxy
Statement (including all documents and schedules filed with the SEC), their
respective identity and ownership of Company Common Stock and the nature of
their respective commitments, arrangements and understandings under this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Stockholder. Each
Stockholder represents and warrants to Parent as follows:
(a) Such Stockholder has the requisite power, authority and
legal capacity to enter into and deliver this Agreement and to carry out
its obligations hereunder. This Agreement has been duly executed and
delivered by such Stockholder and, assuming its due authorization,
execution and delivery by Parent and Purchaser, is a legal, valid and
binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
(b) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such
Stockholder will not, (i) conflict with or violate any Laws or (ii)
conflict with or violate any contract or other instrument to which the
Stockholder is a party or by which such Stockholder is bound, including,
without limitation, any voting agreement, stockholders agreement or voting
trust, except for any Liens created hereby.
(c) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such
Stockholder will not, require such Stockholder to obtain any consent,
approval, authorization or permit of, or to make any filing with or
notification to, any person or Governmental Authority, except as may be
required by the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the HSR Act.
(d) There is no suit, action, investigation or proceeding
pending or, to the knowledge of such Stockholder, threatened against such
Stockholder at law or in equity before or by any Governmental Authority
that could reasonably be expected to impair the ability of such Stockholder
to perform its obligations hereunder, and there is no judgment, decree,
injunction, rule, order or writ of any Governmental Authority to which such
Stockholder is or its assets are subject that could reasonably be expected
to impair the ability of such Stockholder to perform its obligations
hereunder.
(e) Each Stockholder owns beneficially and of record the shares
of Company Common Stock set forth opposite such Stockholder's name on
Exhibit A hereto (with respect to such Stockholder, the "Existing Shares").
The Existing Shares constitute all the shares of Company Common Stock owned
beneficially and of record by such Stockholder. Such Stockholder has sole
voting power, sole power of disposition, sole power to demand appraisal
rights and all other stockholder rights with respect to all of its Existing
Shares, with no restrictions, other than restrictions on disposition
pursuant to applicable securities laws, on such Stockholder's rights of
voting or disposition pertaining thereto. Such Stockholder has good and
valid title to all Existing Shares, free and clear of all Liens (other than
any Liens created hereby) and, when delivered by such Stockholder to Parent
or Purchaser in accordance with the Offer, good, marketable and
valid title in and to such Existing Shares will be transferred to Parent or
Purchaser, as the case may be, free and clear of all Liens.
SECTION 3.2 Survival. Notwithstanding anything otherwise provided for
herein, each Stockholder's representations and warranties contained in this
Section 3 shall be true and correct as of the date Parent or Purchaser, as
the case may be, accepts such Stockholder's Shares for payment pursuant to
the terms of the Offer.
ARTICLE IV
COVENANTS OF THE STOCKHOLDER
SECTION 4.1 "No Shop". Each Stockholder shall immediately cease any
discussions or negotiations relating to a Company Takeover Proposal, other
than with respect to the Transactions, with any parties conducted
heretofore. Each Stockholder will not, directly or indirectly, and will
instruct its Representatives not to, directly or indirectly (i) solicit,
initiate or encourage (including by way of furnishing information or
assistance), or take any other action to facilitate, any inquiries, any
expression of interest or the making of any proposal which constitute any
Company Takeover Proposal or (ii) participate in any discussions or
negotiations regarding any Company Takeover Proposal. Anything in this
Section 4.1 to the contrary notwithstanding, nothing in this Section 4.1
shall limit in any way a Stockholder who is a director of the Company from
exercising any of his rights or performing any of his duties as a director
of the Company.
SECTION 4.2 Restriction on Transfer. Until and unless this Agreement
has been terminated, each Stockholder shall not except as expressly
provided for in this Agreement (a) sell, exchange, pledge, encumber or
otherwise transfer or dispose of, or agree to sell, exchange, pledge,
encumber or otherwise transfer or dispose of, any of its Shares (which for
avoidance of doubt shall not include any option to purchase Company Common
Stock exercisable for Shares pursuant to the terms of such option), or any
interest therein, (b) deposit its Shares into a voting trust or enter into
a voting agreement or arrangement with respect to such Shares or grant any
proxy with respect thereto or (c) enter into any agreement, arrangement,
understanding, or undertaking to do any of the foregoing.
SECTION 4.3 Waiver of Appraisal Rights. Each Stockholder hereby
waives any appraisal or other rights to dissent from the Merger that such
Stockholder may have.
SECTION 4.4 Termination. The covenants and agreements contained
herein with respect to the Shares shall terminate upon the termination of
the Merger Agreement in accordance with its terms.
ARTICLE V
DEFINITIONS
SECTION 5.1 Definitions. For the purpose of this Agreement,
"beneficially own" or "beneficial ownership" with respect to any securities
shall mean having "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in writing, subject
to any fiduciary duty in the case of securities not held of record.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Severability. If any term or other provision of this
Agreement is or is deemed to be invalid, illegal or incapable of being
enforced by any applicable rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of this
Agreement is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate
in good faith to modify this Agreement so as to effect the original intent
of the parties as closely as possible in a mutually acceptable manner so
that the terms of this Agreement remain as originally contemplated to the
fullest extent possible.
SECTION 6.2 Entire Agreement. This Agreement constitutes the entire
understanding between Parent, Purchaser and each Stockholder with respect
to the subject matter hereof and thereof and supersedes all prior
agreements and understandings, both written and oral, between Parent,
Purchaser and each Stockholder with respect to the subject matter hereof
and thereof.
SECTION 6.3 Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed and delivered shall be deemed to be an original
but all of which taken together shall constitute one and the same
instrument.
SECTION 6.4 Mutual Drafting. Each party hereto has participated in
the drafting of this Agreement, which each party acknowledges is the result
of extensive negotiations between the parties.
SECTION 6.5 Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the
other parties hereto, provided that Parent may assign its rights hereunder
to any direct or indirect wholly owned subsidiary of Parent, but no such
assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
SECTION 6.6 Amendments. This Agreement may not be amended,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties
hereto.
SECTION 6.7 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by delivery in person,
facsimile transmission, registered or certified mail (postage prepaid,
return receipt requested), or courier service providing proof of delivery
to the respective parties at the following addresses (or to such other
address for a party as shall be specified in a notice given in accordance
with this Section 6.7).
If to Parent or Purchaser:
SBC Communications, Inc.
000 X. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Vice President and Assistant General Counsel -
Mergers and Acquisitions
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Xxxxxx Xxxxx, Esq.
If to the Stockholder:
c/o Sterling Commerce, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxx X. Xxxxxxxx
SECTION 6.8 No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any
person or entity not a party hereto.
SECTION 6.9 Specific Performance. Each of the parties hereto
acknowledges that a breach by it of any agreement contained in this
Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of
the parties hereto agrees that in the event of any such breach the
aggrieved party shall be entitled to the remedy of specific performance of
such agreement and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity.
SECTION 6.10 Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at
law or in equity shall be cumulative and not alternative, and the exercise
of any thereof by any party shall not preclude the simultaneous or later
exercise of any other right, power or remedy by such party.
SECTION 6.11 No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon strict
compliance by any other party hereto with its obligations hereunder, and
any custom or practice of the parties at variance with the terms hereof,
shall not constitute a waiver by such party of its rights to exercise any
such or other right, power or remedy or to demand such compliance.
SECTION 6.12 Governing Law.
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect
to the principles of conflicts of law.
(b) Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware in any
action, suit or proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding shall be brought only in
such court (and waives any objection based on forum non conveniens or any
other objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this subsection (b)
and shall not be deemed to be a general submission to the jurisdiction of
such court or in the State of Delaware other than for such purposes.
SECTION 6.13 Waiver of Jury Trial. EACH OF PARENT, PURCHASER AND THE
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF
PARENT, PURCHASER OR THE STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT THEREOF.
SECTION 6.14 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
[Signatures on Following Page.]
IN WITNESS WHEREOF, Parent, Purchaser and each Stockholder have
caused this Agreement to be duly executed as of the date first above
written.
SBC COMMUNICATIONS, INC.
By:/s/ Xxxxxxx X. XxXxx
------------------------
Name: Xxxxxxx X. XxXxx
Title: Managing Director-
Corporate Development
SBC SILVER, INC.
By:/s/ Xxxxxxx X. XxXxx
------------------------
Name: Xxxxxxx X. XxXxx
Title: Vice President
STOCKHOLDERS:
By:/s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Xxxxxxxx X. Xxxxxxxx
By:/s/ Warner C. Blow
------------------------
Warner C. Blow
By:/s/ Xxxxxxx X. Xxxx, Xx.
------------------------
Xxxxxxx X. Xxxx, Xx.
By:/s/ Xxx Xxxx
------------------------
Xxx Xxxx
Exhibit A
Name Shares
--------- ---------
Xxxxxxxx X. Xxxxxxxx 3,755,776
Warner C. Blow 1,359,031
Xxxxxxx X. Xxxx, Xx. 988,366
Xxx Xxxx 1,045,672
