Exhibit 2.2
Agreement dated as of February 14, 2000 among Silversmith
Acquisition Corp., a Delaware corporation ("Buyer"), and the
holders (the "Stockholders") of the shares of common stock,
$0.10 par value (the "Shares"), of Sterling Software, Inc.,
a Delaware corporation (the "Company"), listed on the
signature pages hereof.
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In order to induce Buyer and Computer Associates
International, Inc., a Delaware corporation ("Parent"), to enter into an
Agreement and Plan of Merger (the "Merger Agreement") with the Company,
Buyer has requested that the Stockholders, and the Stockholders have
agreed, to enter into this Agreement.
The parties hereto agree as follows:
ARTICLE I
TENDER OFFER
SECTION 1.1 Tender of Shares. (a) Each Stockholder hereby
agrees, pursuant to the terms and subject to the conditions set forth
herein, to tender for exchange in the Offer (defined in the Merger
Agreement) all Shares currently owned by such Stockholder as set forth on
the signature page hereto and any additional Shares acquired by such
Stockholder (whether by purchase or otherwise) after the date of this
Agreement (such "Stockholder's Shares" and, collectively, the "Stockholder
Shares").
(b) Not later than two days prior to the expiration of the
Offer (and within five business days of any acquisition by each Stockholder
of any additional Shares), each Stockholder shall, as appropriate, (x)
deliver to the Exchange Agent (the "Exchange Agent") designated in the
Offer (i) a letter of transmittal with respect to such Stockholder's Shares
complying with the terms of the Offer together with instructions directing
the Exchange Agent to make payment for such Shares directly to the
Stockholder, (ii) a certificate or certificates representing such
Stockholder's Shares and (iii) all other documents or instruments required
to be delivered pursuant to the terms of the Offer (such documents in
clauses (i) through (iii) collectively being hereinafter referred to as the
"Tender Documents"), and/or (y) instruct its broker or such other person
who is the holder of record of any Shares Beneficially Owned (as defined
herein) by such Stockholder to tender such Shares for exchange in the Offer
pursuant to the terms and conditions of the Offer.
(c) No Stockholder shall withdraw any tender effected in
accordance with Section 1.1(b).
ARTICLE II
GRANT OF PROXY
SECTION 2.1 Proxy. Each Stockholder hereby revokes any and
all previous proxies granted with respect to such Stockholder's Shares.
Each Stockholder, by this Agreement, with respect to such Stockholder's
Shares, does hereby constitute and appoint Buyer, or any nominee of Buyer,
with full power of substitution, as its true and lawful attorney and proxy,
for and in its name, place and stead, to vote each of such Stockholder's
Shares as its proxy, at every annual, special or adjourned meeting, or
solicitation of consents, 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 that the law of the State of
Delaware may permit or require) (i) in favor of the adoption of the Merger
Agreement and this Agreement and approval of the Merger (defined in the
Merger Agreement) and the other transactions contemplated hereby and by the
Merger Agreement, (ii) against any proposal for any recapitalization,
merger, sale of assets or other business combination between the Company
and any person or entity (other than the Merger) or any other 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 not being fulfilled and (iii) in favor of any other matter
necessary for the consummation of the transactions contemplated by the
Merger Agreement and this Agreement. Each Stockholder further agrees to
cause such Stockholder's Shares that are outstanding and owned by it
beneficially to be voted in accordance with the foregoing. The proxy
granted by each Stockholder pursuant to this Article II is irrevocable, is
coupled with an interest and is granted in consideration of Buyer's
entering into this Agreement and the Merger Agreement; provided, however,
that such proxy shall be revoked upon termination of the Merger Agreement
in accordance with its terms.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders severally represents and warrants
to the Buyer that:
SECTION 3.1 Valid Title. Such Stockholder is the sole, true,
lawful and beneficial owner of such Stockholder's Shares with no
restrictions on such Stockholder's voting rights or rights of disposition
pertaining thereto, except for any such restrictions contemplated herein.
Except as may be the case under the arrangements referenced in the
footnotes at the end of this Agreement, none of such Stockholder's Shares
is subject to any voting trust or other agreement or arrangement with
respect to the voting of such Shares.
SECTION 3.2 Non-Contravention. The execution, delivery and
performance by such Stockholder of this Agreement and, subject to
compliance with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), and securities laws, as applicable, the
consummation of the transactions contemplated hereby (i) are within such
Stockholder's powers, have been duly authorized by all necessary action
(including any consultation, approval or other action by or with any other
person), (ii) require no action by or in respect of, or filing with, any
governmental body, agency, official or authority and (iii) do not and will
not contravene or constitute a default under, or give rise to a right of
termination, cancellation or acceleration of any right or obligation of
such Stockholder or to a loss of any material benefit of such Stockholder
under, any provision of applicable law or regulation or of any agreement,
judgment, injunction, order, decree, or other instrument binding on such
Stockholder or result in the imposition of any lien on any asset of such
Stockholder other than any such conflicts, breaches, violations, defaults,
obligations, rights or losses that individually or in the aggregate would
not (a) materially impair the ability of Stockholder to perform such
Stockholder's obligations under this Agreement or (b) prevent or delay the
consummation of any of the transactions contemplated hereby. No consent,
approval, order or authorization of, or registration, declaration or filing
with or exemption by any Federal, state or local government or any court,
administrative or regulatory agency or commission or other governmental
authority or agency, domestic or foreign, is required by or with respect to
such Stockholder in connection with the execution and delivery of this
Agreement by such Stockholder or the consummation by such Stockholder of
the transactions contemplated by this Agreement, except for applicable
requirements, if any, of Sections 13 and 16 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder. If this Agreement is being executed in a representative or
fiduciary capacity, the person signing this Agreement has full power and
authority to enter into and perform such Agreement.
SECTION 3.3 Binding Effect. This Agreement has been duly
executed and delivered by such Stockholder and, assuming that this
Agreement constitutes the valid and binding obligations of the other
parties hereto, is the valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and to general principles of equity.
SECTION 3.4 Total Shares. Each Stockholder is the record and
Beneficial Owner of the number of Shares set forth next to such
Stockholder's name on the signature pages hereto. Such Shares constitute
all of the Shares owned of record or Beneficially Owned by such Stockholder
as of the date hereof. Except as set forth on such signature pages, neither
such Stockholder nor any beneficial owner or owners of such Stockholder's
Shares own any options to purchase or rights to subscribe for or otherwise
acquire any securities of the Company. Each Stockholder has sole voting
power and sole power to issue instructions with respect to the matters set
forth in Article II of this Agreement, sole power of disposition, sole
power of conversion and sole power to agree to all of the matters set forth
in this Agreement, in each case with respect to all of the Shares
beneficially owned by such Stockholder with no limitations, qualifications
or restrictions on such rights, subject to applicable securities laws and
the terms of this Agreement. The terms "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 Securities Exchange Act of 1934, as amended (the "Exchange Act").
SECTION 3.5 Finder's Fees. No investment banker, broker or
finder is entitled to a commission or fee from Buyer in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of
such Stockholder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer represents and warrants to each of the
Stockholders:
SECTION 4.1 Corporate Power and Authority. Buyer has all
requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution, delivery and performance
by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Buyer. This Agreement has been duly
executed and delivered by Buyer and is a valid and binding agreement of
Buyer, enforceable against it in accordance with its terms.
SECTION 4.2 Non-Contravention. The execution, delivery and
performance by Buyer of this Agreement and, subject to compliance with the
HSR Act and securities laws, as applicable, the consummation of the
transactions contemplated hereby (i) require no action by or in respect of,
or filing with, any governmental body, agency, official or authority and
(ii) do not and will not contravene or constitute a default under, or give
rise to a right of termination, cancellation or acceleration of any right
or obligation of Buyer or to a loss of any material benefit of Buyer under,
any provision of applicable law or regulation or of any agreement,
judgment, injunction, order, decree, or other instrument binding on Buyer
or result in the imposition of any lien on any asset of Buyer other than
any such conflicts, breaches, violations, defaults, obligations, rights or
losses that individually or in the aggregate would not (a) materially
impair the ability of Buyer to perform Buyer's obligations under this
Agreement or (b) prevent or delay the consummation of any of the
transactions contemplated hereby. No consent, approval, order or
authorization of, or registration, declaration or filing with or exemption
by any Federal, state or local government or any court, administrative or
regulatory agency or commission or other governmental authority or agency,
domestic or foreign, is required by or with respect to Buyer in connection
with the execution and delivery of this Agreement by Buyer or the
consummation by Buyer of the transactions contemplated by this Agreement,
except for applicable requirements, if any, of the HSR Act, the Securities
Act of 1933, Sections 13 and 16 of the Exchange Act and the rules and
regulations thereunder.
ARTICLE V
COVENANTS OF THE STOCKHOLDERS
Each of the Stockholders hereby covenants and agrees that:
SECTION 5.1 No Proxies for or Encumbrances on Stockholder
Shares. Except pursuant to the terms of this Agreement or the Tender
Documents, such Stockholder shall not, without the prior written consent of
Buyer, directly or indirectly, (i) grant any proxies (other than proxies
relating to the election of management's slate of directors at an annual
meeting of the Company's stockholders, and other routine matters which
would not require the filing of a preliminary proxy statement under Rule
14a-6(a) of the Exchange Act) or enter into any voting trust or other
agreement or arrangement with respect to the voting of any such
Stockholder's Shares or (ii) sell, assign, transfer, encumber or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment,
transfer, encumbrance or other disposition of, any such Stockholder's
Shares during the term of this Agreement. Except as permitted by the
preceding sentences, such Stockholder shall not seek or solicit any such
sale, assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or assignment or understanding and
agrees to notify Buyer promptly and to provide all details requested by
Buyer if such Stockholder shall be approached or solicited, directly or
indirectly, by any person with respect to any of the foregoing.
SECTION 5.2 No Shopping. Such Stockholder, in the capacity
as a stockholder, shall not directly or indirectly (i) subject to the
fiduciary duty under applicable law of such Stockholder as a director of
the Company (if such Stockholder is such a director) as further provided in
the Merger Agreement, solicit, initiate or encourage (or authorize any
person to solicit, initiate or encourage) any inquiry, proposal or offer
from any person to acquire the business, property or capital stock of the
Company or any direct or indirect subsidiary thereof, or any acquisition of
a substantial equity interest in, or a substantial amount of the assets of,
the Company or any direct or indirect subsidiary thereof, whether by
merger, purchase of assets, tender offer or other transaction or (ii)
subject to the fiduciary duty under applicable law of such Stockholder as a
director of the Company (if such Stockholder is such a director) as further
provided in the Merger Agreement, participate in any discussion or
negotiations regarding, or furnish to any other person any information with
respect to, or otherwise cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other person to do or
seek any of the foregoing. Such Stockholder shall promptly advise Buyer of
the terms of any communications it may receive in the capacity as a
stockholder relating to any of the foregoing.
SECTION 5.3 Conduct of Stockholders. Such Stockholder will
not (i) take, agree or commit to take any action that would make any
representation and warranty of such Stockholder hereunder inaccurate in any
respect as of any time prior to the termination of this Agreement or (ii)
omit, or agree or commit to omit, to take any action necessary to prevent
any such representation or warranty from being inaccurate in any respect at
any such time.
SECTION 5.4 Disclosure. Each Stockholder hereby permits
Buyer to publish and disclose in the offer documents and, if approval of
the Company's stockholders is required under applicable law, a proxy
statement (including all documents and schedules filed with the SEC) their
identity and ownership of the Shares and the nature of their commitments,
arrangements and understandings under this Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such
cost or expense.
SECTION 6.2 Additional Agreements. Subject to the terms and
conditions of this Agreement, each of the Buyer and each Stockholder, in
the capacity as a Stockholder, agrees to use all reasonable efforts to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations
and which may be required under any agreements, contracts, commitments,
instruments, understandings, arrangements or restrictions of any kind to
which such party is a party or by which such party is governed or bound, to
consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.3 Termination. This Agreement and the proxies
granted pursuant to Section 2.1 will terminate immediately upon the
termination of the Merger Agreement in accordance with its terms.
SECTION 6.4 Specific Performance. The parties hereto agree
that the Buyer may be irreparably damaged if for any reason any Stockholder
failed to tender in the Offer, and to not withdraw, such Stockholder's
Shares (or other securities covered by this Agreement) in accordance with
the terms of this Agreement or to perform any of its other obligations
under this Agreement, and that the Buyer would not have an adequate remedy
at law for money damages in such event. Accordingly, the Buyer shall be
entitled to specific performance and injunctive and other equitable relief
to enforce the performance of this Agreement by each Stockholder. This
provision is without prejudice to any other rights that the Buyer may have
against any Stockholder for any failure to perform its obligations under
this Agreement.
SECTION 6.5 Notices. All notices, requests, claims, demands
and other communications hereunder shall be deemed to have been duly given
when delivered in person, by telecopy, or by registered or certified mail
(postage prepaid, return receipt requested) to such party at its address
set forth on the signature page hereto.
SECTION 6.6 Survival of Representations and Warranties. The
representations and warranties contained in this Agreement shall not
survive delivery of and payment for the Stockholder Shares or the
termination of this Agreement.
SECTION 6.7 Amendments. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of
a written agreement executed by all the parties hereto.
SECTION 6.8 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, provided that Buyer may
assign its rights and obligations to any affiliate of Buyer and provided,
further, that no Stockholder may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the consent of
the Buyer.
SECTION 6.9 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF, EXCEPT TO THE
EXTENT DELAWARE OR FEDERAL LAW MANDATORILY GOVERNS.
SECTION 6.10 Jurisdiction. Each of the parties hereto (a)
consents to submit itself to the exclusive personal jurisdiction of any
court of the United States located in the State of Delaware or of any
Delaware state court in the event any dispute arises out of this Agreement
or the transactions contemplated by this Agreement, and (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court.
SECTION 6.11 Counterparts; Effectiveness. 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. This Agreement shall become effective when each
party hereto shall have received counterparts hereof signed by all of the
other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
SILVERSMITH ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
In care of Computer Associates International, Inc.
Xxx Xxxxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Fax: 000-000-0000
Shares Options
[ ] [ ] -----------------------------------------
[Stockholder]
[address]
Telephone: [ ]
Facsimile: [ ]
