AGREEMENT
AGREEMENT, dated as of May 7, 1999 (this "Agreement"), by and
among C. Xxxxxx Xxxxxx ("Xx. Xxxxxx") and Management Insights, Inc.
(collectively, the "Xxxxxx Group"); and Inprise Corporation, a Delaware
corporation (the "Company").
In consideration of the mutual agreements set forth herein,
intending to be legally bound hereby, the Company and the Xxxxxx Group agree as
follows:
1. Board Composition; Related Matters.
(a) The Company and the Xxxxxx Group agree that there
shall be three nominees standing for election at the Company's 1999 Annual
Meeting of Stockholders (the "1999 Annual Meeting") to serve on the Company's
classified Board of Directors (the "Board") for a three-year term. Such three
nominees shall be Xxxxxxx X. Xxxxx and Xxxxxx Xxxx, both of whom currently serve
on the Board, and C. Xxxxxx Xxxxxx. Messrs. Xxxxx, Hara and Xxxxxx are referred
to herein as the "1999 Nominees". Prior to the 1999 Annual Meeting, the Board
shall have taken all necessary action to increase its size so that all of the
1999 Nominees may be elected as directors.
(b) The members of the Xxxxxx Group and their
respective Affiliates and Associates (as such terms are hereinafter defined),
and the Company shall publicly support and recommend that the Company's
stockholders vote for the election of each of the 1999 Nominees at the 1999
Annual Meeting and for each of the other matters being presented by the Board
for a vote of stockholders at the 1999 Annual Meeting. The members of the Xxxxxx
Group shall vote, and shall cause their respective Affiliates and Associates to
vote, all shares of the Voting Securities (as hereinafter defined) which they
are entitled to vote at the 1999 Annual Meeting in favor of the election of each
of the 1999 Nominees and in favor of each of the other matters being presented
by the Board for a vote of stockholders at the 1999 Annual Meeting.
(c) The members of the Xxxxxx Group and their
respective Affiliates and Associates shall publicly support and recommend that
the Company's shareholders vote for the election of each of the persons
nominated by the Board to stand for election as directors at the Company's 2000
Annual Meeting of Stockholders (the "2000 Annual Meeting"), and the members of
the Xxxxxx Group shall vote, and shall cause their respective Affiliates and
Associates to vote, all shares of the Voting Securities which they are entitled
to vote at the 2000 Annual Meeting in favor of the election of each of the
persons nominated by the Board to stand for election as directors at the 2000
Annual Meeting.
(d) Management Insights, Inc. and the other members
of the Xxxxxx Group confirm the withdrawal of a stockholder proposal submitted
to the Company by Management Insights, Inc. pursuant to Rule 14a-8 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), in connection
with the 1999 Annual Meeting.
2. Covenants of the Xxxxxx Group. (a) Except as otherwise
ex-pressly provided in Section 1 hereof, each member of the Xxxxxx Group,
jointly and severally, agrees that during the period commencing on the date
hereof and ending on the day following the certification of the results of the
votes taken at the 2000 Annual Meeting, without the prior written consent of the
Board specifically ex-pressed in a resolution adopted by a majority of the
members of the Board other than Xx. Xxxxxx, they will not, and will cause their
respective Affiliates and Associates not to, directly or indirectly:
(i) make, engage, or in any way participate
in any "solicitation" (as such term is used in the proxy rules
of the Securities and Exchange Commission (the "SEC")) of
proxies or consents (whether or not relating to the election
or removal of directors), seek to advise, encourage or
influence any Person with respect to the voting of any Voting
Securities, initiate, propose or otherwise "so-licit" (as such
term is used in the proxy rules of the SEC) stockholders of
the Company for the approval of stockholder proposals whether
made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange
Act, or otherwise, induce or attempt to induce any other
Person to initiate any such stockholder proposal, or otherwise
communicate with the Company's stockholders or others pursuant
to Rule 14a-1 (1)(2)(iv) under the Exchange Act;
(ii) form, join or in any way participate
in any "group" (within the meaning of Section 13(d)(3) of the
Exchange Act) with respect to any Voting Securities, other
than a group consisting solely of the members of the Xxxxxx
Group as identified herein;
(iii) deposit any Voting Securities in any
voting trust or subject any Voting Securities to any
arrangement or agreement with respect to the voting of any
Voting Securities;
(iv) otherwise act, alone or in concert with
others, to control or seek to control or influence or seek to
influence the man-agement, the Board or policies of the
Company;
(v) seek, alone or in concert with others,
representa-tion on the Board or the removal of any member of
the Board;
(vi) make any publicly disclosed proposal or
enter into any discussion regarding any of the forgoing, or
make any proposal, statement or inquiry, or disclose any
intention, plan or arrangement (whether written or oral)
inconsistent with the foregoing, or make or disclose any
request to waive or terminate any provision of this Agreement;
or
(vii) take or cause or induce others to take
any action inconsistent with any of the foregoing.
(b) Nothing contained in paragraph (a) of this
Section 2 shall be deemed in any way to prohibit or limit Xx. Xxxxxx during the
term of his service as a director of the Company from engaging in any lawful
acts in his fiduciary capacity as a director of the Company.
3. Representations and Warranties of the Xxxxxx Group. Each of
the members of the Xxxxxx Group, jointly and severally, represents and warrants
to the Company as follows:
(a) Each member of the Xxxxxx Group has the power and
authority to execute, deliver and carry out the terms and provisions of this
Agree-ment and to consummate the transactions contemplated hereby, and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement and the transactions contemplated hereby.
(b) This Agreement has been duly and validly
authorized, executed and delivered by each member of the Xxxxxx Group and
constitutes a valid and binding obligation of each member of the Xxxxxx Group,
enforceable in accor-dance with its terms.
4. Representations and Warranties of the Company. The Company
hereby represents and warrants to the members of the Xxxxxx Group as follows:
(a) The Company has the corporate power and authority
to execute, deliver and carry out the terms and provisions of this Agreement and
to consummate the transactions contemplated hereby, and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement
and the transactions contemplated hereby.
(b) This Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a valid and
binding obliga-tion of the Company, enforceable in accordance with its terms.
5. Expenses. All fees and expenses incurred by the Company or
the Xxxxxx Group in connection with this Agreement or related matters will be
borne by such party.
6. Specific Performance. Each of the members of the Xxxxxx
Group, on the one hand, and the Company, on the other hand, acknowledges and
agrees that irreparable injury to the other party would occur in the event any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached and that such injury would not be
compensable in damages. It is accordingly agreed that each party hereto (the
"Moving Party") shall be entitled to specific enforcement of, and injunctive
relief to prevent any violation of, the terms hereof and the other parties
hereto will not take action, directly or indirectly, in opposition to the Moving
Party seeking such relief on the grounds that any other remedy or relief is
available at law or in equity.
7. No Waiver. Any waiver by any party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
8. Certain Definitions. As used in this Agreement, (a) the
term "Person" shall mean any individual, partnership, corporation, group,
syndicate, trust, government or agency thereof, or any other association or
entity; (b) the terms "Affiliates" and "Associates" shall have the meanings set
forth in Rule 12b-2 under the Exchange Act and shall include persons who become
Affiliates or Associates of any Person subsequent to the date hereof; and (c)
the term "Voting Securities" shall mean the Company's Common Stock, the
Company's Series B Convertible Preferred Stock, and any other securities of the
Company entitled to vote in the election of directors, or securities convertible
into, or exercisable or exchangeable for Common Stock or other securities,
whether or not subject to the passage of time or other contingencies.
9. Successors and Assigns. All the terms and provisions of
this Agreement shall inure to the benefit of and shall be enforceable by the
successors and assigns of the parties hereto.
10. Entire Agreement; Amendments. This Agreement contains the
entire understanding of the parties with respect to its subject matter. There
are no restrictions, agreements, promises, representations, warranties,
covenants or under-takings other than those expressly set forth herein. This
Agreement may be amended only by a written instrument duly executed by the
parties or their respective succes-sors or assigns.
11. Headings. The section headings contained in this Agreement
are for reference purposes only and shall not effect in any way the meaning or
interpreta-tion of this Agreement.
12. 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 given if so given) by hand delivery, cable, telecopy or
telex, or by mail (registered or certified, postage prepaid, return receipt
requested) to the respective parties as follows:
If to the Company:
Inprise Corporation
000 Xxxxxxxxxx Xxx
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: XxXxxx X. Xxxxxx, Esq.,
Vice President, General
Counsel and Secretary
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Xxxx, Xxxx, Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
with an additional copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Xxxxxx Group:
Mr. C. Xxxxxx Xxxxxx
00000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
13. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California,
without reference to the conflict of laws principles thereof, and each of the
parties hereto agree that any action or proceeding relating to or arising out of
this Agreement shall be adjudicated in the courts of California.
14. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
15. Severability. If any provision of this Agreement shall be
deemed or declared to be unenforceable, invalid or void, the same shall not
impair any of the other provisions of this Agreement.
16. Xxxxxx Group Representative. Management Insights, Inc.
hereby irrevocably appoints Xx. Xxxxxx as its attorney-in-fact and
representative (the "Representative"), in its place and stead, to do any and all
things and to execute any and all documents and give and receive any and all
notices or instructions in connec-tion with this Agreement and the transactions
contemplated hereby. The Company shall be entitled to rely, as binding on each
member of the Xxxxxx Group, upon any action taken by the Representative or upon
any document, notice, instruction or other writing given or executed by the
Representative.
IN WITNESS WHEREOF, and intending to be legally bound hereby,
each of the undersigned parties has executed or caused this Agreement to be
exe-cuted as of the date first above written.
INPRISE CORPORATION
By: /s/ XxXxxx X. Xxxxxx
-----------------------------
Name: XxXxxx X. Xxxxxx
Title: Vice President, General Counsel
and Secretary
/s/ C. Xxxxxx Xxxxxx
----------------------------
C. Xxxxxx Xxxxxx
MANAGEMENT INSIGHTS, INC.
By: /s/ C. Xxxxxx Xxxxxx
----------------------------
Name: C. Xxxxxx Xxxxxx
Title: Chairman of the Board and Chief
Executive Officer
