EXHIBIT 10(b)
AMENDED AND RESTATED STOCKHOLDER AGREEMENT
This AMENDED AND RESTATED STOCKHOLDER AGREEMENT (this "Agreement") is
entered into as of August 31 , 1994 to be effective as of July 31, 1994, by
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and between Sterling Software, Inc., a Delaware corporation (the "Buyer"), and
the stockholder listed on the signature page hereof (the "Stockholder").
WHEREAS, the Stockholder, as of the date hereof, is the owner of the
respective number of shares (the "Shares") of Common Stock, no par value (the
"Common Stock"), of KnowledgeWare, Inc., a Georgia corporation (the
"Corporation") set forth below the name of the Stockholder on the signature page
hereof;
WHEREAS, the Buyer and SSI Corporation, a Georgia corporation and a wholly-
owned subsidiary of the Buyer ("Merger Sub"), entered into an Agreement and Plan
of Merger with the Corporation dated as of July 31, 1994, and in reliance in
part upon the execution and delivery of this Agreement, the Buyer and Merger
Sub will enter into an Amended and Restated Agreement and Plan of Merger, dated
as of the date hereof (the "Merger Agreement;" capitalized terms not defined
herein shall have the meanings set forth in the Merger Agreement), with the
Corporation which provides that, among other things, upon the terms and subject
to the conditions thereof Merger Sub will be merged with and into the
Corporation, with the Corporation continuing as the surviving corporation and a
wholly-owned subsidiary of the Buyer (the "Merger"), and each outstanding share
of Common Stock, including the Shares, will, by reason of the Merger, be
converted into a fraction of a share of the Buyer's common stock, par value $.10
per share (the "Buyer Common Stock"), that is equal to the Exchange Ratio
(subject to the provisions of the Merger Agreement);
WHEREAS, in reliance upon the execution and delivery of this Agreement, the
Buyer will enter into an Amended and Restated Stock Option Agreement, dated as
of the date hereof (the "Stock Option Agreement"), with the Corporation pursuant
to which the Corporation has granted to the Buyer an option to acquire shares of
Common Stock upon the occurrence of certain events; and
WHEREAS, to induce the Buyer to enter into the Merger Agreement and the
Stock Option Agreement and to incur the obligations set forth therein, the
Stockholder is entering into this Agreement pursuant to which the Stockholder
agrees to vote in favor of the Merger and certain other matters as set forth
herein, and to make certain agreements with respect to the Shares upon the terms
and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreement set forth herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. VOTING OF SHARES; IRREVOCABLE PROXY. The Stockholder agrees
that until the earlier of (i) the Effective Time and (ii) the termination of the
Merger Agreement (the earlier of such dates being hereinafter referred to as the
"Expiration Date"), the Stockholder shall vote all Shares owned by the
Stockholder at any meeting of the Corporation's stockholders (whether annual or
special and whether or not an adjourned or postponed meeting), or, if
applicable, take action by written consent (x) for adoption of the Merger
Agreement and in favor of the Merger and any other transaction contemplated by
the Merger Agreement, as such Merger Agreement may be modified or amended from
time to time (but not to reduce the Exchange Ratio), (y) against any action,
omission or agreement which would impede or interfere with, or have the effect
of discouraging, the Merger, including, without limitation, any Acquisition
Proposal other than the Merger, and (z) in favor of all nominees in the
Corporation's slate of directors nominated for election by a majority of the
Corporation's non-management directors. Any such vote shall be cast or consent
shall be given in accordance with such procedures relating thereto as shall
ensure that it is duly counted for purposes of determining that a quorum is
present and for purposes of recording the results of such vote or consent.
In the event that the Stockholder shall fail to comply with the provisions
of this Section 1 (as determined by the Buyer in its sole discretion), the
Stockholder hereby agrees that such failure shall result, without any further
action by the Stockholder, in the irrevocable appointment of the Buyer, until
termination of the Merger Agreement, as its attorney and proxy with full power
of substitution, to vote and otherwise act (by written consent or otherwise)
with respect to the Shares which the Stockholder is entitled to vote at any
meeting of stockholders of the Corporation (whether annual or special and
whether or not an adjourned or postponed meeting) or consent in lieu of any such
meeting or otherwise, on the matters and in the manner specified in Section 1
above. THE STOCKHOLDER ACKNOWLEDGES THAT THIS PROXY IS COUPLED WITH AN
INTEREST, AND CONSTITUTES, AMONG OTHER THINGS, AN INDUCEMENT FOR THE BUYER TO
ENTER INTO THE MERGER AGREEMENT, IS IRREVOCABLE AND SHALL NOT BE TERMINATED BY
OPERATION OF LAW UPON THE OCCURRENCE OF ANY EVENT, INCLUDING, WITHOUT
LIMITATION, THE DEATH OR INCAPACITY OF THE STOCKHOLDER. Notwithstanding any
provision contained in such proxy, such proxy shall terminate upon the
Expiration Date.
Section 2. COVENANTS OF THE STOCKHOLDER. The Stockholder covenants and
agrees for the benefit of the Buyer that, until the Expiration Date, it:
(a) will not sell, transfer, pledge, hypothecate, encumber, assign,
tender or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer, pledge,
hypothecation, encumbrance, assignment, tender or other disposition of (any
one or more of which, a "Transfer"), any of the Shares owned by it unless,
in connection with such Transfer, the transferee executes a counterpart of
this Agreement agreeing to be bound by the terms hereof;
(b) will, other than as expressly contemplated by this Agreement, not
grant any powers of attorney or proxies or consents in respect of any of
the Shares owned by it,
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deposit any of the Shares owned by it into a voting trust, enter into a
voting agreement with respect to any of the Shares owned by it or otherwise
restrict the ability of the holder of any of the Shares owned by it freely
to exercise all voting rights with respect thereto except for powers of
attorney granted in the ordinary course consistent with the terms of the
Merger Agreement;
(c) will not take any action which, if taken by the Corporation,
would be prohibited by Section 7.1 of the Merger Agreement;
(d) will use its best efforts to take, or cause to be taken, all
action, and do, or cause to be done, all things necessary or advisable in
order to consummate and make effective the transactions contemplated by
this Agreement including, without limitation, to enter into an affiliate's
letter substantially in the form of Annex A hereto; provided however, if
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the Stockholder is a director of the Corporation the provisions of this
paragraph (d) are subject to the fiduciary duties such Stockholder has to
the Corporation as a member of the Board of Directors; and
(e) will not exercise any appraisal or dissenter's rights, if any,
with respect to the Shares.
Section 3. COVENANTS OF THE BUYER. The Buyer covenants and agrees for
the benefit of the Stockholder that (a) immediately upon execution of this
Agreement, the Buyer shall enter, and cause Merger Sub to enter, into the Merger
Agreement, and (b) until the Expiration Date, it shall use its best efforts to
take, or cause to be taken, all action, and do, or cause to be done, all things
necessary or advisable in order to consummate and make effective the
transactions contemplated by this Agreement and the Merger Agreement, consistent
with the terms and conditions of each such agreement.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder represents and warrants to the Buyer that: (a) if applicable, the
Stockholder is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; (b) the execution,
delivery and performance by the Stockholder of this Agreement will not conflict
with, require a consent, waiver or approval under, or result in a breach or a
default under, its Certificate of Incorporation or By-laws (if applicable), or
any of the terms of any contract, commitment or other obligations (written or
oral) to which the Stockholder is bound, which breach would result in a material
adverse effect on the Stockholder; (c) this Agreement has been duly executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance with its
terms; (d) if applicable, the execution, delivery and performance of this
Agreement and the consummation by it of the transactions contemplated hereby
have been approved by all necessary corporate action on its part; (e) other than
as set forth herein, the Stockholder has not entered into an irrevocable proxy
with respect to the Shares.
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The representations and warranties contained herein shall be made as of the
date hereof and as of each date from the date hereof through and including the
Closing.
Section 5. ADJUSTMENTS; ADDITIONAL SHARES. In the event (i) of any stock
dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of capital stock of the Corporation on, of or affecting the
Shares, or (ii) the Stockholder shall acquire voting rights with respect to any
additional shares of Common Stock or other securities of the Corporation,
including any securities entitling the holder hereof to vote or give consent
with respect to the matters set forth in Section 1 hereof but excluding shares
of Common Stock of the Corporation as to which the holders thereof have granted
revocable proxies to the Stockholder in connection with the shareholders meeting
of the Corporation contemplated by Section 7.4 of the Merger Agreement, then the
terms of this Agreement shall apply to the shares of capital stock held by the
Stockholder immediately following the effectiveness of the events described in
clause (i) or the Stockholder becoming the beneficial owner thereof, as
described in clause (ii), as though they were Shares hereunder. As soon as
practicable after the receipt of such other capital stock or securities, the
Stockholder shall surrender to the Corporation all certificates or instruments
representing such for the purpose of affixing the legend set forth in Section 6
hereof.
Section 6. SPECIFIC PERFORMANCE. The Stockholder acknowledges that the
agreements contained in this Agreement are an integral part of the transactions
contemplated by the Merger Agreement and the Stock Option Agreement and that,
without these agreements, the Buyer and Merger Sub would not enter into the
Merger Agreement or the Stock Option Agreement, and acknowledges that damages
would be an inadequate remedy for any breach by it of the provisions of this
Agreement. Accordingly, the Stockholder and the Buyer each agree that the
obligations of the parties hereunder shall be specifically enforceable and
neither party shall take any action to impede the other from seeking to enforce
such right of specific performance. Both parties further agree to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such equitable relief and that this provision is without
prejudice to any other rights that the parties hereto may have for any failure
to perform this Agreement.
Section 7. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by overnight
courier, by delivering the same in person, by telecopy (with confirmation), or
by registered or certified mail (return receipt requested) to the Stockholder at
the address listed on the signature page hereof, with a copy to Xxxxx, Xxxxxx &
Xxxxxxxx, Xxxxx 0000, Marquis Two Tower, 000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, facsimile number (404)
420-7474, and to the Buyer at 0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, Attention: President, facsimile number (000) 000-0000, with a copy
to Xxxxxxx & Xxxxxx, L.L.P., 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx, Xx., Facsimile number (000) 000-0000, or to such
other address as any party may have furnished to the other in writing in
accordance herewith. Any such notice shall be deemed delivered and
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received on the date on which it is received if sent by overnight courier, hand-
delivered or telecopy, or on the fifth business day following the date on which
it is so mailed.
Section 8. BINDING EFFECT; SURVIVAL. Upon execution and delivery of this
Agreement by the Buyer, this Agreement shall become effective as to the
Stockholder at the time the Stockholder executes and delivers this Agreement.
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, personal representatives, successors and
assigns.
Section 9. ASSIGNMENT. The Buyer may, without the consent of the
Stockholder, assign its rights hereunder to any direct or indirect wholly owned
subsidiary of the Buyer, provided that any such assignment shall not affect the
obligations of the Buyer hereunder.
Section 10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws.
Section 11. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
Section 12. EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction hereof.
Section 13. ADDITIONAL AGREEMENTS; FURTHER ASSURANCE. Subject to the
terms and conditions herein provided, each of the parties hereto 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 to consummate and
make effective the transactions contemplated by this Agreement. The Stockholder
will provide the Buyer with all documents which may reasonably be requested by
the Buyer and will take reasonable steps to enable the Buyer to obtain all
rights and benefits provided it hereunder.
Section 14. AMENDMENT; WAIVER. No amendment or waiver of any provision of
this Agreement or consent to departure therefrom shall be effective unless in
writing and signed by the Buyer and the Stockholder, in the case of an
amendment, or by the party which is the beneficiary of any such provision, in
the case of waiver or a consent to departure therefrom.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto all as of the day and year first above written.
STERLING SOFTWARE, INC.
By: /s/ Xxxxxxxx X.Xxxxxxxx
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Name: Xxxxxxxx X.Xxxxxxxx
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Title: President
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STOCKHOLDER:
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By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
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Title:
_________________________
Address: 0000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, Xxxxxxx 00000
Number of Shares: 1,194,515
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto all as of the day and year first above written.
STERLING SOFTWARE, INC.
By: /s/ Xxxxxxxx X.Xxxxxxxx
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Name: Xxxxxxxx X.Xxxxxxxx
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Title: President
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STOCKHOLDER:
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XXXXXXXXX GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Chairman
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Address: 0000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, Xxxxxxx 00000
Number of Shares: 34,694
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto all as of the day and year first above written.
STERLING SOFTWARE, INC.
By: /s/ Xxxxxxxx X.Xxxxxxxx
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Name: Xxxxxxxx X.Xxxxxxxx
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Title: President
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STOCKHOLDER:
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By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title:
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Address: 0000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, Xxxxxxx 00000
Number of Shares: - 0 -
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto all as of the day and year first above written.
STERLING SOFTWARE, INC.
By: /s/ Xxxxxxxx X.Xxxxxxxx
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Name: Xxxxxxxx X.Xxxxxxxx
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Title: President
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STOCKHOLDER:
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By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title:
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Address: Tupenny House
Xxxxxx'x Town, Bermuda
Number of Shares: 1,545,500
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