EXHIBIT 2
CONFORMED COPY
STOCKHOLDER AGREEMENT
AGREEMENT dated as of November 1, 2000, among Software AG, a stock
corporation (Aktiengesellschaft) organized under the laws of the Federal
Republic of Germany ("Parent"), Software AG Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of Parent ("Buyer"), Xxxxxx Equity
Investors III, L.P., a Delaware limited partnership ("Xxxxxx Equity"), TC
Co-Investors, LLC, a Delaware limited liability company ("TC Co-Investors" and,
together with Xxxxxx Equity, the "Xxxxxx Stockholders") and Xxxxxx X. Xxxxxx,
an individual residing in Bethesda, MD ("Xxxxxx X. Xxxxxx"); each of the Xxxxxx
Stockholders and Xxxxxx X. Xxxxxx being referred to in this Agreement as a
"Stockholder").
WITNESSETH:
WHEREAS, simultaneously with the execution and delivery of this Agreement,
Parent, Buyer and Sapphire Systems, Inc., a Delaware corporation ("Company"),
are entering into an Agreement and Plan of Merger dated as of the date hereof
the form of which is attached as Exhibit A hereto (the "Merger Agreement")
which provides for, among other things, the merger of Buyer into Sapphire and
the conversion of each then outstanding share of Common Stock of Sapphire, par
value $0.01 per share ("Common Stock"), into the right to receive the Merger
Consideration (as defined therein);
WHEREAS, each Stockholder owns the number of shares (as defined in Section
5.11(d)), of Common Stock specified opposite such Stockholder's name under the
column "Owned Shares" in Schedule A hereto (such Stockholder's "Owned Shares");
and
WHEREAS, in order to induce Parent and Buyer to enter into the Merger
Agreement, each Stockholder has agreed to enter into this Agreement with
respect to all Owned Shares;
NOW, THEREFORE, in consideration of the foregoing and the representations
and warranties, covenants and agreements contained in this Agreement, the
parties hereto agree as follows:
ARTICLE 1
PURCHASE OF A PORTION OF OWNED SHARES OF XXXXXX STOCKHOLDERS IN
EXCHANGE FOR SUBORDINATED NOTES
SECTION 1.01. Purchase of Owned Shares. Immediately prior to the Effective
Time, subject to the satisfaction or waiver by the Company or Parent and Buyer,
as the case may be, of all conditions to consummation of the Merger pursuant to
the Merger Agreement (other than the purchase of Owned Shares pursuant to this
Section 1.01) and the expiration or termination of any waiting period under the
HSR Act with respect to the purchase of Owned Shares pursuant to this Section
1.01, the Buyer agrees, and Parent agrees to cause Buyer, to purchase, and each
Xxxxxx Stockholder agrees to sell to Buyer, a number of such Xxxxxx
Stockholder's Owned Shares equal to 65% (rounded to the next highest whole
number of shares) of such Xxxxxx Stockholder's Owned Shares (such stockholder's
"Note Shares") in exchange for a Subordinated Note of Parent in the Form of
Exhibit 1 hereto (a "Subordinated Note") in an aggregate principal amount equal
to (x) the number of such Xxxxxx Stockholder's Note Shares multiplied by (y)
the Merger Consideration. Each Xxxxxx Stockholder agrees that it will exercise
all options for Common Stock prior to the purchase and sale contemplated by
this Section in order to deliver Owned Shares which are issued and outstanding.
SECTION 1.02. Closing. The closing of the purchase and sale pursuant to
Section 1.01 shall be held at the offices of Xxxxx Xxxx & Xxxxxxxx immediately
prior to the Effective Time and shall be subject to consummation of the Merger
and the purchases of all Note Shares from all Xxxxxx Stockholders pursuant to
Section 1.01. At the closing of the purchases and sales of Note Shares pursuant
to Section 1.01, (a) the Buyer shall deliver to each Xxxxxx Stockholder a
Subordinated Note in the aggregate principal amount provided in Section 1.01
for such Stockholder's Note Shares, dated the date of such closing and
otherwise appropriately completed and duly executed by Parent, and (b) each
Xxxxxx Stockholder shall deliver certificate(s) for such Xxxxxx Stockholder's
Note Shares, accompanied by stock power(s) duly endorsed to the Buyer.
SECTION 1.03. Additional Xxxxx Business Consideration. In the event that
any Additional Merger Consideration is paid by the Company to holders of Common
Stock pursuant to Section 2.02 of the Merger Agreement as of a record date
subsequent to the purchase from a Xxxxxx Stockholder of any Note Shares
pursuant to this Article 1, the Parent shall pay or cause the Company to pay to
such Xxxxxx Stockholder in cash an amount per Note Share equal to the amount of
Additional Merger Consideration per share of Common Stock so paid by the
Company.
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SECTION 1.04. Cash Alternative. The Buyer may, in lieu of deliveries of
any Subordinated Note to a Xxxxxx Stockholder pursuant to this Article 1 or in
reduction of the principal amount thereof, deliver, on a pro rata basis among
the Xxxxxx Stockholders, a certified or official bank check to the Xxxxxx
Stockholders in the aggregate principal amount thereof or in any smaller
amount, in which case the aggregate principal amount of such Subordinated Note
shall be reduced by the amount of the check so delivered.
SECTION 1.05. Additional Conditions to Purchase. In addition to the
conditions provided in the Merger Agreement, it shall be a condition to the
obligations of the Xxxxxx Stockholders, on the one hand, and the Buyer and
Parent, on the other hand, to consummate a purchase and sale pursuant to this
Article 1 that the representations and warranties of the Parent and Buyer, on
the one hand, and the Xxxxxx Stockholders, on the other hand, in this Agreement
are true and correct in all material respects at such time. It shall also be a
condition to the parties' obligations to consummate such purchases that (i) any
applicable waiting period under the HSR Act, with respect thereto shall have
expired or been terminated, (ii) any other required governmental approval shall
have been obtained and (iii) no law, regulation, judgment, order or decree
shall prohibit the consummation of the purchase and sale of the Note Shares.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Representations and Warranties of the Stockholders. Each
Stockholder, severally and not jointly, represents and warrants to Buyer and
Parent as of the date hereof and as of the time of each purchase of Owned
Shares hereunder as follows:
(a) Authority; Enforceability. Such Stockholder has the legal capacity (in
the case of Stockholders that are natural persons) and has all requisite power
and authority to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized (in the case of Stockholders that are not
natural persons) and has been executed and delivered by such Stockholder and
constitutes a valid and binding obligation of such Stockholder enforceable
against such Stockholder in accordance with its terms.
(b) No Conflicts. The execution, delivery and performance by such
Stockholder of this Agreement and the consummation by it of the transactions
contemplated hereby require no action by or in respect of, or filing with, any
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governmental body, agency, official or authority, domestic, foreign or
supranational, other than (i) compliance with any applicable requirements of
the HSR Act, (ii) compliance with any applicable requirements of the 1934 Act
and any other securities laws, whether state or foreign, (iii) compliance with
any applicable requirements of the Exon-Xxxxxx Amendment (Section 721 of Title
VII of the Defense Production Act of 1950, as amended by section 5021 of the
Omnibus Trade and Competitiveness Act of 1988 (Pub. L. 100-418)) and (iv) any
actions or filings the absence of which would not be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect on such
Stockholder or materially to impair the ability of it to consummate the
transactions contemplated by this Agreement. The execution, delivery and
performance by it of this Agreement and the consummation by it of the
transactions contemplated hereby are within its powers and have been duly
authorized by all necessary action.
The execution, delivery and performance by such Stockholder of this
Agreement and the consummation by such Stockholder of the transactions
contemplated hereby do not and will not (A) contravene, conflict with, or
result in any violation or breach of any provision of the organizational
documents of such Stockholder, (B) assuming compliance with the matters
referred to in the paragraph above, contravene, conflict with, or result in any
violation or breach of any provision of any law, rule, regulation, judgment,
injunction, order or decree or (C) require any consent or other action by any
Person under, constitute a default under, or cause or permit the termination,
cancellation, acceleration or other change of any right or obligation or the
loss of any benefit to which such Stockholder is entitled under any provision
of any agreement or other instrument binding upon such Stockholder, except for
such contraventions, conflicts and violations referred to in clause (B) and for
such failures to obtain consent or other action, defaults, terminations,
cancellations, accelerations, changes or losses referred to in clause (C) that
would not be reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect on such Stockholder or materially to impair the ability
of such Stockholder to consummate the transactions contemplated by this
Agreement.
(c) Ownership of Shares. As of the date hereof, such Stockholder is the
beneficial owner of the number of shares of Common stock set forth opposite
such Stockholder's name under the column "Owned Shares" on Schedule A. Each
such Stockholder has (or will at the closing(s) hereunder have, in the case of
Owned Shares issuable upon exercise of Options) good and marketable title to
its Owned Shares, free and clear of any encumbrances, agreements, adverse
claims, liens or other arrangements with respect to the ownership of or the
right to dispose of its Owned Shares, except pursuant to the terms of this
Agreement. On the date hereof, the Owned Shares constitute all of the
outstanding shares of Common Stock owned of record or beneficially by such
Stockholder. Such Stockholder has
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sole power of disposition with respect to all of its Owned Shares and sole
voting power with respect to the matters set forth in this Agreement and sole
power to demand dissenter's or appraisal rights, in each case with respect to
all of its Owned Shares, with no restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement. None of
such Owned Shares is subject to any voting trust, stockholders agreement or
other agreement, arrangement or restriction with respect to the voting or
transfer of any of the Owned Shares, except as contemplated by this Agreement
or the Merger Agreement.
(d) Finders' Fees. No investment banker, broker or finder is entitled to a
commission or fee from the Stockholder, Buyer or Parent in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder.
(e) Investment Representation. Such Stockholder (i) will acquire any
Subordinated Notes issued to such Stockholder under this Agreement for
investment purposes only and not with a view to or for sale in connection with,
any distribution thereof and (ii) acknowledges that such Subordinated Notes (a)
have not been and will not be registered under the securities laws of the
United States of America, the Federal Republic of Germany or any other
jurisdiction and (b) are not transferable, except as provided for in the
Subordinated Notes.
SECTION 2.02. Representations and Warranties of Buyer and Parent. Each of
Buyer and Parent, jointly and severally represents and warrants to each
Stockholder (other than Xxxxxx X. Xxxxxx with respect to Sections 2.02(c),
2.02(d)) and 2.02(e) as of the date hereof and as of the time of each purchase
as follows:
(a) Authority; Enforceability. Parent is a stock corporation
(Aktiengesellschaft) duly registered with the Commercial Register in Darmstadt,
Germany, and is validly existing under the laws of Germany. Buyer is duly
formed, validly existing and in good standing under the laws of its
jurisdiction of incorporation. Each of Parent and Buyer has all requisite power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by and constitutes the valid and binding obligation of each of Parent
and Buyer enforceable in accordance with its terms.
(b) No Conflicts. The execution, delivery and performance by it of this
Agreement and the consummation by it of the transactions contemplated hereby
require no action by or in respect of, or filing with, any governmental body,
agency, official or authority, domestic, foreign or supranational, other than
(i) compliance with any applicable requirements of the HSR Act, (ii) compliance
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with any applicable requirements of the 1934 Act and any other securities laws,
whether state or foreign, (iii) compliance with any applicable requirements of
the Exon-Xxxxxx Amendment (Section 721 of Title VII of the Defense Production
Act of 1950, as amended by section 5021 of the Omnibus Trade and
Competitiveness Act of 1988 (Pub. L. 100-418)) and (iv) any actions or filings
the absence of which would not be reasonably expected to have, individually or
in the aggregate, a Material Adverse Effect on Parent or materially to impair
the ability of it to consummate the transactions contemplated by this Agreement
or to perform its obligations under the Subordinated Notes. The execution,
delivery and performance by it of this Agreement and the consummation by it of
the transactions contemplated hereby are within its powers and have been duly
authorized by all necessary action.
For the purposes of this Agreement, "Material Adverse Effect" means a
material adverse effect on the business, assets or results of operations of the
Parent or Stockholder, as applicable, except any such effect resulting from or
arising in connection with (i) this Agreement or the transactions contemplated
hereby, (ii) changes or conditions affecting the software industry generally
(in the case of Parent) or (iii) changes in economic, regulatory or political
conditions generally.
The execution, delivery and performance by it of this Agreement and the
Subordinated Notes and the consummation by it of the transactions contemplated
hereby and thereby do not and will not (A) contravene, conflict with, or result
in any violation or breach of any provision of its organizational documents of,
(B) assuming compliance with the matters referred to in the above paragraph,
contravene, conflict with, or result in any violation or breach of any
provision of any law, rule, regulation, judgment, injunction, order or decree
or (C) require any consent or other action by any Person under, constitute a
default under, or cause or permit the termination, cancellation, acceleration
or other change of any right or obligation or the loss of any benefit to which
it is entitled under any provision of any agreement or other instrument binding
upon it, except for such contraventions, conflicts and violations referred to
in clause (B) and for such failures to obtain consent or other action,
defaults, terminations, cancellations, accelerations, changes or losses
referred to in clause (C) that would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect on Parent or
materially to impair its ability to consummate the transactions contemplated by
this Agreement or to perform its obligations under the Subordinated Notes.
(c) Parent Financial Statements; No Material Adverse Change. Parent has
provided to such Xxxxxx Stockholder a copy of Parent's most recently published
annual and interim period financial statements and such statements
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fairly present the financial position and results of operations of Parent and
its consolidated subsidiaries at the dates and for the periods indicated
therein in accordance with the accounting principles described in such annual
financial statements, consistently applied, subject in the case of statements
for such interim period to year-end adjustments. There has not been, since the
date of such interim financial statements, any material adverse change in the
financial condition or results of the Parent and its consolidated subsidiaries,
other than any such change attributable to the Merger Agreement, the Merger or
this Agreement.
(d) Subordinated Note. The Subordinated Note to be issued to such Xxxxxx
Stockholder pursuant to Article 1 hereof will, when issued and delivered in
accordance therewith be the valid and binding obligation of the Parent and
enforceable in accordance with its terms.
(e) Secured Indebtedness. Parent has not incurred any Secured Debt (as
defined in the Subordinated Note) other than the Secured Debt listed on
Schedule 2.02(e), trade payables arising from the purchase of goods or
materials or for services obtained in the ordinary course of business and
Secured Debt as to which, at the time of issuance of the Subordinated Notes,
Parent has complied with Section 5.01 of the Subordinated Notes.
ARTICLE 3
SUPPORT OF TRANSACTIONS
SECTION 3.01. Voting of Owned Shares. During the period (the "Agreement
Period") beginning on the date hereof and ending on the earlier of (a) the
Effective Time and (b) the termination of the Merger Agreement in accordance
with its terms, at any Company Stockholder Meeting or at any adjournment
thereof or in any other circumstances in which any stockholders' vote, consent
or other approval is sought, each of the Stockholders will attend such meeting,
in person or by proxy, and will vote all of its Owned Shares, or otherwise
provide requisite written consent or take any other action reasonably requested
by the Parent for the purpose, (i) in favor of the adoption and the approval of
the Merger Agreement, the Merger and any other related agreements, (ii) against
any action or agreement that would result in a breach in any material respect
of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement, and (iii) against any
action or agreement that would impede, interfere with, delay or postpone or
that would reasonably be expected to discourage the transactions contemplated
by the Merger Agreement.
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SECTION 3.02. No Solicitation. During the Agreement Period, no
Stockholder, acting on its own behalf and not as a representative of the
Company, will, directly or indirectly, (i) take any action to solicit, initiate
or encourage any Acquisition Proposal or (ii) engage in negotiations or
discussions with, or disclose any nonpublic information relating to Company or
any Subsidiary, or otherwise assist, facilitate or encourage, any Third Party
that may be considering making, or has made, an Acquisition Proposal. Each
Stockholder will promptly notify the Company and Parent after receipt of any
Acquisition Proposal or any indication from any Third Party that it is
considering making an Acquisition Proposal or any request for nonpublic
information relating to the Company or any Subsidiary (each of the foregoing
Acquisition Proposal, indication or request, collectively an "Indication of
Interest") by any Third Party that may be considering making, or has made, an
Acquisition Proposal and will keep the Company and Parent fully informed of the
status and details of any such Indication of Interest provided however, that in
the event the Company notifies the Parent of such Indication of Interest
pursuant to Section 6.03 of the Merger Agreement, the Stockholders shall not be
obligated to comply with this sentence.
SECTION 3.03. Grant of Proxy. Each Stockholder hereby revokes any and all
previous proxies granted with respect to such Stockholder's Owned Shares. By
entering into this Agreement, each Stockholder hereby grants a proxy appointing
Buyer as the Stockholder's attorney-in-fact and proxy, with full power of
substitution, for and in such Stockholder's name, to vote, express, consent or
dissent, or otherwise to utilize such voting power in the manner contemplated
by Section 3.01 above as Buyer or its proxy or substitute shall, in Buyer's
sole discretion, deem proper with respect to all of such Stockholders Owned
Shares. The proxy granted by each Stockholder pursuant to this Section is
irrevocable and is granted in consideration of Buyer entering into this
Agreement and incurring certain related fees and expenses. The proxy granted by
each Stockholder shall be revoked upon termination of this Agreement in
accordance with its terms.
SECTION 3.04. No Other Proxies. During the Agreement Period, no
Stockholder will grant any proxy or power of attorney with respect to any of
its Owned Shares, deposit any of its Owned Shares into a voting trust or enter
into any agreement (other than this Agreement), arrangement or understanding
with any person, directly or indirectly, to vote, grant any proxy or give
instructions with respect to the voting of any of its Owned Shares. Each
Stockholder further agrees not to commit or agree to take any action
inconsistent with any of the matters covered in this Agreement.
SECTION 3.05. Termination. Notwithstanding anything herein to the
contrary, at the sole option of Parent, exercisable at any time, this Article 3
will automatically terminate and each Stockholder will be free to vote such
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Stockholder's Owned Shares as such Stockholder determines and to take any other
action otherwise prohibited by this Article 3.
ARTICLE 4
COVENANTS
SECTION 4.01. Transfer Restrictions on Owned Shares. During the Agreement
Period, each Stockholder agrees not to directly or indirectly sell, transfer,
pledge, encumber, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or enter into any contract, option or other
arrangement or understanding (including any profit sharing arrangement) with
respect to the Transfer of, any of its Owned Shares to any person, except to
the Buyer as provided in this Agreement.
SECTION 4.02. Further Assurances. Each of the parties hereto agrees that
it will, from time to time, execute and deliver, or cause to be executed and
delivered, such additional or further consents, documents and other instruments
as any of the other parties to this Agreement may reasonably request for the
purpose of effectively carrying out the transactions contemplated by this
Agreement. Each Stockholder agrees not to take any action that would make any
of its representations or warranties contained herein untrue or incorrect or
have the effect of preventing or impeding such Stockholder from performing any
of its obligations under this Agreement.
SECTION 4.03. Transfer Restriction on Subordinated Notes. Each Stockholder
which receives a Subordinated Note or Notes agrees with Parent that such
Stockholder will not Transfer such subordinated Note or Notes or any interest
therein except as provided for in the Subordinated Note or Notes without the
Parent's prior written consent.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned by any of the parties hereto
without the prior written consent of the other parties hereto. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of and be enforceable by the parties hereto and their respective successors and
permitted assigns.
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SECTION 5.02. Miscellaneous. Unless a purchase pursuant to Article 1 has
occurred, this Agreement will terminate, and no party hereto shall have any
rights or obligations hereunder, upon the first to occur of (a) the Effective
Time and (b) the termination of the Merger Agreement in accordance with its
terms.
SECTION 5.03. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, including any written
or oral agreement or understanding, among or between the parties with respect
to the subject matter hereof.
SECTION 5.04. Amendments. This Agreement may not be amended, modified or
supplemented except pursuant to an instrument in writing signed by each of the
parties hereto whose rights or obligations are affected by such amendment or
waiver except that this Agreement may be amended to add to or delete from the
list of Stockholders and/or to modify the treatment of any Stockholder or its
Owned Shares, and such amendment need only be executed by Parent, Buyer and
such Stockholder.
SECTION 5.05. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to Parent or Buyer, to:
Software AG
Xxxxxxxxxxxxx 00, X-00000
Xxxxxxxxx, Xxxxxxx
Attention: Xxxxxxxxx Xxxxxx
Fax: (00) 0000 00 0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
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if to Xxxxxx Equity or TC Co-Investors, to:
c/x Xxxxxx Capital Partners
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx
Fax: 000-000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Washington, D.C. 2003
Attention: Xxxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Fax: 000-000-0000
if to Xxxxxx X. Xxxxxx:
Saga Systems, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
Fax: 000-000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, III
Xxxxxxx X. Xxxxxxx
Fax: 000-000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m., and such day is a
business day, in the place of receipt. Otherwise, any such notice, request or
communication shall be
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deemed not to have been received until the next succeeding business day in the
place of receipt.
SECTION 5.06. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement.
SECTION 5.07. Governing Law. The validity, construction and effect of this
Agreement shall be governed by and construed enforced in accordance with the
laws of the State of Delaware, without giving effect to the principles of
conflicts of law of such state.
SECTION 5.08. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed by the parties in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that, in addition to any other
remedy to which it may be entitled, at law or in equity, the parties shall be
entitled to the remedy of specific performance of the covenants and agreements
contained herein and injunctive and other equitable relief and the parties
hereto further agree to waive any requirement for the securing or posting of
any bond in connection with the obtaining of any such injunctive or other
equitable relief. The parties agree that time shall be of essence in the
performance of obligations hereunder.
SECTION 5.09. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto. Except as provided in the
preceding sentence, nothing in this Agreement, express or implied, is intended
to or shall confer upon any other person any rights, benefits or remedies of
any nature whatsoever under or by reason of this Agreement.
SECTION 5.10. Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or unenforceable
in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
SECTION 5.11. Definitions; Headings; Construction. Capitalized terms used
but not defined herein have the meanings assigned to them in the Merger
Agreement. When a reference is made in this Agreement to Sections, such
reference shall be to a Section of this Agreement unless otherwise indicated.
The headings contained in this Agreement are for convenience of reference only
and shall not affect the meaning or interpretation of this Agreement. Wherever
the
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words "include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation". For purposes
of this Agreement:
(a) "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 (other than by virtue of this Agreement), arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities beneficially owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" as described in Section 3(d)(3) of the 1934
Act.
(b) "Person" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
(c) In the event that any Persons are added to Schedule A, such Persons
shall be included in the definition of the term "Stockholder".
(d) In the event of a stock or other dividend or distribution, or any
change in the Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Shares" shall be deemed to refer to and include the Shares as well as all such
dividends and distributions and any shares into which or for which any or all
of the Shares may be changed or exchanged.
SECTION 5.12. Stockholder Capacity. Notwithstanding anything herein to the
contrary, no Person executing this Agreement who or whose representative or
officer is, or becomes during the term hereof, a director of the Company makes
any agreement or understanding herein in his capacity as a, or with respect to
any, director, and the agreements set forth herein shall in no way restrict any
director in the exercise of such director's fiduciary duties as a director of
the Company.
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IN WITNESS WHEREOF, each of Buyer and the Stockholders listed below have
caused this Agreement to be duly executed, as of the date first written above.
SOFTWARE XX XXXXXX EQUITY INVESTORS III, L.P.
By: TC EQUITY PARTNERS, L.L.C.
its general partner
By: /s/ Xx. Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------------- -----------------------------
Name: Xx. Xxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer Title: Principal
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer TC CO-INVESTORS, LLC
By: TC MANAGEMENT PARTNERS,
L.L.C. its managing member
SOFTWARE AG ACQUISITION By: /s/ Xxxxxx X Xxxxxx
CORPORATION -----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal
By: /s/ Xx. Xxxxx Xxxxxxx XXXXXX X. XXXXXX
---------------------------------
Name: Xx. Xxxxx Xxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx X. Xxxxxx
--------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
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Schedule A
Stockholder
-------------------------------------------------------------------------------
Outstanding Under Option Owned Shares
-------------------------------------------------------------------------------
Xxxxxx Equity Investors III, 10,736,953 0 10,736,953
L.P.
TC Co-Investors, LLC 58,291 0 58,291
Xxxxxx X. Xxxxxx 204,345 2,047,010 2,251,355
