EXHIBIT 2
EXECUTION COPY
STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated as of October 18, 2002 (the
"Agreement"), among Progress Software Corporation, a Massachusetts corporation
("Parent"), Chopin Merger Sub, Inc., a Delaware corporation and a direct wholly
owned subsidiary of Parent ("Merger Subsidiary"), and the Stockholder of eXcelon
Corporation, a Delaware corporation (the "Company"), whose name appears on
Schedule I hereto (the "Stockholder").
RECITALS
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Parent, Merger Sub and the Company are entering into an Agreement and
Plan of Merger, dated as of the date hereof (as the same may be amended from
time to time, the "Merger Agreement"), which provides for, upon the terms and
subject to the conditions set forth therein, (i) an option for the Merger Sub to
commence a tender offer (the "Offer") for all of the issued and outstanding
shares of common stock, par value $.001 per share, of the Company (the "Company
Common Stock"), and (ii) the merger of Merger Sub with and into the Company (the
"Merger");
WHEREAS, as of the date hereof, the Stockholder owns (beneficially (as
determined herein pursuant to Rule 13d-3 under the Securities Exchange Act of
1934 (the "Exchange Act")) and/or of record) and has voting and investment power
with respect to the number of shares of Company Common Stock set forth opposite
the Stockholder's name on Schedule I hereto (all such shares so owned and which
may hereafter be acquired by the Stockholder prior to the termination of this
Agreement, whether upon the exercise of options or by means of purchase,
dividend, distribution or otherwise, but excluding any shares issuable pursuant
to any option exercise unless and until such shares are actually issued, being
referred to herein as the Stockholder's "Shares");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Merger Sub have required that the Stockholder enter into
this Agreement; and
WHEREAS, in order to induce Parent and Merger Sub to enter into the
Merger Agreement, the Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Merger Sub and the Stockholder hereby agree as follows:
ARTICLE 1
TRANSFER AND VOTING OF SHARES AND
OTHER COVENANTS OF THE STOCKHOLDER
1.01 Voting of Shares. From the date hereof until the earliest to occur
of (x) termination of this Agreement pursuant to Section 6.01 hereof, (y) the
expiration of the Stock Option (as defined below) with respect to the
Stockholder's Shares and (z) the closing of any exercise of such Stock Option
(the "Term"), at any meeting of the stockholders of the Company, however called,
and in any action by consent of the stockholders of the Company, the Stockholder
shall vote the Stockholder's Shares (i) in favor of the adoption of the Merger
Agreement, (ii) against any
Acquisition Proposal (as defined in the Merger Agreement) and against any
proposal for 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 or which is reasonably likely to result in any of the
conditions of the Company's obligations under the Merger Agreement not being
fulfilled, any change in the directors of the Company, any change in the present
capitalization of the Company or any amendment to the Company's Amended and
Restated Certificate of Incorporation or Amended and Restated Bylaws, any other
material change in the Company's corporate structure or business or any other
action which in the case of each of the matters referred to in this clause (ii)
could reasonably be expected to impede, interfere with, delay, postpone or
materially adversely affect the transactions contemplated by the Merger
Agreement or the likelihood of such transactions being consummated and (iii) in
favor of any other matter necessary for consummation of the transactions
contemplated by the Merger Agreement that is considered at any such meeting of
stockholders or in such consent, and in connection therewith to execute any
documents which are necessary or appropriate in order to effectuate the
foregoing, including the ability for Merger Sub or its nominees to vote such
Shares directly; provided, however, that Stockholder shall not be required to
vote for any action that would decrease the consideration to be received by the
stockholders of the Company in respect of their Shares in the Merger.
1.02 No Inconsistent Arrangements. Except as contemplated by this
Agreement and the Merger Agreement, the Stockholder shall not during the Term
(i) transfer (which term shall include, without limitation, any sale,
assignment, gift, pledge, hypothecation or other disposition), or consent to any
transfer of, any or all of the Stockholder's Shares or any interest therein, or
create or permit to exist any Encumbrance (as defined below) on such Shares,
(ii) enter into any contract, option or other agreement or understanding with
respect to any transfer of any or all of such Shares or any interest therein,
(iii) grant any proxy, power-of-attorney or other authorization in or with
respect to such Shares, (iv) deposit such Shares into a voting trust or enter
into a voting agreement or arrangement with respect to such Shares or (v) take
any other action that would in any way restrict, limit or interfere with the
performance of the Stockholder's obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement; provided, however, that nothing
contained herein shall prohibit any sale, transfer or assignment of Shares by a
Stockholder to members of such Stockholder's family, a family trust of such
Stockholder or a charitable institution if the transferee of such Shares agrees
in writing to be bound by the terms hereof and notice of such sale, transfer or
assignment, including the name and address of the purchaser, transferee or
assignee, is delivered to Merger Sub.
1.03 Proxy/Power of Attorney. The Stockholder hereby revokes any and
all prior proxies or powers of attorney in respect of any of the Stockholder's
Shares and constitutes and appoints Merger Sub and Parent, or any nominee of
Merger Sub and Parent, with full power of substitution and resubstitution, at
any time during the Term, as the Stockholder's true and lawful attorney and
proxy (the Stockholder's "Proxy"), for and in the Stockholder's name, place and
stead, to vote each of such Shares as the Stockholder's Proxy, at every annual,
special, adjourned or postponed meeting of the stockholders of the Company, at
which any proposal described in Section 1.01 is considered, including the right
to sign the Stockholder's name (as stockholder) to any consent, certificate or
other document in lieu of any such meeting that Delaware law may permit or
require.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED
WITH AN INTEREST THROUGHOUT THE TERM.
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1.04 Waiver of Appraisal Rights. The Stockholder hereby waives any
rights of appraisal in connection with the Merger.
1.05 Stop Transfer. The Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Stockholder's Shares, unless
such transfer is made in compliance with this Agreement (including the
provisions of Article 3 hereof).
1.06 No Solicitation. During the Term, the Stockholder shall not, and
the Stockholder shall cause the Stockholder's officers, directors, employees,
agents or representatives (collectively, the "Representatives") not to, (i)
solicit, initiate or take any action to facilitate or encourage the submission
of any Acquisition Proposal or any inquiry with respect thereto, (ii) enter into
or participate in any discussions or negotiations with, furnish any information
relating to the Company or any of its subsidiaries or afford access to the
business, properties, assets, books or records of the Company or any of its
subsidiaries to, otherwise cooperate in any way with, or knowingly assist,
participate in, facilitate or encourage any effort by, any third party that is
seeking to make, or has made, an Acquisition Proposal or (iii) enter into any
letter of intent or similar document or any contract, agreement or commitment
contemplating or otherwise relating to an Acquisition Proposal. Upon execution
of this Agreement, the Stockholder shall, and the Stockholder shall cause the
Stockholder's Representatives to, immediately cease any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
To the same extent required by the Company pursuant to, and subject to
the same conditions contained in, the Merger Agreement, the Stockholder shall
notify Parent promptly (but in no event later than 24 hours) after receipt by
the Stockholder of any Acquisition Proposal, any indication that any third party
is considering making an Acquisition Proposal or any request for non-public
information relating to the Company or any of its subsidiaries or for access to
the business, properties, assets, books or records of the Company or any of its
subsidiaries by any third party that, to such Stockholder's knowledge, may be
considering making, or has made, an Acquisition Proposal. To the same extent
required by the Company pursuant to, and subject to the same conditions
contained in, the Merger Agreement, the Stockholder shall provide such notice
orally and in writing and shall identify the third party making, and the terms
and conditions of, any such Acquisition Proposal, indication or request.
Notwithstanding any provision of this Section 1.06 to the contrary, if the
Stockholder or any of the Stockholder's Representatives is a member of the
Company's Board of Directors or an officer of the Company, such member of the
Company's Board of Directors or officer may take actions in such capacity to the
extent permitted by Section 4. 2 of the Merger Agreement.
1.07 Stockholder Capacity; Fiduciary Duties. No Stockholder executing
this Agreement who is or becomes during the term hereof a director or officer of
the Company or any subsidiary of the Company makes any agreement or
understanding herein or is obligated hereunder in his or her capacity as such
director or officer. The Stockholder signs solely in such Stockholder's capacity
as the record holder and beneficial owner (as further set forth on Schedule I
hereto) of the Stockholder's Shares. Nothing in this Agreement shall be
construed to prohibit a Stockholder who is a member of the Board of Directors of
the Company or any subsidiary of the Company or officer of the Company or any
subsidiary of the Company from taking any action or inaction solely in such
capacity or from taking any action or inaction with respect to any Acquisition
Proposal or
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otherwise, as a member of, or at the direction of, the Board of Directors of the
Company to the extent permitted by the Merger Agreement.
ARTICLE 2
TENDER OF SHARES
2.01 Tender. The Stockholder shall validly tender (or cause the record
owner of such shares to validly tender) the Stockholder's Shares pursuant to and
in accordance with the terms of the Offer, as long as the Offer is made in
accordance with the Merger Agreement, not later than the fifth business day
after commencement of the Offer pursuant to Section 5.2 of the Merger Agreement
and Rule 14d-2 under the Exchange Act, and not thereafter withdraw such tender
during the Term. The Stockholder hereby acknowledges and agrees that Parent's
and Merger Sub's obligation to accept for payment and pay for the Stockholder's
Shares in the Offer is subject to the terms and conditions of the Offer. For all
the Stockholder's Shares validly tendered in the Offer and not withdrawn, the
Stockholder will be entitled to receive the highest price paid by Merger Sub
pursuant to the Offer. Nothing in this Agreement shall obligate any Stockholder
to exercise any option, warrant or other right to purchase shares of capital
stock of the Company.
2.02 Certain Warranties. Without limiting the generality or effect of
any other term or condition of the Offer, the transfer by the Stockholder of the
Shares to Merger Sub in the Offer shall pass to and unconditionally vest in
Merger Sub good and valid title to the Shares, free and clear of all
Encumbrances whatsoever other than restrictions under applicable securities
laws.
2.03 Disclosure. The Stockholder hereby authorizes Parent and Merger
Sub to publish and disclose in the Offer Documents (as defined in the Merger
Agreement) and, if approval of the Company's stockholders is required under
applicable law, the Proxy Statement (as defined in the Merger Agreement)
(including all documents and schedules filed with the Securities and Exchange
Commission), the Stockholder's identity and ownership of Shares and the nature
of the Stockholder's commitments, arrangements and understandings under this
Agreement.
ARTICLE 3
OPTION
3.01 Option Shares.
(a) In order to induce Parent and Merger Sub to enter into the
Merger Agreement, the Stockholder hereby grants to Parent or Merger Sub, as
Parent may designate (the "Optionee"), an irrevocable option (each such option,
a "Stock Option") to purchase all, but not in any part or less than all, of the
Stockholder's Shares (in such context, the "Option Shares") at a purchase price
per share equal to $3.19 (the "Exercise Price"), subject to the terms and
conditions set forth herein.
(b) The Stock Option may be exercised by the Optionee in whole or
from time to time in part, at any time following the occurrence of a Triggering
Event (as defined below) and prior to the termination of the Stock Option in
accordance with Section 6.01. In the event the Optionee wishes to exercise the
Stock Option, the Optionee shall send an irrevocable written notice
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to the Stockholder (the "Stock Exercise Notice") specifying the total number of
Option Shares the Optionee wishes to purchase and a date (not later than 10
business days and not earlier than three business days from the date such notice
is given; provided, however, that if Rule 14e-5 under the Exchange Act is
applicable at the time of exercise of the Stock Option, the period in this
clause shall not begin before the expiration or termination of the tender offer
and shall extend for 10 business days after the expiration or termination of the
tender offer) for the closing of such purchase (the "Closing Date"). In the
event of any change in the number of issued and outstanding shares of Company
Common Stock by reason of any stock dividend, stock split, split-up,
recapitalization, merger or other similar change in the corporate or capital
structure of the Company, the number of Option Shares subject to the Stock
Option and the Exercise Price per Option Share shall be proportionally adjusted.
(c) The Optionee's right to exercise the Stock Option is subject
to the following conditions:
(i) neither Parent nor Merger Sub shall have breached any of
its obligations under the Merger Agreement such that the breach was the primary
cause or resulted in the failure of the Offer or Merger to be consummated;
(ii) no preliminary or permanent injunction or other order
issued by any federal, state or foreign court of competent jurisdiction
invalidating the grant or prohibiting the exercise of the Stock Option or the
delivery of the Option Shares shall be in effect;
(iii) all applicable waiting periods under any applicable
foreign antitrust law or regulation shall have expired or been terminated; and
(iv) a Triggering Event shall have occurred.
A "Triggering Event" shall be deemed to have occurred if the Merger Agreement
shall have been terminated (x) pursuant to Section 7.1(d), 7.1(e), 7.1(f) or
7.1(g) thereof or, (y) by the Company, if an Acquisition Proposal has been made,
pursuant to Section 7.1(b) thereof.
(d) The Optionee's obligation to purchase the Option Shares
following the exercise of the Stock Option, and the Stockholder's obligation to
deliver the Option Shares, are subject to the conditions that:
(i) no preliminary or permanent injunction or other order
issued by any foreign, federal or state court of competent jurisdiction
prohibiting the delivery of the Option Shares shall be in effect;
(ii) the purchase of the Option Shares will not violate any
material law, rule or regulation; and
(iii) all applicable waiting periods under and any applicable
foreign antitrust law or regulation shall have expired or been terminated.
(e) At any Closing Date, the Stockholder will deliver to the
Optionee a certificate or certificates for any shares that are certificated
representing the Option Shares in the
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denominations designated by the Optionee in its Stock Exercise Notice, and the
Optionee will purchase the Option Shares from the Stockholder at a price per
Option Share equal to the Exercise Price, payable in cash. Payment made by the
Optionee to the Stockholder pursuant to this Agreement shall be made by wire
transfer of federal funds to a bank designated by the Stockholder. After payment
of the Exercise Price for the Option Shares covered by the Stock Exercise
Notice, the Stock Option shall be deemed exercised to the extent of the Option
Shares specified in the Stock Exercise Notice as of the date such Stock Exercise
Notice is given to the Stockholder. Upon the delivery of certificates as
described herein, good and valid title to the Option Shares shall pass to and
unconditionally vest in the Optionee, free and clear of all Encumbrances
whatsoever, other than restrictions imposed by securities laws.
(f) Any closing hereunder shall take place on the Closing Date
specified by the Optionee in its Stock Exercise Notice or the first business day
thereafter on which all of the conditions in Section 3.01(c) and (d) are met, at
the principal executive office of the Company, or at such other time and place
as the parties hereto may agree.
(g) Notwithstanding anything in this Agreement to the contrary, in
the event that Parent exercises the Option in whole or in part and the Company
thereafter consummates an Acquisition Proposal within twelve months of the
exercise of the Option (a "Subsequent Transaction"), Parent shall pay the
Stockholder an amount equal to 50% of the difference between the Exercise Price
paid by Parent to the Stockholder and the aggregate amount received by Parent in
the Subsequent Transaction for any or all of the Shares. The form of such
additional consideration shall be, at the discretion of Parent, cash or the form
of consideration received by Parent in the Subsequent Transaction.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent and Merger Sub
as follows:
4.01 Due Authorization, etc. The Stockholder has all requisite power
and authority to execute, deliver and perform this Agreement, to appoint Merger
Sub and Parent as the Stockholder's Proxy and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
the appointment of Merger Sub and Parent as the Stockholder's Proxy and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Stockholder. This Agreement has been
duly executed and delivered by or on behalf of the Stockholder and constitutes a
legal, valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, subject to the Equitable Exceptions
(as defined in the Merger Agreement). There is no beneficiary or holder of a
voting trust certificate or other interest of any trust of which the Stockholder
is trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.
4.02 No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the
Stockholder does not, and, subject to compliance with applicable antitrust and
securities laws, the performance of this
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Agreement by the Stockholder will not, (i) conflict with or violate any trust
agreement or other similar documents relating to any trust of which the
Stockholder is trustee, (ii) conflict with or violate any law applicable to the
Stockholder or by which the Stockholder or any of the Stockholder's properties
are bound or affected or (iii) result in any breach of or constitute a default
(or an event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, acceleration or cancellation
of, or result in the creation of a lien or encumbrance on the Stockholder's
Shares, pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which the
Stockholder is a party or by which the Stockholder or any of the Stockholder's
assets is bound or affected, except, in the case of clauses (ii) and (iii), for
any such breaches, defaults or other occurrences that would not prevent or delay
the performance by the Stockholder of the Stockholder's obligations under this
Agreement.
(b) Subject to compliance with applicable antitrust and securities
laws, the execution and delivery of this Agreement by the Stockholder does not,
and the performance of this Agreement by the Stockholder will not, require the
Stockholder to obtain any consent, approval, authorization or permit of, or
filing by the Stockholder with or notification by the Stockholder to, any
governmental or regulatory authority, domestic or foreign, except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by the Stockholder of the Stockholder's obligations under this Agreement.
4.03 Title to Shares. The Stockholder is the sole record and beneficial
owner of the Stockholder's Shares, free and clear of any pledge, lien, security
interest, mortgage, charge, claim, equity, option, proxy, voting restriction,
voting trust or agreement, understanding, arrangement, right of first refusal,
limitation on disposition, adverse claim of ownership or use or encumbrance of
any kind ("Encumbrances"), other than restrictions imposed by the securities
laws or pursuant to this Agreement and the Merger Agreement.
4.04 No Finder's Fees. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Stockholder. The
Stockholder, on behalf of itself and the Stockholder's affiliates, hereby
acknowledges that the Stockholder is not entitled to receive any broker's,
finder's, financial advisor's or other similar fee or commission in connection
with the transactions contemplated hereby or by the Merger Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERGER SUB
Parent and Merger Sub hereby, jointly and severally, represent and
warrant to the Stockholder as follows:
5.01 Due Organization, Authorization, etc. Merger Sub and Parent are
duly organized, validly existing and in good standing under the laws of their
jurisdiction of incorporation. Merger
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Sub and Parent have all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by each of Merger Sub and Parent have been duly
authorized by all necessary corporate action on the part of Merger Sub and
Parent, respectively. This Agreement has been duly executed and delivered by
each of Merger Sub and Parent and constitutes a legal, valid and binding
obligation of each of Merger Sub and Parent, enforceable against Merger Sub and
Parent in accordance with its terms. The execution, delivery and performance of
this Agreement by Merger Sub and Parent will not constitute a violation of,
conflict with or result in a default under, (i) any judgment, decree or order
naming Merger Sub or Parent or, (ii) any law, regulation of any governmental
body applicable to Parent or Merger Sub. The execution and delivery of this
Agreement by Merger Sub and Parent does not, and the performance of this
Agreement by Merger Sub and Parent will not, require Merger Sub or Parent to
obtain any consent, approval, authorization or permit of, or filing by Merger
Sub or Parent with or notification by Merger Sub or Parent to, any governmental
or regulatory authority, domestic or foreign, except (i) compliance with the
applicable requirements under the Exchange Act, (ii) compliance with the HSR
Act, if applicable and (iii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or delay the performance by Merger Sub or Parent of Merger
Sub's and Parent's respective obligations under this Agreement.
5.02 Investment Intent. The Optionee is acquiring each Stock Option
and, if and when it exercises such Stock Option, will be acquiring the Option
Shares issuable upon the exercise thereof for its own account and not with a
view to distribution or resale in any manner which would be in violation of the
Securities Act of 1933, as amended.
ARTICLE 6
MISCELLANEOUS
6.01 Termination. This Agreement shall automatically terminate and be
of no further force and effect upon the earliest of (i) the consummation of the
purchase of all of the Shares pursuant to the Offer, (ii) the termination of the
Merger Agreement, (iii) the written mutual consent of the Purchaser and the
Stockholder, and (iv) the Effective Time (as defined in the Merger Agreement);
provided, however, that in the event this Agreement terminates pursuant to
clause (ii) above as a result of a Triggering Event, the provisions of Article 3
above shall survive for 90 days following such termination. Except as provided
in the preceding sentence, in the event of the termination of this Agreement
pursuant to this Section 6.01, this Agreement will become null and void and of
no effect with no liability on the part of any party hereto and all proxies
granted hereby will be automatically revoked; provided, however, that no such
termination will relieve any party hereto from any liability for any breach of
this Agreement occurring prior to such termination.
6.02 Further Assurance. From time to time, at another party's request
and without consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transaction contemplated by this Agreement.
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6.03 Certain Events. The Stockholder agrees that this Agreement and the
Stockholder's obligations hereunder shall attach to the Stockholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or otherwise,
including, without limitation, the Stockholder's heirs, guardians,
administrators, or successors. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all its obligations under
this Agreement.
6.04 Specific Performance. The parties hereto agree that irreparable
damage would occur if any provision of this Agreement were not performed in
accordance with the terms hereof and that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement or to enforce
specifically the performance of the terms and provisions hereof in any federal
court located in the State of Delaware or any Delaware state court, in addition
to any other remedy to which they are entitled at law or in equity.
6.05 Notice. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by nationally-recognized overnight courier or by registered or certified
mail, postage prepaid, return receipt requested, or by electronic mail, with a
copy thereof to be delivered by mail (as aforesaid) within 24 hours of such
electronic mail, or by telecopier, with confirmation as provided above addressed
as follows:
(a) If to Parent or Merger Sub:
Progress Software Corporation
00 Xxx Xxxx
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Chief Executive Officer
E-Mail: xxx@xxxxxxxx.xxx
With copies to:
Progress Software Corporation
00 Xxx Xxxx
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Vice President and General Counsel
E-Mail: xxxxxxxx@xxxxxxxx.xxx
and
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Stanford X. Xxxxxxx, Xx., Esq.
E-Mail: xxxxxxxxx@xxxxx.xxx
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(b) If to the Stockholder, at the address set forth below the
Stockholder's name on Schedule I hereto.
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. All such notices
or communications shall be deemed to be received (a) in the case of personal
delivery, on the date of such delivery, (b) in the case of nationally-recognized
overnight courier, on the next Business Day after the date when sent (c) in the
case of facsimile transmission or telecopier or electronic mail, upon confirmed
receipt, and (d) in the case of mailing, on the third Business Day following the
date on which the piece of mail containing such communication was posted. For
purposes of this Agreement, "Business Day" shall mean any day on which banks are
permitted to be open in New York, New York.
6.06 Expenses. All fees, costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees, costs and expenses.
6.07 Headings. The headings herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
6.08 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
6.09 Entire Agreement; No Third-Party Beneficiaries. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter of this Agreement and supersedes all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter of
this Agreement. No provision of this Agreement is intended to confer any rights,
benefits, remedies, obligations, or liabilities hereunder upon any person other
than the parties hereto and their respective successors and assigns.
6.10 Assignment. This Agreement shall not be assigned by operation of
law or otherwise, except that Parent and Merger Sub may assign all or any of
their rights hereunder to any Subsidiary (as defined in the Merger Agreement) of
Parent provided that no such assignment shall relieve the assigning party of its
obligations hereunder.
6.11 Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the State of Delaware, without regard to the
conflicts of law rules of such state.
6.12 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
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6.13 Waiver. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(c) waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
6.14 Counterparts. 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.
6.15 Parent Guarantee. Parent hereby guarantees the due and punctual
payment and performance of any and all obligations and liabilities of Merger Sub
under or arising out of this Agreement and the transactions contemplated hereby.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholder have caused
this Agreement to be executed as of the date first written above.
PROGRESS SOFTWARE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
CHOPIN MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
STOCKHOLDER
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
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Schedule I
Options or Other Rights
Name and Shares of Outstanding to Acquire Shares
Address of Stockholder Common Stock of Common Stock
---------------------- --------------------- ----------------------
Xxxxxx X. Xxxxxxx 61,118 345,522
13
SCHEDULE OF OTHER DIRECTORS OF EXCELON CORPORATION
SIGNING THIS FORM OF STOCKHOLDER'S AGREEMENT
Options or Other Rights
Name and Shares of Outstanding to Acquire Shares
Address of Stockholder Common Stock of Common Stock
---------------------- --------------------- ----------------------
Xxxxxx X. Xxxxx 6,360 4,480
Xxxxxx X. Bay 33,262 7,313
Xxxxxx X. Xxxxxxxxx, Xx. 79 6,726
Xxxxxx X. Xxxxxxx 125,000 181,250
Xxxxxxx Xxxxxx 0 1,875
14
