EXHIBIT A
MCS STOCK OPTION AGREEMENT
THIS MCS STOCK OPTION AGREEMENT (this "Agreement") is made and entered into
as of 23 February 26, 2000, among NetIQ Corp., a Delaware corporation ("NetIQ"),
Mission Critical Software Inc., a Delaware corporation ("MCS"). Capitalized
terms used but not otherwise defined herein will have the meanings ascribed to
them in the Merger Agreement (as defined below).
RECITALS
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A. MCS, Merger Sub (as defined below) and NetIQ have entered into an
Agreement and Plan of Reorganization (the "Merger Agreement") which provides for
the merger (the "Merger") of a wholly-owned subsidiary of NetIQ ("Merger Sub")
with and into the MCS. Pursuant to the Merger, all outstanding capital stock of
the MCS will be converted into the right to receive Common Stock of NetIQ.
B. As a condition to NetIQ's willingness to enter into the Merger
Agreement, NetIQ has requested that MCS agree, and MCS has so agreed, to grant
to NetIQ an option to acquire shares of MCS's Common Stock, par value $0.001 per
share ("MCS Shares"), upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option. MCS hereby grants to NetIQ an irrevocable option (the
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"Option") to acquire up to 3,416,052 MCS Shares (the "Option Shares"), in the
manner set forth below by paying cash at a price of $69,1855 per share (the
"Exercise Price").
2. Exercise of Option; Maximum Proceeds.
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(a) The Option may be exercised by NetIQ, in whole or in part, at any
time or from time to time(i) if the Merger Agreement is terminated pursuant to
7.1(h) thereof and an event causing the MCS Termination Fee to become payable
pursuant to Section 7.3(b) of the Merger Agreement occurs or (ii) immediately
prior to the occurrence of any event causing the MCS Termination Fee to become
payable pursuant to Section 7.1(b) or 7.1(d) thereof (any of the events being
referred to herein as an "Exercise Event"). In the event NetIQ wishes to
exercise the Option, NetIQ will deliver to the MCS a written notice (each an
"Exercise Notice") specifying the total number of Option Shares it wishes to
acquire. Each closing of a purchase of Option Shares (a "Closing") will occur on
a date and at a time prior to the termination of the Option designated by NetIQ
in an Exercise Notice delivered at least two (2) business days prior to the date
of such Closing, which Closing will be held at the principal offices of the MCS.
(b) The Option will terminate upon the earliest of (i) the Effective
Time, (ii) twelve (12) months following the date on which the Merger Agreement
is terminated pursuant to Section 7.1(b) or 7.1(d) thereof, if no event causing
the Termination Fee to become payable pursuant
to Section 7.3(b)(ii) of the Merger Agreement has occurred, (iii) twelve (12)
months following the date on which the Merger Agreement is terminated pursuant
to Section 7.1(h) thereof, (iv) in the event the Merger Agreement has been
terminated pursuant to Section 7.1(b) or 7.1(d) thereof and the Termination Fee
became payable pursuant to Section 7.3(b)(ii) thereof, twelve (12) months after
payment of the Termination Fee; and (v) the date on which the Merger Agreement
is terminated if neither a Triggering Event nor the public announcement of a MCS
Acquisition Proposal by a third party occurred on or prior to the date of such
termination; provided, however, that if the Option cannot be exercised by reason
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of any applicable government order or because the waiting period related to the
issuance of the Option Shares under the HSR Act will not have expired or been
terminated, then the Option will not terminate until the tenth (10/th/) business
day after such impediment to exercise will have been removed or will have become
final and not subject to appeal.
(c) If NetIQ receives in the aggregate pursuant to Section 7.3(b) of
the Merger Agreement together with either (i) proceeds in connection with any
sales or other dispositions of Option Shares and any dividends received by NetIQ
declared on Option Shares or (ii) in the aggregate pursuant to Section 6 of this
Agreement, more than the sum of (x) $66,000,000 plus (y) the Exercise Price
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multiplied by the number of MCS Shares purchased by NetIQ pursuant to the
Option, then all proceeds to NetIQ in excess of such sum will be remitted by
NetIQ to MCS.
3. Conditions to Closing. The obligation of MCS to issue Option Shares to
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NetIQ hereunder is subject to the conditions that (A) any waiting period under
the HSR Act applicable to the issuance of the Option Shares hereunder will have
expired or been terminated; (B) all material consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any Federal,
state or local administrative agency or commission or other Federal state or
local governmental authority or instrumentality, if any, required in connection
with the issuance of the Option Shares hereunder will have been obtained or
made, as the case may be; and (C) no preliminary or permanent injunction or
other order by any court of competent jurisdiction prohibiting or otherwise
restraining such issuance will be in effect. It is understood and agreed that at
any time during which the Option is exercisable, the parties will use their
respective best efforts to satisfy all conditions to Closing, so that a Closing
may take place as promptly as practicable.
4. Closing. At any Closing, (A) the MCS will deliver to NetIQ a single
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certificate in definitive form representing the number of MCS Shares designated
by NetIQ in its Exercise Notice, such certificate to be registered in the name
of NetIQ and to bear the legend set forth in Section 9 hereof, against delivery
of (B) payment by NetIQ to the MCS of the aggregate purchase price for the MCS
Shares so designated and being purchased by delivery of a certified check or
bank check.
5. Representations and Warranties of the MCS. MCS represents and warrants
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to NetIQ that (A) MCS is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the corporate
power and authority to enter into this Agreement and to carry out its
obligations hereunder; (B) the execution and delivery of this Agreement by the
MCS and consummation by the MCS of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of the MCS
and no other corporate proceedings on the part of the MCS are necessary to
authorize this Agreement or any of the transactions contemplated hereby; (C)
this Agreement has been duly executed and delivered by the MCS and constitutes a
legal, valid and binding obligation of the MCS and, assuming this Agreement
constitutes a legal, valid and binding
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obligation of NetIQ, is enforceable against the MCS in accordance with its
terms; (D) except for any filings required under the HSR Act, the MCS has taken
all necessary corporate and other action to authorize and reserve for issuance
and to permit it to issue upon exercise of the Option, and at all times from the
date hereof until the termination of the Option will have reserved for issuance,
a sufficient number of unissued MCS Shares for NetIQ to exercise the Option in
full and will take all necessary corporate or other action to authorize and
reserve for issuance all additional MCS Shares or other securities which may be
issuable pursuant to Section 8(a) upon exercise of the Option, all of which,
upon their issuance and delivery in accordance with the terms of this Agreement,
will be validly issued, fully paid and nonassessable; (E) upon delivery of the
MCS Shares and any other securities to NetIQ upon exercise of the Option, NetIQ
will acquire such MCS Shares or other securities free and clear of all material
claims, liens, charges, encumbrances and security interests of any kind or
nature whatsoever, excluding those imposed by NetIQ; (F) the execution and
delivery of this Agreement by the MCS do not, and the performance of this
Agreement by the MCS will not, (i) conflict with or violate the Certificate of
Incorporation or Bylaws or equivalent organizational documents of the MCS or any
of its subsidiaries, (ii) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to the MCS or any of its subsidiaries or by
which its or any of their respective properties is 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 impair the MCS's or any
of its subsidiaries' rights or alter the rights or obligations of any third
party under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the properties or assets of the MCS or any of its
subsidiaries pursuant to, any material note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the MCS or any of its subsidiaries is a party or by which
the MCS or any of its subsidiaries or its or any of their respective properties
are bound or affected; and (G) the execution and delivery of this Agreement by
the MCS does not, and the performance of this Agreement by the MCS will not,
require any consent, approval, authorization or permit of, or filing with, or
notification to, any Governmental Entity except pursuant to the HSR Act.
6. NetIQ Put. At the request of and upon notice by NetIQ (the "Put
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Notice"), at any time during the period during which the Option is exercisable
pursuant to Section 2 (the "Purchase Period"), the MCS (or any successor entity
thereof) will purchase from NetIQ the Option, to the extent not previously
exercised, at the price set forth in subparagraph (i) below (as limited by
subparagraph (iii) below), and the Option Shares, if any, acquired by NetIQ
pursuant thereto, at the price set forth in subparagraph (ii) below (as limited
by subparagraph (iii) below):
(a) The difference between the "Market/Tender Offer Price" for
the MCS Shares as of the date NetIQ gives notice of its intent to exercise its
rights under this Section 6(a) (defined as the higher of (A) the highest price
per share offered as of such date pursuant to any MCS Acquisition Proposal which
was made prior to such date and (B) the average closing sale price of MCS Shares
then on the then Nasdaq National Market during the twenty (20) trading days
ending on the trading day immediately preceding such date) and the Exercise
Price, multiplied by the number of MCS Shares purchasable pursuant to the
Option, but only if the Market/Tender Offer Price is greater than the Exercise
Price. For purposes of determining the highest price offered pursuant to any MCS
Acquisition Proposal which involves consideration other than cash, the value of
such consideration will be equal to the higher of (x) if securities of the same
class of the proponent as such consideration are traded on any national
securities exchange or by any registered securities
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association, a value based on the closing sale price or asked price for such
securities on their principal trading market on such date and (y) the value
ascribed to such consideration by the proponent of such MCS Acquisition
Proposal, or if no such value is ascribed, a value determined in good faith by
the Board of Directors of the MCS.
(b) The Exercise Price paid by NetIQ for MCS Shares acquired pursuant
to the Option plus the difference between the Market/Tender Offer Price and such
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Exercise Price (but only if the Market/Tender Offer Price is greater than the
Exercise Price) multiplied by the number of MCS Shares so purchased.
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7. Payment and Redelivery of Option or Shares. In the event NetIQ
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exercises its rights under Section 6(a), the MCS will, within five (5) business
days after NetIQ delivers notice pursuant to Section 6(a), pay the required
amount to NetIQ in immediately available funds and NetIQ will surrender to the
MCS the Option and the certificates evidencing the MCS Shares purchased by NetIQ
pursuant thereto.
8. Registration Rights.
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(a) Following the termination of the Merger Agreement, NetIQ
(sometimes referred to herein as the "Holder") may by written notice (a
"Registration Notice") to the MCS (the "Registrant") request the Registrant to
register under the Securities Act all or any part of the shares acquired by the
Holder pursuant to this Agreement (such shares requested to be registered, the
"Registrable Securities") in order to permit the sale or other disposition of
any or all shares of the Registrable Securities that have been acquired by or
are issuable to Holder upon exercise of the Option in accordance with the
intended method of sale or other disposition stated by Holder, including a
"shelf" registration statement under Rule 415 under the Securities Act or any
successor provision. Holder agrees to cause, and to cause any underwriters of
any sale or other disposition to cause, any sale or other disposition pursuant
to such registration statement to be effected on a widely distributed basis so
that upon consummation thereof no purchaser or transferee will own beneficially
more than 5.0% of the then-outstanding voting power of Registrant. Upon a
request for registration, the Registrant will have the option exercisable by
written notice delivered to the Holder within ten (10) business days after the
receipt of the Registration Notice, irrevocably to agree to purchase all or any
part of the Registrable Securities for cash at a price (the "Option Price" equal
to the product of (i) the number of Registrable Securities so purchased and (ii)
the per share average of the closing sale prices of the Registrant's Common
Stock on the Nasdaq National Market for the ten (10) trading days immediately
preceding the date of the Registration Notice. Any such purchase of Registrable
Securities by the Registrant hereunder will take place at a closing to be held
at the principal executive offices of the Registrant or its counsel at any
reasonable date and time designated by the Registrant in such notice within ten
(10) business days after delivery of such notice. The payment for the shares to
be purchased will be made by delivery at the time of such closing of the Option
Price in immediately available funds.
(b) If the Registrant does not elect to exercise its option to
purchase pursuant to Section 7(a) with respect to all Registrable Securities,
the Registrant will use all reasonable efforts to effect, as promptly as
practicable, the registration under the Securities Act of the unpurchased
Registrable Securities requested to be registered in the Registration Notice and
to keep such
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registration statement effective for such period not in excess of 120 calendar
days from the day such registration statement first becomes effective as may be
reasonably necessary to effect such sale or other disposition; provided,
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however, that the Holder will not be entitled to more than an aggregate of three
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(3) four effective registration statements hereunder. The obligations of
Registrant hereunder to file a registration statement and to maintain its
effectiveness may be suspended for up to 90 calendar days in the aggregate if
the Board of Directors of Registrant shall have determined that the filing of
such registration statement or the maintenance of its effectiveness would
require premature disclosure of material nonpublic information that would
materially and adversely affect Registrant or otherwise interfere with or
adversely affect any pending or proposed offering of securities of Registrant or
any other material transaction involving Registrant. If consummation of the sale
of any Registrable Securities pursuant to a registration hereunder does not
occur within 90 days after the filing with the SEC of the initial registration
statement therefor, the provisions of this Section 7 will again be applicable to
any proposed registration. The Registrant will use all reasonable efforts to
cause any Registrable Securities registered pursuant to this Section 7 to be
qualified for sale under the securities or blue sky laws of such jurisdictions
as the Holder may reasonably request and will continue such registration or
qualification in effect in such jurisdictions; provided, however, that the
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Registrant will not be required to qualify to do business in, or consent to
general service of process in, any jurisdiction by reason of this provision. If
Registrant effects a registration under the Securities Act of MCS Common
Stock for its own account or for any other stockholders of Registrant (other
than on Form S-4 or Form S-8, or any successor form), it will allow Holder the
right to participate in such registration by selling its Registrable Securities,
and such participation will not affect the obligation of Registrant to effect
demand registration statements for Holder under this Section 7; provided that,
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if the managing underwriters of such offering advise Registrant in writing that
in their opinion the number of shares of MCS Common Stock requested to be
included in such registration exceeds the number which can be sold in such
offering, Registrant will include the shares requested to be included therein by
Holder pro rata with the shares intended to be included therein by Registrant.
(c) The registration rights set forth in this Section 7 are subject
to the condition that the Holder will provide the Registrant with such
information with respect to the Holder's Registrable Securities, the plan for
distribution thereof, and such other information with respect to the Holder as,
in the reasonable judgment of counsel for the Registrant, is necessary to enable
the Registrant to include in a registration statement all material facts
required to be disclosed with respect to a registration thereunder.
(d) A registration effected under this Section 7 will be effected at
the Registrant's expense, except for underwriting discounts and commissions and
the fees and expenses of counsel to the Holder, and the Registrant will provide
to the underwriters such documentation (including certificates, opinions of
counsel and "comfort" letters from auditors) as are customary in connection with
underwritten public offerings and as such underwriters may reasonably require.
In connection with any registration, the Holder and the Registrant agree to
enter into an underwriting agreement reasonably acceptable to each such party,
in form and substance customary for transactions of this type with the
underwriters participating in such offering.
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(e) Indemnification.
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(i) The Registrant will indemnify the Holder, each of its
directors and officers and each person who controls the Holder within the
meaning of Section 15 of the Securities Act, and each underwriter of the
Registrant's securities, with respect to any registration, qualification or
compliance which has been effected pursuant to this Agreement, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any violation by the Registrant of any rule or regulation
promulgated under the Securities Act applicable to the Registrant in connection
with any such registration, qualification or compliance, and the Registrant will
reimburse the Holder and, each of its directors and officers and each person who
controls the Holder within the meaning of Section 15 of the Securities Act, and
each underwriter for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action; provided, that the Registrant will not be liable in
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any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission or alleged
untrue statement or omission, made in reliance upon and in conformity with
written information furnished to the Registrant by such Holder or director or
officer or controlling person or underwriter seeking indemnification.
(ii) The Holder will indemnify the Registrant, each of its
directors and officers and each underwriter of the Registrant's securities
covered by such registration statement and each person who controls the
Registrant within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Holder of any rule or regulation promulgated under the
Securities Act applicable to the Holder in connection with any such
registration, qualification or compliance, and will reimburse the Registrant,
such directors, officers or control persons or underwriters for any legal or any
other expenses reasonably incurred in connection with investigating, preparing
or defending any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Registrant by the Holder
for use therein; provided, that in no event will any indemnity under this
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Section 7(e) exceed the net proceeds of the offering received by the Holder.
(iii) Each party entitled to indemnification under this Section
7(e) (the "Indemnified Party") will give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as
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to which indemnity may be sought, and will permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom,
provided, that counsel for the Indemnifying Party, who will conduct the defense
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of such claim or litigation, will be approved by the Indemnified Party (whose
approval will not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such party's expense; provided, however, that the
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Indemnifying Party will pay such expense if representation of the Indemnified
Party by counsel retained by the Indemnifying Party would be inappropriate due
to actual or potential differing interests between the Indemnified Party and any
other party represented by such counsel in such proceeding, and provided
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further, however, that the failure of any Indemnified Party to give notice as
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provided herein will not relieve the Indemnifying Party of its obligations under
this Section 7(e) unless the failure to give such notice is materially
prejudicial to an Indemnifying Party's ability to defend such action. No
Indemnifying Party, in the defense of any such claim or litigation will, except
with the consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation. No
Indemnifying Party will be required to indemnify any Indemnified Party with
respect to any settlement entered into without such Indemnifying Party's prior
consent (which will not be unreasonably withheld).
9. Adjustment Upon Changes in Capitalization; Rights Plans.
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(a) In the event of any change in the MCS Shares by reason of
stock dividends, stock splits, reverse stock splits, mergers (other than the
Merger), recapitalizations, combinations, exchanges of shares and the like, the
type and number of shares or securities subject to the Option, the Exercise
Price will be adjusted appropriately, and proper provision will be made in the
agreements governing such transaction so that NetIQ will receive, upon
exercise of the Option, the number and class of shares or other securities or
property that NetIQ would have received in respect of the MCS
Shares if the Option had been exercised immediately prior to such event or the
record date therefor, as applicable.
(b) Without limiting the parties' relative rights and obligations
under the Merger Agreement, if the number of outstanding shares of MCS Common
Stock increases or decreases after the date of this Agreement (other than
pursuant to an event described in Section 9(a)), the number of shares of MCS
Common Stock subject to the Option (including those Option Shares which may have
already been exercised) will be adjusted so that it equals 19.99% of the number
of shares of MCS Common Stock then issued and outstanding, without giving effect
to any Option Shares.
(c) At any time during which the Option is exercisable, and at any
time after the Option is exercised (in whole or in part, if at all), the Company
will not amend (nor permit the amendment of) the Company Rights Plan nor adopt
(nor permit the adoption of) a new stockholders rights plan, that contains
provisions for the distribution or exercise of rights thereunder as a result of
Parent or any affiliate or transferee being the beneficial owner of shares of
the Company by virtue of the Option being exercisable or having been exercised
(or as a result of beneficially owning shares issuable in respect of any Option
Shares).
10. Restrictive Legends. Each certificate representing Option Shares
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issued to NetIQ hereunder will include a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN
THE STOCK OPTION AGREEMENT DATED
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AS OF 23 FEBRUARY 26, 2000, A COPY OF WHICH MAY BE OBTAINED FROM
THE ISSUER.
It is understood and agreed that (i) the reference to restrictions arising
under the Securities Act in the above legend will be removed by delivery of
substitute certificate(s) without such reference if such Option Shares have been
registered pursuant to the Securities Act, such Option Shares have been sold in
reliance on and in accordance with Rule 144 under the Securities Act or Holder
has delivered to Registrant a copy of a letter from the staff of the SEC, or an
opinion of counsel in form and substance reasonably satisfactory to Registrant
and its counsel, to the effect that such legend is not required for purposes of
the Securities Act and (ii) the reference to restrictions pursuant to this
Agreement in the above legend will be removed by delivery of substitute
certificate(s) without such reference if the Option Shares evidenced by
certificate(s) containing such reference have been sold or transferred in
compliance with the provisions of this Agreement under circumstances that do not
require the retention of such reference.
11. Listing and HSR Filing. The MCS, upon the request of NetIQ, will
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promptly file an application to list the MCS Shares to be acquired upon exercise
of the Option for quotation on the Nasdaq National Market and will use its best
efforts to obtain approval of such listing as soon as practicable. Promptly
after the date hereof, each of the parties hereto will promptly file with the
Federal Trade Commission and the Antitrust Division of the United States
Department of Justice all required premerger notification and report forms and
other documents and exhibits required to be filed under the HSR Act to permit
the acquisition of the MCS Shares subject to the Option at the earliest possible
date.
12. Binding Effect. This Agreement will be binding upon and inure to the
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benefit of the parties hereto and their respective successors and permitted
assigns. Nothing contained in this Agreement, express or implied, is intended
to confer upon any person other than the parties hereto and their respective
successors and permitted assigns any rights or remedies of any nature whatsoever
by reason of this Agreement. Any shares sold by a party in compliance with the
provisions of Section 7 will, upon consummation of such sale, be free of the
restrictions imposed with respect to such shares by this Agreement and any
transferee of such shares will not be entitled to the rights of such party.
Certificates representing shares sold in a registered public offering pursuant
to Section 7 will not be required to bear the legend set forth in Section 9.
13. Specific Performance. The parties hereto recognize and agree that if
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for any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party hereto agrees that in addition to
other remedies the other party hereto will be entitled to an injunction
restraining any violation or threatened violation of the provisions of this
Agreement or the right to enforce any of the covenants or agreements set forth
herein by specific performance. In the event that any action will be brought in
equity to enforce the provisions of the Agreement, neither party hereto will
allege, and each party hereto hereby waives the defense, that there is an
adequate remedy at law.
14. Entire Agreement. This Agreement and the Merger Agreement (including
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the appendices thereto) constitute the entire agreement between the parties
hereto with respect to the
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subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties hereto with respect
to the subject matter hereof.
15. Further Assurances. Each party hereto will execute and deliver all
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such further documents and instruments and take all such further action as may
be necessary in order to consummate the transactions contemplated hereby.
16. Validity. The invalidity or unenforceability of any provision of this
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Agreement will not affect the validity or enforceability of the other provisions
of this Agreement, which will remain in full force and effect. In the event any
Governmental Entity of competent jurisdiction holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto will negotiate
in good faith and will execute and deliver an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the
intent of the parties hereto with respect to such provision.
17. Notices. All notices and other communications hereunder will be in
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writing and will be deemed given if delivered personally or by commercial
delivery service, or sent via telecopy (receipt confirmed) to the parties at the
following addresses or telecopy numbers (or at such other address or telecopy
numbers for a party as will be specified by like notice):
(a) if to NetIQ, to:
NetIQ Corp.
0000 Xxxxx Xxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with copies to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx,
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxxx X. XxXxxxxxx, Esq.
Facsimile: (000) 000-0000
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and to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to MCS to:
Mission Critical Software Inc.
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
0000 Xx Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
18. Governing Law. This Agreement will be governed by and construed in
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accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely within such State.
19. Expenses. Except as otherwise expressly provided herein or in the
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Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement will be paid by the party incurring
such expenses.
20. Amendments; Waiver. This Agreement may be amended by the parties
------------------
hereto and the terms and conditions hereof may be waived only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
21. Assignment. Neither of the parties hereto may sell, transfer, assign
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or otherwise dispose of any of its rights or obligations under this Agreement or
the Option created hereunder to any other person, without the express written
consent of the other party, except that the rights and obligations hereunder
will inure to the benefit of and be binding upon any successor of a party
hereto.
-10-
22. Counterparts. This Agreement may be executed in counterparts, each of
------------
which will be deemed to be an original, but both of which, taken together, will
constitute one and the same instrument.
-11-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
NETIQ CORP
By: /s/ Ching-Xx Xxxxx
-------------------------------
Name: Ching-Xx Xxxxx
-----------------------------
Title: President and CEO
----------------------------
MISSION CRITICAL SOFTWARE INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------
Title: Chairman/CEO
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[Signature Page to MCS Stock Option Agreement]
