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EXHIBIT (d)(2)
STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated as of February 18, 2000, among SBC
Communications, Inc., a Delaware corporation ("Parent"), SBC Silver, Inc., a
Delaware corporation and a wholly owned subsidiary of Parent ("Purchaser"), and
the stockholders named in Exhibit A hereto (each a "Stockholder").
WHEREAS, simultaneously herewith, Parent and Purchaser are entering into
an Agreement and Plan of Merger, dated as of the date hereof (as amended from
time to time, the "Merger Agreement"), with Sterling Commerce, Inc., a Delaware
corporation (the "Company"), which contemplates, among other things, that Parent
or Purchaser will commence a tender offer (as modified from time to time as
permitted by the Merger Agreement, the "Offer") for all of the outstanding
shares of common stock, $.0l par value, of the Company ("Company Common Stock");
and that Purchaser will merge with the Company pursuant to the merger
contemplated by the Merger Agreement (the "Merger"); capitalized terms used but
not defined herein shall have the meanings set forth in the Merger Agreement,
whether or not such Merger Agreement shall be in effect from time to time;
WHEREAS, as of the date hereof, each Stockholder owns (either beneficially
or of record) the number of shares of Company Common Stock set forth opposite
such Stockholder's name on Exhibit A hereto (all such shares owned by the
Stockholders and any shares of Company Common Stock hereafter acquired by any
Stockholder prior to the termination of this Agreement being referred to herein
as the "Shares"); and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement, Parent and Purchaser have requested that each
Stockholder agree, and in order to induce Parent and Purchaser to enter into the
Merger Agreement, each Stockholder has agreed, severally and not jointly, to
enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.1 Voting Agreement. Each Stockholder hereby agrees that, at any
meeting of the stockholders of the Company, however called, or in connection
with any written consent of the holders of shares of Company Common Stock, each
such Stockholder shall vote his or her Shares (a) in favor of the approval and
adoption of the Merger Agreement, the Merger and all the transactions
contemplated by the Merger Agreement and this Agreement and any other actions
required in furtherance thereof and hereof and (b) against any Company Takeover
Proposal and any actions in furtherance thereof.
SECTION 1.2 Irrevocable Proxy. Each Stockholder hereby irrevocably
constitutes and appoints Xxxxx XxXxx as his or her attorney and proxy pursuant
to the provisions of Section 212(c) of the Delaware General Corporation Law
("DGCL"), with full power of substitution, to vote and
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otherwise act (by written consent or otherwise) with respect to the Shares which
such Stockholder is entitled to vote at any meeting of stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise, on, and only on,
the matters described in Section 1.1 and to execute and deliver any and all
consents, instruments or other agreements or documents in order to take any and
all such actions in connection with or in furtherance of the obligations of such
Stockholder set forth in this Agreement and each of the transactions
contemplated by this Agreement or the Merger Agreement. THIS PROXY AND POWER OF
ATTORNEY IS IRREVOCABLE, SUBJECT TO SECTION 4.5, AND COUPLED WITH AN INTEREST.
Each Stockholder hereby revokes all other proxies and powers of attorney with
respect to such Stockholder's Shares that it may have heretofore appointed or
granted, and no subsequent proxy or power of attorney shall be given or written
consent executed (and if given or executed, shall not be effective) by such
Stockholder with respect thereto. All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of a Stockholder and any
obligation of such Stockholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of such Stockholder.
ARTICLE II
AGREEMENT TO TENDER
SECTION 2.1 Agreement to Tender. Each Stockholder hereby agrees that, if
Parent or Purchaser commences the Offer, such Stockholder will validly tender,
or cause to be validly tendered, all of the Shares then beneficially owned by
such Stockholder to Parent or Purchaser, as applicable, as soon as practicable
(and in any event within five business days) after the commencement of the Offer
in accordance with the terms and conditions of the Offer. Each Stockholder
further agrees that it will not withdraw such tendered Shares unless the Offer
is terminated by Parent or Purchaser, as applicable. Each Stockholder will be
entitled, upon consummation of the Offer, subject to and in accordance with the
Offer's terms and conditions, to receive an amount equal to the Offer Price with
respect to the tendered Shares. Each Stockholder hereby agrees to permit Parent
and Purchaser to publish and disclose in the Offer Documents and, if Company
Stockholder Approval is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the SEC), their respective
identity and ownership of Company Common Stock and the nature of their
respective commitments, arrangements and understandings under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Stockholder. Each
Stockholder represents and warrants to Parent as follows:
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(a) Such Stockholder has the requisite power, authority and legal
capacity to enter into and deliver this Agreement and to carry out its
obligations hereunder. This Agreement has been duly executed and delivered by
such Stockholder and, assuming its due authorization, execution and delivery by
Parent and Purchaser, is a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
(b) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
(i) conflict with or violate any Laws or (ii) conflict with or violate any
contract or other instrument to which the Stockholder is a party or by which
such Stockholder is bound, including, without limitation, any voting agreement,
stockholders agreement or voting trust, except for any Liens created hereby.
(c) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
require such Stockholder to obtain any consent, approval, authorization or
permit of, or to make any filing with or notification to, any person or
Governmental Authority, except as may be required by the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and the HSR Act.
(d) There is no suit, action, investigation or proceeding pending
or, to the knowledge of such Stockholder, threatened against such Stockholder at
law or in equity before or by any Governmental Authority that could reasonably
be expected to impair the ability of such Stockholder to perform its obligations
hereunder, and there is no judgment, decree, injunction, rule, order or writ of
any Governmental Authority to which such Stockholder is or its assets are
subject that could reasonably be expected to impair the ability of such
Stockholder to perform its obligations hereunder.
(e) Each Stockholder owns beneficially and of record the shares of
Company Common Stock set forth opposite such Stockholder's name on Exhibit A
hereto (with respect to such Stockholder, the "Existing Shares"). The Existing
Shares constitute all the shares of Company Common Stock owned beneficially and
of record by such Stockholder. Such Stockholder has sole voting power, sole
power of disposition, sole power to demand appraisal rights and all other
stockholder rights with respect to all of its Existing Shares, with no
restrictions, other than restrictions on disposition pursuant to applicable
securities laws, on such Stockholder's rights of voting or disposition
pertaining thereto. Such Stockholder has good and valid title to all Existing
Shares, free and clear of all Liens (other than any Liens created hereby) and,
when delivered by such Stockholder to Parent or Purchaser in accordance with the
Offer, good, marketable and valid title in and to such Existing Shares will be
transferred to Parent or Purchaser, as the case may be, free and clear of all
Liens.
SECTION 3.2 Survival. Notwithstanding anything otherwise provided for
herein, each Stockholder's representations and warranties contained in this
Section 3 shall be true and correct as of the date Parent or Purchaser, as the
case may be, accepts such Stockholder's Shares for payment pursuant to the terms
of the Offer.
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ARTICLE IV
COVENANTS OF THE STOCKHOLDER
SECTION 4.1 "No Shop". Each Stockholder shall immediately cease any
discussions or negotiations relating to a Company Takeover Proposal, other than
with respect to the Transactions, with any parties conducted heretofore. Each
Stockholder will not, directly or indirectly, and will instruct its
Representatives not to, directly or indirectly (i) solicit, initiate or
encourage (including by way of furnishing information or assistance), or take
any other action to facilitate, any inquiries, any expression of interest or the
making of any proposal which constitute any Company Takeover Proposal or (ii)
participate in any discussions or negotiations regarding any Company Takeover
Proposal. Anything in this Section 4.1 to the contrary notwithstanding, nothing
in this Section 4.1 shall limit in any way a Stockholder who is a director of
the Company from exercising any of his rights or performing any of his duties as
a director of the Company.
SECTION 4.2 Restriction on Transfer. Until and unless this Agreement has
been terminated, each Stockholder shall not except as expressly provided for in
this Agreement (a) sell, exchange, pledge, encumber or otherwise transfer or
dispose of, or agree to sell, exchange, pledge, encumber or otherwise transfer
or dispose of, any of its Shares (which for avoidance of doubt shall not include
any option to purchase Company Common Stock exercisable for Shares pursuant to
the terms of such option), or any interest therein, (b) deposit its Shares into
a voting trust or enter into a voting agreement or arrangement with respect to
such Shares or grant any proxy with respect thereto or (c) enter into any
agreement, arrangement, understanding, or undertaking to do any of the
foregoing.
SECTION 4.3 Waiver of Appraisal Rights. Each Stockholder hereby waives any
appraisal or other rights to dissent from the Merger that such Stockholder may
have.
SECTION 4.4 Termination. The covenants and agreements contained herein
with respect to the Shares shall terminate upon the termination of the Merger
Agreement in accordance with its terms.
ARTICLE V
DEFINITIONS
SECTION 5.1 Definitions. For the purpose of this Agreement, "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, arrangement or
understanding, whether or not in writing, subject to any fiduciary duty in the
case of securities not held of record.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Severability. If any term or other provision of this Agreement
is or is deemed to be invalid, illegal or incapable of being enforced by any
applicable rule of law or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of this Agreement is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner so that the terms of this Agreement remain as originally contemplated to
the fullest extent possible.
SECTION 6.2 Entire Agreement. This Agreement constitutes the entire
understanding between Parent, Purchaser and each Stockholder with respect to the
subject matter hereof and thereof and supersedes all prior agreements and
understandings, both written and oral, between Parent, Purchaser and each
Stockholder with respect to the subject matter hereof and thereof.
SECTION 6.3 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same instrument.
SECTION 6.4 Mutual Drafting. Each party hereto has participated in the
drafting of this Agreement, which each party acknowledges is the result of
extensive negotiations between the parties.
SECTION 6.5 Assignment. This Agreement shall not be assigned by operation
of law or otherwise without the prior written consent of the other parties
hereto, provided that Parent may assign its rights hereunder to any direct or
indirect wholly owned subsidiary of Parent, but no such assignment shall relieve
Parent of its obligations hereunder if such assignee does not perform such
obligations.
SECTION 6.6 Amendments. This Agreement may not be amended, supplemented,
waived or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by the parties hereto.
SECTION 6.7 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by delivery in person, facsimile
transmission, registered or certified mail (postage prepaid, return receipt
requested), or courier service providing proof of delivery to the respective
parties at the following addresses (or to such other address for a party as
shall be specified in a notice given in accordance with this Section 6.7).
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If to Parent or Purchaser:
SBC Communications, Inc.
000 X. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Vice President and Assistant General Counsel -
Mergers and Acquisitions
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Xxxxxx Xxxxx, Esq.
If to the Stockholder:
c/o Sterling Commerce, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxx X. Xxxxxxxx
SECTION 6.8 No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by, any person or entity
not a party hereto.
SECTION 6.9 Specific Performance. Each of the parties hereto acknowledges
that a breach by it of any agreement contained in this Agreement will cause the
other party to sustain damage for which it would not have an adequate remedy at
law for money damages, and therefore each of the parties hereto agrees that in
the event of any such breach the aggrieved party shall be entitled to the remedy
of specific performance of such agreement and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
SECTION 6.10 Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
right, power or remedy by such party.
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SECTION 6.11 No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon strict compliance by any
other party hereto with its obligations hereunder, and any custom or practice of
the parties at variance with the terms hereof, shall not constitute a waiver by
such party of its rights to exercise any such or other right, power or remedy or
to demand such compliance.
SECTION 6.12 Governing Law.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to the principles
of conflicts of law.
(b) Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware in any action,
suit or proceeding arising in connection with this Agreement, and agrees that
any such action, suit or proceeding shall be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein); provided, however, that such consent to jurisdiction is solely
for the purpose referred to in this subsection (b) and shall not be deemed to be
a general submission to the jurisdiction of such court or in the State of
Delaware other than for such purposes.
SECTION 6.13 Waiver of Jury Trial. EACH OF PARENT, PURCHASER AND THE
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, PURCHASER
OR THE STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT THEREOF.
SECTION 6.14 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
[Signatures on Following Page.]
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IN WITNESS WHEREOF, Parent, Purchaser and each Stockholder have caused
this Agreement to be duly executed as of the date first above written.
SBC COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. XxXxx
------------------------
Name: Xxxxxxx X. XxXxx
Title: Managing Director-
Corporate Development
SBC SILVER, INC.
By: /s/ Xxxxxxx X. XxXxx
------------------------
Name: Xxxxxxx X. XxXxx
Title: Vice President
STOCKHOLDERS:
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Xxxxxxxx X. Xxxxxxxx
By: /s/ Warner C. Blow
------------------------
Warner C. Blow
By: /s/ Xxxxxxx X. Xxxx, Xx.
------------------------
Xxxxxxx X. Xxxx, Xx.
By: /s/ Xxx Xxxx
------------------------
Xxx Xxxx
Exhibit A
Name Shares
---- ------
Xxxxxxxx X. Xxxxxxxx 3,755,776
Warner C. Blow 1,359,031
Xxxxxxx X. Xxxx, Xx. 988,366
Xxx Xxxx 1,045,672
