EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 13, 2000 (the "AGREEMENT"), by and
among Convergent Holding Corporation, a Delaware corporation ("PARENT"),
Convergent Acquisition Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of Parent ("PURCHASER"), Schlumberger Technology Corp., a Texas
corporation ("STC") and the stockholders of Convergent Group Corporation, a
Delaware corporation (the "COMPANY"), whose names appear on Schedule I hereto
(collectively, the "CONTRIBUTING STOCKHOLDERS").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, STC, Parent, Purchaser and the Company are entering into an Agreement
and Plan of Merger, dated as of the date hereof (the "MERGER AGREEMENT"), which
provides for, upon the terms and subject to the conditions set forth therein,
(i) the commencement by Purchaser of a tender offer (the "OFFER") for all of the
issued and outstanding shares of common stock, par value $0.001 per share, of
the Company (the "COMPANY COMMON STOCK"), and (ii) the subsequent merger of
Purchaser with and into the Company and the Company being the surviving
corporation (the "MERGER");
WHEREAS, as of the date hereof, each Contributing Stockholder owns
beneficially the number of shares of Company Common Stock set forth opposite
such Contributing Stockholder's name on Schedule I hereto (all such shares so
owned and which may hereafter be acquired by such Contributing Stockholder prior
to the termination of this Agreement, whether upon the exercise of options or by
means of purchase, dividend, distribution or otherwise, being referred to herein
as such Contributing Stockholder's "SHARES");
WHEREAS, concurrently with the execution and delivery of this Agreement,
each Contributing Stockholder entered into a Subscription and Contribution
Agreement (the "SUBSCRIPTION AGREEMENT") with Parent pursuant to which, on the
terms set forth therein, each Contributing Stockholder will contribute some or
all of such Contributing Stockholder's Shares to Purchaser in exchange for
shares of common stock, par value $0.001, of Parent (the "PARENT COMMON STOCK");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that the Contributing
Stockholders enter into this Agreement; and
WHEREAS, in order to induce Parent and Purchaser to enter into the Merger
Agreement, the Contributing Stockholders are 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, the
parties hereto hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE CONTRIBUTING STOCKHOLDERS
Section 1.1 VOTING OF SHARES. From the date hereof until the termination of
this Agreement pursuant to Section 5.3 hereof (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, each Contributing Stockholder shall vote its
Shares (i) in favor of the Merger and the Merger Agreement (as amended from time
to time pursuant to the terms thereof), (ii) against any Acquisition Proposal
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, 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 By-Laws, 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 which is considered at any such meeting of stockholders or in such
consent, and in connection therewith to execute any documents which are
necessary in order to effectuate the foregoing, including the ability for
Purchaser or its nominees to vote such Shares directly.
Section 1.2 PROXY. Each Contributing Stockholder hereby revokes any and all
prior proxies or powers of attorney in respect of any of such Contributing
Stockholder's Shares and constitutes and appoints Purchaser and Parent, or any
nominee of Purchaser and Parent, with full power of substitution and
resubstitution, at any time during the Term, as its true and lawful attorney and
proxy (its "PROXY"), for and in its name, place and stead, solely for the
following purposes: (i) to demand that the Secretary of the Company call a
special meeting of the stockholders of the Company for the purpose of
considering any matter referred to in Section 1.1 (if permitted under the
Company's Amended and Restated Certificate of Incorporation or By-Laws) and (ii)
to vote each of such Shares as its Proxy, at every annual, special, adjourned or
postponed meeting of the stockholders of the Company, including the right to
sign its name (as stockholder) to any consent, certificate or other document
relating to the Company that the laws of the state of Delaware may permit or
require as provided with respect to any matter referred to in Section 1.1. THE
FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST THROUGHOUT THE TERM.
Section 1.3 WAIVER OF APPRAISAL RIGHTS. Each Contributing Stockholder
hereby waives any rights of appraisal or rights to dissent from the Merger.
Section 1.4 NO PROXIES FOR OR ENCUMBRANCES ON CONTRIBUTING STOCKHOLDER
SHARES. Except as contemplated by the terms of this Agreement or the
Subscription Agreement, during the Term such Contributing Stockholder shall not,
without the prior written consent of Purchaser, directly or indirectly, (i)
grant any proxies (other than proxies relating to the election of management's
slate of directors at an annual meeting of the Company's stockholders, and other
routine matters which would not require the filing of a preliminary proxy
statement under Rule
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14a-6(a) of the Exchange Act) or enter into any voting trust or other agreement
or arrangement with respect to the voting of any such Contributing Stockholder's
Shares or (ii) sell, assign, transfer, encumber or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to the direct or indirect sale, assignment, transfer, encumbrance or
other disposition of, any such Contributing Stockholder's Shares. Except as
permitted by the preceding sentences, such Contributing Stockholder shall not
seek or solicit any such sale, assignment, transfer, encumbrance or other
disposition or any such contract, option or other arrangement or assignment or
understanding and agrees to notify Purchaser promptly (but in any event, within
24 hours) and to provide all details requested by Purchaser if such Contributing
Stockholder shall be approached or solicited, directly or indirectly, by any
person with respect to any of the foregoing. Except as provided in the last
sentence, notwithstanding any other provision of this Section 1.4, each
Contributing Stockholder may sell or otherwise assign, with or without
consideration, an unlimited amount of such Contributing Stockholder's capital
stock to any spouse or member of his immediate family, or to a custodian,
trustee (including a trustee of a voting trust), executor or other fiduciary for
the account of his spouse or members of his immediate family, or to a trust for
himself, or to a charitable remainder trust, or any affiliate, member or limited
or general partner of such Stockholder, or to any entity that is wholly owned by
members of the Contributing Stockholder's immediate family; provided that each
such transferee or assignee, prior to the completion of the sale, transfer or
assignment shall have executed documents assuming the obligations of the
Stockholder under this Agreement with respect to the transferred securities.
Notwithstanding anything herein to the contrary, no Contributing Stockholder may
sell, assign, transfer, encumber or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to the
direct or indirect sale, assignment, transfer, encumbrance or other disposition
of, any such Contributing Stockholder's Shares if such action would restrict the
Parent's ability to acquire such Shares in compliance with the provisions of
Rule 506 under the Securities Act of 1933, as amended.
Section 1.5 STOP TRANSFER. During the Term, no Contributing Stockholder
shall request that the Company register the transfer (book-entry or otherwise)
of any certificate or uncertificated interest representing any of such
Contributing Stockholder's Shares, unless such transfer is made in compliance
with this Agreement.
Section 1.6 NOTIFICATION. Each Contributing Stockholder will promptly
notify Parent of the existence of any proposal, discussion, negotiation or
inquiry received by such Contributing Stockholder, and each Contributing
Stockholder will immediately communicate to Parent the terms of any proposal,
discussion, negotiation or inquiry which it may receive (and will immediately
provide to Parent copies of any written materials received by it in connection
with such proposal, discussion, negotiation or inquiry) and the identity of the
Person making such proposal or inquiry or engaging in such discussion or
negotiation.
ARTICLE II.
NO TENDER OF SHARES
Section 2.1 NO TENDER. Except for a number of shares up to the maximum
number set forth opposite such Contributing Stockholder's name on Schedule 2.1,
no Contributing Stockholder shall tender (or cause the record owner of such
shares to tender) such Contributing
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Stockholder's Shares pursuant to the Offer.
Section 2.2 DISCLOSURE. Each Contributing Stockholder hereby authorizes
Parent and Purchaser to publish and disclose in the Offer Documents and, if
approval of the Company's Contributing Stockholders is required under applicable
law, the Proxy Statement (including all documents and schedules filed with the
SEC), its identity and ownership of the Company Common Stock and the nature of
its commitments, arrangements and understandings under this Agreement and the
Subscription Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTING STOCKHOLDERS
Each Contributing Stockholder hereby represents and warrants, severally and
not jointly, to Parent and Purchaser as follows:
Section 3.1 DUE AUTHORIZATION, ETC. Contributing Stockholder has all
requisite power and authority to execute, deliver and perform this Agreement, to
appoint Purchaser and Parent as its Proxy and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
the appointment of Purchaser and Parent as Contributing Stockholder's Proxy and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of Contributing Stockholder. This
Agreement has been duly executed and delivered by or on behalf of such
Contributing Stockholder and constitutes a legal, valid and binding obligation
of such Contributing Stockholder, enforceable against such Contributing
Stockholder in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other
similar laws affecting creditor rights generally and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding for such remedy may
be brought. There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which such Contributing Stockholder is trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by such Contributing Stockholder of the transactions
contemplated hereby.
Section 3.2 NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by such Contributing
Stockholder does not, and the performance of this Agreement by such Contributing
Stockholder will not, (i) conflict with or result in any breach of any provision
of the respective certificate of incorporation, bylaws or other similar
documents relating to the respective Contributing Stockholder, (ii) conflict
with or violate any law applicable to such Contributing Stockholder or by which
such Contributing Stockholder or any of such Contributing Stockholder's
properties is bound or affected or (iii) result in any material breach of or
constitute a material default (or an event that with notice or lapse of time or
both would become a material 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 any assets of such Contributing Stockholder, including,
without limitation, such Contributing Stockholder's Shares, pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which
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such Contributing Stockholder is a party or by which such Contributing
Stockholder or any of such Contributing Stockholder's assets is bound or
affected, except, in the case of clauses (ii) and (iii), for any such material
breaches, defaults or other occurrences that would not prevent or delay the
performance by such Contributing Stockholder of such Contributing Stockholder's
obligations under this Agreement.
(b) Except as set forth on Schedule 3.2 hereto, the execution and
delivery of this Agreement by such Contributing Stockholder does not, and the
performance of this Agreement by such Contributing Stockholder will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority (other than any
necessary filing under the HSR Act or the Exchange Act), 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 such Contributing Stockholder of such Contributing
Stockholder's obligations under this Agreement.
Section 3.3 VALID TITLE. Other than this Agreement, the Subscription
Agreement and the Stockholders Agreement, and except as set forth on Schedule
3.3, (a) each Contributing Stockholder is the sole, true, lawful and beneficial
owner of such Contributing Stockholder's Shares with no restrictions on such
Contributing Stockholder's voting rights or rights of disposition pertaining
thereto, except for any such restrictions contemplated herein; (b) none of such
Contributing Stockholder's Shares is subject to any voting trust or other
agreement or arrangement with respect to the voting of such Shares; and (c) none
of such Contributing Stockholder's Shares is subject to any adverse claims,
liens, charges, encumbrances, security interests or other restrictions on
transfer.
Section 3.4 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 such
Contributing Stockholder. Such Contributing Stockholder, on behalf of itself and
its affiliates, hereby acknowledges that it 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 IV.
REPRESENTATIONS AND WARRANTIES OF
PARENT, PURCHASER AND STC
Parent, Purchaser and STC hereby, jointly and severally, represent and
warrant to the Contributing Stockholders as follows:
Section 4.1 DUE ORGANIZATION, AUTHORIZATION, ETC. Parent, Purchaser and STC
are duly organized, validly existing and in good standing under the laws of
their jurisdiction of incorporation. Parent, Purchaser and STC 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 Parent, Purchaser and STC have been duly authorized by all
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necessary corporate action on the part of Parent, Purchaser and STC,
respectively. This Agreement has been duly executed and delivered by each of
Parent, Purchaser and STC and constitutes a legal, valid and binding obligation
of each of Parent, Purchaser and STC, enforceable against Parent, Purchaser and
STC in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium fraudulent conveyance or other similar laws
and except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding for such remedy may be brought.
Section 4.2 NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by STC, Parent and
Purchaser does not, and the performance of this Agreement by STC, Parent and
Purchaser will not, (i) conflict with or result in any breach of any provision
of the respective certificate of incorporation, bylaws or other similar
documents relating to the respective party, (ii) conflict with or violate any
law applicable to STC, Parent and Purchaser or by which STC, Parent and
Purchaser or any of STC's, Parent's and Purchaser's properties is bound or
affected or (iii) result in any material breach of or constitute a material
default (or an event that with notice or lapse of time or both would become a
material 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 any assets of STC, Parent and Purchaser, including, without
limitation, STC's, Parent's and Purchaser's Shares, pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which STC, Parent and Purchaser is a party or
by which STC, Parent and Purchaser or any of STC's, Parent's and Purchaser's
assets is bound or affected, except, in the case of clauses (ii) and (iii), for
any such material breaches, defaults or other occurrences that would not prevent
or delay the performance by STC, Parent and Purchaser of STC's, Parent's and
Purchaser's obligations under this Agreement.
(b) The execution and delivery of this Agreement by Parent, Purchaser
and STC does not, and the performance of this Agreement by Parent, Purchaser and
STC will not, require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority (other
than any necessary filing under the HSR Act or the Exchange Act), 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 Parent, Purchaser and STC of Parent's,
Purchaser's and STC's obligations under this Agreement.
ARTICLE V.
MISCELLANEOUS
Section 5.1 DEFINITIONS. Capitalized terms used but not otherwise defined
in this Agreement have the respective meanings ascribed to such terms in the
Merger Agreement.
Section 5.2 ADDITIONAL AGREEMENTS. Subject to the terms and conditions of
this Agreement, each of the Purchaser and each Contributing Stockholder, in the
capacity as a stockholder, agrees to use all reasonable efforts to take, or
cause to be taken, all action and to do,
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or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
Section 5.3 TERMINATION. This Agreement and the proxies granted pursuant to
Section 1.2 shall terminate immediately and be of no further force and effect
upon the earlier to occur of: (i) by the written mutual consent of the parties
hereto, (ii) automatically and without any required action of the parties hereto
upon the Effective Time ,(iii) upon the termination of the Merger Agreement in
accordance with its terms or (iv) March 31, 2001. No such termination of this
Agreement shall relieve any party hereto from any liability for any breach of
this Agreement prior to termination.
Section 5.4 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 transactions contemplated by this Agreement.
Section 5.5 CERTAIN EVENTS; SUCCESSORS. Each Contributing Stockholder
agrees that this Agreement and such Contributing Stockholder's obligations
hereunder shall attach to such Contributing 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, such Contributing 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.
Section 5.6 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 compliance by any other
party hereto with its obligations hereunder, any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
Section 5.7 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied
(which is confirmed) or sent by an internationally recognized overnight courier
service, such as Federal Express, to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice):
(a) if to Parent or Purchaser, to:
Convergent Holding Corporation
c/o Schlumberger Technology Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
(b) If to a Contributing Stockholder, at the address set forth below
such Contributing Stockholder's name on the signature pages hereto.
with a copy (which shall not constitute notice) to:
Holland & Xxxx LLP
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Section 5.8 EXPENSES. The Company shall reimburse the Management Investors
(as defined in the Subscription Agreement) for their reasonable out-of-pocket
expenses reasonably incurred in connection with the transactions contemplated
hereby, including but not limited to the preparation and negotiation of this
Agreement, the Subscription Agreement, the Stockholders Agreement, the Merger
Agreement, any employment, consulting or other agreements between the Company
and any of the Management Investors and all other documents evidencing the
transactions contemplated herein, and including the fees and expenses of Holland
& Xxxx LLP. Except as otherwise expressly set forth herein, all fees, costs and
expenses incurred in connection with this Agreement or the Merger Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
fees, costs and expenses.
Section 5.9 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 5.10 SEVERABILITY. Any term or provision of this Agreement that is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the invalid, void or unenforceable term or
provision in any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction or other authority declares that
any term or provision hereof is invalid, void or unenforceable, the parties
agree that the court making such determination shall have the power to and
shall, subject to the discretion of such court, reduce the scope, duration, area
or
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applicability of the term or provision, to delete specific words or phrases, or
to replace any invalid, void or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision.
Section 5.11 ENTIRE AGREEMENT. This Voting Agreement and the Merger
Agreement, including the documents and the instruments referred to herein and
therein, constitute the entire agreement and supersede all prior agreements,
negotiations, arrangements and understandings, both written and oral, among the
parties with respect to the subject matter hereof and thereof. Nothing in this
Voting Agreement shall be construed to give any person other than the parties to
this Voting Agreement or, subject to Section 5.12, their respective successors
or permitted assigns any right or remedy hereunder.
Section 5.12 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
(whether by operation of law or otherwise) without the prior written consent of
the other parties, except that Purchaser may assign, in its sole discretion, any
or all of its rights, interests and obligations hereunder to Parent or to any
direct or indirect wholly owned subsidiary of Parent and such assignment shall
not relieve Purchaser of any obligation under this Agreement. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by the parties and their respective successors and
assigns.
Section 5.13 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 thereof.
(b) The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Delaware or in a Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties (a) consents to submit itself to the personal
jurisdiction of any Federal court in the State of Delaware or any Delaware state
court in the event any dispute arises out of this Agreement or any of the
transactions contemplated by the Merger Agreement, (b) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by the Merger
Agreement in any court other than a Federal court sitting in the State of
Delaware or a Delaware state court.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION
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DIRECTLY OR INDIRECTLY ARISING OUR OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 5.13.
Section 5.14 AMENDMENT. This Agreement may not be amended, modified or
supplemented except by an instrument in writing signed by all of the parties
hereto.
Section 5.15 WAIVER. At any time prior to the Effective Time, 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.
Section 5.16 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, Purchaser and each of the Contributing
Stockholders have caused this Agreement to be executed as of the date first
written above.
CONVERGENT HOLDING CORPORATION
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By:
Title:
SCHLUMBERGER TECHNOLOGY CORP.
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By:
Title:
CONTRIBUTING STOCKHOLDERS
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XXXXXX X. XXXXXXXXXX XXXXXX X. XXXXXXXX
Address: Address:
------------------------- --------------------------
------------------------- --------------------------
------------------------- --------------------------
--------------------------------- ----------------------------------
XXXX X. XXXXX XXXXX X. XXXXXX
Address: Address:
------------------------- --------------------------
------------------------- --------------------------
------------------------- --------------------------
--------------------------------- ----------------------------------
XXX XXXXXXX XXXXX X. XXXXXXXX
Address: Address:
------------------------- --------------------------
------------------------- --------------------------
------------------------- --------------------------
XXXX X. XXXXXXX TRUST XXXX X. XXXXXXX LIMITED PARTNERSHIP,
a Colorado Limited Partnership
By: By: Xxxxxxx Consultants, Inc.
----------------------------- a Colorado corporation,
Name: Xxx X. Xxxxxx General Partner
Title: Trustee
By: By:
----------------------------- -----------------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx
Title: Trustee Title: President
Address: Address:
------------------------- --------------------------
------------------------- --------------------------
------------------------- --------------------------
THE XXXX X. XXXXXXX ISSUE SUB-TRUST
By:
-----------------------------
Name: Xxx X. Xxxxxx
Title: Trustee
By:
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
Address:
-------------------------
-------------------------
-------------------------
THE XXXXXXX XXXX XXXXX 1999 TRUST THE XXXX XXX XXXXX 1999 TRUST
By: By:
----------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Trustee Title: Trustee
Address: Address:
------------------------- --------------------------
------------------------- --------------------------
------------------------- --------------------------
THE XXXXX XXXXXXXXX XXXXXXXX 1999 THE XXXXXX XXXXXX XXXXXXXX 1999
TRUST TRUST
By: By:
----------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Trustee Title: Trustee
Address: Address:
------------------------- --------------------------
------------------------- --------------------------
------------------------- --------------------------
THE XXXXXX XXXX XXXXXXXX 1999 TRUST THE XXXXXX XXXXX XXXXXXXX 1999 TRUST
By: By:
----------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Trustee Title: Trustee
Address: Address:
------------------------- --------------------------
------------------------- --------------------------
------------------------- --------------------------
BKUK FAMILY PARTNERSHIP LLLP
------------------------------
Xxxxx X. Xxxxx-Xxxxxxxx
By:
-----------------------------
Name: Xxxxx Xxxxxx Address:
Title: Partner -------------------------
By: -------------------------
-----------------------------
Name: Xxxxxx Xxxxxx -------------------------
Title: Partner
Address:
-------------------------
-------------------------
-------------------------
CINERGY VENTURES, LLC
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
SCHEDULE I
CONTRIBUTING STOCKHOLDERS
Contributing Stockholders Number of shares, and/or options for
shares, of Company Common Stock
------------------------- ------------------------------------
Xxxxx X. Xxxxxxxxxx, Xx 3,275,093
Xxxxx X. Xxxxxxxx 1,004,915
Xxxxx X. Xxxxx-Xxxxxxxx 1,108,993
Xxxxx Xxxxxxxxx Xxxxxxxx 1999 Trust 108,695
Xxxxxx Xxxxxx Xxxxxxxx 1999 Trust 108,695
Xxxxxx Xxxx Xxxxxxxx 1999 Trust 108,695
Xxxxxx Xxxxx Xxxxxxxx 1999 Trust 108,695
Xxxxxxx Xxxx Xxxxx 1999 Trust 108,695
Xxxx Xxx Xxxxx 1999 Trust 108,695
Xxxx X. Xxxxxxx 113,313
Xxxx X. Xxxxxxx Trust(1) 1,911,780
-------------------
(1) Number of shares to be sold by entities beneficially owned by Xxxx Xxxxxxx
assumes sale in Offer by each entity of pro rata share of 100% of all
shares Xx. Xxxxxxx is permitted to sell. The exact number of shares to be
sold by each entity will be designated by Xx. Xxxxxxx.
SCHEDULE I
CONTRIBUTING STOCKHOLDERS (CONTINUED)
Contributing Stockholders Number of shares, and/or options for
shares, of Company Common Stock
------------------------- ------------------------------------
Xxxx X. Xxxxxxx Limited Partnership,
a Colorado limited partnership 650,000
The Xxxx X. Xxxxxxx Issue Sub-Trust 600,000
Xxxxx Xxxxxx 375,000
Xxx Xxxxx 377,710
Xxxxxxx X. Xxxxxxxxxx 249,950
BKUK Family Partnership LLLP 157,611
Xxxxxx X. Xxxxxx 250,000
Xxxxx X. Xxxxxxx 250,001
Xxxxx Xxxx 377,710
Xxxxx X. Xxxxxxxxxx 249,950
Xxxxx X. Xxxxxx 847,427
Xxxxxxx X. Xxxxxxxx 75,000
SCHEDULE I
CONTRIBUTING STOCKHOLDERS (CONTINUED)
Contributing Stockholders Number of shares, and/or options for
shares, of Company Common Stock
------------------------- ------------------------------------
Xxxxxx Xxxxxx 98,514
X. X. Xxxxx 150,000
Xxxx X. Xxxxx 73,500
Xxx Xxxx 6,000
Xxxx X. Xxxxxxx 157,127
Xxxxxx X. Xxx 20,000
Xxxx X. Xxxxxxx 55,050
Xxxxxx X. Xxxx 44,078
Xxxxxxxx Xxxxxxxxxxxx 36,626
Xxxxx Xxxxxx 29,000
Xxxxx X. Xxxxxx 25,000
Xxxxxx X. Xxxx 25,000
SCHEDULE I
CONTRIBUTING STOCKHOLDERS (CONTINUED)
Contributing Stockholders Number of shares, and/or options for
shares, of Company Common Stock
------------------------- ------------------------------------
Xxxxxxx X. Xxxxx 76,556
Xxxxxxx Xxx 57,182
Xxxxxxx X. Xxxx 63,078
Xxxxxx X. Xxxxxxxxxx 226,152
Xxxxxx X. Xxxxxxxx 150,000
Xxxx X. Xxxxx 60,883
Xxxxx X. Xxxxxx 284,518
Xxx Xxxxxxx 6,000
Cinergy Ventures, LLC 2,166,561
SCHEDULE 2.1
PERMITTED TENDERS
Contributing Stockholders Permitted Number of, and/or
options exercisable for, Company
Common Stock to be Tendered
------------------------- --------------------------------
Xxxxx X. Xxxxxxxxxx, Xx 655,019
Xxxxx X. Xxxxxxxx 0
Xxxxx X. Xxxxx-Xxxxxxxx 0
Xxxxx Xxxxxxxxx Xxxxxxxx 1999 Trust 0
Xxxxxx Xxxxxx Xxxxxxxx 1999 Trust 0
Xxxxxx Xxxx Xxxxxxxx 1999 Trust 0
Xxxxxx Xxxxx Xxxxxxxx 1999 Trust 0
Xxxxxxx Xxxx Xxxxx 1999 Trust 0
Xxxx Xxx Xxxxx 1999 Trust 0
Xxxx X. Xxxxxxx 16,188
Xxxx X. Xxxxxxx Trust(2) 273,111
-------------------
(2) Number of shares to be sold by entities beneficially owned by Xxxx Xxxxxxx
assumes sale in Offer by each entity of pro rata share of 100% of all
shares Xx. Xxxxxxx is permitted to sell. The exact number of shares to be
sold by each entity will be designated by Xx. Xxxxxxx.
SCHEDULE 2.1
PERMITTED TENDERS (CONTINUED)
Contributing Stockholders Permitted Number of, and/or
options exercisable for, Company
Common Stock to be Tendered
------------------------- --------------------------------
The Xxxx X. Xxxxxxx Limited Partnership,
a Colorado limited partnership 92,857
The Xxxx X. Xxxxxxx Issue Sub-Trust 85,714
Xxxxx Xxxxxx 38,588
Xxx Xxxxx 12,500
Xxxxxxx X. Xxxxxxxxxx 45,000
BKUK Family Partnership LLLP 15,000
Xxxxxx X. Xxxxxx 0
Xxxxx X., Xxxxxxx 0
Xxxxx Xxxx 12,500
Xxxxx X. Xxxxxxxxxx 45,000
Xxxxx X. Xxxxxx 60,000
SCHEDULE 2.1
PERMITTED TENDERS (CONTINUED)
Contributing Stockholders Permitted Number of, and/or
options exercisable for, Company
Common Stock to be Tendered
------------------------- --------------------------------
Xxxxxxx X. Xxxxxxxx 15,000
Xxxxxx Xxxxxx 26,703
X. X. Xxxxx 30,000
Xxxx X. Xxxxx 9,700
Xxx Xxxx 0
Xxxx X. Xxxxxxx 31,425
Xxxxxx X. Xxx 4,000
Xxxx X. Xxxxxxx 11,010
Xxxxxx X. Xxxx 8,816
Xxxxxxxx Xxxxxxxxxxxx 7,325
Xxxxx Xxxxxx 5,800
SCHEDULE 2.1
PERMITTED TENDERS (CONTINUED)
Contributing Stockholders Permitted Number of, and/or
options exercisable for, Company
Common Stock to be Tendered
------------------------- --------------------------------
Xxxxx X. Xxxxxx 5,000
Xxxxxx X. Xxxx 5,000
Xxxxxxx X. Xxxxx 15,311
Xxxxxxx Xxx 11,436
Xxxxxxx X. Xxxx 12,616
Xxxxxx X. Xxxxxxxxxx 45,230
Xxxxxx X. Xxxxxxxx 30,000
Xxxx X. Xxxxx 12,177
Xxxxx X. Xxxxxx 56,904
Xxx Xxxxxxx 1,200
Cinergy Ventures, LLC 1,083,281
Schedule 3.2 - Exceptions to Section 3.2
180 Day Lock-Up Agreement among the Contributing Stockholders and
FleetBoston Xxxxxxxxx Xxxxxxxx, Inc.
Schedule 3.3 - Exceptions to Section 3.3
180 Day Lock-Up Agreement among the Contributing Stockholders and
FleetBoston Xxxxxxxxx Xxxxxxxx, Inc.
