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EXHIBIT 2.2
COMPANY STOCKHOLDER AGREEMENT
THIS COMPANY STOCKHOLDER AGREEMENT (this "Agreement") is made and
entered into as of February 20, 2001 by and between Sybase, Inc., a Delaware
corporation ("Parent"), and the undersigned stockholder and/or option holder
(the "Stockholder") of New Era of Networks, Inc., a Delaware corporation (the
"Company").
RECITALS:
A. Parent, the Company and Merger Sub (as defined below) have entered
into an Agreement and Plan of Reorganization (the "Reorganization Agreement"),
which provides for the exchange offer (the "Offer") to exchange shares of common
stock, par value $0.001 per share, of Parent ("Parent Common Stock") for all of
the issued and outstanding shares of common stock, par value $0.0001 per share
("Company Common Stock"), of the Company (the "Shares") and the merger (the
"Merger") of a wholly-owned subsidiary of Parent ("Merger Sub") with and into
the Company, pursuant to which all outstanding capital stock of the Company will
be converted into the right to receive common stock of Parent, as set forth in
the Reorganization Agreement.
B. The Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such number of shares of the outstanding capital stock of the Company, and such
number of shares of capital stock of the Company issuable upon the exercise of
outstanding options and warrants, as is indicated on the signature page of this
Agreement.
C. In order to induce the execution of the Reorganization Agreement by
Parent, the Stockholder (solely in his or her capacity as such, but not in any
other capacity, including as director or officer of the Company) has agreed to
tender in the Offer and vote the Shares (as defined below) and such other shares
of capital stock of the Company over which the Stockholder has voting power, so
as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. Certain Definitions. Capitalized terms used but not defined herein
shall have the respective meanings ascribed thereto in the Reorganization
Agreement. For all purposes of and under this Agreement, the following terms
shall have the following respective meanings:
(a) "Expiration Date" shall mean the earlier to occur of (i) such
date and time as the Reorganization Agreement shall have been validly terminated
pursuant to its terms, or (ii) such date and time as the Merger shall become
effective in accordance with the terms and conditions set forth in the
Reorganization Agreement.
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(b) "Person" shall mean any individual, any corporation, limited
liability company, general or limited partnership, business trust,
unincorporated association or other business organization or entity, or any
governmental authority.
(c) "Shares" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) owned by the Stockholder
as of the date of this Agreement, and (ii) all additional securities of the
Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares of Company
Common Stock) of which the Stockholder acquires beneficial ownership during the
period commencing with the execution and delivery of this Agreement until the
Expiration Date.
(d) Transfer. A Person shall be deemed to have effected a
"Transfer" of a security if such person directly or indirectly (i) sells,
pledges, encumbers, grants an option with respect to, transfers or otherwise
disposes of such security or any interest therein, or (ii) enters into an
agreement or commitment providing for the sale of, pledge of, encumbrance of,
grant of an option with respect to, transfer of or disposition of such security
or any interest therein.
2. Transfer of Shares.
(a) Transferee of Shares to be Bound by this Agreement. The
Stockholder hereby agrees that, at all times during the period commencing with
the execution and delivery of this Agreement until the Expiration Date, the
Stockholder shall not cause or permit any Transfer of any of the Shares to be
effected, or discuss, negotiate or make any offer regarding any Transfer of any
of the Shares, unless each Person to which any such Shares, or any interest
therein, is or may be Transferred shall have (i) executed a counterpart of this
Agreement and a proxy in the form attached hereto as Exhibit A (with such
modifications as Parent may reasonably request) (the "Proxy"), and (ii) agreed
in writing to hold such Shares, or such interest therein, subject to all of the
terms and conditions set forth in this Agreement.
(b) Transfer of Voting Rights. The Stockholder hereby agrees
that, at all times commencing with the execution and delivery of this Agreement
until the Expiration Date, the Stockholder shall not deposit, or permit the
deposit of, any Shares in a voting trust, grant any proxy (other than the Proxy)
in respect of the Shares, or enter into any Stockholder Agreement or similar
arrangement or commitment in contravention of the obligations of the Stockholder
under this Agreement with respect to any of the Shares.
3. Agreement to Vote Shares. Until the Expiration Date, at every meeting
of stockholders of the Company called with respect to any of the following, and
at every adjournment or postponement thereof, and on every action or approval by
written consent of stockholders of the Company with respect to any of the
following, the Stockholder shall vote, to the extent not voted by the person(s)
appointed under the Proxy, the Shares:
(a) in favor of approval of the Merger and the adoption and
approval of the Reorganization Agreement, and in favor of each of the other
actions contemplated by the Reorganization Agreement and the Proxy and any
action required in furtherance thereof;
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(b) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the transactions contemplated
by the Reorganization Agreement;
(c) against any of the following actions (other than those
actions that relate to the Merger and the transactions contemplated by the
Reorganization Agreement): (A) any merger, consolidation, business combination,
sale of assets, reorganization or recapitalization of the Company or any
subsidiary of the Company with any party, (B) any sale, lease or transfer of any
significant part of the assets of the Company or any subsidiary of the Company,
(C) any reorganization, recapitalization, dissolution, liquidation or winding up
of the Company or any subsidiary of the Company, (D) any material change in the
capitalization of the Company or any subsidiary of the Company, or the corporate
structure of the Company or any subsidiary of the Company, or (E) any other
action that is intended, or could reasonably be expected to, impede, interfere
with, delay, postpone, discourage or adversely affect the Merger or any of the
other transactions contemplated by the Reorganization Agreement; and
(d) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company or any subsidiary of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any subsidiary of the Company, or any sale of assets, change of
control, or acquisition of the Company or any subsidiary of the Company by any
other person, or any consolidation or merger of the Company or any subsidiary of
the Company with or into any other person.
Prior to the Expiration Date, the Stockholder shall not enter into any agreement
or understanding with any person to vote or give instructions in any manner
inconsistent with the terms of this Section 3.
4. Irrevocable Proxy. Concurrently with the execution of this Agreement,
the Stockholder agrees to deliver to Parent the Proxy in the form attached
hereto as Exhibit A, which shall be irrevocable to the fullest extent
permissible by applicable law, with respect to the Shares.
5. Agreement to Tender. The Stockholder hereby agrees to tender, upon
the request of Buyer (and agrees that it will not withdraw), pursuant to and in
accordance with the terms of the Offer, the Shares. Within five business days
after the commencement of the Offer, each Stockholder shall (x) deliver to the
depositary designated in the Offer (i) a letter of transmittal with respect to
the Shares complying with the terms of the Offer, (ii) certificates representing
of the Shares and (iii) all other documents or instruments required to be
delivered pursuant to the terms of the Offer, and/or (y) instruct its broker or
such other person who is the holder of record of any Shares beneficially owned
by such Stockholder to tender such shares for exchange in the Offer pursuant to
the terms and conditions of the Offer.
6. Agreement Not to Exercise Appraisal Rights. The Stockholder agrees
not to exercise any rights (including, without limitation, under Section 262 of
the General Corporation Law of the State of Delaware) to demand appraisal of any
Shares which may arise with respect to the Merger.
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7. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent that, as of the date hereof and at all
times until the Expiration Date, (i) the Stockholder (and will be, unless
Transferred pursuant to Section 2(a) hereof) the beneficial owner of the shares
of Company Common Stock, and the options, warrants and other rights to purchase
shares of Company Common Stock, set forth on signature page of this Agreement,
with full power to vote or direct the voting of the Shares for and on behalf of
all beneficial owners of the Shares; (ii) the Shares are (and will be, unless
Transferred pursuant to Section 2(a) hereof) free and clear of any liens,
pledges, security interests, claims, options, rights of first refusal, co-sale
rights, charges or other encumbrances of any kind or nature; (iii) the
Stockholder does not beneficially own any securities of the Company other than
the shares of Company Common Stock, and options, warrants and other rights to
purchase shares of Company Common Stock, set forth on the signature page of this
Agreement; (iv) the Stockholder has (and will have, unless Transferred pursuant
to Section 2(a) hereof) full power and authority to make, enter into and carry
out the terms of this Agreement and the Proxy; (v) the execution, delivery and
performance by such Stockholder of this Agreement and the consummation by such
Stockholder of the transactions contemplated hereby are within the powers of
such Stockholder and have been duly authorized by all necessary action; (vi) if
this Agreement is being executed in a representative or fiduciary capacity, the
person signing this Agreement has full power and authority to enter into and
perform this Agreement; (vii) this Agreement constitutes a valid and binding
Agreement of such Stockholder; and (viii) the execution, delivery and
performance by such Stockholder of this Agreement and, subject to compliance
with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended ("HSR
ACT"), and securities laws, as applicable, the consummation of the transactions
contemplated hereby, do not and will not (a) violate the certificate of
incorporation or bylaws, limited partnership agreement or other organizational
documents, as applicable, of such Stockholder, (b) violate any applicable law,
rule, regulation, judgment, injunction, order or decree, (c) require any consent
or other action by any person under, constitute a default under, or give rise to
any right of termination, cancellation or acceleration or to a loss of any
benefit to which such Stockholder is entitled under any provision of any
agreement or other instrument binding on such Stockholder or (d) result in the
imposition of any Encumbrance on any asset of such Stockholder.
8. Legending of Shares. If so requested by Parent, the Stockholder
hereby agrees that the Shares shall bear a legend stating that they are subject
to this Agreement and to an irrevocable proxy. Subject to the terms of Section 2
hereof, the Stockholder hereby agrees that the Stockholder shall not Transfer
the Shares without first having the aforementioned legend affixed to the
certificates representing the Shares.
9. Termination. This Agreement shall terminate and be of no further
force or effect as of the Expiration Date.
10. Miscellaneous.
(a) Waiver. No waiver by any party hereto of any condition or any
breach of any term or provision set forth in this Agreement shall be effective
unless in writing and signed by each party hereto. The waiver of a condition or
any breach of any term or provision of this Agreement
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shall not operate as or be construed to be a waiver of any other previous or
subsequent breach of any term or provision of this Agreement.
(b) Severability. In the event that any term, provision, covenant
or restriction set forth in this Agreement, or the application of any such term,
provision, covenant or restriction to any person, entity or set of
circumstances, shall be determined by a court of competent jurisdiction to be
invalid, unlawful, void or unenforceable to any extent, the remainder of the
terms, provisions, covenants and restrictions set forth in this Agreement, and
the application of such terms, provisions, covenants and restrictions to
persons, entities or circumstances other than those as to which it is determined
to be invalid, unlawful, void or unenforceable, shall remain in full force and
effect, shall not be impaired, invalidated or otherwise affected and shall
continue to be valid and enforceable to the fullest extent permitted by
applicable law.
(c) Binding Effect; Assignment. This Agreement and all of the
terms and provisions hereof shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the Stockholder may be assigned to
any other Person without the prior written consent of Parent.
(d) Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
(e) Specific Performance; Injunctive Relief. Each of the parties
hereto hereby acknowledges that (i) the representations, warranties, covenants
and restrictions set forth in this Agreement are necessary, fundamental and
required for the protection of Parent and to preserve for Parent the benefits of
the Merger; (ii) such covenants relate to matters which are of a special,
unique, and extraordinary character that gives each such representation,
warranty, covenant and restriction a special, unique, and extraordinary value;
and (iii) a breach of any such representation, warranty, covenant or
restriction, or any other term or provision of this Agreement, will result in
irreparable harm and damages to Parent which cannot be adequately compensated by
a monetary award. Accordingly, Parent and the Stockholder hereby expressly agree
that in addition to all other remedies available at law or in equity, Parent
shall be entitled to the immediate remedy of specific performance, a temporary
and/or permanent restraining order, preliminary injunction, or such other form
of injunctive or equitable relief as may be used by any court of competent
jurisdiction to restrain or enjoin any of the parties hereto from breaching any
representations, warranties, covenants or restrictions set forth in this
Agreement, or to specifically enforce the terms and provisions hereof.
(f) Governing Law. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the internal laws of the
State of Delaware without giving effect to any choice or conflict of law
provision, rule or principle (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.
(g) Entire Agreement. This Agreement and the Proxy and the other
agreements referred to in this Agreement set forth the entire agreement and
understanding of Parent and the
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Stockholder with respect to the subject matter hereof and thereof, and supersede
all prior discussions, agreements and understandings between Parent and the
Stockholder, both oral and written, with respect to the subject matter hereof
and thereof.
(h) Notices. All notices and other communications pursuant to
this Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
respective parties at the following address (or at such other address for a
party as shall be specified by like notice):
If to Parent:
Sybase, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
One Market, Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the Stockholder: To the address for notice set forth on the
signature page hereof.
with a copy to:
New Era of Networks, Inc.
Xxx Xxxxxxxxx Xxxxx Xxxx.
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and to: Xxxxxx Godward LLP
000 Xxxxxxxxxxx Xxxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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(i) Further Assurances. The Stockholder (solely in his or her
capacity as such, but not in any other capacity including as director or officer
of the Company) shall execute and deliver any additional certificate,
instruments and other documents, and take any additional actions, as Parent may
deem necessary or desirable, in the reasonable opinion of Parent, to carry out
and effectuate the purpose and intent of this Agreement. The rights and
obligations of Stockholder contained herein are separate from and shall not
affect, any rights and obligations, including any applicable fiduciary duties,
that Stockholder may have under applicable law in such Stockholder's capacity as
an officer or director of the Company. Any such rights and obligations,
including any applicable fiduciary duties, that Stockholder may have under
applicable law in any such other capacity shall not affect the rights and
obligations of Stockholder contained herein.
(j) Headings. The section headings set forth in this Agreement
are for convenience of reference only and shall not affect the construction or
interpretation of this Agreement in any manner.
(k) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first written above.
SYBASE, INC. STOCKHOLDER:
By: /s/ Xxxx X. Xxxx By:
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Signature of Authorized Signatory Signature
Name: Xxxx X. Xxxx Name:
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Title: Chairman, CEO and President Title:
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Print Address
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Telephone
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Facsimile No.
Share beneficially owned:
_____________shares of Company Common Stock
_____________shares of Company Common Stock
issuable upon the exercise of outstanding
options, warrants or other rights
*****COMPANY STOCKHOLDER AGREEMENT*****
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of New Era of Networks, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints the directors on the Board of Directors of Sybase, Inc., a
Delaware corporation ("Parent"), and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned by the undersigned, and any and all other shares or
securities of the Company issued or issuable in respect thereof on or after the
date hereof (collectively, the "Shares") in accordance with the terms of this
Proxy. The Shares beneficially owned by the undersigned stockholder of the
Company as of the date of this Proxy are listed on the final page of this Proxy.
Upon the execution of this Proxy by the undersigned, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned hereby agrees not to grant any subsequent proxies with respect to
the Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Company
Stockholder Agreement of even date herewith by and between Parent and the
undersigned stockholder (the "Stockholder Agreement"), and is granted in
consideration of Parent entering into that certain Agreement and Plan of
Reorganization (the "Reorganization Agreement"), by and among Parent, Xxxx
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("Merger Sub"), and the Company, which provides for the merger of Merger
Sub with and into the Company in accordance with its terms (the "Merger"). As
used herein, the term "Expiration Date" shall mean the earlier to occur of (i)
such date and time as the Reorganization Agreement shall have been validly
terminated pursuant to its terms, or (ii) such date and time as the Merger shall
become effective in accordance with the terms and conditions set forth in the
Reorganization Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such
meeting:
(i) in favor of approval of the Merger and the adoption and
approval of the Reorganization Agreement, and in favor of each of the other
actions contemplated by the Reorganization Agreement and any action required in
furtherance thereof;
(ii) against approval of any proposal made in opposition to, or
in competition with, consummation of the Merger and the transactions
contemplated by the Reorganization Agreement;
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(iii) against any of the following actions (other than those
actions that relate to the Merger and the transactions contemplated by the
Reorganization Agreement): (A) any merger, consolidation, business combination,
sale of assets, reorganization or recapitalization of the Company or any
subsidiary of the Company with any party, (B) any sale, lease or transfer of any
significant part of the assets of the Company or any subsidiary of the Company,
(C) any reorganization, recapitalization, dissolution, liquidation or winding up
of the Company or any subsidiary of the Company, (D) any material change in the
capitalization of the Company or any subsidiary of the Company, or the corporate
structure of the Company or any subsidiary of the Company, or (E) any other
action that is intended, or could reasonably be expected to, impede, interfere
with, delay, postpone, discourage or adversely affect the Merger or any of the
other transactions contemplated by the Reorganization Agreement; and
(iv) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company or any subsidiary of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any subsidiary of the Company, or any sale of assets, change of
control, or acquisition of the Company or any subsidiary of the Company by any
other person, or any consolidation or merger of the Company or any subsidiary of
the Company with or into any other person.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. The undersigned stockholder may vote the
Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
[Remainder of Page Intentionally Left Blank]
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This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
Dated: February 20, 2001
Signature of Stockholder:
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Print Name of Stockholder:
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Shares beneficially owned:
__________ shares of the Company Common Stock
__________ shares of the Company Common Stock
issuable upon the exercise of outstanding options,
warrants or other rights
