EXHIBIT (C)(4)
FORM OF
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of March 23, 1999 (this
"Agreement"), is made and entered into among Sterling Software, Inc., a Delaware
corporation ("Parent"), Sterling Software (Southwest), Inc., a Delaware
corporation and indirect wholly owned subsidiary of Parent ("Purchaser"), and [
] ("Stockholder").
RECITALS:
A. Parent, Purchaser and Interlink Computer Sciences, Inc., a
Delaware corporation ("Company"), propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), pursuant to which
the Purchaser will merge with and into Company (the "Merger") on the terms and
subject to the conditions set forth in the Merger Agreement. Except as otherwise
defined herein, terms used herein with initial capital letters have the
respective meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) [ ] shares of common stock ("Common Stock"), par value
$.001 per share ("Shares"), of Company (such Shares, together with any other
shares of capital stock of Company the beneficial ownership of which is
acquired, or can be acquired upon exercise of vested options at a price equal to
or less than the Option Consideration (as defined in Section 2.1), by
Stockholder during the period from and including the date hereof through and
including the earlier of (i) the Effective Time and (ii) the date that is 120
days after the date on which the Merger Agreement is terminated pursuant to
Section 8.1 thereof, are collectively referred to herein as "Subject Shares").
C. Pursuant to the Merger Agreement, Purchaser shall commence
a cash tender offer (the "Offer") to purchase at a price of $7.00 per Share all
outstanding Shares, including all of the Subject Shares. Stockholder has advised
Parent and Purchaser that it intends to tender the Subject Shares in the Offer.
D. As a condition and inducement to Parent's and Purchaser's
willingness to enter into the Merger Agreement, Parent and Purchaser have
requested that Stockholder agree, and Stockholder has agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained in this
Agreement and the Merger Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
VOTING AGREEMENT
Section 1.1 Agreement to Vote Shares. During the period (the
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"Voting Period") from and including the date hereof through and including the
earlier of (i) the date that is 120 days after the purchase of shares of common
stock of the Company pursuant to the Offer, (ii) the date that is 120 days after
the date on which the Merger Agreement is terminated pursuant to Section 8.1
thereof, or (iii) the termination of this Agreement pursuant to Section 5.2
hereof, at any meeting of the stockholders of Company called to consider and
vote upon the adoption of the Merger Agreement (and at any and all postponements
and adjournments thereof), and in connection with any action to be taken in
respect of the adoption of the Merger Agreement by written consent of
stockholders of Company, Stockholder shall vote or cause to be voted (including
by written consent, if applicable) all of the Subject Shares, now owned or
hereafter acquired, in favor of the adoption of the Merger Agreement and in
favor of any other matter necessary for the consummation of the transactions
contemplated by the Merger Agreement and considered and voted upon at any such
meeting or made the subject of any such written consent, as applicable. During
the Voting Period, at any meeting of the stockholders of Company called to
consider and vote upon any Other Proposal (as hereinafter defined) (and at any
and all postponements and adjournments thereof), and in connection with any
action to be taken in respect of any Other Proposal by written consent of
stockholders of Company, Stockholder shall vote or cause to be voted (including
by written consent, if applicable) all of the Subject Shares against such Other
Proposal. For purposes of this Agreement, the term "Other Proposal" means any
(a) Acquisition Proposal (as defined in the Merger Agreement) or (b) other
action which is intended or could reasonably be expected to materially impede,
interfere with, delay or materially and adversely affect the consummation of the
Merger or any of the other transactions
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contemplated by the Merger Agreement or this Agreement; provided, however, that
neither the Merger nor any other transaction contemplated by the Merger
Agreement to be consummated by Company, Parent or Purchaser in connection with
the Merger shall constitute an Other Proposal. Stockholder shall not enter into
any agreement or understanding with any person or entity the effect of which
would be violative of the provisions and agreements contained in this Section
1.1.
Section 1.2 Irrevocable Proxy.
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(a) Grant of Proxy. STOCKHOLDER HEREBY APPOINTS PARENT AND ANY
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DESIGNEE OF PARENT, EACH OF THEM INDIVIDUALLY, STOCKHOLDER'S PROXY AND
ATTORNEY-IN-FACT PURSUANT TO THE PROVISIONS OF SECTION 212 OF THE DELAWARE
GENERAL CORPORATION LAW, WITH FULL POWER OF SUBSTITUTION AND RESUBSTITUTION, TO
VOTE OR ACT BY WRITTEN CONSENT DURING THE VOTING PERIOD WITH RESPECT TO THE
SUBJECT SHARES IN ACCORDANCE WITH SECTION 1.1 HEREOF. THIS PROXY IS GIVEN TO
SECURE THE PERFORMANCE OF THE DUTIES OF STOCKHOLDER UNDER THIS AGREEMENT.
STOCKHOLDER AFFIRMS THAT THIS PROXY IS COUPLED WITH AN INTEREST AND SHALL BE
IRREVOCABLE. STOCKHOLDER SHALL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER
INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY.
(b) Other Proxies Revoked. Stockholder represents that any
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proxies heretofore given in respect of the Subject Shares are not irrevocable,
and that all such proxies are hereby revoked.
ARTICLE II
OPTION
Section 2.1 Grant of Option. Stockholder hereby grants to
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Parent an irrevocable option (the "Option") to purchase the Subject Shares on
the terms and subject to the conditions set forth herein, at a price per Subject
Share equal to $7.00 in cash or any higher price that Parent or any controlled
affiliate of Parent offers to pay for the shares of Common Stock of the Company
made generally to the stockholders of the Company (such price being referred to
as the "Option Consideration").
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Section 2.2 Exercise of Option. (a) Parent may exercise the
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Option, in whole or in part, at any time or from time to time during the period
(the "Option Period") from and including the date hereof through and including
the earlier of (i) the date that is 120 days after the purchase of shares of
common stock of the Company pursuant to the Offer, or (ii) the date that the
Merger Agreement is terminated pursuant to Section 8.1 thereof, provided,
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however, that the Option shall terminate with respect to any Subject Shares that
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are tendered pursuant to the Offer and purchased by Purchaser thereunder.
Notwithstanding anything in this Agreement to the contrary, Parent shall be
entitled to purchase all Subject Shares in respect of which it shall have
exercised the Option in accordance with the terms hereof prior to the expiration
of the Option Period, and the expiration of the Option Period shall not affect
any rights hereunder which by their terms do not terminate or expire prior to or
as of such expiration.
(b) Parent shall not demand appraisal rights under Section 262
of the DGCL in respect of any Subject Shares.
(c) If Parent wishes to exercise the Option, it shall deliver
to Stockholder a written notice (an "Exercise Notice") to that effect which
specifies (i) the number of Subject Shares to be purchased from Stockholder and
(ii) a date (an "Option Closing Date") not earlier than three business days
after the date such Exercise Notice is delivered for the consummation of the
purchase and sale of such Subject Shares (an "Option Closing"). If and to the
extent necessary to deliver the number of Shares to be purchased pursuant
hereto, Stockholder shall exercise vested stock options promptly upon receipt of
an Exercise Notice. If the Option Closing cannot be effected on the Option
Closing Date specified in the Exercise Notice by reason of a preliminary or
final injunction or any other applicable judgment, decree, order, law or
regulation, or because any applicable waiting period under the HSR Act shall not
have expired or been terminated, (i) Stockholder shall promptly take all such
actions as may be reasonably requested by Parent, and shall otherwise fully
cooperate with Parent, to cause the elimination of all such impediments to the
Option Closing and (ii) the Option Closing Date specified in the Exercise Notice
shall be extended to the fifth business day following the elimination of all
such impediments. The place of the Option Closing shall be at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Embarcadero Center, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, and the time of the Option Closing shall be 10:00
a.m. (New York Time) on the Option Closing Date.
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Section 2.3 Payment and Delivery of Certificates. At any
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Option Closing, Parent shall pay to Stockholder the Option Consideration payable
in respect of the Subject Shares to be purchased from Stockholder at the Option
Closing, and Stockholder shall deliver to Parent such Subject Shares, free and
clear of all Liens, with the certificate or certificates evidencing such Subject
Shares being duly endorsed for transfer by Stockholder and accompanied by all
powers of attorney and/or other instruments necessary to convey valid and
unencumbered title thereto to Parent, and shall, to the extent permissible,
assign to Parent (pursuant to a written instrument in form and substance
satisfactory to Parent) all rights that Stockholder may have to require Company
to register such Subject Shares under the Securities Act. Transfer taxes, if
any, imposed as a result of the exercise of the Option shall be borne by
Stockholder.
Section 2.4 Adjustment upon Changes in Capitalization, Etc. In
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the event of any change in the capital stock of Company by reason of a stock
dividend, split-up, merger, recapitalization, combination, exchange of shares,
extraordinary distribution or similar transaction, the type and number or amount
of shares, securities or other property subject to the Option, and the Option
Consideration payable therefor, shall be adjusted appropriately so that Parent
shall receive upon exercise of Option the type and number or amount of shares,
securities or property that Parent would have retained and/or been entitled to
receive in respect of the Subject Shares if the Option had been exercised
immediately prior to such event relating to Company or the record date therefor,
as applicable. The provisions of this Section 2.4 shall apply in a like manner
to successive stock dividends, split-ups, mergers, recapitalizations,
combinations, exchanges of shares or extraordinary distributions or similar
transactions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Certain Representations and Warranties of Stock
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holder. Stockholder represents and warrants to Parent and Purchaser as follows:
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(a) Ownership. Stockholder is the sole record and beneficial
---------
owner of [ ] Shares and has full and unrestricted power to dispose of and
to vote such Shares. Stockholder is the beneficial owner of options to
purchase [ ] Shares of which [ ] options to purchase Shares are
fully vested. Stockholder
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does not beneficially own any securities of Company on the date hereof other
than such Shares. Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Articles I and II hereof,
sole power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Subject Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Power and Authority; Execution and Delivery. Stockholder
-------------------------------------------
has all requisite legal capacity, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Stockholder and the consummation by
Stockholder of the transactions contemplated hereby have been duly authorized by
all necessary action on the part of Stockholder. This Agreement has been duly
executed and delivered by Stockholder and, assuming that this Agreement
constitutes the valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of Stockholder, enforceable against
Stockholder in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and to general principles of
equity.
(c) No Conflicts. The execution and delivery of this Agreement
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do not, and, subject to compliance with the HSR Act and securities laws, to the
extent applicable, the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not (i) conflict with or result in
any breach of any organizational documents applicable to Stockholder or (ii)
conflict with, result in a breach or violation of or default (with or without
notice or lapse of time or both) under, or give rise to a material obligation, a
right of termination, cancellation, or acceleration of any obligation or a loss
of a material benefit under, or require notice to or the consent of any person
under any agreement, instrument, undertaking, law, rule, regulation, judgment,
order, injunction, decree, determination or award binding on Stockholder, other
than any such conflicts, breaches, violations, defaults, obligations, rights or
losses that individually or in the aggregate would not (i) materially impair the
ability of Stockholder to perform Stockholder's obligations under this Agreement
or (ii) prevent or delay the consummation of any of the transactions
contemplated hereby.
(d) No Encumbrances. Except as applicable in connection with
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the transactions contemplated by Articles I and II hereof, the Subject Shares
and the
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certificates representing the Subject Shares are now, and at all times during
the term hereof will be, held by Stockholder, or by a nominee or custodian for
the benefit of Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder or any such encumbrances not caused or created by
Stockholder.
(e) No Finder's Fees. No broker, investment banker, financial
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advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of Stockholder.
Section 3.2 Representations and Warranties of Parent and
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Purchaser. Parent and Purchaser hereby represent and warrant to Stockholder
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that:
(a) Power and Authority; Execution and Delivery. Parent and
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Purchaser each has all requisite legal capacity, corporate power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Parent and Purchaser and
the consummation by Parent and Purchaser of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Parent and Purchaser. This Agreement has been duly executed and delivered by
Parent and Purchaser and, assuming that this Agreement constitutes the valid and
binding obligation of Stockholder, constitutes a valid and binding obligation
of Parent and Purchaser, enforceable against Parent and Purchaser in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and to general principles of equity.
(b) No Conflicts. The execution and delivery of this Agreement
------------
do not, and, subject to compliance with the HSR Act, to the extent applicable,
the consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not (i) conflict with or result in any breach of any
organizational documents applicable to Parent or Purchaser or (ii) conflict
with, result in a breach or violation of or default (with or without notice or
lapse of time or both) under, or give rise to a material obligation, right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, law, rule, regulation, judgment, order,
injunction, decree, determination or award binding
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on Parent or Purchaser, other than any such conflicts, breaches, violations,
defaults, obligations, rights or losses that individually or in the aggregate
would not (i) impair the ability of Parent and Purchaser to perform their
obligations under this Agreement or (ii) prevent or delay the consummation of
any of the transactions contemplated hereby.
(c) Purchase Not for Distribution. The Option and the Subject
-----------------------------
Shares to be acquired upon exercise of the Option are being and shall be
acquired by Parent without a view to public distribution thereof otherwise than
in compliance with the Securities Act and applicable state securities laws and
shall not be transferred or otherwise disposed of except in a transaction
registered or exempt from registration under the Securities Act and in
compliance with applicable state securities laws.
ARTICLE IV
CERTAIN COVENANTS
Section 4.1 Certain Covenants of Stockholder.
--------------------------------
(a) Restriction on Transfer of Subject Shares, Proxies and
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Noninterference. During the period (the "Restricted Period") from and including
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the date hereof through and including the earlier of (i) the Effective Time and
(ii) the end of the Option Period (or, in the case of clause (B), the end of the
Voting Period), Stockholder shall not, directly or indirectly: (A) except
pursuant to the terms of this Agreement and except for the tender of Subject
Shares in the Offer, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition of,
any or all of the Subject Shares; (B) except pursuant to the terms of this
Agreement, grant any proxies (other than proxies relating to the election of
management's slate of directors at an annual meeting of Company's stockholders,
and other routine matters which would not require the filing of a preliminary
proxy statement under Rule 14a-6(a) of the Exchange Act), or powers of attorney,
deposit any of the Subject Shares into a voting trust or enter into a voting
agreement with respect to any of the Subject Shares; or (C) take any action that
would make any representation or warranty contained herein untrue or incorrect
or have the effect of impairing the ability of Stockholder to perform
Stockholder's obligations under this
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Agreement or preventing or delaying the consummation of any of the transactions
contemplated hereby or by the Merger Agreement.
(b) Cooperation. Stockholder, in the capacity as a
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stockholder, shall cooperate fully with Parent, Purchaser and Company in
connection with their respective efforts to fulfill the conditions to the Merger
set forth in Article VII of the Merger Agreement.
(c) Releases. Stockholder hereby fully, unconditionally and
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irrevocably releases, effective as of the Effective Time, any and all claims and
causes of action that Stockholder has or may have against Company or any of its
Subsidiaries or any present or former director, officer, employee or agent of
Company or any of its Subsidiaries (collectively, the "Released Parties")
arising or resulting from or relating to any act, omission, event or occurrence
prior to the Effective Time; provided, however, that such release shall not
apply to any claim or cause of action insofar as it relates to any entitlement
to indemnification, or to compensation or benefits earned or accrued by or for
the benefit of Stockholder prior to the Effective Time in respect of services
performed by Stockholder to Company as a director, officer, consultant or
employee of Company.
(d) No Solicitation. Stockholder shall not, in the capacity as
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a stockholder, respond to any inquiries or the making of any proposal by any
person or entity (other than Parent or any affiliate of Parent) concerning any
business combination merger, tender offer, exchange offer, sale of assets, sale
of shares of capital stock or debt securities or similar transactions involving
Company or any Subsidiary, division or operating or principal business unit of
Company. If Stockholder, in the capacity as a Stockholder, receives any such
inquiry or proposal, then Stockholder shall promptly inform Parent of the
existence thereof. Stockholder, in the capacity as a Stockholder, will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
(e) Reliance by Parent. Stockholder understands and
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acknowledges that Parent and Purchaser are entering into, the Merger Agreement
in reliance upon Stockholder's execution and delivery of this Agreement.
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ARTICLE V
MISCELLANEOUS
Section 5.1 Fees and Expenses. Each party hereto shall pay its
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own expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 5.2 Amendment; Termination. This Agreement may not be
----------------------
amended except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement and the proxies granted pursuant to Section 1.2
shall terminate immediately following (i) termination of the Merger Agreement
pursuant to Section 8.1(a) thereof, provided at the time of such termination the
parties intend to abandon the transactions contemplated by the Merger Agreement
or (ii) termination of the Merger Agreement pursuant to Section 8.1(d)(iv)
thereof, provided at the time of such termination Company is not in breach of
the Merger Agreement or (iii) any termination of the Merger Agreement solely
because the condition contained in Section 7.1(d) of the Merger Agreement is
incapable of being fulfilled.
Section 5.3 Extension; Waiver. Any agreement on the part of a
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party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
Section 5.4 Entire Agreement; No Third-Party Beneficiaries.
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This Agreement constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement, and is not intended to confer
upon any person other than the parties any rights or remedies; provided,
however, that the provisions of Section 4.1(c) are intended to inure to the
benefit of, and to be enforceable by, the Released Parties.
Section 5.5 Governing Law. This Agreement shall be governed
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by, and construed in accordance with, the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles
of conflict of laws thereof.
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Section 5.6 Notices. All notices, requests, claims, demands
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and other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, or sent by overnight courier or telecopy
(providing proof of delivery) to the address set forth below (or, in each case,
at such other address as shall be specified by like notice).
If to Parent or Purchaser:
Sterling Software, Inc.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxx X. XxXxxxxxx, Xx., Esq.
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
If to Stockholder:
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxxx, Esq.
Telecopy: (000) 000-0000
Section 5.7 Assignment. Neither this Agreement nor any of the
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rights, interests, or obligations under this Agreement may be assigned or
delegated, in whole or in part, by Stockholder without the prior written consent
of Parent, and
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any such assignment or delegation that is not consented to shall be null and
void. This Agreement, together with any rights, interests, or obligations of
Parent and Purchaser hereunder, may be assigned or delegated, in whole or in
part, by Parent and Purchaser without the consent of or any action by
Stockholder upon notice by Parent or Purchaser to Stockholder as herein
provided. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns (including without limitation any person to
whom any Subject Shares are sold, transferred, assigned or passed, whether by
operation of law or otherwise).
Section 5.8 Confidentiality. Stockholder recognizes that
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successful consummation of the transactions contemplated by this Agreement may
be dependent upon confidentiality with respect to the matters referred to
herein. In this connection, pending public disclosure thereof, Stockholder
hereby agrees not to disclose or discuss such matters with anyone not a party to
this Agreement (other than its counsel and advisors, if any) without the prior
written consent of Parent, except for filings required pursuant to the Exchange
Act and the rules and regulations thereunder or disclosures its counsel advises
are necessary in order to fulfill its obligations imposed by law, in which event
Stockholder shall give notice of such disclosure to Parent as promptly as
practicable so as to enable Parent to seek a protective order from a court of
competent jurisdiction with respect thereto.
Section 5.9 Further Assurances. Stockholder shall execute and
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deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Parent or
Purchaser in order to ensure that Parent and Purchaser receive the full benefit
of this Agreement.
Section 5.10 Enforcement. Irreparable damage would occur in
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the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
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 the Court of Chancery in and for New Castle County in the
State of Delaware (or, if such court lacks subject matter jurisdiction, any
appropriate state or federal court in New Castle County in the State of
Delaware), this being in addition to any other remedy to which they are entitled
at law or in equity. Each of the parties hereto (i) shall submit itself to the
personal jurisdiction of the Court of Chancery in and for New Castle County in
the State of Delaware (or, if such court lacks subject matter jurisdiction, any
appro-
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priate state or federal court in New Castle County in the State of Delaware) in
the event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (ii) shall not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, and (iii)
shall not bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than the Court of Chancery in and for New
Castle County in the State of Delaware (or, if such court lacks subject matter
jurisdiction, any appropriate state or federal court in New Castle County in the
State of Delaware).
Section 5.11 Severability. Whenever possible, each provision
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or portion of any provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 5.12 Descriptive Headings. The descriptive headings
--------------------
used herein are inserted for convenience of reference only and are not intended
to be part of or to affect the meaning or interpretation of this Agreement.
Section 5.13 Counterparts. This Agreement may be executed in
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one or more counterparts, all of which shall be considered one and the same
instrument and shall become effective when one or more counterparts have been
signed by each party and delivered to the other parties.
[signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
STERLING SOFTWARE, INC.
By:
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Name: Xxx X. XxXxxxxxx, Xx.
Title: Senior Vice President
STERLING SOFTWARE (SOUTHWEST), INC.
By: ___________________________
Name: Xxx X. XxXxxxxxx, Xx.
Title: Vice President
______________________________
[ ]
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ANNEX
Share Ownership for Stockholders who
executed Stockholder Agreements
SHARES ISSUABLE OPTIONS VESTED AS
OUTSTANDING PURSUANT TO OF MARCH 23,
STOCKHOLDER SHARES OUTSTANDING OPTIONS 1999
------------------------------------ --------------- ------------------------- ---------------------
Directors and Officers:
Xxxxx X. Xxxxxxx 0 18,750 4,688
Xxxxxx X. Xxxxxx 0 26,250 10,001
Xxxxxx X. Xxxxxxx 21,000 74,250 58,001
Xxxxxxxx X. Berkeley 17,522 412,300 129,455
Xxxxxxx X. Xxxxx 13,746 60,000 13,938
Xxxxxxxxxxx X. Xxxxxx 13,934 47,500 21,043
Xxxxxx X. Xxxxxxxx 15,000 75,000 18,752
Xxxxx X. Xxxxx 19,352 90,000 25,714
Xxxxxxx X. Xxxxxxxxxxx 1,282 50,000 22,917
Other Stockholders:
CISCO Systems, Inc. 622,000 0 0
(Advent International Entities)
Adtel, L.P. 38,629 0 0
Adventact, L.P. 21,461 0 0
Advent International Investors II
L.P. 861 0 0
Adwest L.P. 17,169 0 0
Global Private Equity II L.P. 322,029 0 0
Golden Gate Development and
Investment L.P. 47,083 0 0
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1,171,068 854,050 304,509
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