Exhibit 10(k)
STOCK APPRECIATION RIGHTS AGREEMENT
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THIS STOCK APPRECIATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of November 7, 1997 (the "Effective Date"), by and between
FOOTHILL CAPITAL CORPORATION, a California corporation ("Foothill"), and
COMPUTERVISION CORPORATION, a Delaware corporation ("Computervision").
WHEREAS, Foothill and Computervision are parties to that certain
Amended and Restated Loan and Security Agreement, dated as of even date herewith
(as amended, restated, supplemented, renewed, extended, or refinanced from time
to time, the "Loan Agreement"), by and between, on the one hand, Foothill, and,
on the other hand, Computervision, CV Finance Holding, Inc, CV International
Holding, Inc., Computervision Securities Corporation, Concentus Technology
Corporation, and Windchill Technology Corporation (collectively, the
"Borrower");
WHEREAS, pursuant to the terms of the Loan Agreement, Borrower is
obligated to repay Foothill a portion of the obligations under the Loan
Agreement in the principal amount of $2,250,000, accruing interest at ten
percent (10%) per annum (subject to increase pursuant to the terms set forth in
the Loan Agreement) (the "Facility Premium Advance"), which Facility Premium
Advance is due and payable in full in cash within eighteen (18) months from the
Effective Date or as otherwise provided in the Loan Agreement; and
WHEREAS, as a condition to the consummation of the Loan Agreement,
Computervision shall grant to Foothill the right to acquire certain stock
appreciation rights in the Common Stock of Computervision in accordance with the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
parties hereto agree as follows:
1. SAR Option. Computervision hereby grants to Foothill, or its
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permitted assigns, the right to use all, but no less than all, of the Facility
Premium Advance to purchase and exercise stock appreciation rights (each, a
"SAR," and collectively, "SARs") in the Common Stock of Computervision at a
price of $3.50 per SAR (the "SAR Option")(such price and such other price as
shall result, from time to time, from the adjustments specified in Section 4
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below is herein referred to as the "Exercise Price"), subject to the provisions
and upon the terms and conditions hereinafter set forth. As used herein, (a)
the term "Common Stock" shall mean Computervision's presently authorized Common
Stock, par value $0.01 per share, which is currently traded on The New York
Stock Exchange (the "NYSE") under the symbol "CVN." The exercise of the SAR
Option by Foothill shall be in accordance with Section 2 of this Agreement.
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2. Method of Exercising the SAR Option. When the Facility Premium
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Advance becomes due and payable in accordance with the terms of the Loan
Agreement (the "Premium Payment Date"), Foothill may elect to, in lieu of
receiving payment of the Facility
Premium Advance in cash, use the Facility Premium Advance to exercise the SAR
Option as follows:
a. In the event of Computervision's prepayment of the Facility
Premium Advance (other than in connection with the PTC Merger (as defined in the
Loan Agreement)) or Computervision's payment of the Facility Premium Advance
upon its maturity, Computervision shall provide Foothill with ten (10) days
prior written notice of such Premium Payment Date. In such event, Foothill may
elect to use the Facility Premium Advance to exercise the SAR Option by delivery
of the notice of election (the "Notice of Election") attached hereto as Exhibit
A, duly executed, to Computervision no later than three (3) days prior to the
Premium Payment Date. In the event of Computervision's prepayment of the
Facility Premium Advance in connection with the PTC Merger, Foothill may elect
to use the Facility Premium Advance to exercise the SAR Option by delivery of
the Notice of Election to Computervision no later than three (3) days after the
receiving written notice from Computervision of the consummation of the PTC
Merger.
b. In the event the Facility Premium Advance becomes due and
payable in accordance with the terms of the Loan Agreement other than as set
forth in Section 2(a) above, Foothill may elect to use the Facility Premium
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Advance to exercise the SAR Option by delivery of the Notice of Election, duly
executed, to Computervision no later than seven (7) days after such Premium
Payment Date.
If Foothill does not elect to exercise the SAR Option pursuant to
either Section 2(a) or Section 2(b) above, the SAR Option shall expire and
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terminate in full. If the Facility Premium Advance is used to exercise the SAR
Option, the obligation of Computervision to pay the Facility Premium Advance
shall concurrently be deemed to have been discharged in full. The amount of the
Facility Premium Advance used to exercise the SAR Option is hereafter referred
to as the "Option Payment."
3. Method of Exercising the SARs; Conversion to SARs; Value and
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Payment of SARs. The SARs are exercisable at any time during the period from
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the date of the Notice of Election through and including November 7, 2002 (the
"Exercise Term").
a. Method of Exercise. On or after the exercise of the SAR
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Option, Foothill may exercise all or any number of the SARs at any time during
the Exercise Term (each an "Exercise Date" in connection with such exercise) by
delivery of the notice of exercise attached hereto as Exhibit B, duly executed,
to Computervision.
b. Calculation of SARs.
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(i) Upon Foothill's exercise of the SARs, Foothill shall
receive that number of SARs equal to the quotient obtained by dividing (y) the
amount equal to that portion of the Option Payment that Foothill elects to use
to exercise such SARs (the "Exercise Payment"), by (z) the Exercise Price on the
Exercise Date.
Expressed as a formula, such conversion shall be computed as follows:
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X=A
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B
Where: X = the number of SARs
A = the Exercise Payment
B = the Exercise Price on the Exercise Date
(ii) In the event that Foothill exercises only a portion
of the SARs at any one time, the amount of the Option Payment available for the
calculation of the number of SARs under this Section 3(b) shall decrease by the
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aggregate amount of Exercise Payment used for previous exercises of SARs by
Foothill.
c. Value and Payment of SARs.
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(i) Upon the calculation of the number of SARs due
Foothill pursuant to Section 3(b) above, Computervision shall pay to Foothill in
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cash the value of such SARs (the "Aggregate SAR Value"), which Aggregate SAR
Value shall equal the product obtained by multiplying (i) the number of SARs due
Foothill pursuant to Section 3(b), by (ii) the difference between (A) the
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Current Market Price (as defined in Section 4(d) below), minus (B) the Exercise
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Price on the Exercise Date. Upon payment of such Aggregate SAR Value, the SARs
for which payment has been made shall be cancelled without any further payment
by Computervision.
Expressed as a formula, such Aggregate SAR Value shall be computed as
follows:
Z = (X)(C-B)
Where: Z = the Aggregate SAR Value
X = the number of SARs
C = the Current Market Price
B = the Exercise Price on the Exercise Date
(ii) The Aggregate SAR Value shall be paid in full to
Foothill within thirty (30) days after the Exercise Date (the "SAR Payment
Date"). In the event that the Aggregate SAR Value is not paid in full on or
before the SAR Payment Date, the unpaid portion of the Aggregate SAR Value shall
accrue interest at a rate of sixteen and one-half percent (16 1/2%) per annum
until such Aggregate SAR Value is paid in full. The foregoing notwithstanding,
in the event Computervision fails to pay the Aggregate SAR Value in full by the
SAR Payment Date, Foothill may proceed to protect and enforce its rights
hereunder pursuant to the Section 14 of this Agreement.
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4. Adjustment of Exercise Price and Number of Shares. The Exercise
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Price shall be subject to adjustment from time to time upon the occurrence of
certain events between the Effective Date and the expiration of the Exercise
Term, as follows:
a. Reclassification or Merger.
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(i) Except as provided in Section 4(a)(ii) below, in case
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of any reclassification, change, exchange or conversion of securities underlying
the SARs (other than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination), or in case of any merger of Computervision with or into another
corporation (other than a merger with another corporation in which
Computervision is the acquiring and the surviving corporation and which does not
result in any reclassification or change of outstanding securities underlying
the SARs), Computervision, or such successor, as the case may be, shall duly
execute and deliver to Foothill a new Stock Appreciation Rights Agreement (in
form and substance reasonably satisfactory to Foothill), so that Foothill shall
have the right to receive, at an aggregate exercise price not to exceed that
payable upon the exercise of the SARs, the Aggregate SAR Value receivable upon
such reclassification, change or merger that Foothill would have been entitled
to receive under this Agreement.
(ii) In the event of a transaction in which the common
stock of Computervision is exchanged or converted solely into capital stock (the
"Successor Stock") of another corporation (the "Successor"), then the Successor
shall assume all of Computervision's obligations hereunder, so that Foothill
shall have the right to receive SARs with the Exercise Price that is adjusted to
reflect the exchange ratio used in the exchange of Computervision Common Stock
for the Successor Stock of the Successor as provided in such transaction. The
Exercise Price of such new SARs shall be subject to adjustments that shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 4. The provisions of this subparagraph (a)(ii) shall similarly apply to
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successive reclassifications, changes, mergers and transfers.
b. Subdivision or Combination of Shares. If Computervision at
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any time between the Effective Date and the expiration of the Exercise Term
shall subdivide or combine its outstanding shares of Common Stock, the Exercise
Price shall be proportionately decreased in the case of a subdivision or
increased in the case of a combination, effective at the close of business on
the date the subdivision or combination becomes effective.
c. Stock Dividends and Other Distributions. If Computervision
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at any between the Effective Date and the expiration of the Exercise Term shall
(i) pay a dividend with respect to Common Stock payable in Common Stock, or (ii)
make any other distribution of Common Stock (except any distribution
specifically provided for in the foregoing sub paragraphs (a) and (b)) with
respect to Common Stock, then the Exercise Price shall be adjusted, from and
after the date of determination of shareholders entitled to receive such
dividend or distribution, to that price determined by multiplying the Exercise
Price in effect immediately prior to such date of determination by a fraction
(i) the numerator of which shall be the total
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number of shares of Common Stock outstanding immediately prior to such dividend
or distribution, and (ii) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such dividend or
distribution.
d. Determination of Current Market Price. For purposes of this
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Agreement, "Current Market Price" means the per share value of the Common Stock
of Computervision as of a particular date (the "Computation Date") and shall be
deemed to be the average of the daily closing prices of the Common Stock for the
fifteen (15) consecutive trading days immediately preceding the Computation
Date; provided, however, that if there shall have occurred prior to the
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Computation Date a combination or reclassification of the outstanding shares of
Common Stock into a smaller number of shares and such action or transaction
shall have become effective with respect to market transactions at any time (the
"Market-Effect Date") on or after the beginning of such period of fifteen (15)
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consecutive trading days, then the closing price for each trading day preceding
the Market-Effect Date shall be adjusted, for purposes of calculating the
Current Market Price, by multiplying such closing price by a fraction, the
numerator of which is the Exercise Price in effect immediately prior to the
Computation Date and the denominator of which is the Exercise Price in effect
immediately prior to the Market-Effect Date. The closing price for each day
shall be (1) if the security is traded on a national securities exchange (i) its
last sale price on such day or, (ii) if there was no sale on that day, the last
sale price on the next preceding business day on which there was a sale, all as
made available over the Consolidated Last Sale Reporting System of the
Consolidated Tape Association Plan, or (iii) if the security is not then
eligible for reporting over this system, its last sale price on such day on such
national securities exchange or, if there was no sale on that day, on the next
preceding business day on which there was a sale on such exchange, or (2) if the
security is not traded on a national securities exchange but trades solely in
the over-the-counter market and the security is quoted on the National
Association of Securities Dealers Automated Quotations System ("NASDAQ") (i) the
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last sale price on such day reported on NASDAQ or (ii) if the security is an
issue for which last sale prices are not reported on NASDAQ, the average of the
closing bid and ask quotations on such day, but, in each of the next preceding
two cases, if the relevant NASDAQ price or quotation did not exist on such day,
then the price or quotation on the next preceding business day on which there
was such a price or quotation or, (iii) if the security is not reported or
quoted on NASDAQ, the highest average bid and ask quotations on such day as
quoted in any of The Wall Street Journal, the National Quotation Bureau, Inc.
pink sheets, the Salomon Brothers quotation sheets, quotation sheets of
registered market makers and, if necessary, dealers' telephone quotations, or,
(3) if no price can be determined on the basis of the above methods of
valuation, then the judgment of valuation shall be made in good faith by the
Board of Directors of Computervision (the "Board"). If the Board is unable to
determine any valuation, or if Foothill disagrees with the Board's determination
of the valuation by written notice delivered to Computervision within ten (10)
days after the Board's determination thereof is communicated to Foothill, then
Computervision and Foothill shall select a mutually acceptable investment
banking firm of national reputation which has not been engaged by Computervision
or any subsidiary of Computervision, or Foothill within the preceding two years,
which shall determine such valuation. Such investment banking firm's
determination of such valuation shall be final, binding and conclusive on
Computervision and Foothill. If the Board was unable to determine such
valuation, all costs and fees of such investment banking firm shall be borne by
Computervision. With respect to any disagreement
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of Foothill with the Board's determination of such valuation, if such investment
banking firm's determination of such valuation is disparate by less than seven
and one-half percent (7.5%) from the Board's determination, all costs and fees
of such investment banking firm shall be borne by Foothill and if such
determination is disparate by seven and one-half percent (7.5%) or more from the
Board's determination, the costs and fees of such investment banking firm shall
be borne by Computervision. In the event that Current Market Price is required
to be determined with reference to Successor Stock, references in this
subsection (d) to Computervision, its Common Stock and its Board shall be deemed
to mean the Successor, Successor Stock and the Successor's Board of Directors.
5. Notice of Adjustments. Whenever the Exercise Price shall be
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adjusted pursuant to Section 4 hereof, Computervision shall make a certificate
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signed by its chief financial officer setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated, and the Exercise Price after giving effect
to such adjustment, which shall be mailed (without regard to Section 9 hereof,
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by first class mail, postage prepaid) to Foothill.
6. Additional Rights. In the event that Computervision undertakes
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to (i) sell, lease, exchange, convey or otherwise dispose of all or
substantially all of its property or business, or (ii) merge into or consolidate
with any other corporation (other than a wholly-owned subsidiary of
Computervision), or effect any transaction (including a merger or other
reorganization) or series of related transactions, in which more than 50% of the
voting power of Computervision is disposed of, Computervision shall provide
Foothill with at least thirty (30) days notice of the terms and conditions of
the proposed transaction. Computervision shall not consummate any such
transaction without first complying with this Section 6. Foothill confirms that
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it has been given notice of the terms and conditions of the PTC Merger as
defined in the Loan Agreement.
7. Representations and Warranties. Computervision represents and
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warrants to Foothill as follows:
a. This Agreement has been duly authorized by Computervision
and is a valid and binding obligation of Computervision enforceable in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and the rules of law or
principles at equity governing specific performance, injunctive relief and other
equitable remedies;
b. The rights, preferences, privileges and restrictions granted
to or imposed upon the Common Stock and the holders thereof are as set forth in
the articles or certificate of incorporation of Computervision, as amended to
the Effective Date (as so amended, the "Charter"), a true and complete copy of
which has been delivered to Foothill;
c. The execution and delivery of this Agreement are not, and
the exercise of the SAR Option and the SARs in accordance with the terms hereof
will not be, inconsistent with the Charter or by-laws of Computervision, do not
and will not contravene, in any material respect, any governmental rule or
regulation, judgment or order applicable to
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Computervision, and do not and will not conflict with or contravene any
provision of, or constitute a default under, any indenture, mortgage, contract
or other instrument of which Computervision is a party or by which it is bound
or require the consent or approval of, the giving of notice to, the registration
or filing with or the taking of any action in respect of or by, any Federal,
state or local government authority or agency or other person, except for the
filing of notices pursuant to federal and state securities laws, which filings
will be effected by the time required thereby;
d. There are no actions, suits, audits, investigations or
proceedings pending or, to the knowledge of Computervision, threatened against
Computervision in any court or before any governmental commission, board or
authority which, if adversely determined, will have a material adverse effect on
the ability of Computervision to perform its obligations under this Agreement;
e. The authorized capital stock of Computervision consists of
100,000,000 shares of Common Stock par value $0.01 per share, and 5,000,000
shares of Preferred Stock, par value $0.01 per share, of which 63,725,393 shares
of Common Stock, and no shares of Preferred Stock, were issued and outstanding
as of the close of business on October 31, 1997. All such outstanding shares
have been validly issued and are fully paid, nonassessable shares free of
preemptive rights;
f. Except for the SAR Option and the SARs and as set forth on
Schedule 5.8 of the Loan Agreement and incorporated herein, there are no
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subscriptions, rights, options, warrants, or calls relating to any shares of
Computervision's capital stock, including any right of conversion or exchange
under any outstanding security or other instrument; and
g. Except as disclosed in Computervision's most recent Proxy
Statement and Form 10-K, Computervision is not subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any
shares of its capital stock or any security convertible into or exchangeable for
any of its capital stock.
8. Modification and Waiver. This Agreement and any provision hereof
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may be changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of the same is sought.
9. Notices. Any notice, request, communication or other document
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required or permitted to be given or delivered to Foothill or Computervision
shall be delivered, or shall be sent by private courier or certified or
registered mail, postage prepaid, to Foothill or to Computervision at the
address indicated therefor on the signature page of this Agreement.
10. Binding Effect on Successors. This Agreement shall be binding
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upon any corporation or other entity succeeding Computervision by merger,
consolidation or acquisition of all or substantially all of Computervision's
assets, and all of the obligations of Computervision relating to the SARs
issuable upon the exercise of the SAR Option shall survive the exercise and
termination of the SARs and all of the covenants and agreements of
Computervision shall inure to the benefit of the successors and assigns of
Foothill.
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Computervision will, at the time of the exercise of the SAR Option or the SARs,
upon request of Foothill but at Computervision's expense, acknowledge in writing
its continuing obligation to Foothill in respect of any rights to which Foothill
shall continue to be entitled after such exercise in accordance with this
Agreement; provided, that the failure of Foothill to make any such request shall
not affect the continuing obligation of Computervision to Foothill in respect of
such rights. This Agreement shall not be assigned by Foothill other than (i) an
assignment of the SAR Option in connection with an assignment in whole of the
Facility Premium Advance and (ii) an assignment of the SARs to no more than five
(5) Persons (as defined in the Loan Agreement) in the aggregate.
11. Descriptive Headings. The descriptive headings of the several
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paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
12. Governing Law. This Agreement shall be construed and enforced in
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accordance with, and the rights of the parties shall be governed by, the laws of
the State of New York.
13. Survival of Representations, Warranties and Agreements. All
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representations and warranties of Computervision and Foothill contained herein
shall survive the Effective Date, the exercise of the SAR Option, the exercise
of the SARs or the termination or expiration of rights hereunder. All
agreements of Computervision and Foothill contained herein shall survive
indefinitely until, by their respective terms, they are no longer operative.
14. Remedies. In case any one or more of the covenants and
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agreements contained in this Agreement shall have been breached, Foothill (in
the case of a breach by Computervision), or Computervision (in the case of a
breach by Foothill), may proceed to protect and enforce their or its rights
either by suit in equity and/or by action at law, including, but not limited to,
an action for damages as a result of any such breach and/or an action for
specific performance of any such covenant or agreement contained in this
Agreement.
15. Attorneys' Fees. In the event suit or action is brought by any
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party under this Agreement to enforce or construe any of its terms, the
prevailing party shall (as determined by the court or arbitrator, as applicable)
be entitled to recover, in addition to all other amounts and relief, its
reasonable costs and attorneys fees incurred at and in preparation for trial,
arbitration, appeal and review.
16. No Impairment of Rights. Computervision will not, by amendment
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of its Charter or through any other means, avoid or seek to avoid the observance
or performance of any of the terms of this Agreement, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such action as may be necessary or appropriate in order to protect the rights of
Foothill against impairment.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties hereto as of the date first above written.
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:__________________________________
Name:________________________________
Title:_______________________________
Address: _____________________________________
_____________________________________
COMPUTERVISION CORPORATION,
a Delaware corporation
By:__________________________________
Name:________________________________
Title:_______________________________
Address: _____________________________________
_____________________________________
[SIGNATURE PAGE TO THE STOCK APPRECIATION RIGHTS AGREEMENT]
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