EXHIBIT 2.3
November 2, 2002
Industri-Matematik International Corp.
Board of Directors
Stadsgarden 10
Xxx 000 00
XX-000 00 Xxxxxxxxx
XXXXXX
Att'n: Xxxxxxxx X. Xxxxxx, Chairman of the Board
To Whom It May Concern:
Reference is made to the Merger Agreement (the "Agreement") to be entered
into between Industri-Matematik International Corp. ("IMI"), a Delaware
corporation, STG, an exempted company incorporated with limited liability
in the Cayman Islands and STG OMS Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of STG ("STG OMS").
Capitalized terms used in this letter and not otherwise defined in this
letter shall have the meaning ascribed to them in the Agreement. In
order to induce IMI to enter into the Agreement we are writing to inform
you that Symphony Technology Group II-A, a Delaware limited partnership
(the "Fund"), hereby agrees that (a) within 5 business days of the
execution of the Merger Agreement, a segregated bank account in the name
of the Fund containing no less than $11,500,000 ("Merger Closing Funds")
in good federal funds will be opened at Silicon Valley Bank (the "Bank")
and maintained with such amount free and clear of all liens until there
is a termination of the Agreement in accordance with its terms or the
Offer and the Merger have been consummated in accordance with the terms
of the Agreement, (b) the Merger Closing Funds will be used, subject to
the terms and conditions of the Agreement, solely to take up and pay for
the Shares under the Offer and to pay the Merger Consideration pursuant
to the Agreement for so long as the Agreement is in effect, and (c) it
shall cause Parent and Merger Subsidiary to perform their obligations to
fund and consummate the Offer on the terms provided for in the Agreement.
If the transactions contemplated by the Agreement are not consummated as
a result of a breach by Parent or Merger Subsidiary of their obligations
under the Agreement, the Fund shall pay $1,000,000 as liquidated damages
in lieu of any other remedy of IMI under the Agreement.
If the Fund certifies to the Bank that the Agreement has been terminated,
the Merger Closing Funds will be released by the Bank to the Fund, except
that if there is a dispute at the time of such termination relating to an
alleged breach by Parent or Merger Subsidiary of their obligations under
the Agreement, $1,000,000 of such Merger Closing Funds, to the extent not
paid to IMI at the time of such termination as liquidated damages, shall
be deposited by the Fund in an escrow account pursuant to the terms and
conditions of an escrow agreement reasonably acceptable to IMI, and such
amount of $1,000,000 shall remain deposited in such account for the
duration of such dispute.
The Fund agrees to provide evidence reasonably satisfactory to IMI that
the Fund has deposited the Merger Closing Funds and, subject to the terms
and conditions set forth in the foregoing paragraph, the amount of
$1,000,000, in each case free and clear of any liens, with the Bank or in
the escrow account, as applicable. Upon reasonable request of the board
of directors of IMI, the Fund shall authorize an officer of IMI to verify
with the financial custodian that such funds are deposited with such
custodian and that they are free and clear of any liens.
By his signature below, Xx. Xxxxxx Xxxxxxxx agrees to provide the Merger
Closing Funds to the Fund.
If any litigation arises between the parties hereto out of the
obligations of the Fund under this letter or concerning the meaning or
interpretation of any provision contained herein, the losing party shall
pay the prevailing party's costs and expenses of such litigation
including, without limitation, reasonable attorneys' fees.
Any suit, action or proceeding seeking to enforce any provision of, or
based on any matter arising out of or in connection with, this letter or
the transactions contemplated hereby may be brought in any federal court
located in the State of Delaware or any Delaware state court, and each of
the parties hereby consents to the jurisdiction of such courts (and of
the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court or that
any such suit, action or proceeding brought in any such court has been
brought in an inconvenient form. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any such court.
[Remainder of this page intentionally left blank]
If the foregoing correctly sets forth our understanding, please sign and
return a copy of this letter.
Very truly yours,
Symphony Technology Group II-A,
a Delaware limited partnership
By:/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
Managing Director
Accepted and Agreed:
Industri-Matematik International Corp.
By: /s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx
CEO
