AMENDMENT TO CONFIDENTIALITY AGREEMENT
Exhibit (d)(4)
AMENDMENT TO
This Amendment to Confidentiality Agreement is entered into on March 5, 2007, by and between Software AG, a German corporation (“SAG“) and webMethods, Inc. ( the “Company”) and amends that certain confidentiality and non-disclosure letter agreement, dated January 30, 2007, by and between SAG and the Company ( the “Confidentiality Agreement”).
All capitialized terms used herein shall have the meaning given them in the Confidentiality Agreement, unless otherwise defined herein.
SAG and the Company acknowledge that discussions relating to a Transaction continue under the Confidentiality Agreement, and that the terms and conditions of the Confidentiality Agreement remain in full force and effect.
SAG and the Company wish to share additional documents during the due diligence process relating to a Transaction, and desire to amend the Confidentiality Agreement to facilitate due diligence.
Accordingly, the Confidentiality Agreement is hereby amended to add the following paragraph:
Each party understands that certain categories of Evalution Material are highly Confidentiality (herein collectively referred to as the “Highly Confidential Evaluation Material”). In the event the disclosing party deems any Evaluation Material to be Highly Confidentiality Evaluation, the following procedures shall apply: the disclosing party shall indicate or instruct that such information (or categories of information) is Highly Confidential Evaluation Material and the disclosing party shall provide access to such Highly Confidential Evaluation Material only to legal counsel for the receiving party, financial advisors to the receiving party or the employees or advisors of the receiving party specifically listed on Exhibit A hereto (collectively, the “Restricted Group”). Subject to the terms of this letter agreement, each party hereby agrees that without the prior written consent of the disclosing party: (a) Highly Confidential Evaluation Material will be reviewed only by members of the Restricted Group of the receiving party; (b) no employees for the receiving party other than the employees listed on Exhibit A will review Highly Confidential Evaluation Material; (c) the members of the Resticted Group shall not communicate any Highly Confidential Evaluation Material or any details regarding any Highly Confidential Evaluation Material (including any written summaries, analysis, complications, studies or other documents that contain or reflect any Highly Confidenatil Evaluation Material) to any other individuals for the receiving party except as provided below, and (d) the receiving party shall be responsible for any breach of this paragraph by any member of the Restricted Group. Each party further agrees that (except as otherwise provided in this letter agreement) Highly Confidential Evaluation Material also constitutes Evaluation Material and shall be entitled to all of the protections with respect to Evaulation Material otherwise provided for in this letter agreement. Notwithstanding the foregoing and unless otherwise permitted by the disclosing party, members of the Restricted Group may disclose to other employees and representatives of the receiving party involved in the Transaction (i) summaries or analyses of contacts or agreements designated as Highly Confidential Evaluation Material provided that any information which would permit the receiving party to identify the couterparty
to such contract or agreement is masked or redacted and (ii) financial data or analyses constituting or derived from Highly Confidential Evaluation Material, provided that such data or analyses are aggregated in a manner whereby the terms and conditions (including, where applicable, the price) of transactions with individual customers are not identifiable. No Highly Confidential Evaluation Material shall be given, shown, made available or communicated in any way to a person designated as a member of the Restricted Group until such person has read this agreement. Notwithstanding the foregoing, each party further acknowledges and agrees that each party may desire to disclose Highly Confidential Evaluation Material to persons outside the Restricted Group for the purpose of evaluating the Transaction. Each party agrees to discuss in good faith the terms and restrictions under which such Highly Confidential Evaluation Material may be disclosed to such persons.
In addition, the Confidentiality Agreement is hereby amended to add Exhibit A, attached hereto, to the Confidentiality Agreement.
All other provisions of the Confidentiality Agreement remain in full force and effect.
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SOFTWARE AG |
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WEBMETHODS, INC. |
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By: |
/s/ Arnd Zinnhardt /s/ Xxxxxx Xxxxx |
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By: |
/s/ Xxxx XxXxxx |
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Name: Arnd Zinnhardt |
Xxxxxx Xxxxx |
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Name: Xxxx XxXxxx |
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Title: CFO |
General Counsel |
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Title: General Counsel |
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EXHIBIT A
Restricted Group of SAG
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Name |
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Title |
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SAG |
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Xxxxx Xxxxxxxxx |
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Member of the Executive Board |
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xxxxx.xxxxxxxxx@xxxxxxxxxx.xxx |
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Xxxxxxxxx Xxxxx |
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Vice President |
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xxxxxxxxx.xxxxx@xxxxxxxxxx.xx.xx |
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Arnd Zindhardt |
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Chief Financial Officer |
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xxxx.xxxxxxxxx@xxxxxxxxxx.xxx |
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Xxxxxx Xxxxxxx |
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Vice President |
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Xxxxxx.Xxxxxxx@xxxxxxxxxx.xxx |
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Xxxx Xxxxxxx |
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Member of the Executive Board |
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xxxx.xxxxxxx@xxxxxxxxxx.xxx |
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Xxxxxxx Xxxxxxxxx |
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Director Corporate Counsel |
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xxxxxxx.xxxxxxxxx@xxxxxxxxxx.xxx |
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Xxxxxx Xxxxx |
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Vice President |
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xxxxxx.xxxxx@xxxxxxxxxx.xxx |
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Xxxxxxxx Xxxx |
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Vice President |
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xxxxxxxx.xxxx@xxxxxxxxxx.xxx |
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Xxxx Xxxxxx |
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Vice President |
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xxxx.xxxxxx@xxxxxxxxxx.xxx |
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Xxxxx Xxxx |
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Xxxxx Xxxxxxx |
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Partner |
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xxxxx.xxxxxxx@xxx.xxx |
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Xxxxxx Xxxxxxxxxx |
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Partner |
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xxxxxx.xxxxxxxxxx@xxx.xxx |
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Xxxxxxx Xxxxxxxxx |
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Partner |
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xxxxxxx.xxxxxxxxx@xxx.xxx |
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Xxxxxx Xxxxxxx |
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Associate |
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xxxxxx.xxxxxxx@xxx.xxx |
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Stefan Quick |
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Associate |
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xxxxxx.xxxxx@xxx.xxx |
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Xxxxxx Xxxxxxx |
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Associate |
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xxxxxx.xxxxxxx@xxx.xxx |
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Xxxxxx XxXxxxxx |
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Associate |
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xxxxxx.xxxxxxxx@xxx.xxx |
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KPMG |
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Xxxxx Xxxxxxxxxx |
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Partner |
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xxxxxxxxxxx@xxxx.xxx |
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Xxxxx Xxxxxx |
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Director |
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xxxxxxx@xxxx.xxx |
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Xxx Xxxxx |
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xxxxxx@xxxx.xxx |
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Arma |
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Xxxx Xxxxx |
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Partner |
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XXxxxx@xxxxxxxxxxxx.xxx |
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Xxxxx Xxxxx |
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Partner |
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XXxxxx@xxxxxxxxxxxx.xxx |
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Xxxxx Xxxxxxxx |
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Vice President |
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Xxxxx.Xxxxxxxx@xxxxxxxxxxxx.xxx |
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Xxxxx Xxxxxxxxxxx |
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Analyst |
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XXxxxxxxxxxx@xxxxxxxxxxxx.xxx |
Restricted Group of the Company
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Name |
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Title |
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Legal Department |
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Xxxx XxXxxx |
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General Counsel |
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xxxxxxx@xxxxxxxxxx.xxx |
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Xxxxxx Xxxxx |
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VP, Legal Affairs |
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xxxxxx@xxxxxxxxxx.xxx |
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Xxxxx Xxxxx |
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VP, Legal Affairs |
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xxxxx.xxxxx@xxxxxxxxxx.xxx |
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Xxxx Xxxxx |
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VP, Legal Services |
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xxxxxx@xxxxxxxxxx.xxx |
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Xxxxx Xxxxxx |
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VP, Legal Services |
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xxxxxxx@xxxxxxxxxx.xxx |
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Finance Department |
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Xxxx Xxxxx |
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CAO |
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xxxxxx@xxxxxxxxxx.xxx |
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Xxxxx Xxxxxxxxx |
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VP, Finance |
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xxxxxxxx@xxxxxxxxxx.xxx |
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Xxxxx Xxxxx |
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VP, Finanace |
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xxxxxx@xxxxxxxxxx.xxx |
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Additional Reviewers |
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Xxx Xxxxxx |
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CFO and EVP |
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xxxxxxx@xxxxxxxxxx.xxx |
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Xxxxx Xxxxxxxx |
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SVP, Corporate Development |
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xxxxxxxxx@xxxxxxxxxx.xxx |
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Xxxxx Xxxxxx |
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VP, Office of the CEO |
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xxxxxxx@xxxxxxxxxx.xxx |
