EXHIBIT 99.3
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 Adtel Limited
Partnership, Adventact Limited Partnership, Advent International Investors II
Limited Partnership, Adwest Limited Partnership, Global Private Equity II
Limited Partnership and Golden Gate Development and Investment Limited
Partnership (collectively referred to hereinafter as "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) 447,232 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 options or warrants 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 Option Period (as
------------------------
defined in Section 2.2), 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 Option 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 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
2
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.
-----------------
(a) Grant of Proxy. STOCKHOLDER HEREBY APPOINTS PARENT AND ANY
--------------
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 OPTION 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 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 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").
Section 2.2 Exercise of Option. (a) Parent may exercise the
------------------
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
3
pursuant to the Offer, or (ii) the date that is 120 days after the date on which
the Merger Agreement is terminated pursuant to Section 8.1 thereof, provided,
--------
however, that the Option shall terminate (x) with respect to any Subject Shares
-------
that are tendered pursuant to the Offer and purchased by Purchaser thereunder,
(y) if the Merger Agreement is terminated pursuant to Section 8.1(d)(iv) thereof
and at the time of such termination Company is not in breach of the Merger
Agreement, and (z) if the Merger Agreement is terminated solely because the
condition contained in Section 7.1(d) of the Merger Agreement is incapable of
being fulfilled. 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Four Embarcadero Center, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the time of the Option Closing shall be 10:00
a.m. (New York Time) on the Option Closing Date.
Section 2.3 Payment and Delivery of Certificates. At any Option
------------------------------------
Closing, Parent shall pay to Stockholder the Option Consideration payable in
respect of
4
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 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 Stockholder.
-----------------------------------------------------
Stockholder represents and warrants to Parent and Purchaser as follows:
(a) Ownership. Stockholder is the sole record and beneficial owner of
---------
447,232 Shares and has full and unrestricted power to dispose of and to vote
such Shares. Stockholder 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
5
with respect to all of the Subject Shares with no limitations, qualifications or
restriction 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 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 the
---------------
transactions contemplated by Articles I and II hereof, the Subject Shares and
the 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.
6
(e) No Finder's Fees. No broker, investment banker, financial 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 Purchaser.
------------------------------------------------------
Parent and Purchaser hereby represent and warrant to Stockholder that:
(a) Power and Authority; Execution and Delivery. Parent and 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 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
7
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) (i) Restriction on Transfer of Subject Shares, Proxies and
------------------------------------------------------
Noninterference. During the period (the "Restricted Period") from and including
---------------
the date hereof through and including the earlier of (x) the Effective Time and
(y) the end of the Option Period, Stockholder shall not, directly or indirectly:
(A) except pursuant to the terms of this Agreement (including Sections
4.1(a)(ii), (iii) and (iv)) 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 Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby or by the Merger Agreement.
(ii) The restrictions with respect to the transfer of the Subject
Shares contained in Section 4.1(a)(i)(A) of this Agreement (the "Transfer
Restrictions") shall not limit the ability of Stockholder to transfer some, or
all, of the Subject Shares to an affiliate of Stockholder, as long as, before
any such transfer, such affiliate enters into a written agreement (an
"Acknowledgment Agreement") with Parent and Purchaser whereby such affiliate
agrees to be bound by all of the terms and provisions of this Agreement with
respect to the Subject Shares received by such affiliate.
8
(iii) At any time after the Merger Agreement is terminated in
accordance with its terms, except for the termination of the Merger Agreement
pursuant to Section 8.1(d)(i) or Section 8.1(e)(i) thereof, the Transfer
Restrictions shall not limit the ability of Stockholder to sell some, or all, of
the Subject Shares in open market transactions. The sale of Subject Shares in
open market transactions permitted by this Section 4.1(a)(iii) shall not,
however, limit or relieve Stockholder of its obligations hereunder to deliver
Shares to Parent in the event that Parent validly exercises the Option.
(iv) At any time after the Merger Agreement is terminated in
accordance with its terms, except for the termination of the Merger Agreement
pursuant to Section 8.1(d)(i) or Section 8.1(e)(i) thereof, the Transfer
Restrictions shall not limit the ability of Stockholder to sell or transfer some
or all of the Subject Shares in a privately negotiated transaction to one or
more third parties, as long as, before any such sale or transfer, each such
third party enters into an Acknowledgment Agreement with Parent.
(b) Cooperation. Stockholder, in the capacity as a 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 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.
(d) No Solicitation. Stockholder shall not, in the capacity as 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.
9
(e) Reliance by Parent. Stockholder understands and acknowledges that
------------------
Parent and Purchaser are entering into, the Merger Agreement in reliance upon
Stockholder's execution and delivery of this Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1 Fees and Expenses. Each party hereto shall pay its 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 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. 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.
10
Section 5.5 Governing Law. This Agreement shall be governed 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.
Section 5.6 Notices. All notices, requests, claims, demands 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.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Stockholder:
c/o Advent International
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
11
Section 5.7 Assignment. Neither this Agreement nor any of the 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 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 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 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 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
12
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
appropriate 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 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 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]
13
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
ADTEL LIMITED PARTNERSHIP
ADVENTACT LIMITED PARTNERSHIP
ADWEST LIMITED PARTNERSHIP
GLOBAL PRIVATE EQUITY II LIMITED
PARTNERSHIP
GOLDEN GATE DEVELOPMENT AND
INVESTMENT LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation, General
Partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President*
ADVENT INTERNATIONAL INVESTORS II LIMITED
PARTNERSHIP
By: Advent International Corporation, General
Partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President*
*For all of the above:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
STERLING SOFTWARE, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
STERLING SOFTWARE (SOUTHWEST), INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
