EXHIBIT 3
TERMINATION AGREEMENT AND RELEASE
This TERMINATION AGREEMENT AND RELEASE dated as of May 15, 2000
(this "Agreement") is made and entered into by and among Corel Corporation,
a corporation continued under the laws of Canada ("Corel"), Carleton
Acquisition Co., a Delaware corporation and a wholly owned subsidiary of
Corel ("Sub"), and Inprise Corporation, a Delaware corporation ("Inprise").
Corel, Sub and Inprise are collectively referred to herein as the "Parties"
and each individually as a "Party."
WHEREAS, the Parties entered into a Merger Agreement dated as
of February 6, 2000 (the "Merger Agreement"; all capitalized terms not
otherwise defined herein shall have the meaning ascribed to such terms in
the Merger Agreement) pursuant to which, subject to the terms and
conditions stated therein, Sub was to merge with and into Inprise and
Inprise was to continue as the surviving corporation and a wholly-owned
subsidiary of Corel;
WHEREAS, contemporaneously with execution of the Merger
Agreement, Corel and Inprise entered into (i) a Stock Option Agreement
pursuant to which Corel granted to Inprise an option to acquire up to
13,000,000 common shares of Corel and (ii) a Stock Option Agreement
pursuant to which Inprise granted to Corel an option to acquire up to
12,000,000 shares of Inprise common stock (collectively, the "Stock Option
Agreements");
WHEREAS, the Parties have determined to terminate each of the
Merger Agreement and the Stock Option Agreements as provided herein and
release each other from all duties, rights, claims, obligations and
liabilities arising from, in connection with, or relating to, the Merger
Agreement and the Stock Option Agreements, all as provided herein;
WHEREAS, Corel and Inprise wish to continue in effect, and
extend certain terms of, that certain Confidentiality Agreement entered
into by such Parties on January 11, 2000 (the "Confidentiality Agreement");
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, agree as follows:
Section 1. Termination of Merger Agreement., The Parties agree
that, effective immediately, (i) the Merger Agreement (including Sections
5.06 and 6.12 thereof) is hereby terminated pursuant to Section 8.01(a) of
the Merger Agreement, and (ii) the Stock Option Agreements are hereby
terminated, and none of such agreements will be of any further force or
effect as of the date hereof.
Section 2. Release of Inprise by Corel and Sub. Corel and Sub
do hereby unequivocally release and discharge Inprise and any of its
officers, directors, agents, managers, employees, representatives, legal
and financial advisors, parents, subsidiaries, affiliates, principals or
partners, and any heirs, executors, administrators, successors or assigns
of any said person or entity (the "Inprise Releasees"), from any and all
actions, causes of action, choses in action, cases, claims, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, injuries, xxxxx, damages, judgments, remedies, extents,
executions, demands, liens and liabilities whatsoever, in law, equity or
otherwise (together, "Actions"), arising under, in connection with or
relating to the Merger Agreement and the Stock Option Agreements or the
transactions contemplated thereby, or any action or failure to act under
the Merger Agreement, the Stock Option Agreements or in connection
therewith, or in connection with the events leading to the abandonment of
the Merger and the termination of the Merger Agreement and the Stock Option
Agreements, which have been asserted against the Inprise Releasees or
which, whether currently known or unknown, Corel or Sub, or any successors
or assigns of any said entities, ever could have asserted or ever could
assert, in any capacity, against the Inprise Releasees, relating to any
claims, or any transactions and occurrences from any time in connection
with the foregoing; provided, however, the Inprise Releasees are not
released from any Actions which may arise (i) under this Agreement or (ii)
under the Confidentiality Agreement.
Section 3. Release of Corel and Sub by Inprise. Inprise does
hereby unequivocally release and discharge Corel and Sub and any of their
respective officers, directors, agents, managers, employees,
representatives, legal and financial advisors, parents, subsidiaries,
affiliates, principals or partners, and any heirs, executors,
administrators, successors or assigns of any said person or entity (the
"Corel Releasees"), from any and all Actions arising under, in connection
with or relating to the Merger Agreement and the Stock Option Agreements or
the transactions contemplated thereby, or any action or failure to act
under the Merger Agreement, the Stock Option Agreements or in connection
therewith, or in connection with the events leading to the abandonment of
the Merger and the termination of the Merger Agreement and the Stock Option
Agreements which have been asserted against the Corel Releasees or which,
whether currently known or unknown, Inprise, or any successors or assigns
of any said entity, ever could have asserted or ever could assert, in any
capacity, against the Corel Releasees, relating to any claims, or any
transactions and occurrences from any time in connection with the
foregoing; provided, however, the Corel Releasees are not released from any
Actions which may arise (i) under this Agreement or (ii) under the
Confidentiality Agreement.
Section 4. Confidentiality Agreement. Corel and Inprise hereby
agree that the Confidentiality Agreement shall continue in full force and
effect from the date hereof until expiration of the Confidentiality
Agreement pursuant to its terms, except as set forth below:
(a) The provisions contained in Section 4 of the
Confidentiality Agreement (No Solicitation of Employees) shall continue in
full force and effect from the date hereof until the first anniversary of
such date;
(b) The provisions contained in Section 2 of the
Confidentiality Agreement (Confidentiality and Use of Evaluation Material)
shall continue in full force and effect indefinitely.
(c) As of the date hereof, each of the Parties is deemed
to provide a demand to the other, pursuant to Section 6 of the
Confidentiality Agreement, for the return or destruction of the Evaluation
Material (as defined therein) and all copies thereof.
Section 5. Publicity. Attached hereto as Exhibits A and B are
the respective forms of press release to be issued by Corel and Inprise on
signing of this Agreement with respect to this Agreement and the
termination of the Merger Agreement and the Stock Option Agreements.
Section 6. Representations of the Parties. Each Party
represents to the other Party that: (a) it is duly organized and validly
existing under the laws of the jurisdiction of its incorporation and in
good standing; (b) it has power to execute and perform its obligations
under this Agreement and has taken all necessary action to authorize such
execution, delivery and performance; (c) such execution, delivery and
performance do not violate or conflict with any law applicable to it, any
provision of its charter or bylaws, any order or judgment of any court or
other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(d) all governmental and other consents that are required to have been
obtained by it with respect to this Agreement have been obtained and are in
full force and effect and all conditions of any such consents have been
complied with; (e) its obligations under this Agreement constitute its
legal, valid and binding obligations, enforceable in accordance with their
respective terms; and (f) except with respect to the options granted
pursuant to the Stock Option Agreements being cancelled hereby, it
beneficially owns no shares of any other Party (except that Corel owns
shares of Sub).
Section 7. Reimbursement of Certain Expenses. Concurrently with
the execution and delivery of this Agreement, Corel shall pay, by wire
transfer or certified check, to Inprise $226,244, which represents payment
for Corel's 50% share of the fees and expenses of a consulting firm jointly
engaged by Inprise and Corel (the "Consulting Firm"), less Inprise's 50%
share of HSR filing fees and SEC registration fees incurred by Corel in
connection with the transactions contemplated by the Merger Agreement.
Inprise covenants to promptly reimburse Corel for 50% of the amounts due to
the financial printer in connection with the typesetting of the Form S-4
Registration Statement prepared in connection with the Merger Agreement and
Corel covenants to promptly reimburse Inprise for 50% of any amounts
incurred through May 4, 2000 not yet billed by the Consulting Firm, in each
case, upon presentation of appropriate invoices.
Section 8. Waiver. Any term of this Agreement may be waived at
any time by the Party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the Party waiving such term or condition. No
waiver by any Party of any term or condition of this Agreement, in any one
or more instances, shall be deemed to be or construed as a waiver of the
same or any other term or condition of this Agreement on any future
occasion. All remedies, either under this Agreement or by any laws or
otherwise afforded, will be cumulative and not alternative.
Section 9. Amendment. This Agreement may be amended,
supplemented or modified only by a written instrument duly executed by or
on behalf of each Party hereto.
Section 10. No Assignment; Binding Effect. Neither this
Agreement nor any right, interest or obligation hereunder may be assigned
by any Party hereto without the prior written consent of the other Party
hereto and any attempt to do so will be void, except for assignments and
transfers by operation of any laws. Subject to the preceding sentence, this
Agreement is binding upon, inures to the benefit of and is enforceable by
the Parties and their respective successors and assigns.
Section 11. Entire Agreement. This Agreement supercedes all
prior discussions, representations, warranties and agreements, both written
and oral, among the Parties with respect to the subject matter hereof,
other than the Confidentiality Agreement in accordance with its terms, and
contains, together with the Confidentiality Agreement, the sole and entire
agreement among the Parties with respect to the subject matter hereof. No
prior drafts of this Agreement and no words or phrases from any such prior
drafts shall be admissible into evidence in any action, suit or other
proceeding involving this Agreement.
Section 12. Headings. The headings used in this Agreement have
been inserted for convenience of reference only and do not define or limit
the provisions hereof.
Section 13. Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under any present
or future laws, and if the rights or obligations of any Party hereto under
this Agreement will not be materially and adversely affected thereby, (a)
such provision will be fully severable, (b) this Agreement will be
construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, and (c) the remaining
provisions of this Agreement will remain in full force and effect and will
not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom. Notwithstanding anything in this Agreement to the
contrary, if for any reason any of the releases contained in Sections 2 or
3 hereof are avoided, nullified or otherwise rendered ineffective, then all
releases in Section 2 or 3 hereof shall be rendered invalid and
unenforceable and this Agreement shall be automatically reformed to delete
Sections 2 and 3 herefrom.
Section 14. Injunctive Relief. The Parties agree that
irreparable damage would occur in the event that any of the provisions of
this Agreement was not performed in accordance with its specified terms or
was otherwise breached and that money damages would not be an adequate
remedy for any breach of this Agreement. It is accordingly agreed that in
any proceeding seeking specific performance each of the Parties will waive
the defense of adequacy of a remedy at law. Each of the Parties shall be
entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in
any court of competent jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
Section 15. Governing Law. Except to the extent that the laws
of the State of Delaware are mandatorily applicable to this Agreement, this
Agreement shall be governed by and construed in accordance with the laws of
the State of New York applicable to a contract executed and performed in
such State, without giving effect to the conflicts of laws principles
thereof.
Section 16. Jurisdiction. Each of the Parties irrevocably
agrees that any action, suit, claim or other legal proceeding with respect
to this Agreement or for recognition and enforcement of any judgment in
respect hereof brought by any other Party or its successors or assigns
shall be brought and determined in any federal court located in the County
of New York in the State of New York or the County of New Castle in the
State of Delaware or the courts of the State of New York located in the
County of New York or the State of Delaware located in the County of New
Castle (or any appeals courts thereof). The foregoing New York Courts are
hereinafter referred to as the "New York Courts" and the foregoing Delaware
Courts are hereinafter referred to as the "Delaware Courts." Each of the
Parties irrevocably submits with regard to any such proceeding for itself
and in respect to its property, generally and unconditionally, to the
exclusive jurisdiction of the aforesaid courts. Each of the Parties
irrevocably waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or proceeding with
respect to this Agreement, (a) any claim that it is not personally subject
to the jurisdiction of the above-named courts for any reason other than
failure to serve process in accordance with Section 17 hereof, (b) that it
or its property is exempt or immune from jurisdiction of any such court or
from any legal process commenced in such courts (whether through service of
notice, attachment before judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise) and (c) to the fullest extent
permitted by applicable law, that (i) the proceeding in any such court is
brought in an inconvenient forum, (ii) the venue of such proceeding is
improper or (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such court. Notwithstanding the foregoing, each of the
Parties agrees that each of the other Parties shall have the right to bring
any action or proceeding for enforcement of a judgment entered by the
aforesaid New York Courts or the Delaware Courts in any other court or
jurisdiction.
Section 17. Service of Process. Each of the Parties hereby
designates each of the New York City and Wilmington, Delaware offices of CT
Corporation as its respective agent for service of process in the State of
New York and the State of Delaware, respectively, solely with respect to
any dispute or controversy arising out of this Agreement, and service upon
a Party for such purposes shall be deemed to be effective upon service on
CT Corporation, as aforesaid or of its successor designated in accordance
with the following sentence in the appropriate State. A Party may designate
another corporate agent or law firm reasonably acceptable to each of the
other parties and located in the Borough of Manhattan, in the City of New
York, or in the County of New Castle in the State of Delaware, as
applicable, as successor agent for service of process upon 30 days' prior
written notice to each other Party.
Section 18. Waiver of Trial by Jury. Each of the Parties
acknowledges and agrees that any controversy which may arise under this
Agreement is likely to involve complicated and difficult issues, and
therefore each such Party hereby irrevocably and unconditionally waives, to
the fullest extent permitted by applicable law, any right such party may
have to a trial by jury in respect of any action, suit, claim or other
proceeding directly or indirectly arising out of or relating to this
Agreement. Each Party certifies and acknowledges that (i) no representative
of such Party has been authorized by such Party to represent or, to the
knowledge or such Party, has represented, expressly or otherwise, that such
other Party would not, in the event of litigation, seek to enforce the
foregoing waiver, (ii) each such Party understands and has considered the
implications of this waiver, (iii) each such Party makes this waiver
voluntarily and (iv) each such Party has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in
this Section 18.
Section 19. Execution. This Agreement may be executed by
facsimile signatures by any Party and such signature shall be deemed
binding for all purposes hereof, without delivery of an original signature
being thereafter required.
Section 20. Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
signed by its officers thereunto duly authorized and its corporate seal to
be affixed as of the date first written above.
COREL CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Secretary
CARLETON ACQUISITION CO.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Secretary
INPRISE CORPORATION
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx
Title: Interim President and Chief Executive
Officer
