EXHIBIT 2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of May 23, 2001 (this "Agreement") between
ELECTRONIC DATA SYSTEMS CORPORATION, a Delaware corporation ("Parent"), and
STRUCTURAL DYNAMICS RESEARCH CORPORATION, an Ohio corporation (the "Company").
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company, Parent and EMERALD ACQUISITION CORPORATION I, an Ohio corporation
and a wholly-owned subsidiary of Parent ("Sub"), are entering into an Agreement
and Plan of Merger of even date herewith (the "Merger Agreement"), pursuant to
which Sub will be merged with and into the Company (the "Merger"), with the
Company being the surviving corporation and a wholly owned subsidiary of Parent
(capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement); and
WHEREAS, as a condition and inducement to Parent's willingness to enter
into the Merger Agreement, Parent and Sub have required that the Company agree,
and the Company has agreed, to grant to Parent an option to acquire certain
shares of the Company Class A Common Stock, no par value per share (the "Company
Common Stock"), on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, to induce Parent to enter into the Merger Agreement and in
consideration of the representations, warranties, covenants and agreements
contained herein and in the Merger Agreement, the parties hereto hereby agree as
follows:
1. Grant of Option. The Company hereby grants to Parent an irrevocable
option (the "Company Option") to purchase a number of shares of Company Common
Stock equal to the Option Number (as defined in Section 2(d)), on the terms and
subject to the conditions set forth below.
2. Exercise and Termination of the Company Option.
(a) Exercise. The Company Option may be exercised by Parent, in
whole or in part, at any time or from time to time after the occurrence of an
event which causes the Termination Fee (as defined in the Merger Agreement) to
become payable to Parent (a "Trigger Event") and prior to the termination of
Parent's right to exercise the Company Option by the terms of this Agreement.
The Company shall notify Parent promptly in writing of the occurrence of any
Trigger Event; however, such notice shall not be a condition to the right of
Parent to exercise the Company Option. Notwithstanding the foregoing, the
Company Option may not be exercised if Parent or Sub is in material breach of
any of its material representations warranties, covenants or agreements in this
Agreement or the Merger Agreement.
(b) Exercise Procedure. In the event that Parent wishes to exercise
the Company Option, Parent shall deliver to the Company written notice (an
"Exercise Notice") specifying the total number of shares of Company Common Stock
that Parent wishes to purchase. To the extent permitted by law and the Articles
of Incorporation of the Company (the "Company Charter") and
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provided that the conditions set fo rth in Section 3 to the Company's obligation
to issue the shares of Company Common Stock to Parent hereunder have been
satisfied or waived, Parent shall, upon delivery of the Exercise Notice and
payment of the applicable aggregate Exercise Price (as hereinafter defined) in
accordance with the provisions of Section 4(b) hereof, immediately be deemed to
be the holder of record of the shares of Company Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such shares of Company Common
Stock shall not theretofore have been delivered to Parent. Each closing of a
purchase of shares of Company Common Stock hereunder (a "Closing") shall occur
at a place, on a date, and at a time reasonably designated by Parent in an
Exercise Notice delivered at least two (2) business days prior to the date of
such Closing.
(c) Termination of the Company Option. Parent's right to exercise
the Company Option shall terminate upon the earliest to occur of: (i) the
Effective Time and (ii) the termination of the Merger Agreement on a basis that
does not constitute a Triggering Event and (iii) the date that is nine months
following the termination of the Merger Agreement on a basis constituting a
Triggering Event. Notwithstanding the foregoing, if, after the occurrence of a
Trigger Event and prior to the termination of the Company Option pursuant to the
foregoing, the Company Option cannot be exercised by reason of any applicable
judgment, decree, order, law or regulation, the Company Option shall remain
exercisable and shall not terminate until the earlier of (x) the date on which
such impediment shall become final and not subject to appeal and (y) 5:00 p.m.,
Eastern Standard Time, on the tenth (10th) business day after such impediment
shall have been removed. The rights of Parent set forth in Section 8 hereof
shall not terminate upon termination of Parent's right to exercise the Company
Option, but shall extend to the time provided in such section.
(d) Option Number. The "Option Number" shall initially be the
number of Shares equal to ten percent (10.0%) of the total number of shares of
Company Common Stock issued and outstanding as of the date of this Agreement,
and shall be adjusted hereafter to reflect changes in the Company's
capitalization occurring after the date hereof in accordance with Section 9
hereof (provided that the number of Shares issuable hereunder shall be reduced
to the extent necessary so that the aggregate number of Shares issuable
hereunder shall not, upon such issuance, constitute more than ten percent
(10.0%) of the total number of shares of Company Common Stock then issued and
outstanding).
(e) Exercise Price. The purchase price per share of Company Common
Stock purchased pursuant to exercise of the Company Option (the "Exercise
Price") shall be a cash amount per share equal to the Merger Consideration.
(f) Certain Limitations. In the event that Parent (and/or any of
its affiliates) receives Net Proceeds (as defined below) which, combined with
any Termination Fee paid to Parent pursuant to Section 6.06(b) of the Merger
Agreement and any payment made to Parent (and/or any of its affiliates) pursuant
to Section 7 hereof (or upon any other sale of the Company Option), exceed
$30,000,000, an amount equal to all Net Proceeds in excess of such amount shall
be promptly remitted by Parent to the Company. For purposes of this Agreement,
"Net Proceeds" shall mean the aggregate proceeds received from the Company from
the sale or other disposition
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of shares of Company Common Stock acquired by Parent (and/or any of its
affiliates) upon exercise of the Company Option (plus any securities or other
assets issued to Parent (and/or any of its affiliates) in exchange for or as
dividends upon such shares and any cash dividends received by Parent (and/or any
of its affiliates) with respect to such shares) less the Exercise Price
multiplied by the number of such shares included in such disposition.
3. Conditions to Closing. The obligation of the Company to issue the shares
of Company Common Stock to Parent hereunder is subject to the conditions that
(a) all waiting periods, if any, under the Xxxx Xxxxx Xxxxxx Antitrust
Improvements Act of 1975, as amended (the "HSR Act"), applicable to the issuance
of the shares of Company Common Stock by the Company and the acquisition of such
shares by Parent hereunder shall have expired or been terminated; (b) no
preliminary or permanent injunction or other order by any court of competent
jurisdiction prohibiting or otherwise restraining such issuance shall be in
effect; and (c) all consents, approvals, orders, authorizations and permits of
any federal, state, local or foreign governmental authority, if any, required in
connection with the issuance of the shares of Company Common Stock and the
acquisition of such shares by Parent hereunder shall have been obtained. It is
agreed that at any time during which Parent shall be entitled to deliver to the
Company an Exercise Notice, the parties will use their respective reasonable
best efforts to satisfy all conditions to any Closing so that such Closing may
take place as promptly as practicable.
4. Closing. At any Closing:
(a) The Company shall deliver to Parent or its designee a single
certificate in definitive form representing the number of shares of Company
Common Stock designated by Parent in its Exercise Notice, such certificate to be
registered in the name of Parent and to bear the legend set forth in Section 10
hereof;
(b) Parent shall deliver to the Company the aggregate Exercise
Price for the shares of Company Common Stock so designated and being purchased
by wire transfer of immediately available funds to the account or accounts
specified in writing by the Company or by certified or official bank check
payable to the order of the Company;
(c) Each party shall pay all expenses incurred by such party, and
Parent shall pay any and all federal, state and local taxes and other charges
that may be payable, in connection with the preparation, issue and delivery by
the Company of stock certificates under this Section 4; and
(d) The Company shall cause the shares being delivered by it
pursuant hereto to be approved for quotation on The Nasdaq National Market shall
pay all reasonable documented expenses (including reasonable attorney fees) in
connection with the application for approval of such quotation.
5. Representations and Warranties of the Company. The Company represents
and warrants to Parent that:
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(a) the Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Ohio and has all corporate
power and authority required to enter into this Agreement and to carry out its
obligations hereunder;
(b) the execution and delivery of this Agreement by the Company and
the consummation by the Company of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of the
Company and no other corporate proceedings on the part of the Company and no
action of the Company's stockholders are necessary to authorize this Agreement
or any of the transactions contemplated hereby; this Agreement has been duly and
validly executed and delivered by the Company, and, assuming the due
authorization, execution and delivery hereof by Parent and the receipt of all
required governmental approvals, constitutes the valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally, and
except that the availability of equitable remedies, including specific
performance, may be subject to the discretion of any court before which any
proceeding therefor may be brought;
(c) except for any filings required under the HSR Act, the Company
has taken all necessary corporate action to authorize and reserve for issuance
and to permit it to issue, upon exercise of the Company Option, and at all times
from the date hereof through the expiration of the Company Option will have
reserved for issuance, a number of authorized and unissued shares of Company
Common Stock not less than the Option Number, such amount being subject to
adjustment as provided in Section 9 hereof, all of which, upon their issuance
and delivery in accordance with the terms of this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable;
(d) the shares of Company Common Stock issued to Parent upon the
exercise of the Company Option will be, upon delivery thereof to Parent, free
and clear of all claims, liens, charges, encumbrances and security interests of
any nature whatsoever, excluding those created or imposed by Parent;
(e) the execution and delivery of this Agreement by the Company do
not, and the consummation by the Company of the transactions contemplated hereby
will not, violate, conflict with, or result in a breach of any provision of, or
constitute a default (with or without notice or lapse of time, or both) under,
or result in the termination of, or accelerate the performance required by, or
result in a right of termination, cancellation, or acceleration of any
obligation or the loss of a material benefit under, or the creation of a lien,
pledge, security interest or other encumbrance on assets (any such violation,
conflict, breach, default, termination, acceleration, right of termination,
cancellation or acceleration, loss, or creation, a "Violation") by the Company
or any of its subsidiaries, pursuant to (i) any provision of the Company Charter
or the Bylaws of the Company, (ii) any provision of any material loan or
material credit agreement, note, mortgage, indenture, lease, benefit plan or
other material ag reement, obligation, instrument, permit, concession, franchise
or license (a "Material Contract") of the Company or any of its subsidiaries or
to which any of them is a party or by which any of them or their material
properties or assets are bound, or (iii) any judgment, order, decree, statute,
law, ordinance, rule or
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regulation applicable to the Company or any of its subsidiaries or any of their
material properties or assets;
(f) the execution and delivery of this Agreement by the Company
does not, and (except for the expiration or early termination of the waiting
period under the HSR Act and filings that may be required under federal
securities laws and except as contemplated by Sections 10(c), (d) and (e)
hereof) the performance of this Agreement by the Company and the consummation of
the transactions contemplated hereby will not, require any consent, approval,
order, authorization or permit of, filing with, or notification to any
Governmental Entity; and
(g) assuming the representations and warranties of Parent contained
in Section 6(e) and 6(f) hereof are true and correct, the issuance, sale and
delivery of the shares of Company Common Stock hereunder would be exempt from
the registration and prospectus delivery requirements of the Securities Act, as
in effect on the date hereof, and the Company shall not take any action which
would cause the issuance, sale, and delivery of shares of Company Common Stock
hereunder not to be exempt from such requirements.
6. Representations and Warranties of Parent. Parent represents and warrants
to the Company that:
(a) Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all corporate
power and authority required to enter into this Agreement and to carry out its
obligations hereunder;
(b) the execution and delivery of this Agreement by Parent and the
consummation by Parent of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Parent, and no other
corporate proceedings on the part of Parent and no action of Parent's
stockholders are necessary to authorize this Agreement or any of the
transactions contemplated hereby; this Agreement has been duly and validly
executed and delivered by Parent and, assuming the due authorization, execution
and delivery hereof by the Company and the receipt of all required governmental
approvals, constitutes the valid and binding obligation of Parent, enforceable
against Parent in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally, and except that the
availability of equitable remedies, including specific performance, may be
subject to the discretion of any court before which any proceeding may be
brought;
(c) the execution and delivery of this Agreement by Parent do not,
and the consummation by Parent of the transactions contemplated hereby will not,
violate, conflict with, or result in the breach of any provision of, or
constitute a default (with or without notice or a lapse of time, or both) under,
or result in any Violation by Parent or any of its subsidiaries, pursuant to (i)
any provision of the Certificate of Incorporation or Bylaws of Parent, (ii) any
Material Contract of Parent or any of its subsidiaries or to which any of them
is a party or by which any of them or any of their properties or assets are
bound, or (iii) any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Parent or its properties or assets,
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which Violation, in the case of each of clauses (ii) or (iii), would have a
Parent Material Adverse Effect;
(d) the execution and delivery of this Agreement by Parent does
not, and (except for the expiration or early termination of the waiting period
under the HSR Act and except as contemplated by Sections 8(c), (d) and (e)
hereof) the performance of this Agreement by Parent and the consummation of the
transactions contemplated hereby will not, require any consent, approval, order,
authorization or permit of, filing with, or notification to any Governmental
Entity;
(e) any shares of Company Common Stock acquired by Parent upon
exercise of the Company Option will be acquired for Parent's own account, for
investment purposes only and will not be, and the Company Option is not being,
acquired by Parent with a view to the public distribution thereof, in violation
of any applicable provision of the Securities Act; and
(f) Parent is, and at the time of any exercise of the Company
Option will be, an "accredited investor" as defined in Regulation D promulgated
under the Securities Act.
7. Repurchase Right.
(a) At any time during which the Company Option is exercisable
pursuant to Section 2, Parent may, by delivering written notice to the Company
(the "Repurchase Notice"), require the Company to repurchase from Parent all or
any portion of the Company Option, as specified by Parent, at the Option
Repurchase Price (as defined below).
(b) For purposes of this Agreement, "Option Repurchase Price" shall
mean (i) the difference between the Exercise Price and the Market Price (as
defined below) as of the date of the applicable Repurchase Notice multiplied by
(ii) the number of shares of Company Common Stock purchasable pursuant to the
Company Option and covered by the applicable Repurchase Notice.
(c) For purposes of this Agreement, "Market Price" shall mean, as
of any date, the average per share closing sale price of the Company Common
Stock on the Nasdaq National Market for the ten (10) trading days immediately
preceding such date.
(d) In the event that Parent exercises its rights under this
Section 7, the Company shall, within ten (10) business days thereafter, pay the
Option Repurchase Price to Parent by wire transfer of immediately available
funds to the account or accounts specified in writing by Parent; provided,
however, that the Company shall not be required pursuant to this Section 7 to
pay to Parent an amount which, when combined with any Termination Fee paid to
Parent pursuant to Section 6.06(b) of the Merger Agreement and any Net Proceeds
received by Parent, exceeds $30,000,000.
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8. Registration Rights.
(a) Following any exercise of the Company Option, Parent and/or any
transferee (a "Holder") may by written notice (the "Registration Notice") to the
Company request the Company to register under the Securities Act all or any part
of the Shares beneficially owned by the Holder(s) (the "Registrable Securities")
pursuant to a bona fide firm commitment underwritten public offering in which
the Holder(s) and the underwriters shall effect as wide a distribution of such
Registrable Securities as is reasonably practicable and shall use reasonable
efforts to prevent any person (including any "group" as used in Rule 13d-5 under
the Exchange Act)) and its affiliates from purchasing through such offering
Shares representing more than one percent (1%) of the outstanding shares of
Company Common Stock on a fully diluted basis (a "Permitted Offering");
provided, however, that any such Registration Notice must relate to a number of
shares equal to at least two percent (2%) of the outstanding shares of Company
Common Stock on a fully diluted basis and that any rights to require
registration hereunder shall terminate with respect to any shares that may be
sold pursuant to Rule 144(k) under the Securities Act.
(b) The Registration Notice shall include a certificate executed by
the Holder(s) and its or their proposed managing underwriter, which underwriter
shall be an investment banking firm of nationally recognized standing (the
"Manager"), stating that (i) they have a good faith intention to commence
promptly a Permitted Offering, and (ii) the Manager in good faith believes that,
based on the then-prevailing market conditions, it will be able to sell the
Registrable Securities to the public in a Permitted Offering within one hundred
twenty (120) days at a per share price equal to at least eighty percent (80%) of
the average per share closing sale price of the Company Common Stock on the
Nasdaq National Market for the twenty (20) trading days immediately preceding
the date of the Registration Notice (the "Registration Notice Price").
(c) The Company shall effect, as promptly as practicable, the
registration under the Securities Act of the Registrable Securities proposed to
be so sold; provided, however, that (i) the Holder(s) shall not be entitled to
demand more than an aggregate of three (3) effective registration statements
hereunder, and (ii) the Company will not be required to file any such
registration statement during any period of time (not to exceed ninety (90) days
after such request) when (A) the Company is in possession of material non-public
information which it reasonably believes would be detrimental to be disclosed at
such time and, in the opinion of counsel to the Company, such information would
be required to be disclosed if a registration statement were filed at that time;
(B) the Company is required under the Securities Act to include audited
financial statements for any period in such registration statement and such
financial statements are not yet available for inclusion in such registration
statement; or (C) the Company determines, in its reasonable judgment, that such
registration would interfere with any financing, acquisition or other
transaction involving the Company or any of its material subsidiaries and that
such transaction is material to the Company and its s ubsidiaries taken as a
whole. If consummation of the sale of any Registrable Securities pursuant to a
registration hereunder does not occur within one hundred twenty (120) days after
the effectiveness of the initial registration statement, the provisions of this
Section 8 shall again be applicable to any proposed registration.
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(d) The Company shall use its reasonable efforts to cause any
Registrable Securities registered pursuant to this Section 8 to be qualified for
sale under the securities or Blue Sky laws of such jurisdictions as the
Holder(s) may reasonably request and shall continue such registration or
qualification in effect in such jurisdiction; provided, however, that the
Company shall not be required to qualify to do business in, or consent to
general service of process in, any jurisdiction by reason of this provision.
(e) The registration rights set forth in this Section 8 are subject
to the condition that the Holder(s) shall provide the Company with such
information with respect to the Holders' Registrable Securities, the plans for
the distribution thereof, and such other information with respect to the
Holder(s) as, in the reasonable judgment of counsel for the Company, is
necessary to enable the Company to include in such registration statement all
material facts required to be disclosed with respect to a registration
thereunder.
(f) A registration effected under this Section 8 shall be effected
at the Company's expense, except for underwriting discounts and commissions and
the fees and expenses of counsel to the Holder(s), and the Company shall provide
to the underwriters such documentation (including certificates, opinions of
counsel and "comfort" letters from auditors) as is customary in connection with
underwritten public offerings as such underwriters may reasonably require.
(g) In connection with any registration effected under this Section
8, the parties agree (i) to indemnify each other and the underwriters in the
customary manner, (ii) to enter into an underwriting agreement in form and
substance customary for transactions of such type with the Manager and the other
underwriters participating in such offering, and (iii) to take all further
actions which shall be reasonably necessary to effect such registration and sale
(including, if the Manager deems it necessary, participating in road-show
presentations).
(h) The Company shall be entitled to include (at its expense)
additional shares of Company Common Stock in a registration effected pursuant to
this Section 8 only if and to the extent the Manager determines that such
inclusion will not adversely affect the prospects for success of such offering.
9. Adjustment Upon Changes in Capitalization.
(a) Without limiting any restriction on the Company contained in
this Agreement or in the Merger Agreement, in the event of any change in the
Company Common Stock by reason of any stock dividend, stock split, merger (other
than the Merger), recapitalization, combination, exchange of shares or any
similar transaction, the type and number of shares or securities subject to the
Company Option, and the Exercise Price per share provided herein, shall be
adjusted appropriately and proper provision shall be made in the agreements
governing such transaction so that Parent shall receive, upon exercise of the
Company Option, the number and class of securities or property that Parent would
have received in respect of the shares of Company Common Stock issuable to
Parent if the Company Option had been exercised immediately prior to such event
or the record date therefor, as applicable.
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(b) In the event that the Company shall enter into an agreement:
(i) to consolidate with or merge into any person, other than Parent or one of
its subsidiaries, and shall not be the continuing or surviving corporation of
such consolidation or merger; (ii) to permit any person, other than Parent or
one of its subsidiaries, to merge into the Company and the Company shall be the
continuing or surviving corporation, but, in connection with such merger, the
then-outstanding shares of Company Common Stock shall be changed into or
exchanged for stock or other securities of the Company or any other person or
cash or any other property; or (iii) to sell or otherwise transfer all or
substantially all of its assets to any person, other than Parent or one of its
subsidiaries, then, and in each such case, the agreement governing such
transaction shall make proper provision so that upon the consummation of such
transaction and upon the subsequent exercise of the Company Option, Parent shall
be entitled to receive, for each share of Company Common Stock with respect to
which the Company Option has not theretofore been exercised, an amount of
consideration in the form of and equal to the per share amount of consideration
that would be received by the holder of one share of Company Common Stock (and,
in the event of an election or similar arrangement with respect to the type of
consideration to be received by the holders of Company Common Stock, subject to
the foregoing, proper provision shall be made so that the holder of the Company
Option would have the same election or similar rights as would the holder of the
number of shares of Company Common Stock for which the Company Option is then
exercisable).
10. Restrictive Legends. Each certificate representing shares of Company
Common Stock issued to Parent hereunder shall include a legend in substantially
the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES OR
BLUE SKY LAWS, AND MAY BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE SUBJECT
TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN A STOCK OPTION
AGREEMENT DATED AS OF MAY 23, 2001, A COPY OF WHICH MAY BE OBTAINED FROM
THE CORPORATION.
It is understood and agreed that (i) the reference to the resale
restrictions of the Securities Act and state securities or Blue Sky laws in the
foregoing legend shall be removed by delivery of substitute certificate(s)
without such reference if Parent shall have delivered to the Company a copy of a
letter from the staff of the SEC, or an opinion of counsel, in form and
substance reasonably satisfactory to the Company, to the effect that such legend
is not required for purposes of the Securities Act or such laws; (ii) the
reference to the provisions of this Agreement in the foregoing legend shall be
removed by delivery of substitute certificate(s) without such reference if the
shares have been sold or transferred in compliance with the provisions of this
Agreement and under circumstances that do not require the retention of such
reference; and (iii) the legend shall be removed in its entirety if the
conditions in the preceding clauses (i) and (ii) are both satisfied. In
addition, such certificates shall bear any other legend as may be required by
law. Certificates representing shares sold in a registered public offering
pursuant to Section 8 shall not be required to bear the legend set forth in this
Section 10.
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11. Binding Effect; No Assignment; No Third-Party Beneficiaries. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Except as expressly
provided for in this Agreement, neither this Agreement nor the rights or
obligations of either party hereto are assignable, except by operation of law,
or with the written consent of the other party, and any such attempted
assignment in violation of this Agreement shall be void and of no force or
effect. Nothing contained in this Agreement, express or implied, is intended to
confer upon any person other than the parties hereto and their respective
permitted assigns any rights or remedies of any nature whatsoever.
12. Specific Performance. The parties hereto recognize and agree that if
for any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party agrees that, in addition to other
remedies, whether at law or in equity, the other party shall be entitled to an
injunction to prevent or restrain any violation or threatened violation of the
provisions of this Agreement. In the event that any action should be brought in
equity to enforce the provisions of this Agreement, neither party will allege,
and each party hereby waives the defense, that there is an adequate remedy at
law.
13. Validity.
(a) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect.
(b) If for any reason any Governmental Entity determines that
Parent is not permitted to acquire the full number of shares of Company Common
Stock provided in this Agreement (as the same may be adjusted pursuant to the
provisions hereof) or that the Company is not permitted to purchase from Parent
pursuant to Section 7 hereof the full portion of the Company Option provided in
said section, it is the express intention of the Company to allow Parent to
acquire or to require the Company to repurchase such lesser number of shares or
such lesser portion of the Company Option as may be permissible without any
other amendment or modification hereof.
14. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if (a) delivered personally, or (b) if sent by
overnight courier service (receipt confirmed in writing), or (c) if delivered by
facsimile transmission (with receipt confirmed), or (d) five (5) days after
being mailed by registered or certified mail (return receipt requested) to the
parties in each case to the following addresses (or at such other address for a
party as shall be specified by like notice):
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(a) If to the Company, to:
Structural Dynamics Research Corporation
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Xxx Xxxxxx
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Attention: Xxxx X. Xxxxxx
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Attention: Xxx X. Xxxxxx
(b) If to Parent
Electronic Data Systems Corporation
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Attention: General Counsel
with a copy to:
Xxxxx Xxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to its choice
of law principles except for such matters relating to the Company which are
required to be governed by Ohio law.
16. Interpretation. The headings contained in this Agreement are for
reference purposes and shall not affect in any way the meaning or interpretation
of the Agreement. When reference is made in this Agreement to a Section, such
reference shall be to a Section of this Agreement,
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unless otherwise indicated. Whenever the words "include," "includes," or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." Whenever "or" is used in this Agreement it shall
be construed in the nonexclusive sense. The words "herein," "hereby," "hereof,"
"hereto," "hereunder" and words of similar import refer to this Agreement.
17. Counterparts; Effect. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
18. Expenses. Except as otherwise expressly provided herein or in the
Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
19. Amendments; Waiver. This Agreement may be amended by the parties hereto
and the terms and conditions hereof may be waived only by an instrument in
writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
20. Further Assurance. Each party agrees to execute and deliver all such
further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
ELECTRONIC DATA SYSTEMS
CORPORATION
By:/s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
STRUCTURAL DYNAMICS
RESEARCH CORPORATION
By:/s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman and
Chief Executive Officer
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