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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): May 27, 1999
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MARCAM SOLUTIONS, INC.
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(Exact name of Registrant as Specified in Charter)
Delaware 000-22841 04-3371621
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation or organization) file number) Identification No.)
95 Wells Avenue, Newton, Massachusetts 02459
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (617) 965-0220
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No change since last report
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(Former name or address, if changed since last report)
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Item 5. Other Events.
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On May 27, 1999, Marcam Solutions, Inc. (the "Company") entered into an
Agreement and Plan of Merger dated as of May 27, 1999 (the "Merger Agreement")
with Invensys, plc ("Invensys"), M Acquisition Corp., a wholly owned subsidiary
of Invensys ("MAC"), and M Merger Sub, Inc., a wholly owned subsidiary of MAC
("Merger Sub"), pursuant to which the Company would become a wholly owned
indirect subsidiary of Invensys.
The acquisition is structured as a tender offer (the "Offer") for the
purchase of all of the outstanding shares of Common Stock, par value $.01 per
share (the "Common Stock"), of the Company at a price of $7.50 per share, net to
each tendering stockholder in cash, without interest. The Offer would be
followed by a merger in which Merger Sub would be merged with and into the
Company, with the Company surviving as a wholly owned indirect subsidiary of
Invensys (the "Merger"). In the Merger, all of the outstanding shares of Common
Stock (other than those owned by Invensys, MAC, Merger Sub and dissenting
stockholders, or held by the Company) would be converted into the right to
receive $7.50 cash per share, without interest.
The Offer is subject to the conditions specified in the Merger
Agreement, including: (i) there being validly tendered by the expiration date,
and not withdrawn, at least a majority of the outstanding shares of Common Stock
on a fully-diluted basis; (ii) the expiration or termination of all applicable
waiting periods under the Hart-Scott-Rodino Antitrust Improvement Act of 1976;
and (iii) there being no breach of any of the representations and warranties
made by the Company as of the date when made. The Merger is further conditioned
upon the receipt of approval from the Company's stockholders if such approval is
required by applicable law.
In connection with the Offer, certain stockholders of the Company,
including General Atlantic Partners 32, L.P., General Atlantic Partners 21,
L.P., GAP Coinvestment Partners, L.P., and the Company's officers and directors
(collectively, the "Option Stockholders"), acting in their capacity as
stockholders, who collectively beneficially own approximately 32% of the
outstanding shares of Common Stock, have entered into a Tender and Option
Agreement dated as of May 27, 1999 (the "Option Agreement") with MAC and Merger
Sub, pursuant to which each such stockholder has agreed, among other things, to
tender such stockholder's shares in the Offer, to vote in favor of the Merger
and to grant to MAC and Merger Sub an option to purchase such stockholder's
shares under certain circumstances.
The Merger Agreement and the Option Agreement are filed as Exhibits 2.1
and 99.1, respectively, hereto, and are incorporated herein by this reference.
In connection with the execution of the Merger Agreement, the Board of
Directors of the Company entered into Amendment No.1 dated as of May 26, 1999
(the "Amendment") to the Amended and Restated Rights Agreement dated as of
September
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18, 1998 (the "Rights Agreement") between the Company and BankBoston, N.A. The
Amendment provides, among other things, that, notwithstanding anything to the
contrary in the Rights Agreement, the Rights Agreement shall not apply to, and,
without limiting the foregoing, none of Invensys, MAC, Merger Sub, nor any
Option Stockholder, nor any Affiliate or Associate of any such parties, will
become an "Acquiring Person" or an "Adverse Person," and no "Adverse Person
Event," "Triggering Event," "Stock Acquisition Date," "Distribution Date" or
"Final Amendment Date" (as such terms are defined in the Rights Agreement) will
occur, as a result of (i) the approval, execution, delivery or performance of
the Merger Agreement or the consummation of the Offer or Merger pursuant
thereto, (ii) the announcement of the Offer or Merger, (iii) the approval,
execution, delivery or performance of the Option Agreement by any of the parties
thereto, or (iv) the purchase, disposition, voting or beneficial ownership (as
defined in the Rights Agreement) of shares of Common Stock by Invensys, MAC,
Merger Sub or any of the Option Stockholders pursuant to or otherwise arising
from or relating to any of the foregoing, and no shares of Common Stock shall be
deemed to be Beneficially Owned (as defined in the Rights Agreement) by any such
persons as a result of the foregoing. Without limiting the foregoing, the
Amendment also provides that the Board of Directors of the Company has
authorized and approved the Offer, the Merger and the other transactions
contemplated by the Merger Agreement and Option Agreement as provided for in the
penultimate proviso of the definition of "Exempt Person" in Section 1 of the
Rights Agreement, such that the GAP Parties (as such term is defined in the
Amendment) shall not be deemed to have become the Beneficial Owner of an
additional 1% or more of shares of Common Stock of the Company or to have
entered into any of the transactions set forth in Section 11(a)(ii)(A) of the
Rights Agreement pursuant to clauses (1)(i) and (1)(ii), respectively, of said
"Exempt Person" definition, and, accordingly, shall continue to be "Exempt
Persons" for all purposes under the Rights Agreement, notwithstanding the
execution and delivery of the Merger Agreement and Option Agreement and the
consummation of the transactions contemplated thereby. The Amendment is filed as
Exhibit 4.1 hereto and is incorporated herein by reference.
The foregoing statements relating to the Merger Agreement, the Option
Agreement and the Amendment are qualified in their entirety by reference to the
Merger Agreement, the Option Agreement and the Amendment, respectively.
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Item 7. Financial Statements and Exhibits.
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(a) Financial Statements of Business Acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Exhibits.
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Exhibit No. Description
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2.1 Agreement and Plan of Merger dated as of May 27, 1999 among
Invensys, plc, M Acquisition Corp., M Merger Sub, Inc. and Marcam
Solutions, Inc.
4.1 Amendment No. 1, dated as of May 26, 1999, to the Amended and
Restated Rights Agreement dated as of September 18, 1998 between
Marcam Solutions, Inc. and BankBoston, N.A.
99.1 Tender and Option Agreement dated as of May 27, 1999 between M
Acquisition Corp., M Merger Sub, Inc. and the stockholders listed
on Schedule A thereto
99.2 Letter Agreement dated May 17, 1999 between Wonderware Corp. and
Broadview International LLC
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MARCAM SOLUTIONS, INC.
By: /s/ Jonathan C. Crane
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Name: Jonathan C. Crane
Title: President and Chief Executive
Officer
Date: May 28, 1999
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EXHIBIT INDEX
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Exhibit No. Description
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2.1 Agreement and Plan of Merger dated as of May 27, 1999 among
Invensys, plc, M Acquisition Corp., M Merger Sub, Inc. and Marcam
Solutions, Inc.
4.1 Amendment No. 1, dated as of May 26, 1999, to the Amended and
Restated Rights Agreement dated as of September 18, 1998 between
Marcam Solutions, Inc. and BankBoston, N.A.
99.1 Tender and Option Agreement dated as of May 27, 1999 between M
Acquisition Corp., M Merger Sub, Inc. and the stockholders listed
on Schedule A thereto
99.2 Letter Agreement dated May 17, 1999 between Wonderware Corp. and
Broadview International LLC
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EXHIBIT 2.1
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AGREEMENT AND PLAN OF MERGER
among
INVENSYS, plc,
M ACQUISITION CORP.
M MERGER SUB, INC.
and
MARCAM SOLUTIONS, INC.
Dated as of May 27, 1999
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TABLE OF CONTENTS
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Page
ARTICLE 1.....................................................................1
1. The Offer...........................................................1
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1.1 The Offer......................................................1
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1.2. Actions by Purchaser and Merger Sub............................3
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1.3. Actions by the Company.........................................3
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1.4. Directors......................................................6
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ARTICLE 2.....................................................................6
2. The Merger..........................................................6
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2.1. The Merger................................................6
2.2. The Closing...............................................7
2.3. Effective Time............................................7
2.4 Certificate of Incorporation, Bylaws, Directors and
Officers of the Surviving Corporation.....................7
ARTICLE 3.....................................................................8
3. Effect of the Merger on Securities of Merger Sub and the
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Company.............................................................8
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3.1. Merger Sub Stock..........................................8
3.2. Company Securities........................................8
3.3. Exchange of Certificates Representing Common Stock........9
3.4. Adjustment of Merger Consideration........................11
3.5. Dissenting Company Stockholders...........................11
3.6. Merger Without Meeting of Stockholders....................11
ARTICLE 4.....................................................................11
4. Representations and Warranties of the Company.......................11
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4.1. Existence; Good Standing; Corporate Authority.............12
4.2. Authorization, Validity and Effect of Agreements..........12
4.3. Compliance with Laws......................................13
4.4. Capitalization, etc.......................................13
4.5. Subsidiaries..............................................14
4.6. No Violation..............................................15
4.7. Company Reports; Offer Documents..........................15
4.8. Litigation................................................17
4.9. Absence of Certain Changes................................17
4.10. Taxes.....................................................18
4.11. Employee Benefit Plans....................................19
4.12. Labor and Employment Matters..............................21
4.13. Brokers...................................................21
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4.14. Intellectual Property Rights..............................21
4.15. Permits...................................................23
4.16. Environmental Matters.....................................23
4.17. Title to Assets...........................................25
4.18. Insurance Policies........................................25
4.19. Material Contracts........................................25
4.20. Opinion of Financial Advisor..............................26
4.21. State Takeover Statutes...................................26
4.22. Required Vote of Company Stockholders.....................26
4.23. Rights Agreement..........................................26
4.24. Year 2000 Compliance, Euro Compliance.....................27
ARTICLE 5.....................................................................27
5. Representations and Warranties of Purchaser and Merger Sub..........27
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5.1. Existence; Good Standing; Corporate Authority.............27
5.2. Authorization, Validity and Effect of Agreements..........28
5.3. No Violation..............................................28
5.4. Interim Operations of Merger Sub..........................29
5.5. Financing.................................................29
5.6. Interested Stockholder....................................29
ARTICLE 6.....................................................................29
6. Covenants...........................................................29
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6.1. Alternative Proposals.....................................29
6.2. Interim Operations........................................31
6.3. Company Stockholder Approval; Proxy Statement.............32
6.4. Filings; Other Action.....................................34
6.5. Access to Information.....................................34
6.6. Publicity.................................................35
6.7. Further Action............................................35
6.8. Insurance; Indemnity......................................35
6.9. Employee Stock Purchase Plan..............................37
6.10. Employee Benefits Plan....................................37
ARTICLE 7.....................................................................38
7. Conditions..........................................................38
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7.1. Conditions to Each Party's Obligation to Effect the
Merger....................................................38
7.2. Conditions to Obligation of Purchaser and Merger Sub
to Effect the Merger......................................38
ARTICLE 8.....................................................................38
8. Termination.........................................................38
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8.1. Termination...............................................38
8.2. Effect of Termination and Abandonment.....................40
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8.3. Amendment.................................................40
8.4. Extension; Waiver.........................................41
ARTICLE 9.....................................................................41
9. General Provisions..................................................41
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9.1. Nonsurvival of Representations and Warranties.............41
9.2. Notices...................................................41
9.3. Assignment; Binding Effect................................42
9.4. Entire Agreement..........................................42
9.5. Governing Law.............................................43
9.6. Fee and Expenses..........................................43
9.7. Certain Definitions.......................................43
9.8. Headings..................................................43
9.9. Interpretation............................................43
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9.10. Waivers...................................................44
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9.11. Severability..............................................44
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9.12. Enforcement of Agreement..................................44
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9.13. Counterparts..............................................44
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of May 27,
1999, among Invensys, plc, a United Kingdom public limited company ("PARENT"), M
Acquisition Corp., a Delaware corporation and indirect wholly-owned subsidiary
of Parent ("PURCHASER"), M Merger Sub, Inc., a Delaware corporation and a wholly
owned subsidiary of Purchaser ("MERGER SUB"), and Marcam Solutions, Inc., a
Delaware corporation (the "COMPANY").
RECITALS
WHEREAS, the respective boards of directors of Parent, Purchaser and
the Company each have determined that it is in the best interests of their
respective companies and stockholders for Purchaser to acquire the Company upon
the terms and subject to the conditions set forth herein; and
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements in connection with the transactions
contemplated by this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
1. The Offer.
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1.1. THE OFFER. (a) Subject to the provisions of this Agreement
and this Agreement not having been terminated in accordance with Article 8, as
promptly as practicable but in no event later than Thursday, June 3, 1999,
Merger Sub shall commence, and Parent and Purchaser shall cause Merger Sub to
commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (the
"EXCHANGE ACT"), an offer to purchase all of the outstanding shares of common
stock, par value $.01 per share (the "COMMON STOCK"), of the Company together
with the associated Rights (as hereinafter defined), at a price of $7.50 per
share of Common Stock, net to the seller in cash (the "Offer"). Except where the
context otherwise requires, all references herein to the shares of Common Stock
shall include the associated Rights. The obligation of Merger Sub, and of Parent
and Purchaser to cause Merger Sub, to commence the Offer and to accept for
payment, and to pay for any shares of Common Stock tendered pursuant to the
Offer shall be
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subject only to the conditions set forth in EXHIBIT A (the "OFFER CONDITIONS").
Subject to the provisions of this Agreement, the Offer shall initially expire on
the 20th business day from and after the date the Offer is commenced, including
the date of the commencement of the Offer as the first business day in
accordance with Rule 14d-2, unless this Agreement is terminated in accordance
with ARTICLE 8, in which case the Offer (whether or not previously extended in
accordance with the terms hereof) shall expire on such date of termination.
(b) Without the prior written consent of the Company, Parent,
Purchaser and Merger Sub shall not (i) waive or increase the Minimum Condition
(as defined in EXHIBIT A), (ii) reduce the number of shares of Common Stock
subject to the Offer, (iii) reduce the price per share of Common Stock to be
paid pursuant to the Offer, (iv) extend the Offer if all of the Offer Conditions
are satisfied or waived, (v) change the form of consideration payable in the
Offer, or (vi) amend, modify or add to the Offer Conditions or the Offer in any
manner adverse to the holders of Common Stock. Notwithstanding the foregoing,
Merger Sub may, without the consent of the Company, extend the Offer at any time
and from time to time: (i) if at the then scheduled expiration date of the Offer
any of the Offer Conditions shall not have been satisfied or waived, such
extension not to exceed such time as Merger Sub shall reasonably conclude is
necessary for all such conditions to be satisfied or waived; (ii) for any period
required by any statute or rule, regulation, interpretation or position of the
Securities and Exchange Commission (the "SEC") or its staff applicable to the
Offer; (iii) for any period required by applicable law in connection with an
increase in the consideration to be paid pursuant to the Offer; and (iv) if all
Offer Conditions are satisfied or waived but the number of shares of Common
Stock tendered is less than 90% of the then outstanding number of shares of
Common Stock, but only if Merger Sub waives all Offer Conditions, for an
aggregate period of not more than 10 business days (for all such extensions
under this clause (iv)) beyond the latest expiration date that would be
permitted under clause (i), (ii) or (iii) of this sentence. Notwithstanding the
foregoing, Parent, Purchaser and Merger Sub agree that if all of the Offer
Conditions are not satisfied on any scheduled expiration date of the Offer then,
provided that all such conditions are and continue to be reasonably probable of
being satisfied by the date that is 30 business days after the commencement of
the Offer, Parent, Purchaser and Merger Sub shall extend the Offer from time to
time until such conditions are satisfied or waived, provided that Parent,
Purchaser and Merger Sub shall not be required to extend the Offer beyond the
date that is 30 business days after the commencement of the Offer. Subject to
and in accordance with the terms and conditions of the Offer and this Agreement
(but subject to the right of termination in accordance with ARTICLE 8), Merger
Sub shall, and Parent and Purchaser shall cause Merger Sub to, accept for
payment, in accordance with the terms of the Offer, all shares of Common Stock
validly tendered and not withdrawn pursuant to the Offer as soon as practicable
after the expiration of the Offer.
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1.2. ACTIONS BY PURCHASER AND MERGER SUB. (a) As soon as
reasonably practicable following execution of this Agreement, but in no event
later than five business days from the date hereof, Parent, Purchaser and Merger
Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with
respect to the Offer, which shall contain an offer to purchase and a related
letter of transmittal (such Schedule 14D-1 and the documents therein pursuant to
which the Offer will be made, together with any supplements or amendments
thereto, the "OFFER DOCUMENTS"). The Company and its counsel shall be given an
opportunity to review and comment upon the Offer Documents prior to the filing
thereof with the SEC. The Offer Documents shall comply as to form in all
material respects with the requirements of the Exchange Act. On the date filed
with the SEC and on the date first published, sent or given to the Company's
stockholders, the Offer Documents shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation is made by Parent, Purchaser or Merger Sub with respect to
information supplied by the Company in writing specifically for inclusion in the
Offer Documents. Each of Parent, Purchaser and Merger Sub agrees to correct
promptly, and the Company agrees to notify Purchaser promptly as to, any
information provided by it in writing specifically for inclusion in the Offer
Documents if and to the extent such information shall have become false or
misleading in any material respect, and each of Parent, Purchaser and Merger Sub
further agrees to take all steps necessary to cause the Offer Documents as so
corrected to be filed with the SEC and to be disseminated to all of the holders
of shares of Common Stock, in each case as and to the extent required by
applicable federal securities laws. Parent, Purchaser and Merger Sub agree to
provide the Company and its counsel in writing any comments Parent, Purchaser,
Merger Sub or their counsel may receive from the SEC or its staff with respect
to the Offer Documents promptly after receipt of such comments. Parent,
Purchaser and Merger Sub shall use their reasonable best efforts, after
consultation with the Company, to respond promptly to all such comments of and
requests by the SEC. Parent, Purchaser and Merger Sub shall provide the Company
copies of any written responses and telephonic notification of any verbal
responses by Parent, Purchaser, Merger Sub or their counsel.
(b) Parent shall provide or cause to be provided to Merger Sub all of
the funds necessary to purchase any shares of Common Stock that Merger Sub
becomes obligated to purchase pursuant to the Offer at such time as such funds
are necessary.
1.3. ACTIONS BY THE COMPANY. (a) The Company hereby approves of
and consents to the Offer and represents and warrants that the board of
directors of the Company (the "BOARD OF DIRECTORS" or the "BOARD"), at a meeting
duly called and held,
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has duly adopted, by unanimous vote, resolutions: (i) approving this Agreement,
the Offer and the Merger (as hereinafter defined), (ii) determining that the
Merger is advisable and that the terms of the Offer and Merger are fair to, and
in the best interests of, the Company's stockholders, (iii) recommending that
the Company's stockholders accept the Offer and approve the Merger and this
Agreement, (iv) taking all action necessary to render (x) Section 203 of the
Delaware General Corporation Law (the "DGCL") and (y) the Company's Amended and
Restated Rights Agreement, dated as of September 18, 1998, between the Company
and BankBoston, N.A., as rights agent (the "RIGHTS AGREEMENT"), inapplicable to
the Offer, the Merger, the Tender and Option Agreement, dated as of May 27,
1999, among Purchaser, Merger Sub and each of the persons listed on Schedule A
thereto (the "OPTION AGREEMENT"), this Agreement or any of the transactions
contemplated hereby or thereby. The Company further represents and warrants that
the Board of Directors has received the written opinion of Broadview
International LLC (the "FINANCIAL ADVISOR") to the effect that, as of May 25,
1999, the consideration to be received by the holders of shares of Common Stock
pursuant to the Offer and the Merger is fair to such holders from a financial
point of view (the "FAIRNESS OPINION"). The Company hereby consents to the
inclusion in the Offer Documents of the recommendation of the Board of Directors
described in the first sentence of this SECTION 1.3(a). The Company hereby
represents and warrants that it has been authorized by the Financial Advisor to
permit the inclusion of the Fairness Opinion and references thereto, subject to
prior review and consent by the Financial Advisor (such consent not to be
unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as
hereinafter defined) and the Proxy Statement (as hereinafter defined).
(b) On the date the Offer Documents are filed with the SEC, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from
time to time, the "SCHEDULE 14D-9") containing the recommendations described in
SECTION 1.3(a) and shall mail the Schedule 14D-9 to the stockholders of the
Company. To the extent practicable, the Company shall cooperate with Purchaser
in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate
Offer Documents to the Company's stockholders. Purchaser and its counsel shall
be given an opportunity to review and comment upon the Schedule 14D-9 prior to
the filing thereof with the SEC. The Schedule 14D-9 shall comply in all material
respects with the requirements of the Exchange Act. On the date filed with the
SEC and on the date first published, sent or given to the Company's
stockholders, the Schedule 14D-9 shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation is made by the Company with respect to information supplied by
Parent, Purchaser or Merger Sub in writing specifically for inclusion in the
Schedule 14D-9. The Company agrees to correct promptly, and each of
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Purchaser and Merger Sub agrees to notify the Company promptly as to, any
information provided by it in writing specifically for inclusion in the Schedule
14D-9 if and to the extent such information shall have become false or
misleading in any material respect, and the Company further agrees to take all
steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the
SEC and to be disseminated to all of the holders of shares of Common Stock, in
each case as and to the extent required by applicable federal securities laws.
The Company agrees to provide Purchaser and its counsel in writing any comments
the Company or its counsel may receive from the SEC or its staff with respect to
the Schedule 14D-9 promptly after the receipt of such comments. The Company
shall use its reasonable best efforts, after consultation with Purchaser, to
respond promptly to all such comments of and requests by the SEC. The Company
shall provide Purchaser copies of any written responses and telephonic
notification of any verbal responses by the Company and its counsel.
(c) In connection with the Offer, the Company shall cause its
transfer agent to furnish Merger Sub with mailing labels containing the names
and addresses of the record holders of Common Stock as of a recent date and of
those persons becoming record holders subsequent to such date, together with
copies of all lists of stockholders and security position listings and all other
information in the Company's possession or control regarding the beneficial
owners of Common Stock, and shall furnish to Merger Sub such information and
assistance (including updated lists of stockholders, security position listings
and computer files) as Merger Sub may reasonably request in communicating the
Offer to the Company's stockholders. Subject to the requirements of law, and
except for such steps as are necessary to disseminate the Offer Documents and
any other documents necessary to consummate the Offer and the Merger, Parent,
Purchaser and Merger Sub and each of their affiliates and associates shall hold
in confidence the information contained in any of such labels, lists and files,
shall use such information only in connection with the Offer and the Merger,
and, if this Agreement is terminated, shall promptly deliver to the Company all
copies of such information then in their possession and otherwise treat such
information as subject to the Confidentiality Agreement, between Purchaser and
the Company, dated May 17, 1999 (the "CONFIDENTIALITY AGREEMENT").
(d) Subject to the terms and conditions of this Agreement, if there
shall occur a change in law or in a binding judicial interpretation of existing
law which would, in the absence of action by the Company or the Board, prevent
the Merger Sub, were it to acquire a specified percentage of the shares of
Common Stock then outstanding, from approving and adopting this Agreement by its
affirmative vote as the holder of a majority of shares of Common Stock and
without the affirmative vote of any other stockholder, the Company will use its
best efforts to promptly take or cause such action to be taken.
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1.4. DIRECTORS. (a) Promptly upon the purchase of shares of
Common Stock pursuant to the Offer, Purchaser shall be entitled to designate
such number of directors as will give Purchaser representation on the Board
equal to the product of (i) the number of directors on the Board and (ii) the
percentage that the number of shares of Common Stock purchased by Merger Sub or
Purchaser bears to the number of shares of Common Stock then outstanding (the
"PERCENTAGE"), rounded up to the next whole number but rounded down if rounding
up would cause the Purchaser's representatives to constitute the entire Board,
and the Company shall, upon request by Purchaser, promptly increase the size of
the Board and/or exercise its best efforts to secure the resignations of such
number of directors as is necessary to enable the Purchaser's designees to be
elected to the Board and shall cause the Purchaser's designees to be so elected.
At the request of Purchaser, the Company will use its best efforts to cause such
individuals designated by Purchaser to constitute the same Percentage of (i)
each committee of the Board, (ii) the board of directors of each Subsidiary (as
defined in SECTION 4.5) and (iii) each committee of each Subsidiary's board of
directors. The Company's obligations to appoint designees to the Board of
Directors shall be subject to compliance with Section 14(f) of the Exchange Act.
The Company shall take, at its expense, all action necessary to effect any such
election, and shall include in the Schedule 14D-9 the information required by
Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent
and Purchaser will supply to Company in writing, and be solely responsible for,
any information with respect to itself and its nominees, directors and
affiliates that is required by Section 14(f) and Rule 14f-1.
(b) Following the election or appointment of Purchaser's designees
pursuant to this SECTION 1.4 and prior to the Effective Time, the approval of a
majority of the directors of the Company then in office shall be required to
authorize, on behalf of the Company, any permitted termination of this Agreement
by the Company, any amendment of this Agreement requiring action by the Board,
any extension of time for the performance of any of the obligations or other
acts of Purchaser or Merger Sub, and any waiver of compliance with any of the
agreements or conditions contained herein for the benefit of the Company, and
Purchaser shall ensure that its designees who are serving on the Board do not
vote or take any other action to approve any such authorization without the
approval of a majority of the directors then in office who are not designated by
Purchaser.
ARTICLE 2
2. The Merger.
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2.1. THE MERGER. At the Effective Time, subject to the terms and
conditions of this Agreement and the applicable provisions of the DGCL, Merger
Sub
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shall be merged with and into the Company and the separate corporate existence
of Merger Sub shall thereupon cease (the "MERGER"). The Company shall be the
surviving corporation in the Merger (sometimes hereinafter referred to as the
"SURVIVING CORPORATION"). The Merger shall have the effects specified in the
DGCL.
2.2. THE CLOSING. Subject to the terms and conditions of this
Agreement, the closing of the Merger (the "CLOSING") shall take place at the
offices of Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza, New
York, New York, at 10:00 a.m., local time, as soon as practicable following the
satisfaction (or waiver if permissible) of the conditions set forth in ARTICLE
7. The date on which the Closing occurs is hereinafter referred to as the
"CLOSING DATE."
2.3. EFFECTIVE TIME. If all the conditions to the Merger set
forth in ARTICLE 7 shall have been fulfilled or waived in accordance herewith
and this Agreement shall not have been terminated as provided in ARTICLE 8 (and
subject to SECTION 3.6), the parties hereto shall cause a Certificate of Merger
meeting the requirements of Section 251 of the DGCL to be properly executed and
filed in accordance with such Section on the Closing Date. The Merger shall
become effective at the time of filing of the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with the DGCL or at
such later time which the parties hereto shall have agreed upon and designated
in such filing as the effective time of the Merger (the "EFFECTIVE TIME").
2.4 CERTIFICATE OF INCORPORATION, BYLAWS, DIRECTORS AND OFFICERS
OF THE SURVIVING CORPORATION. Unless otherwise agreed by the Company and
Purchaser prior to the Closing, at the Effective Time:
(a) The Certificate of Incorporation of Merger Sub as in effect
immediately prior to the Effective Time shall be the certificate of
incorporation of the Surviving Corporation, until duly amended in accordance
with applicable law and the terms thereof;
(b) The By-Laws of Merger Sub as in effect immediately prior to the
Effective Time shall be the by-laws of the Surviving Corporation, until duly
amended in accordance with applicable law, the terms thereof, and the Surviving
Corporation's certificate of incorporation;
(c) The officers of the Company immediately prior to the Effective
Time shall continue to serve in their respective offices of the Surviving
Corporation from and after the Effective Time, until their successors are duly
appointed or elected in accordance with applicable law and the Surviving
Corporation's certificate of incorporation and by-laws; and
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(d) The directors of Merger Sub immediately prior to the Effective
Time shall be the directors of the Surviving Corporation from and after the
Effective Time, until their successors are duly appointed or elected in
accordance with applicable law and the Surviving Corporation's certificate of
incorporation and by-laws.
ARTICLE 3
3. Effect of the Merger on Securities of Merger Sub and the Company.
----------------------------------------------------------------
3.1. MERGER SUB STOCK. At the Effective Time, each share of
common stock, $.01 par value per share, of Merger Sub that is outstanding
immediately prior to the Effective Time shall be converted into and exchanged
for one validly issued, fully paid and non-assessable share of common stock,
$.01 par value per share, of the Surviving Corporation.
3.2. COMPANY SECURITIES. (a) At the Effective Time, each share of
Common Stock issued and outstanding immediately prior to the Effective Time
(other than shares of Common Stock owned by Parent, Purchaser or Merger Sub or
held by the Company, all of which shall be canceled, and other than the shares
of Dissenting Common Stock (as defined in SECTION 3.5)) shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into the right to receive the highest per share consideration paid in the Offer,
without interest (the "MERGER CONSIDERATION").
(b) As a result of the Merger and without any action on the part of
the holder thereof, at the Effective Time, all shares of Common Stock shall
cease to be outstanding and shall be canceled and retired and shall cease to
exist, and each holder of shares of Common Stock (other than Merger Sub,
Purchaser and the Company and other than shares of Dissenting Common Stock)
shall thereafter cease to have any rights with respect to such shares of Common
Stock, except the right to receive, without interest, the Merger Consideration
in accordance with this SECTION 3.2 and Section 3.3 upon the surrender of a
certificate or certificates (a "CERTIFICATE") representing such shares of Common
Stock.
(c) Each share of Common Stock issued and held in the Company's
treasury at the Effective Time, or held by Merger Sub, Purchaser or Parent,
shall, by virtue of the Merger, cease to be outstanding and shall be canceled
and retired without payment of any consideration therefor.
(d) All options (individually, an "OPTION" and collectively, the
"OPTIONS") outstanding immediately prior to the Effective Time under any Company
stock option
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plan, including the Marcam Solutions 1997 Stock Plan (the "1997 PLAN") and the
Marcam Solutions, Inc. 1997 Non-Employee Director Stock Option Plan (the
"DIRECTORS PLAN") (the "STOCK OPTION PLANS"), whether or not then exercisable,
and all warrants to acquire shares of Common Stock (individually, a "WARRANT"
and collectively, the "WARRANTS") outstanding immediately prior to the Effective
Time, whether or not then exercisable, and all rights (individually, a "PURCHASE
RIGHT" and collectively, the "PURCHASE RIGHTS") to purchase shares of Common
Stock under the Company's 1997 Employee Stock Purchase Plan (the "PURCHASE
PLAN") shall be canceled and (i) each holder of an Option or Warrant shall
promptly after the Effective Time receive from the Surviving Corporation, for
each share of Common Stock subject to an Option or Warrant, whether or not
exercisable, an amount in cash equal to the excess, if any, of the Merger
Consideration over the per share exercise price of such Option or Warrant,
without interest, in full settlement of the Company's (and the Surviving
Corporation's) obligations under each such Option or Warrant, and (ii) each
holder of a Purchase Right shall promptly after the Effective Time receive from
the Surviving Corporation the Merger Consideration for each such Purchase Right,
without interest, in full settlement of the Company's (and the Surviving
Corporation's) obligations under each such Purchase Right. To the extent that
the per share exercise price of any Option or Warrant exceeds the Merger
Consideration, at the Effective Time such Option or Warrant shall be canceled
and the holder of such Option or Warrant shall not receive or be entitled to
receive any consideration from Purchaser, Merger Sub or the Surviving
Corporation. The amount payable pursuant to this SECTION 3.2(D) shall be subject
to all applicable withholding of taxes. The Company shall take all actions as
may be necessary to effectuate the foregoing.
3.3. EXCHANGE OF CERTIFICATES REPRESENTING COMMON STOCK. (a)
Prior to the Effective Time, Purchaser shall appoint a commercial bank or trust
company, subject to the reasonable satisfaction of the Company, to act as paying
agent hereunder for payment of the Merger Consideration upon surrender of
Certificates (the "PAYING AGENT"). Parent and Purchaser shall take all steps
necessary to cause the Surviving Corporation to provide the Paying Agent with
cash in amounts necessary to pay for all the shares of Common Stock pursuant to
SECTION 3.2(a) and, in connection with the Options, Warrants and Purchase
Rights, pursuant to SECTION 3.2(d), as and when such amounts are needed by the
Paying Agent. Such amounts shall hereinafter be referred to as the "EXCHANGE
FUND."
(b) As soon as practicable after the Effective Time, Purchaser shall
cause the Paying Agent to mail to each holder of record of shares of Common
Stock (i) a letter of transmittal which shall specify that delivery shall be
effected, and risk of loss and title to such Certificates shall pass, only upon
delivery of the Certificates to the Paying Agent and which letter shall be in
such form and have such other provisions as are customary for letters of this
nature and (ii) instructions for effecting the surrender of such Certificates in
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<PAGE> 14
exchange for the Merger Consideration. Upon surrender of a Certificate to the
Paying Agent together with such letter of transmittal, duly executed and
completed in accordance with the instructions thereto, and such other documents
as may be reasonably required by the Paying Agent, the holder of such
Certificate shall be entitled to receive in exchange therefor the amount of cash
into which shares of Common Stock theretofore represented by such Certificate
shall have been converted pursuant to SECTION 3.2, and the shares represented by
the Certificate so surrendered shall forthwith be canceled. No interest will be
paid or will accrue on the cash payable upon surrender of any Certificate. In
the event of a transfer of ownership of Common Stock that is not registered in
the transfer records of the Company, payment may be made with respect to such
Common Stock to such a transferee if the Certificate representing such shares of
Common Stock is presented to the Paying Agent, accompanied by all documents
required to evidence and effect such transfer and to evidence that any
applicable stock transfer taxes have been paid.
(c) At or after the Effective Time, there shall be no transfers on
the stock transfer books of the Company of the shares of Common Stock that were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates are presented to the Surviving Corporation, they shall be
canceled and exchanged as provided in this ARTICLE 3.
(d) Any portion of the Exchange Fund (including the proceeds of any
interest and other income received by the Paying Agent in respect of all such
funds) that remains unclaimed by the former stockholders of the Company six
months after the Effective Time shall be delivered to the Surviving Corporation.
Any former stockholders of the Company who have not theretofore complied with
this ARTICLE 3 may thereafter look only to the Surviving Corporation for payment
of any Merger Consideration, without any interest thereon, that may be payable
in respect of each share of Common Stock such stockholder holds as determined
pursuant to this Agreement.
(e) None of Parent, Purchaser, the Company, the Surviving
Corporation, the Paying Agent or any other person shall be liable to any former
holder of shares of Common Stock for any amount properly delivered to a public
official pursuant to applicable abandoned property, escheat or similar laws.
(f) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by the
Surviving Corporation, the posting by such person of a bond in such reasonable
amount as the Surviving Corporation may direct as indemnity against any claim
which may be made against it with respect to such Certificate, the Paying Agent
will issue in exchange for such lost, stolen or destroyed Certificate the Merger
Consideration payable in respect thereof pursuant to this Agreement.
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<PAGE> 15
3.4. ADJUSTMENT OF MERGER CONSIDERATION. In the event that,
subsequent to the date of this Agreement but prior to the Effective Time, the
outstanding shares of Common Stock shall have been changed into a different
number of shares or a different class as a result of a stock split, reverse
stock split, stock dividend, subdivision, reclassification, split, combination,
exchange, recapitalization or other similar transaction, the Merger
Consideration shall be appropriately adjusted.
3.5. DISSENTING COMPANY STOCKHOLDERS. Notwithstanding any
provision of this Agreement to the contrary, if required by the DGCL but only to
the extent required thereby, shares of Common Stock that are issued and
outstanding immediately prior to the Effective Time and which are held by
holders of such shares of Common Stock who have properly exercised appraisal
rights with respect thereto in accordance with Section 262 of the DGCL (the
"DISSENTING COMMON STOCK") will not be exchangeable for the right to receive the
Merger Consideration, and holders of such shares of Dissenting Common Stock will
be entitled to receive payment of the appraised value of such shares of Common
Stock in accordance with the provisions of such Section 262 unless and until
such holders fail to perfect or effectively withdraw or lose their rights to
appraisal and payment under the DGCL. If, after the Effective Time, any such
holder fails to perfect or effectively withdraws or loses such right, such
shares of Common Stock will thereupon be treated as if they had been converted
into and to have become exchangeable for, at the Effective Time, the right to
receive the Merger Consideration, without any interest thereon. The Company will
give Purchaser prompt notice of any demands received by the Company for
appraisals of shares of Common Stock prior to the Effective Time. The Company
shall not, except with the prior written consent of Purchaser, make any payment
with respect to any demands for appraisal or offer to settle or settle any such
demands.
3.6. MERGER WITHOUT MEETING OF STOCKHOLDERS. In the event that
Merger Sub, or any other direct or indirect subsidiary of Purchaser, shall
acquire at least 90 percent of the outstanding shares of Common Stock, the
parties hereto shall take all necessary and appropriate action to cause the
Merger to become effective as soon as practicable after the expiration of the
Offer without a vote of stockholders of the Company, in accordance with Section
253 of the DGCL.
ARTICLE 4
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to Parent, Purchaser and Merger Sub as of the
date of this Agreement as follows:
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<PAGE> 16
4.1. EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. Each of the
Company and each of its Subsidiaries is (i) a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and (ii) is duly licensed or qualified to do business as a foreign
corporation and is in good standing under the laws of any other state of the
United States in which the character of the properties owned or leased by it or
in which the transaction of its business makes such qualification necessary,
except where the failure to be so qualified or to be in good standing would not
have, individually or in the aggregate, a material adverse effect on the
business, operations, revenues, assets or financial condition of the Company and
its Subsidiaries taken as a whole or the ability of the Company and its
Subsidiaries to conduct their business after the Closing substantially
consistent with the manner conducted in the past (a "MATERIAL ADVERSE EFFECT")
(it being understood that (i) any adverse effect that is caused by conditions
affecting the economy or securities markets generally shall not be taken into
account in determining whether there has been a Material Adverse Effect (ii) any
adverse effect that is caused by conditions affecting the primary industry in
which the Company currently competes shall not be taken into account in
determining whether there has been a Material Adverse Effect (provided that such
effect does not affect the Company in a disproportionate manner) and (iii) any
adverse effect resulting from the Offer, the Merger or any of the transactions
contemplated hereby or the announcement thereof (including those resulting from
litigation brought or threatened against the Company or any member of its Board
of Directors in respect thereof) shall not be taken into account in determining
whether there has been a Material Adverse Effect). Each of the Company and each
of its Subsidiaries has all requisite corporate power and authority to own or
lease and operate its properties and carry on its business as now conducted. The
Company has heretofore made available to Purchaser true and correct copies of
the Company's Certificate of Incorporation and By-Laws as currently in effect.
4.2. AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. The
Company has the requisite corporate power and authority to execute and deliver
this Agreement and all agreements and documents contemplated hereby (the
"ANCILLARY DOCUMENTS") and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and the Ancillary
Documents by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby have been duly and validly authorized by the
Board of Directors, and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement and the Ancillary Documents or
to consummate the transactions contemplated hereby and thereby (other than the
approval of this Agreement by the holders of a majority of the shares of Common
Stock if required by applicable law). This Agreement has been, and any Ancillary
Document at the time of execution will have been, duly and validly executed and
delivered by the Company, and (assuming this Agreement and such
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<PAGE> 17
Ancillary Documents each constitutes a valid and binding obligation of Purchaser
and Merger Sub) constitutes and will constitute the valid and binding
obligations of the Company, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar
laws relating to creditors' rights and general principles of equity.
4.3. COMPLIANCE WITH LAWS. Except as set forth in SECTION 4.3 of
the disclosure letter, dated as of the date hereof, delivered by the Company to
Purchaser (the "COMPANY DISCLOSURE LETTER"), neither the Company nor any of its
Subsidiaries is in violation of any order of any foreign, federal, state or
local judicial, legislative, executive, administrative or regulatory body or
authority or any court, arbitration board or tribunal ("GOVERNMENTAL ENTITY"),
or any foreign, federal, state or local law, statute, ordinance, rule,
regulation, order, judgment or decree ("LAWS") applicable to the Company or its
Subsidiaries or any of their respective properties or assets, except where the
failure to be in compliance, individually or in the aggregate, would not have a
Material Adverse Effect.
4.4. CAPITALIZATION, ETC. The authorized capital stock of the
Company consists of 30,000,000 shares of Common Stock and 5,000,000 shares of
preferred stock, $.01 par value, of which 30,000 shares have been designated as
Series A Junior Participating Preferred Stock ("PREFERRED STOCK"). As of the
date hereof, (a) 7,818,087 shares of Common Stock are outstanding, (b) 30,000
shares of Preferred Stock are subject to Preferred Stock Purchase Rights
("RIGHTS") issued pursuant to the Company's Rights Agreement and no other shares
of Preferred Stock are issued and outstanding, (c) 0 shares of Common Stock are
held by the Company in its treasury, and (d) no shares of capital stock of the
Company are held by the Company's Subsidiaries. SECTION 4.4 of the Company
Disclosure Letter sets forth a complete and accurate list, as of the date
hereof, of (i) the number of outstanding Options and Warrants, (ii) the number
of shares of Common Stock which can be acquired upon the exercise of all
outstanding Options and Warrants, respectively, (iii) the number of shares of
Common Stock which are reserved for issuance upon the exercise of outstanding
Options and the number of shares which are reserved for future grants under the
Stock Option Plans, (iv) the number of shares of Common Stock which are reserved
for issuance upon the exercise of outstanding Warrants, and (v) the exercise
price of each outstanding Option and Warrant, and (vi) the number of shares of
Common Stock which are reserved for issuance pursuant to the Purchase Plan.
Except for the Common Stock, the Rights, the Options, the Warrants, and the
Purchase Rights, the Company has no outstanding bonds, debentures, notes or
other obligations entitling the holders thereof to vote (or which are
convertible into or exercisable for securities having the right to vote) with
the stockholders of the Company on any matter. Except as set forth in SECTION
4.4 of the Company Disclosure Letter, since March 31, 1999, the Company (i) has
not issued any shares of Common Stock other than
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<PAGE> 18
upon the exercise of Options and Warrants or pursuant to the Purchase Plan, (ii)
has granted no Options to purchase shares of Common Stock under the Stock Option
Plans, (iii) has not amended the Purchase Plan, and (iv) has not split, combined
or reclassified any of its shares of capital stock. All issued and outstanding
shares of Common Stock are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights. Except as set forth above in this
SECTION 4.4 or in SECTION 4.4 of the Company Disclosure Letter, there are no
other shares of capital stock or voting securities of the Company, and no
existing options, warrants, calls, subscriptions, convertible securities, and no
stock appreciation rights or limited stock appreciation rights or other rights
(including rights of first refusal), agreements or commitments which obligate
the Company or any of its Subsidiaries to issue, transfer or sell any shares of
capital stock of, or equity interests in, or any material assets of, the Company
or any of its Subsidiaries. Except as set forth in SECTION 4.4 of the Company
Disclosure Letter, the Company is not obligated to issue any Options, Warrants
or Purchase Rights after the date hereof. There are no outstanding obligations
of the Company or any Subsidiaries to repurchase, redeem or otherwise acquire
any shares of capital stock of the Company and there are no unissued performance
awards outstanding under the Stock Option Plan or any other outstanding stock
related awards. At the Effective Time, each outstanding Option and Warrant shall
be canceled without the consent of any other party or the payment of any
consideration other than as provided in SECTION 3.2(d). After the Effective
Time, the Surviving Corporation will have no obligation to issue, transfer or
sell any shares of capital stock of the Company or the Surviving Corporation
pursuant to any Company Employee Benefit Plan (as defined in SECTION 4.11).
There are no voting trusts or other agreements or understandings to which the
Company or any of its Subsidiaries is a party with respect to the voting of
capital stock of the Company or any of its Subsidiaries.
4.5. SUBSIDIARIES. Except as set forth in SECTION 4.5 of the
Company Disclosure Letter, the Company owns, directly or indirectly, all of the
outstanding shares of capital stock of each subsidiary of the Company (the
"SUBSIDIARIES"). Except as set forth in SECTION 4.5 of the Company Disclosure
Letter, all of the outstanding shares of capital stock of each Subsidiary are
duly authorized, validly issued, fully paid and nonassessable, and are owned,
directly or indirectly, by the Company free and clear of all liens, pledges,
security interests, claims or other encumbrances ("ENCUMBRANCES"). SECTION 4.5
of the Company Disclosure Letter sets forth for each Subsidiary: (i) its name
and jurisdiction of incorporation or organization; (ii) its authorized capital
stock or share capital; (iii) the number of issued and outstanding shares of
capital stock or share capital; and (iv) the holder or holders of such shares.
Except for the Company's direct or indirect interests in the Subsidiaries or as
set forth in SECTION 4.5 of the Company Disclosure Letter, neither the Company
nor any of its Subsidiaries owns directly or indirectly any interest or
investment (whether equity or debt) in any corporation, partnership, joint
venture, business, trust or entity.
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<PAGE> 19
4.6. NO VIOLATION. Except as set forth in SECTION 4.6 of the
Company Disclosure Letter, neither the execution and delivery by the Company of
this Agreement or any of the Ancillary Documents nor the consummation by the
Company of the transactions contemplated hereby or thereby will: (i) violate,
conflict with or result in a breach of any provision of the Certificate of
Incorporation or By-Laws of the Company or any Subsidiary; (ii) violate,
conflict with, result in a breach of any provision of, constitute a default (or
an event which, with notice or lapse of time or both, would constitute a
default) under, result in the termination or in a right of termination of,
accelerate the performance required by or benefit obtainable under, result in
the triggering of any payment or other obligations pursuant to, result in the
creation of any Encumbrance upon any of the properties of the Company or any of
its Subsidiaries under, or result in there being declared void, voidable, or
without further binding effect, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, deed of trust or any license, franchise,
permit, lease, contract, agreement or other instrument, commitment or obligation
to which the Company or any of its Subsidiaries is a party, or by which the
Company or any of its Subsidiaries or any of their respective properties is
bound (each, a "CONTRACT" and, collectively, "CONTRACTS"), except for any of the
foregoing matters specified in this clause (ii) which, individually or in the
aggregate, would not have a Material Adverse Effect or prevent or delay or be
likely to prevent or delay the consummation of the transactions contemplated
hereby; (iii) other than the filings provided for in SECTION 2.3 and the filings
required under the Exchange Act and under the Hart-Scott Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations thereunder
(the "HSR ACT"), require any consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Entity, the lack of
which, individually or in the aggregate, would have a Material Adverse Effect
or, by Law, prevent or delay the consummation of the transactions contemplated
hereby; or (iv) violate any Laws applicable to the Company, any of its
Subsidiaries or any of their respective assets, except for violations which
individually or in the aggregate would not have a Material Adverse Effect or
materially adversely affect the ability of the Company to consummate the
transactions contemplated hereby.
4.7. COMPANY REPORTS; OFFER DOCUMENTS. (a) Since September 30,
1997, the Company has filed all documents with the SEC required to be filed by
the Company under the Exchange Act. The Company has made available to Purchaser
each registration statement, report, proxy statement or information statement
(as defined under the Exchange Act) filed by it with the SEC since September 30,
1997, each in the form (including exhibits and any amendments thereto) so filed
(collectively, the "COMPANY REPORTS"). As of their respective dates, the Company
Reports (i) complied as to form in all material respects with the applicable
requirements of the Securities Act of 1933, as amended (the "SECURITIES ACT"),
the Exchange Act, and the rules and regulations
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<PAGE> 20
thereunder and (ii) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading. Each of the consolidated balance sheets of the
Company included in the Company Reports (including the related notes and
schedules) fairly presented the consolidated financial position of the Company
and its Subsidiaries as of its date, and each of the consolidated statements of
operations, cash flows and stockholders' equity of the Company included in or
incorporated by reference into the Company Reports (including the related notes
and schedules) fairly presented the results of operations, cash flows and
shareholders' equity of the Company and its Subsidiaries for the periods set
forth therein, in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved, except as may be
noted therein or in the notes thereto and except that the unaudited interim
financial statements are subject to normal year-end adjustments and any other
adjustments referred to therein or in the notes thereto and do not contain all
of the footnote disclosures required by generally accepted accounting
principles. Except as set forth in SECTION 4.7 of the Company Disclosure Letter
or as disclosed in the Company Reports, neither the Company nor any of its
Subsidiaries has any liabilities or obligations, contingent or otherwise, except
(i) liabilities and obligations in the respective amounts reflected or reserved
against in the Company's consolidated balance sheet as of March 31, 1999
included in the Company Reports (the "1999 BALANCE Sheet") or (ii) liabilities
and obligations incurred in the ordinary course of business since March 31, 1999
which individually or in the aggregate would not have a Material Adverse Effect
or (iii) obligations and liabilities incurred or to be incurred relating to the
transactions contemplated by this Agreement.
(b) None of the Schedule 14D-9, the information statement, if any,
filed by the Company in connection with the Offer pursuant to Rule 14f-1 under
the Exchange Act (the "INFORMATION STATEMENT"), any schedule required to be
filed by the Company with the SEC or any amendment or supplement thereto, at the
respective times such documents are filed with the SEC or first published, sent
or given to the Company's stockholders, shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading except that no
representation is made by the Company with respect to information supplied by
the Purchaser or Merger Sub in writing specifically for inclusion in the
Schedule 14D-9 or Information Statement or any amendment or supplement. None of
the information supplied or to be supplied by the Company in writing
specifically for inclusion or incorporation by reference in the Offer Documents
will, at the date of filing with the SEC, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If at any time
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prior to the Effective Time the Company shall obtain knowledge of any facts with
respect to itself, any of its officers and directors or any of its Subsidiaries
that would require the supplement or amendment to any of the foregoing documents
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or to comply with applicable Laws, such
amendment or supplement shall be promptly filed with the SEC and, as required by
Law, disseminated to the stockholders of the Company, and in the event Purchaser
shall advise the Company as to its obtaining knowledge of any facts that would
make it necessary to supplement or amend any of the foregoing documents, the
Company shall promptly amend or supplement such document as required and
distribute the same to its stockholders.
4.8. LITIGATION. Except as set forth in the Company Reports or in
SECTION 4.8 of the Company Disclosure Letter, (i) there are no claims, actions,
suits, proceedings, arbitrations, or to the knowledge of the Company,
investigations or audits (collectively, "LITIGATION") by or before a
Governmental Entity pending or, to the knowledge of the Company, threatened
against the Company or any of its Subsidiaries, at law or in equity, other than
those in the ordinary course of business that, individually or in the aggregate,
would not have a Material Adverse Effect nor does the Company or any of its
Subsidiaries have knowledge of any facts or circumstances that it believes would
be likely to form the basis for any such claims, actions, suits, proceedings,
arbitrations, investigations or audits.
4.9. ABSENCE OF CERTAIN CHANGES. Except as set forth in the
Company Reports or in SECTION 4.9 of the Company Disclosure Letter, since March
31, 1999, the Company and its Subsidiaries have conducted their business in the
ordinary course of such business consistent with past practices, and there has
not been (i) any event or state of fact that, individually or in the aggregate,
would have a Material Adverse Effect; (ii) any declaration, setting aside or
payment of any dividend or other distribution with respect to its capital stock
or any repurchase, redemption or any other acquisition by the Company or its
Subsidiaries of any outstanding shares of capital stock or other securities of,
or other ownership interests in, the Company or any of its Subsidiaries; (iii)
any change in accounting principles, practices or methods; (iv) any entry into
any employment agreement with, or any increase in the rate or terms (including,
without limitation, any acceleration of the right to receive payment) of
compensation payable or to become payable by the Company or any of its
Subsidiaries to, their respective directors, officers or employees, except
increases for employees who are not officers or directors occurring in the
ordinary course of business in accordance with their customary practices; (v)
any increase in the rate or terms (including, without limitation, any
acceleration of the right to receive payment) of any bonus, insurance, pension
or other employee benefit plan or arrangement covering any such directors,
officers or employees, except increases for employees who are not officers or
directors occurring in the ordinary
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course of business in accordance with its customary practices; (vi) any entry
into any Contracts or transaction by the Company or any Subsidiary which is
material to the Company and its Subsidiaries taken as a whole whether or not in
the ordinary course of business; (vii) any revaluation by the Company or any of
its Subsidiaries of any of their respective assets, including, without
limitation, write-downs of inventory or write-offs of accounts receivable other
than in the ordinary course of business consistent with past practices; or
(viii) any action by the Company which if taken after the date hereof would
constitute a breach of SECTION 6.2(B) hereof (other than SECTIONS 6.2(b)(ii) and
6.2(b)(xiii)).
4.10. TAXES. The Company and its Subsidiaries have timely filed
(taking into account extensions) all material Tax Returns (as defined below)
required to be filed by any of them. All such Tax Returns are true, correct and
complete, except for such instances which individually or in the aggregate would
not have a Material Adverse Effect. Except as would not have a Material Adverse
Effect, except for those Taxes (as defined below) being contested in good faith
and for which adequate reserves have been established in the financial
statements included in the Company Reports in accordance with GAAP, and except
as set forth in SECTION 4.10 of the Company Disclosure Letter, the Company and
its Subsidiaries have paid all Taxes required to be paid by any of them or
claimed or asserted by any taxing authority to be due. There is no action, suit,
claim or assessment pending with respect to Taxes which, if upheld, would,
individually or in the aggregate, have a Material Adverse Effect. The Company
and its Subsidiaries have withheld and paid over to the relevant taxing
authority all Taxes required to have been withheld and paid in connection with
payments to employees, independent contractors, creditors, stockholders or other
third parties, except for such Taxes which, individually or in the aggregate,
would not have a Material Adverse Effect. The Company had no "plan or intention"
(within the meaning of Revenue Procedure 96-30), at the time of the consummation
of the transactions set forth in the Distribution Agreement, dated as of July
17, 1997, between MAPICS, Inc. (f/k/a Marcam Corporation) ("MAPICS") and the
Company (the "DISTRIBUTION AGREEMENT"), to liquidate the Company, to merge the
Company with any other corporation (including for this purpose a transaction
that would be treated for federal income tax purposes as a sale of stock), or to
sell or otherwise dispose of the assets of the Company, except in the ordinary
course of business. No circumstances exist that could cause the Company or any
of its Subsidiaries not to be entitled to indemnification under Section
6(a)(iii) of the Tax Sharing Agreement, dated as of July 17, 1997, by and
between MAPICS and the Company, by reason of the exception set forth therein
relating to Section 5.02(e) of the Distribution Agreement.
For purposes of this Agreement, (A) "TAX" (and, with correlative meaning,
"TAXES") means any federal, state, local or foreign income, gross receipts,
property, sales, use, license, excise, franchise, employment, payroll, premium,
withholding, alternative or
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added minimum, ad valorem, transfer or excise tax, or any other tax, custom,
duty, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, imposed by any Governmental
Entity, and (B) "TAX RETURN" means any return, report or similar statement
required to be filed with respect to any Tax (including any attached schedules),
including, without limitation, any information return, claim for refund, amended
return or declaration of estimated Tax.
4.11. EMPLOYEE BENEFIT PLANS. (a) SECTION 4.11 of the Company
Disclosure Letter sets forth a list of all "employee benefit plans," as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and all other material employee benefit or compensation
arrangements, including, without limitation, any such arrangements providing
severance pay, sick leave, vacation pay, salary continuation for disability,
retirement benefits, deferred compensation, bonus pay, incentive pay, stock
options (including those held by directors, employees, and consultants),
hospitalization insurance, medical insurance, life insurance, scholarships or
tuition reimbursements, that are maintained by the Company or any of its
Subsidiaries or to which the Company or any of its Subsidiaries is obligated to
contribute thereunder for current or former directors, employees, independent
contractors, consultants and leased employees of the Company or any Company
Subsidiary (the "COMPANY EMPLOYEE BENEFIT PLANS").
(b) None of the Company Employee Benefit Plans is a "multiemployer
plan," as defined in Section 4001(a)(3) of ERISA (a "MULTIEMPLOYER PLAN") or a
plan subject to Title IV of ERISA, and neither the Company nor any of its
Subsidiaries presently maintains or has maintained any such plan, or has any
liability, contingent or otherwise, with respect to any such plan.
(c) Except as provided in Part 6 of Title I of ERISA or as set forth
in SECTION 4.11 of the Company Disclosure Letter, the Company does not maintain
or contribute to any plan or arrangement which provides or has any liability to
provide life insurance or medical or other employee welfare benefits to any
employee or former employee upon his retirement or termination of employment,
and the Company has never represented, promised or contracted (whether in oral
or written form) to any employee or former employee that such benefits would be
provided.
(d) Except as set forth in SECTION 4.11 of the Company Disclosure
Letter, (i) the execution of, and performance of the transactions contemplated
in, this Agreement will not, either alone or upon the occurrence of subsequent
events, result in any payment (whether of severance pay or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution, increase in
benefits or obligation to fund benefits with respect to any employee, and (ii)
there are no severance agreements applicable to the Company or any of its
Subsidiaries. No payment or benefit which will or may be made
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by the Company, Parent or any of their Subsidiaries or affiliates with respect
to any employee of the Company or any of its Subsidiaries will be characterized
as an "excess parachute payment" within the meaning of Section 280G(b)(1) of the
Code.
(e) (i) each Company Employee Benefit Plan that is intended to
qualify under Section 401 of the Internal Revenue Code of 1986, as amended (the
"CODE"), and each trust maintained pursuant thereto, has been determined to be
exempt from federal income taxation under Section 501 of the Code by the
Internal Revenue Service, and nothing has occurred with respect to the operation
or organization of any such Company Employee Benefit Plan that would cause the
loss of such qualification or exemption or the imposition of any material
liability, penalty or tax under ERISA or the Code, (ii) there are no pending
material actions, claims (other than claims for benefits), investigations or
lawsuits which have been asserted, filed or, to the Company's knowledge,
threatened, in connection with the Company Employee Benefit Plans, (iii) no
"non-exempt" "prohibited transaction" (within the meaning of Section 4975 of the
Code or Section 406 of ERISA) has occurred with respect to any Company Employee
Benefit Plan that could result in a material liability to the Company, any
Company Employee Benefit Plan or any of the beneficiaries thereof, and (iv) the
Company Employee Benefit Plans have been maintained in all material respects in
accordance with their terms and with all applicable provisions of ERISA and the
Code (including rules and regulations thereunder) and all other applicable
federal and state laws and regulations.
(f) Neither the Company nor any of its Subsidiaries has made any
payment or is obligated to make any payment that is not or will not be fully
deductible under Section 162(m) of the Code, nor is the Company or any of its
Subsidiaries a party to any agreement that could result in any such payment.
(g) SECTION 4.11 of the Company Disclosure Letter sets forth a
complete list of all amounts (other than DE MIMIMUS amounts) outstanding
relating to bonuses payable to employees and any obligation to pay bonuses to
employees relating to the Company's performance, the employee's performance or
the transactions contemplated hereby.
(h) Other than the Subsidiaries, there is no business or entity which
is a member of the same "controlled group of corporations," under "common
control" or an "affiliated service group" with the Company within the meanings
of Sections 414(b), (c) or (m) of the Code, or required to be aggregated with
the Company under Section 414(o) of the Code, or is under "common control" with
the Company, within the meaning of Section 4001(a)(14) of ERISA, or any
regulations promulgated or proposed under any of the foregoing Sections.
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4.12. LABOR AND EMPLOYMENT MATTERS. Except as set forth in SECTION
4.12 of the Company Disclosure Letter, neither the Company nor any of its
Subsidiaries is a party to, or bound by, any collective bargaining agreement or
other Contracts or understanding with a labor union or labor organization.
Except for such matters which, individually or in the aggregate, would not have
a Material Adverse Effect and, there is no (i) unfair labor practice, labor
dispute (other than routine individual grievances) or labor arbitration
proceeding pending or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries relating to their businesses, (ii) activity
or proceeding by a labor union or representative thereof to organize any
employees of the Company or any of its Subsidiaries, or (iii) lockouts, strikes,
slowdowns, work stoppages or threats thereof by or with respect to such
employees. The Company is in compliance with all Laws regarding employment,
employment practices, terms and conditions of employment and wages and Laws,
except for such noncompliance which, either individually or in the aggregate,
would not have a Material Adverse Effect.
4.13. BROKERS. Except for the Financial Advisor, no broker, finder
or financial advisor is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by this Agreement
that is based upon any arrangement made by or on behalf of the Company. The
Company's fee arrangements with the Financial Advisor have been disclosed to the
Purchaser.
4.14. INTELLECTUAL PROPERTY RIGHTS. Each item of Company
Intellectual Property which is (i) owned by the Company and is a patent, patent
application, material or registered trademark, trademark application, material
or registered service mark, service mark application, material trade dress,
material logo, trade name, domain name, corporate name, copyright registration,
copyright application, mask work registration or mask work application, or (ii)
a material license out of the ordinary course of business, material sublicense
out of the ordinary course of business or material agreement out of the ordinary
course of business is set forth in SECTION 4.14A of the Company Disclosure
Letter or filed as an exhibit to the Company Reports. Except as set forth in
SECTION 4.14B(a) of the Company Disclosure Letter, (i) the Company owns the
Company Intellectual Property, free and clear of any Encumbrance, license or
other restriction, or has the valid right to make, use, sell or license as
necessary in the conduct of its business the Company Intellectual Property; (ii)
the Company has the right to require any Company employee or contractor having
rights in any Company Intellectual Property which is an application for
registration, including but not limited to patent applications, trademark
applications, service mark applications, copyright applications, or mask work
applications, to transfer ownership to the Company of the application and of the
registration once it issues, and all registered patents, trademarks, service
marks and copyrights owned by the Company are valid and subsisting and in full
force and effect; and (iii) Company Intellectual Property is all the
Intellectual Property that is necessary for
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the ownership, maintenance and operation of the Company's properties and assets
and the Company has the right to make, use, sell or license as necessary in the
conduct of its business all of the Company Intellectual Property in all
jurisdictions in which the Company conducts or proposes to conduct its business.
The consummation of the transactions contemplated hereby will not alter or
impair any such rights in any manner which, individually or in the aggregate,
would have a Material Adverse Effect (other than as a result of limitations
arising because of contractual or other restrictions to which the Purchaser or
its affiliates is a party). Other than exceptions which, individually or in the
aggregate, would not have a Material Adverse Effect, (i) the Company has not,
and the continued operation of the Company's and its Subsidiaries' businesses as
presently conducted will not, interfere with, infringe upon, misappropriate or
otherwise come into conflict with, any Intellectual Property rights of third
parties, and the Company has not received any charge, complaint, claim, demand
or notice so alleging (including any claim that the Company must license or
refrain from using any Intellectual Property rights of any third party); (ii)
the Company has never agreed to defend or indemnify any person for or against
any interference, infringement, misappropriation or other conflict with respect
to any Company Intellectual Property, other than in license agreements with
customers and agreements with business partners entered into in the ordinary
course of business (and in substantially all such agreements, the Company has
excluded consequential damages and in the remainder of such agreements, has
limited consequential damages); (iii) no third party has interfered with,
infringed upon, misappropriated or otherwise come into conflict with any Company
Intellectual Property; and (iv) no action, suit, proceeding or hearing, or to
the knowledge of the Company, investigation, charge, complaint, claim or demand,
has been made, is pending, or, to the knowledge of the Company, is threatened
which challenges the legality, validity, enforceability, use or ownership of any
Company Intellectual Property. Except as set forth in SECTION 4.14B(b) of the
Company Disclosure Letter, the Company does not license any Intellectual
Property from any third party which Intellectual Property is integral to the
operation of the Company's independently developed core standard software
products. The Company has obtained from all of its employees, former employees,
independent contractors and former independent contractors (collectively,
"Inventors") valid and effective assignments of all of such Inventors' rights in
any Intellectual Property developed by such Inventors while employed by, or
under contract with, the Company or its predecessor, except where the failure to
obtain such assignments, individually or in the aggregate, would not have a
Material Adverse Effect.
"COMPANY INTELLECTUAL PROPERTY" means (a) all inventions (whether
patentable or unpatentable and whether or not reduced to practice), all
improvements thereon, and all patents, patent applications and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions and reexaminations thereof, (b) all
trademarks, service marks, trade dress, logos, trade names,
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domain names, and corporate names, together with all translations, adaptations,
derivations and combinations thereof and including all goodwill associated
therewith, and all applications, registrations and renewals in connection
therewith, (c) all copyrightable works, all copyrights and all applications,
registrations and renewals in connection therewith, (d) all mask works and all
applications, registrations and renewals in connection therewith, (e) all trade
secrets and confidential business information (including ideas, research and
development, know-how, formulas, compositions, manufacturing and production
processes and techniques, methods, schematics, technology, technical data,
designs, drawings, flowcharts, block diagrams, specifications, customer and
supplier lists, pricing and cost information and business and marketing plans
and proposals), (f) all computer software (including data and related
documentation) (g) all other proprietary rights, and (h) all licenses,
sublicenses, or agreements related to the foregoing categories of intellectual
property listed in subsections (a) through (g) herein (categories (a) through
(h) herein are collectively referred to as "INTELLECTUAL PROPERTY") which is
used, has been used, or is proposed to be used in connection with the Business.
4.15. PERMITS. The Company and its Subsidiaries are in possession
of all franchises, grants, authorizations, licenses, permits, easements,
variances, exceptions, consents, certificates, approvals and orders of any
court, governmental or regulatory authority necessary for the Company and its
Subsidiaries to own, lease and operate its properties or to lawfully conduct
their respective businesses as presently conducted (the "COMPANY PERMITS"),
except where the failure to have any of the Company Permits, individually or in
the aggregate, would not have a Material Adverse Effect. As of the date hereof,
no suspension or cancellation of any of the Company Permits is pending or, to
the knowledge of the Company threatened, except where the suspension or
cancellation of any of the Company Permits, individually or in the aggregate,
would not have a Material Adverse Effect.
4.16. ENVIRONMENTAL MATTERS. (a) Except as set forth in the
Company Reports filed prior to the date hereof and with such other exceptions
which, individually or in the aggregate, would not have a Material and Adverse
Effect:
(i) the Company and each of its Subsidiaries has at
all times been operated, and is, in compliance with all applicable Environmental
Laws, and neither the Company nor any of its Subsidiaries has received any
written communication from any Person or Governmental Entity that alleges that
the Company or any of its Subsidiaries is not in compliance with applicable
Environmental Laws;
(ii) the Company and each of its Subsidiaries has
obtained or has applied for all applicable environmental, health and safety
permits, licenses, variances, approvals and authorizations required under
Environmental Laws (collectively,
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"ENVIRONMENTAL PERMITS") necessary for the conduct of its operations, and such
Environmental Permits are in effect or, where applicable, a renewal application
has been timely filed, and the Company and its Subsidiaries are in compliance in
all respects with all terms and conditions of such Environmental Permits;
(iii) there is no Environmental Claim pending or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries;
(iv) to the knowledge of the Company, there have been
no Releases of any Hazardous Materials that would be reasonably likely to form
the basis of any material Environmental Claim against the Company, any of its
Subsidiaries or any predecessor thereof; and
(v) none of the properties currently owned, leased or
operated, or, to the knowledge of the Company, formerly owned, leased or
operated, by the Company, its Subsidiaries or any predecessor thereof, are now,
or were in the past, listed on the National Priorities List of Superfund Sites,
any analogous state list or any database listing sites for the purpose of
investigation under Environmental Laws.
(b) For purposes of this Agreement:
(i) "ENVIRONMENTAL CLAIM" means any and all
administrative, regulatory or judicial actions, suits, demands, demand letters,
information requests, directives, claims, liens, investigations, proceedings or
notices of noncompliance, violation or status as a potentially responsible
person or otherwise liable party by any Person (including any Governmental
Entity) relating to or alleging potential liability (including, without
limitation, potential responsibility for or liability for enforcement,
investigatory costs, cleanup costs, response costs, removal costs, natural
resources damages, property damages, personal injuries or penalties) relating to
(A) the presence, or Release or threatened Release into the environment, of any
Hazardous Materials at any location; or (B) circumstances forming the basis of
any violation or alleged violation of any Environmental Law; or (C) any and all
claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief relating to any Environmental Laws.
(ii) "ENVIRONMENTAL LAWS" means all applicable federal,
state and local laws, rules, requirements, regulations and judicial or
administrative opinions, orders or decrees, and any common law causes of action,
in each case relating to pollution, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or protection of human or employee health or safety including, without
limitation, laws and regulations relating to Releases of Hazardous Materials.
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(iii) "HAZARDOUS MATERIALS" means (A) any petroleum or
any by-products or fractions thereof, asbestos or asbestos-containing materials,
urea formaldehyde foam insulation, any form of natural gas, explosives,
polychlorinated biphenyls ("PCBS"), radioactive materials, ionizing radiation or
electromagnetic field radiation; (B) any chemicals, materials or substances
which are included in the definition of "wastes," "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous substances,"
"toxic substances," "toxic pollutants," "pollutants," "contaminants," or words
of similar import under any Environmental Law; and (C) any other chemical,
material or substance, regulated under any Environmental Law.
(iv) "RELEASE" means any release, spill, emission,
leaking, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including without limitation ambient air,
atmosphere, soil, surface water, groundwater or property).
4.17. TITLE TO ASSETS. The Company and its Subsidiaries have good
and marketable title to all of their real and personal properties and assets
reflected in the 1999 Balance Sheet (other than assets disposed of since March
31, 1999 in the ordinary course of business, and properties and assets acquired
since March 31, 1999), in each case free and clear of all Encumbrances except
for (i) liens for Taxes accrued but not yet payable; (ii) liens arising as a
matter of law in the ordinary course of business with respect to obligations
incurred after the date of the 1999 Balance Sheet, provided that the obligations
secured by such liens are not delinquent; (iii) such imperfections of title and
Encumbrances, if any, as would not have a Material Adverse Effect; and (iv) the
matters set forth in SECTION 4.7 of the Company Disclosure Letter. The Company
and its Subsidiaries own, or have valid leasehold interests in, all properties
and assets used in the conduct of their business. Any real property and other
assets held under lease by the Company or any of its Subsidiaries are held under
valid, subsisting and enforceable leases with such exceptions which,
individually or in the aggregate, would not interfere with the use made or
proposed to be made by the Company or any of its Subsidiaries of such property.
4.18. INSURANCE POLICIES. The Company and its Subsidiaries have
obtained and maintained in full force and effect insurance with insurance
companies or associations in such amounts, on such terms and covering such
risks, as is customarily carried by reasonably prudent persons conducting
businesses or owning or leasing assets similar to those conducted, owned or
leased by the Company, except where the failure to obtain or maintain such
insurance, individually or in the aggregate, would not have a Material Adverse
Effect.
4.19. MATERIAL CONTRACTS. SECTION 4.19 of the Company Disclosure
Letter sets forth a list of all (i) Contracts for borrowed money or guarantees
thereof,
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(ii) Contracts containing non-compete covenants restricting the business
activities of the Company or its Subsidiaries and (iii) Contracts for
indebtedness payable to the Company or any of its Subsidiaries from any officers
or directors or affiliates (other than the Company's Subsidiaries). All
Contracts to which the Company or any of its Subsidiaries is a party, or by
which any of their respective assets are bound, are valid and binding, in full
force and effect and, to the Company's knowledge, enforceable against the
parties thereto in accordance with their respective terms, except where the
failure to be so valid and binding, in full force and effect or enforceable,
individually or in the aggregate, would not have a Material Adverse Effect.
Except as set forth in SECTION 4.19 of the Company Disclosure Letter, there is
not under any such Contract, any existing default, or event, which after notice
or lapse of time, or both, would constitute a default, by the Company or any of
its Subsidiaries, or to the Company's knowledge, any other party, other than any
such defaults or events which, individually or in the aggregate, would not have
a Material Adverse Effect. As of the date hereof, the Company has no outstanding
indebtedness for borrowed money and has not incurred any indebtedness under the
Loan and Security Agreement, dated April 20, 1999, between Greyrock Capital, a
Division of NationsCredit Commercial Corporation and the Company (the "LOAN
AGREEMENT").
4.20. OPINION OF FINANCIAL ADVISOR. The Board of Directors of the
Company has received the written opinion of the Financial Advisor to the effect
that, as of May 25, 1999, the consideration to be received by the holders of
shares of Common Stock pursuant to the Offer and the Merger is fair to such
holders from a financial point of view.
4.21. STATE TAKEOVER STATUTES. The Board of Directors of the
Company has approved the Offer, the Merger and this Agreement and such approval
is sufficient to render inapplicable to the Offer, the Merger, this Agreement
and the Option Agreement and the transactions contemplated hereby or by the
Ancillary Documents, the provisions of Section 203 of the DGCL to the extent, if
any, such Section is applicable to the transactions contemplated hereby or
thereby. To the Company's knowledge, no other state takeover statute or similar
statute or regulation applies to the Offer, the Merger or the transactions
contemplated hereby.
4.22. REQUIRED VOTE OF COMPANY STOCKHOLDERS. Unless the Merger may
be consummated in accordance with Section 253 of the DGCL, the only vote of the
stockholders of the Company required to adopt this Agreement, the Ancillary
Documents and to approve the Merger and the transactions contemplated hereby and
thereby, is the affirmative vote of the holders of a majority of the outstanding
shares of Common Stock.
4.23. RIGHTS AGREEMENT. The Company has amended the Rights
Agreement so that the Rights Agreement will not be applicable to this Agreement,
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the Offer, the announcement of the Offer, the purchase of shares of Common Stock
by Parent or Merger Sub pursuant to the Offer, the Merger, the Option Agreement
or any other action contemplated hereby or by the Ancillary Documents.
4.24. YEAR 2000 COMPLIANCE; EURO COMPLIANCE. (a) Except as set
forth in SECTION 4.24 of the Company Disclosure Letter or the Company Reports:
(i) the computer systems of the Company and its Subsidiaries are Year 2000
Compliant and Euro Compliant in all material respects; (ii) all inventory,
products and independently developed applications of the Company and its
Subsidiaries that is, consists of, includes or uses computer software is Year
2000 Compliant and Euro Compliant in all material respects; and (iii) to the
knowledge of the Company, any failure on the part of the customers of and
suppliers to the Company and its Subsidiaries to be Year 2000 Compliant by
December 31, 1999 will not have a Material Adverse Effect.
(b) The term "Year 2000 Compliant", with respect to a computer system
or software program, means that such computer system or program: (i) is capable
of recognizing, processing, managing, representing, interpreting and
manipulating correctly date-related data for dates earlier and later than
January 1, 2000; (ii) has the ability to provide date recognition for any data
element without limitation; (iii) has the ability to function automatically into
and beyond the year 2000 without human intervention and without any change in
operations associated with the advent of the year 2000; (iv) has the ability to
interpret data, dates and time correctly into and beyond the year 2000; (v) has
the ability not to produce noncompliance in existing data, nor otherwise corrupt
such data, into and beyond the year 2000; (vi) has the ability to process
correctly after January 1, 2000, data containing dates before that date; and
(vii) has the ability to recognize all "leap year" dates, including February 29,
2000.
(c) The term "Euro Compliant, with respect to a computer system or
software program, means that such computer system or program contain Euro
functionality enabling companies to process multiple currencies and address the
requirements of Euro compliance.
ARTICLE 5
5. REPRESENTATIONS AND WARRANTIES OF PARENT, PURCHASER AND MERGER SUB.
Parent, Purchaser and Merger Sub hereby represent and warrant to the Company as
of the date of this Agreement as follows:
5.1. EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. Each of
Parent, Purchaser and Merger Sub is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority to own,
operate and lease its properties and carry on its business as
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now conducted, except where the failure to have such power and authority,
individually or in the aggregate, would not materially adversely affect the
ability of Parent, Purchaser and Merger Sub to consummate the transactions
contemplated hereby and by the Ancillary Documents.
5.2. AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. Each of
Parent, Purchaser and Merger Sub has the requisite corporate power and authority
to execute and deliver this Agreement and the Ancillary Documents and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Ancillary Documents and the consummation by
Parent, Purchaser and Merger Sub of the transactions contemplated hereby and
thereby have been duly and validly authorized by the respective Boards of
Directors of Parent, Purchaser and Merger Sub and by Purchaser as the sole
stockholder of Merger Sub and no other corporate proceedings on the part of
Parent, Purchaser or Merger Sub are necessary to authorize this Agreement and
the Ancillary Documents or to consummate the transactions contemplated hereby
and thereby. This Agreement has been, and any Ancillary Documents at the time of
execution will have been, duly and validly executed and delivered by Parent,
Purchaser and Merger Sub, and (assuming this Agreement and such Ancillary
Documents each constitutes a valid and binding obligation of the Company)
constitutes and will constitute the valid and binding obligations of each of
Parent, Purchaser and Merger Sub, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity.
5.3. NO VIOLATION. Neither the execution and delivery of this
Agreement or any of the Ancillary Documents by Parent, Purchaser and Merger Sub,
nor the consummation by them of the transactions contemplated hereby or thereby,
will (i) violate, conflict with or result in any breach of any provision of the
respective certificates of incorporation or by-laws of Parent, Purchaser or
Merger Sub; (ii) other than the filings provided for in SECTION 2.3 and the
filings required under the Exchange Act and the HSR Act, require any consent,
approval or authorization of, or declaration, filing or registration with, any
Governmental Entity, the lack of which, individually or in the aggregate, would
have a material adverse effect on the ability of Parent, Purchaser or Merger Sub
to consummate the transactions contemplated hereby, (iii) violate any Laws
applicable to Parent, Purchaser or the Merger Sub or any of their respective
assets, except for violations which, individually or in the aggregate, would not
have a material adverse effect on the ability of Parent, Purchaser or Merger Sub
to consummate the transactions contemplated hereby, and (iv) violate, conflict
with or result in a breach of any provision of, constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, result in the termination or in a right of termination of, accelerate the
performance required by or benefit obtainable under, result in the creation
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of any Encumbrance upon any of the properties of Parent, Purchaser or Merger Sub
under, or result in there being declared void, voidable, or without further
binding effect, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust or any license, franchise, permit, lease,
contract, agreement or other instrument, commitment or obligation to which
Parent, Purchaser or Merger Sub is bound, except for any of the foregoing
matters which, individually or in the aggregate, would not materially adversely
affect the ability of Parent, Purchaser and Merger Sub to consummate the
transactions contemplated hereby and by the Ancillary Documents.
5.4. INTERIM OPERATIONS OF MERGER SUB. Merger Sub was formed
solely for the purpose of engaging in the transactions contemplated hereby, has
engaged in no other business activities and has conducted its operations as
contemplated hereby.
5.5. FINANCING. Parent has, and will have at the time of
consummation of the Offer and at the Effective Time, funds available to it
sufficient to consummate the Offer and the Merger on the terms contemplated
hereby. At the time of consummation of the Offer and at the Effective Time,
Parent and Purchaser will cause the Merger Sub to have funds available to it
sufficient to consummate the Offer and the Merger on the terms contemplated
hereby.
5.6. INTERESTED STOCKHOLDER. Provided that the approvals set
forth in SECTION 1.3(A) are obtained, as of the date hereof, (i) neither Parent,
Purchaser nor Merger Sub nor any of their affiliates is, with respect to the
Company, an "Interested Stockholder", as such term is defined in Section 203 of
the DGCL and (ii) neither Parent, Purchaser nor Merger Sub nor any of their
affiliates beneficially owns any shares of Common Stock of the Company.
ARTICLE 6
6. Covenants.
---------
6.1. ALTERNATIVE PROPOSALS. The Company agrees (a) that, between
the date hereof and the earlier of the Effective Time or the termination of this
Agreement in accordance with Article 8, neither it nor any of its Subsidiaries
shall, and it shall direct and use its best efforts to cause its officers,
directors, employees, agents and representatives (including, without limitation,
any investment banker, attorney or accountant retained by it or any of its
Subsidiaries) (the "REPRESENTATIVES") not to, initiate, solicit or encourage,
directly or indirectly, any inquiries or the making or implementation of any
proposal or offer (including, without limitation, any proposal or offer to its
stockholders) with respect to a merger, acquisition, consolidation or similar
transaction involving, or any purchase of all or any significant portion of the
assets or any equity
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securities (other than pursuant to outstanding Options, Warrants and Purchase
Rights) of, the Company or any of its Subsidiaries (any such proposal or offer
being hereinafter referred to as an "ALTERNATIVE PROPOSAL") or engage in any
negotiations concerning, or provide any confidential information or data to,
afford access to the properties, books or records of the Company or any of its
Subsidiaries to, or have any discussions with, any person relating to an
Alternative Proposal, or otherwise facilitate any effort or attempt to make or
implement an Alternative Proposal; (b) that it 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, and it will
take the necessary steps to inform such parties of the obligations undertaken in
this SECTION 6.1; and (c) that it will notify Purchaser immediately of the
identity of the potential acquiror and the terms of such person's or entity's
proposal if any such inquiries or proposals are received by, any such
information is requested from, or any such negotiations or discussions are
sought to be initiated or continued with, the Company; provided, however, that
nothing contained in this SECTION 6.1 shall prohibit the Company or its
Subsidiaries or its Representatives, upon approval by the Board, from (i) prior
to the acceptance for payment of shares of Common Stock by Merger Sub pursuant
to the Offer, furnishing information to, or entering into discussions or
negotiations with, any person or entity that makes an unsolicited bona fide
proposal to acquire the Company pursuant to a merger, consolidation, share
exchange, purchase of substantially all of the assets of the Company, a business
combination or other similar transaction, if, and only to the extent that, (A)
such proposal was not solicited, encouraged or knowingly facilitated by the
Company, its Subsidiaries or their agents in violation of this SECTION 6.1 or
the letter, dated May 27, 1999, from Wonderware Corporation to the Company, (B)
such proposal is not subject to the receipt of any necessary financing, unless
the Board has determined in good faith, based on the advice of the Financial
Advisor or other nationally recognized investment banking firm, that such
proposal is readily financeable and involves consideration that provides a
higher value per share than the Merger Consideration, (C) the Board of Directors
of the Company determines in good faith after receiving a written opinion from
outside counsel that the failure to take such action would be a violation by the
Board of Directors of its fiduciary duties to stockholders imposed by Law and
(D) prior to furnishing information to, or entering into discussions or
negotiations with, such person or entity, the Company provides written notice to
Purchaser to the effect that it is furnishing information to, or entering into
discussions or negotiations with, such person or entity; and (ii) to the extent
applicable, complying with Rule 14e-2(a) promulgated under the Exchange Act with
regard to an Alternative Proposal. The Company shall keep Purchaser immediately
informed of the status of any such discussions or negotiations permitted
pursuant to the previous sentence (including the identity of such person or
entity and the terms of any proposal). Nothing in this SECTION 6.1 shall (x)
permit the Company to terminate this Agreement (except as specifically provided
in ARTICLE 8 hereof), (y) permit the Company to enter into any
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agreement with respect to an Alternative Proposal during the term of this
Agreement, or (z) affect any other obligation of the Company under this
Agreement.
6.2. INTERIM OPERATIONS. (a) From the date of this Agreement
until the Effective Time, except as set forth in SECTION 6.2 of the Company
Disclosure Letter, unless Purchaser has consented in writing thereto, the
Company shall, and shall cause its Subsidiaries to, (i) conduct its operations
according to its ordinary course of business consistent with past practice; (ii)
use its reasonable best efforts to preserve intact its business organizations
and goodwill, keep available the services of its officers and employees, and
maintain satisfactory relationships with those persons having business
relationships with them; (iii) upon the discovery thereof, promptly notify
Purchaser of the existence of any breach of any representation or warranty
contained herein (or, in the case of any representation or warranty that makes
no reference to Material Adverse Effect, any breach of such representation or
warranty in any material respect) or the occurrence of any event that would
cause any representation or warranty contained herein no longer to be true and
correct (or, in the case of any representation or warranty that makes no
reference to Material Adverse Effect, to no longer be true and correct in any
material respect); and (iv) promptly deliver to Purchaser true and correct
copies of any report, statement or schedule filed with the SEC subsequent to the
date of this Agreement, any internal monthly reports prepared for or delivered
to the Board of Directors after the date hereof and monthly financial statements
for the Company and its Subsidiaries for and as of each month end subsequent to
the date of this Agreement.
(b) From and after the date of this Agreement until the Effective
Time, except as set forth in SECTION 6.2 of the Company Disclosure Letter,
unless Purchaser has consented in writing thereto, the Company shall not, and
shall not permit its Subsidiaries to, (i) amend its certificate of incorporation
or by-laws; (ii) issue, sell or pledge any shares of its capital stock or other
ownership interest in the Company (other than issuances of Common Stock in
respect of any exercise of stock options or warrants outstanding on the date
hereof and disclosed in SECTION 4.4 of the Company Disclosure Letter or pursuant
to the Purchase Plan as permitted by SECTION 6.9) or its Subsidiaries, or any
securities convertible into or exchangeable for any such shares or ownership
interest, or any rights, warrants or options to acquire or with respect to any
such shares of capital stock, ownership interest, or convertible or exchangeable
securities (or derivative instruments in respect of the foregoing); (iii) effect
any stock split or otherwise change its capitalization as it exists on the date
hereof; (iv) grant, confer or award any option, warrant, convertible security or
other right to acquire any shares of its capital stock or take any action to
cause to be exercisable any otherwise unexercisable option under any existing
stock option plan (except as otherwise required by the terms of such
unexercisable options or the stock option plan); (v) declare, set aside or pay
any dividend or make any other distribution or payment with respect to any
shares of its capital stock or other ownership interests (other than such
payments by the Subsidiaries to the Company);
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(vi) directly or indirectly redeem, purchase or otherwise acquire any shares of
its capital stock or capital stock of its Subsidiaries; (vii) sell, lease or
otherwise dispose of any of its assets (including capital stock of its
Subsidiaries), other than the sale or disposition of inventory or the license of
the Company's products in the ordinary course of business or the sale, lease or
other disposition of assets which, individually or in the aggregate, are
obsolete or not material to the Company and its Subsidiaries taken as a whole;
(viii) (x) acquire by merger, purchase or any other manner, any business or
entity or (y) otherwise acquire any assets which would be material, individually
or in the aggregate, to the Company and its Subsidiaries taken as a whole,
except for purchases of inventory, supplies or capital equipment in the ordinary
course of business consistent with past practice; (ix) incur or assume any
long-term or short-term debt for borrowed money, including debt under the Loan
Agreement; provided that, upon the written consent of Purchaser (which consent
shall not be unreasonably withheld), the Company may incur or assume debt under
the Loan Agreement at any time after 75 days after the date hereof; (x) assume,
guarantee or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the debt or other obligations of any other person
excluding the endorsement of checks and other commercial instruments in the
ordinary course of business, other than obligations (other than debt) of its
Subsidiaries incurred in the ordinary course of business; (xi) make or forgive
any loans, advances or capital continuations to, or investments in, any other
person; (xii) grant any stock-related or performance awards; (xiii) enter into
any new employment, severance, consulting or salary continuation agreements with
any officers, directors or employees or grant any increases in compensation or
benefits to employees; (xiv) except to the extent required by Law, adopt or
amend in any material respect any material employee benefit plan or arrangement;
(xv) amend, change or waive (or exempt any person or entity from the effect of)
the Rights Agreement, except as contemplated by SECTION 4.23; (xvi) permit any
insurance policy naming the Company or any Subsidiary as a beneficiary or a loss
payee to be canceled or terminated other than in the ordinary course of
business; (xvii) settle or compromise any pending or threatened Litigation;
(xviii) make any Tax election or settle any Tax liability other than settlements
involving solely the payment of money (without admission of liability) not to
exceed $50,000; and (xix) agree in writing or otherwise to take any of the
foregoing actions.
6.3. COMPANY STOCKHOLDER APPROVAL; PROXY STATEMENT. (a) If
approval or action in respect of the Merger by the stockholders of the Company
is required by applicable Law, the Company, acting through the Board, shall (i)
call as promptly as practicable following the consummation of the Offer, a
meeting of its stockholders (the "STOCKHOLDERS MEETING") for the purpose of
voting upon the Merger, (ii) hold the Stockholders Meeting as soon as
practicable following the purchase of shares of Common Stock pursuant to the
Offer, and (iii) recommend to its stockholders the approval of the Merger. The
record date for the Stockholders Meeting shall be a date subsequent to the
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date on which Purchaser or Merger Sub becomes a record holder of Common Stock
purchased pursuant to the Offer.
(b) If required by applicable Law, the Company will, as soon as
practicable following the expiration of the Offer, prepare and file a
preliminary Proxy Statement (such proxy statement, and any amendments or
supplements thereto, the "PROXY STATEMENT") or, if applicable, an information
statement with the SEC with respect to the Stockholders Meeting and will use its
best efforts to respond to any comments of the SEC or its staff and to cause the
Proxy Statement to be cleared by the SEC. The Company will notify Purchaser of
the receipt of any comments from the SEC or its staff and of any request by the
SEC or its staff for amendments or supplements to the Proxy Statement or for
additional information and will supply Purchaser with copies of all
correspondence between the Company or any of its representatives, on the one
hand, and the SEC or its staff, on the other hand, with respect to the Proxy
Statement or the Merger. The Company shall give Purchaser and its counsel the
opportunity to review the Proxy Statement prior to it being filed with the SEC
and shall give Purchaser and its counsel the opportunity to review all
amendments and supplements to the Proxy Statement and all responses to requests
for additional information and replies to comments prior to their being filed
with, or sent to, the SEC. Each of the Company and Purchaser agrees to use its
best efforts, after consultation with the other parties hereto, to respond
promptly to all such comments of and requests by the SEC. As promptly as
practicable after the Proxy Statement has been cleared by the SEC, the Company
shall mail the Proxy Statement to the stockholders of the Company. If at any
time prior to the approval of this Agreement by the Company's stockholders there
shall occur any event which should be set forth in an amendment or supplement to
the Proxy Statement, the Company will prepare and mail to its stockholders such
an amendment or supplement.
(c) The Company represents and warrants that the Proxy Statement will
comply in all material respects with the Exchange Act and, at the respective
times filed with the SEC and distributed to stockholders of the Company, will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation or
warranty as to any information included in the Proxy Statement that was provided
by Parent, Purchaser or Merger Sub. Purchaser represents and warrants that none
of the information supplied by Parent, Purchaser or Merger Sub for inclusion in
the Proxy Statement will, at the respective times filed with the SEC and
distributed to stockholders of the Company, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(d) Following the consummation of the Offer, the Company shall use
its best efforts to obtain the necessary approvals by its stockholders of the
Merger, this Agreement and the transactions contemplated hereby.
(e) Parent agrees to cause all shares of Common Stock purchased by
Merger Sub pursuant to the Offer and all other shares of Common Stock owned by
Purchaser, Merger Sub or any other subsidiary or affiliate of Parent to be voted
in favor of the approval of the Merger.
6.4. FILINGS; OTHER ACTION. Subject to the terms and conditions
herein provided, the Company, Parent, Purchaser, and Merger Sub shall: (a) use
their reasonable best efforts to cooperate with one another in (i) determining
which filings other than under the Exchange Act and under the HSR are required
to be made prior to the expiration of the Offer or the Effective Time with, and
which consents, approvals, permits or authorizations are required to be obtained
prior to the Effective Time from, Governmental Entities or other third parties
in connection with the execution and delivery of this Agreement and any other
Ancillary Documents and the consummation of the transactions contemplated hereby
and thereby and (ii) timely making all filings under the Exchange Act and under
the HSR and all such other filings and timely seek all required consents,
approvals, permits, authorizations and waivers; and (b) use their reasonable
best efforts to take, or cause to be taken, all other action and do, or cause to
be done, all other things necessary, proper or appropriate to consummate and
make effective the transactions contemplated by this Agreement at the earliest
practicable time. If, at any time after the Effective Time, any further action
is necessary or desirable to carry out the purpose of this Agreement, the proper
officers and directors of Parent, Purchaser and the Surviving Corporation shall
take all such necessary action.
6.5. ACCESS TO INFORMATION. (a) From the date of this Agreement
until the Closing, the Company shall, and shall cause its Subsidiaries to, (i)
give Purchaser and its authorized representatives full access to all books,
records, personnel, offices and other facilities and properties of the Company
and its Subsidiaries and their accountants and accountants' work papers, (ii)
permit Purchaser to make such copies and inspections thereof as Purchaser may
reasonably request and (iii) furnish Purchaser with such financial and operating
data and other information with respect to the business and properties of the
Company and its Subsidiaries as Purchaser may from time to time reasonably
request; provided that no investigation or information furnished pursuant to
this SECTION 6.5 shall affect any representation or warranty made herein by the
Company or the conditions to the obligations of Parent, Purchaser and Merger Sub
to consummate the transactions contemplated by this Agreement.
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(b) All such information shall be subject to the terms and conditions
of the Confidentiality Agreement.
6.6. PUBLICITY. The initial press release relating to this
Agreement shall be issued jointly by the Company and Parent. Thereafter, subject
to their respective legal obligations, the Company and Parent shall consult with
each other, and use reasonable efforts to agree upon the text of any press
release, before issuing any such press release or otherwise making public
statements with respect to the transactions contemplated hereby and in making
any filings with any Governmental Entity or with any national securities
exchange with respect thereto.
6.7. FURTHER ACTION. Each party hereto shall, subject to the
fulfillment at or before the Effective Time of each of the conditions of
performance set forth herein or the waiver thereof, perform such further acts
and execute such documents as may be reasonably required to effect the Merger.
6.8. INSURANCE; INDEMNITY. (a) Purchaser will cause the Surviving
Corporation to maintain in effect for not less than three years after the
Effective Time, the Company's current directors and officers insurance policies,
if such insurance is obtainable (or policies of at least the same coverage
containing terms and conditions no less advantageous to the current and all
former directors and officers of the Company) with respect to acts or failures
to act prior to the Effective Time, including acts relating to the transactions
contemplated by this Agreement; provided, however, that in order to maintain or
procure such coverage, Purchaser and the Surviving Corporation shall not be
required to maintain or obtain policies providing such coverage except to the
extent such coverage can be provided at an annual cost of no greater than 1.5
times the most recent annual premium paid by the Company prior to the date
hereof (the "CAP"); and provided, further, that if equivalent coverage cannot be
obtained, or can be obtained only by paying an annual premium in excess of the
Cap, Purchaser or the Surviving Corporation shall only be required to obtain as
much coverage as can be obtained by paying an annual premium equal to the Cap.
(b) From and after the Effective Time, Purchaser and the Surviving
Corporation shall indemnify and hold harmless each person who is, or has been at
any time prior to the date hereof or who becomes prior to the Effective Time, an
officer or director of the Company or any of its Subsidiaries (each, an
"INDEMNIFIED PARTY"), in connection with any claim, action, suit, proceeding or
investigation (an "ACTION") arising out of or pertaining to acts or omissions by
them in their capacities as such, which acts or omissions occurred prior to the
Effective Time, whether asserted or claimed prior to, at or after the Effective
Time, at least to the extent that such Indemnified Party is presently
indemnified by the Company. In the event of any such Action, the Surviving
Corporation
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shall control the defense of such Action with counsel selected by the Surviving
Corporation, which counsel shall be reasonably acceptable to the Indemnified
Party; provided, however, that the Indemnified Party shall be permitted to
participate in the defense of such Action through counsel selected by the
Indemnified Party, which counsel shall be reasonably acceptable to the Surviving
Corporation, at the Indemnified Party's expense. Notwithstanding the foregoing,
if there is any conflict between the Surviving Corporation and any Indemnified
Parties or there are additional defenses available to any Indemnified Parties,
the Indemnified Parties shall be permitted to participate in the defense of such
Action with counsel selected by the Indemnified Parties, which counsel shall be
reasonably acceptable to the Surviving Corporation, and Purchaser shall cause
the Surviving Corporation to pay the reasonable fees and expenses of such
counsel, as accrued and in advance of the final disposition of such Action to
the fullest extent permitted by applicable law; provided, however, that the
Surviving Corporation shall not be obligated to pay the reasonable fees and
expenses of more than one counsel for all Indemnified Parties in any single
Action except to the extent that, in the opinion of counsel for the Indemnified
Parties, two or more of such Indemnified Parties have conflicting interests in
the outcome of such Action. The Surviving Corporation shall not be liable for
any settlement effected without its written consent, which consent shall not
unreasonably be withheld.
(c) Purchaser shall cause the Surviving Corporation promptly to adopt
and keep in effect provisions in the Surviving Corporation's certificate of
incorporation and by-laws to provide for exculpation of director and officer
liability and indemnification (and advancement of expenses related thereto) of
the past and present officers and directors of the Company at least to the
extent they are presently indemnified by the Company and such provisions shall
not be amended except as either required by applicable Law or to make changes
permitted by Law that would enhance the rights of past or present officers and
directors to indemnification or advancement of expenses. Purchaser shall cause
the Surviving Corporation to comply with the terms and conditions of all
existing indemnification agreements with the Company's officers and directors.
(d) If Parent, Purchaser or the Surviving Corporation or any of their
respective successors or assigns (i) shall consolidate with or merge into any
other corporation or other entity and shall not be the continuing or surviving
corporation or entity of the consolidation or merger or (ii) shall transfer all
or substantially all of its properties and assets to any individual, corporation
or other entity, then and in each such case, proper provisions shall be made so
that the successors and assigns of Parent, Purchaser or the Surviving
Corporation shall assume all of the obligations set forth in this Section 6.8.
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(e) The provisions of this Section 6.8 are intended to be for the
benefit of, and shall be enforceable by, each of the Indemnified Parties, their
heirs and their representatives.
6.9. EMPLOYEE STOCK PURCHASE PLAN. The Company shall take such
action as is required to cause the current "Payment Period" under the Purchase
Plan to terminate on the earlier of the Effective Time and July 23, 1999. If the
Offer is consummated on or before the final day of the current Payment Period
under the Purchase Plan, the holders of Purchase Rights shall receive from the
Company, promptly after the last day of the Payment Period, a cash payment in
exchange for each share of Common Stock issuable upon exercise of such holder's
Purchase Rights as of the last day of the Payment Period as set forth in the
first sentence hereof, in an amount equal to the Merger Consideration, and each
such Purchase Right shall terminate automatically upon such payment. If the
Offer is not consummated on or before the final day of the current Payment
Period, the Purchase Rights will be exercisable solely for Common Stock in
accordance with the terms of the Purchase Plan. So long as this Agreement has
not been terminated, no additional Payment Period shall begin after the
termination of the current Payment Period.
6.10. EMPLOYEE BENEFITS PLAN. (a) From and after the Effective
Time, the Surviving Corporation and its Subsidiaries will honor in accordance
with their terms all existing employment, severance, consulting and salary
continuation agreements between the Company or any of its Subsidiaries and any
current or former officer, director, employee or consultant of the Company or
any of its Subsidiaries or group of such officers, directors, employees or
consultants which agreements have been previously disclosed to Purchaser.
(b) To the extent permitted under applicable law, each employee of
the Company or its subsidiaries shall be given credit for all service with the
Company or its Subsidiaries (or service credited by the Company or its
Subsidiaries) under all employee benefit plans, programs, policies and
arrangements maintained by the Surviving Corporation or Purchaser in which they
participate or in which they become participants for purposes of eligibility and
vesting (but not benefit accrual), but only to the extent such years of service
would have been credited under the relevant plan of Purchaser or its
Subsidiaries if the employee had been a similarly situated employee of Purchaser
or its Subsidiaries during the relevant period of time.
(c) To the extent that any benefit plan of the Surviving Corporation
or any of its Subsidiaries in which an employee of the Company or its
Subsidiaries participates after the Effective Time provides medical or dental
benefits, the Surviving Corporation shall cause any eligible expenses incurred
by such employee on or before the Effective Time under a similar Company
Employee Benefit Plan to be taken into account
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under the Surviving Corporation or its Subsidiaries' plan for purposes of
satisfying all deductible, coinsurance and maximum out-of-pocket requirements
applicable to such employee and his or her covered dependents for the applicable
plan year. The Surviving Corporation agrees to cause to maintain the Company's
Flexible Benefits Plan, as in effect as of the date hereof, through the end of
its current plan year.
ARTICLE 7
7. Conditions.
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7.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligation of each party to effect the Merger shall be subject to
the satisfaction or waiver, where permissible, prior to the Effective Time, of
the following conditions:
(a) If approval of this Agreement and the Merger by the holders of
Common Stock is required by applicable Law, this Agreement and the Merger shall
have been approved by the requisite vote of such holders.
(b) There shall not have been issued any injunction, or issued or
enacted any Law, which prohibits or has the effect of prohibiting the
consummation of the Merger or makes such consummation illegal.
7.2. CONDITIONS TO OBLIGATION OF PURCHASER AND MERGER SUB TO
EFFECT THE MERGER. The obligations of Purchaser and Merger Sub to effect the
Merger shall be further subject to the satisfaction or waiver, on or prior to
the Effective Time, of the condition that Purchaser shall have accepted for
payment and paid for all of the shares of Common Stock tendered pursuant to the
Offer.
ARTICLE 8
8. Termination.
-----------
8.1. TERMINATION. This Agreement, notwithstanding approval
thereof by the stockholders of the Company, may be terminated at any time prior
to the Effective Time:
(a) by mutual written consent of the Board of Directors of the
Company and the Purchaser;
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(b) by the Purchaser or the Company:
(i) if the Effective Time shall not have occurred on or
before November 30, 1999 (provided that the right to terminate this
Agreement pursuant to this clause (i) shall not be available to any
party whose failure to fulfill any obligation under this Agreement has
been the cause of or resulted in the failure of the Effective Time to
occur on or before such date);
(ii) if there shall be any Law that makes consummation of
the Offer or the Merger illegal or prohibited, or if any court of
competent jurisdiction in the United States or other Governmental
Entity shall have issued an order, judgment, decree or ruling, or
taken any other action restraining, enjoining or otherwise prohibiting
the Merger and such order, judgment, decree, ruling or other action
shall have become final and non-appealable;
(iii) if the Offer terminates or expires on account of the
failure of any condition specified in EXHIBIT A without the Merger Sub
having purchased any shares of Common Stock thereunder (provided that
the right to terminate this Agreement pursuant to this clause (iii)
shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of or resulted in
the failure of any such condition); or
(iv) if, upon a vote at a duly held meeting, or upon any
adjournment thereof, the stockholders of the Company shall have failed
to give any approval required by applicable Law;
(c) by the Company if there is an Alternative Proposal which the
Board of Directors in good faith determines is more favorable from a financial
point of view to the stockholders of the Company as compared to the Offer and
the Merger, and the Board of Directors determines in good faith after receiving
a written opinion from outside counsel, that failure to terminate this Agreement
would constitute a violation by the Board of Directors of its fiduciary duties
to stockholders imposed by Law; provided, however, that the right to terminate
this Agreement pursuant to this SECTION 8.1(c) shall not be available (i) if the
Company has breached its obligations under SECTION 6.1, or (ii) if the
Alternative Proposal (x) is subject to a financing condition or (y) involves
consideration that is not entirely cash or does not permit stockholders to
receive the payment of the offered consideration in respect of all shares at the
same time, unless the Board has determined in good faith, based on the advice of
the Financial Advisor or other nationally recognized investment banking firm,
that (in the case of clause (x)) the Alternative Proposal is readily financeable
and (in the case of clause (y)) that such offer provides a higher value per
share than the consideration per share pursuant to the Offer or the Merger, or
(iii) if, prior to or concurrently with any purported termination pursuant to
this
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SECTION 8.1(c), the Company shall not have paid the fees contemplated by SECTION
8.2, or (iv) if the Company has not provided Purchaser and Merger Sub with three
business days prior written notice of its intent to so terminate this Agreement
and delivered to the Purchaser and Merger Sub a copy of the written agreement
embodying the Alternative Proposal in its then most definitive form; and
(d) by Purchaser if the Board of Directors shall have failed to
recommend, or shall have withdrawn, modified or amended its approval or
recommendation of the Offer or the Merger in a manner adverse to Purchaser, or
shall have resolved to do any of the foregoing.
8.2. EFFECT OF TERMINATION AND ABANDONMENT. In the event of
termination of this Agreement and the abandonment of the Merger pursuant to this
ARTICLE 8, all obligations of the parties hereto shall terminate, except the
obligations of the parties pursuant to this SECTION 8.2 and SECTIONS 6.5(B),
6.6, 9.5 and 9.6. If this Agreement (i) shall terminate pursuant to Section
8.1(b)(iii) as a result of the failure of the Company to satisfy any of the
conditions set forth in paragraphs (d), (e) or (f) of EXHIBIT A, or pursuant to
SECTIONS 8.1(c) or 8.1(d), or (ii) in the event that an Alternative Proposal
shall have been made known to the Company or shall have been made directly to
the stockholders of the Company generally or shall have otherwise become
publicly known or any person shall have publicly announced an intention (whether
or not conditional) to make an Alternative Proposal and thereafter this
Agreement is terminated by either Purchaser or the Company pursuant to (x)
SECTION 8.1(b)(i) or (y) SECTION 8.1(b)(iii) as a result of the failure of the
Minimum Condition to be satisfied prior to the expiration of the Offer, then the
Company shall concurrently with any such termination, pay to Purchaser a fee
equal to $3,000,000 (the "TERMINATION FEE"); PROVIDED, HOWEVER, that the
Termination Fee shall not be payable to Purchaser pursuant to clause (ii) of
this SECTION 8.2 unless and until within 12 months of such termination the
Company or any of its Subsidiaries enters into any definitive agreement with
respect to any Alternative Proposal or any Alternative Proposal is consummated,
in which event the Termination Fee shall be payable upon consummation thereof.
The parties agree that such Termination Fee shall be Parent's, Purchaser's and
Merger Sub's exclusive remedy for any loss, liability, damage or claim arising
out of or in connection with any such termination of this Agreement. The
Termination Fee shall be exclusive of any expenses paid pursuant to SECTION 9.6.
The Company acknowledges that the agreements contained in this SECTION 8.2 are
an integral part of the transactions contemplated by this Agreement, and that,
without these agreements, Parent, Purchaser and Merger Sub would not enter into
this Agreement.
8.3. AMENDMENT. To the extent permitted by applicable law, this
Agreement may be amended by action taken by or on behalf of the Board of
Directors of
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<PAGE> 45
the Company (subject to SECTION 1.4) and Parent and Purchaser at any time before
or after adoption of this Agreement by the stockholders of the Company but,
after any such stockholder approval, no amendment shall be made which decreases
the Merger Consideration or which adversely affects the rights of, or the income
tax consequences to, the Company's stockholders hereunder without the approval
of such stockholders. This Agreement may not be amended except by an instrument
in writing signed on behalf of all of the parties.
8.4. EXTENSION; WAIVER. At any time prior to the Effective Time,
any party hereto, by action taken by its board of directors, may, to the extent
legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (c) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party.
ARTICLE 9
9. General Provisions.
------------------
9.1. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement, or in any instrument delivered
pursuant to this Agreement, shall survive the Effective Time.
9.2. NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date of receipt and shall be delivered personally or mailed by
registered or certified mail (postage prepaid, return receipt requested), sent
by overnight courier or sent by facsimile, to the applicable party at the
following addresses or facsimile numbers (or at such other address or telecopy
number for a party as shall be specified by like notice):
If to Purchaser or Merger Sub: If to the Company:
Foxboro Company Marcam Solutions, Inc.
33 Commercial Street 95 Wells Avenue
B52-SI Newton, Massachusetts 02159
Foxboro, Massachusetts 02035-2099 Attention: President
-41-
<PAGE> 46
<TABLE>
<CAPTION>
<S> <C>
Attention: Dr. George Sarney Facsimile: (617) 964-5614
Facsimile: (508) 549-6689
With copies to: With a copy to:
Fried, Frank, Harris, Testa, Hurwitz & Thibeault, LLP
Shriver & Jacobson 125 High Street
One New York Plaza Boston, Massachusetts 02110
New York, NY 10004 Attention: Mark H. Burnett, Esq. and
Edwin L. Miller, Jr., Esq.
Attention: Paul M. Reinstein, Esq.
Facsimile: (212) 859-4000 Facsimile (617) 248-7100
and
Wonderware Corporation
100 Technology Drive
Irvine, California 92618
Attention: Philip Maynard
Facsimile: (949) 453-6543
</TABLE>
9.3. ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties; provided, however, that either Purchaser
or Merger Sub (or both) may assign its rights hereunder (including, without
limitation, the right to make the Offer and/or to purchase shares of Common
Stock pursuant to the Offer) to a wholly owned subsidiary or subsidiaries of
Parent; and, further provided that nothing shall relieve the assignor from its
obligations hereunder. Subject to the preceding sentence, this Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. Notwithstanding anything contained in this
Agreement to the contrary, except for the provisions of SECTIONS 6.8 and 6.10
which may be enforced directly by the beneficiaries thereof, nothing in this
Agreement, expressed or implied, is intended to confer on any person other than
the parties hereto or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
9.4. ENTIRE AGREEMENT. This Agreement, the Confidentiality
Agreement, the Company Disclosure Letter, the Exhibits, the Ancillary Documents
and any other documents delivered by the parties in connection herewith
constitute the entire
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<PAGE> 47
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings among the parties with respect
thereto.
9.5. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the Company, Parent, Purchaser and Merger
Sub hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of any federal district court located in the City of Wilmington,
Delaware or any court of the State of Delaware located in the City of Wilmington
(the "DELAWARE COURTS") for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any litigation relating thereto except in such courts), waives any objection to
the laying of venue of any such litigation in the Delaware Courts and agrees not
to plead or claim in any Delaware Court that such litigation brought therein has
been brought in an inconvenient forum.
9.6. FEES AND EXPENSES. Except as otherwise provided in SECTION
8.2, whether or not the Offer or the Merger is consummated, all fees, costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such fees, costs and
expenses.
9.7. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
(i) "AFFILIATE" of a Person means a Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the first mentioned Person.
(ii) "KNOWLEDGE" of any party hereto shall mean the
knowledge of any of the executive officers of that party after due inquiry by
such officers.
(iii) "PERSON" means an individual, corporation,
partnership, limited liability company, association, trust, unincorporated
organization, entity or group (as defined in the Exchange Act).
9.8. HEADINGS. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever. The table of contents contained
in this Agreement is for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
9.9. INTERPRETATION. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa,
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<PAGE> 48
and words denoting any gender shall include all genders and words denoting
natural persons shall include corporations and partnerships and vice versa.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be understood to be followed by the words "without
limitation."
9.10. WAIVERS. No action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained in this Agreement or in any of the Ancillary Documents. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
9.11. SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
9.12. ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that 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 Delaware Court, this
being in addition to any other remedy to which they are entitled at law or in
equity.
9.13. COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which, when so executed and delivered,
shall be an original. All such counterparts shall together constitute one and
the same instrument. Each counterpart may consist of a number of copies hereof,
each signed by less than all, but together signed by all, of the parties hereto.
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<PAGE> 49
IN WITNESS WHEREOF, the parties have executed this Agreement and
caused the same to be duly delivered on their behalf on the day and year first
written above.
MARCAM SOLUTIONS, INC. INVENSYS, plc
By: /s/ Johnathan C. Crane By: /s/ Allan Yurko
----------------------------- ------------------------------
Name: Johnathan C. Crane Name: Allan Yurko
Title: President Title: President and CEO
M ACQUISITION CORP.
By: /s/ George Sarney
------------------------------
Name: George Sarney
Title: President
M MERGER SUB, INC.
By: /s/ Thomas G. Foley
------------------------------
Name: Thomas G. Foley
Title: Vice President
<PAGE> 50
EXHIBIT A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer, Merger Sub shall not be
required to accept for payment or pay for, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) of the Exchange Act, any shares
of Common Stock not theretofore accepted for payment or paid for and may
terminate or amend the Offer as to such shares of Common Stock to the extent
permitted by this Agreement unless (i) there shall have been validly tendered
and not withdrawn prior to the expiration of the Offer that number of shares of
Common Stock which would represent at least a majority of the outstanding shares
of Common Stock on a fully diluted basis (the "MINIMUM CONDITION") and (ii) any
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, applicable to the purchase of shares of Common Stock pursuant to the
Offer shall have expired or been terminated. Furthermore, notwithstanding any
other term of the Offer or this Agreement, Merger Sub shall not be required to
accept for payment or, subject as aforesaid, to pay for any shares of Common
Stock not theretofore accepted for payment or paid for, and may terminate or
amend the Offer to the extent permitted by this Agreement if at any time on or
after the date of this Agreement and before the acceptance of such shares of
Common Stock for payment or the payment therefor, any of the following
conditions shall exist or occur and remain in effect:
(a) there shall have been instituted, pending or threatened in
writing any litigation by the Government of the United States or by any
agency or instrumentality thereof that seeks to: (i) challenge the
acquisition by Purchaser or Merger Sub (or any of its affiliates) of shares
of Common Stock pursuant to the Offer or restrain or prohibit the making or
consummation of the Offer or the Merger, or obtain damages in connection
thereunder, (ii) make the purchase of or payment for some or all of the
shares of Common Stock pursuant to the Offer or the Merger illegal, (iii)
in connection with the Offer or the Merger or the transactions contemplated
by the Merger Agreement, impose limitations on the ability of Purchaser or
Merger Sub (or any of their affiliates) effectively to acquire or hold, or
to require Purchaser, Merger Sub or the Company or any of their respective
affiliates or subsidiaries to dispose of or hold separate, any material
portion of their assets or the business of any one of them, (iv) impose
limitations on the ability of Purchaser, Merger Sub or their affiliates to
exercise full rights of ownership of the shares of Common Stock purchased
by it, including, without limitation, the right to vote the shares
purchased by it on all matters properly presented to the stockholders of
the Company, or (v) in connection with the Offer or the Merger or the
transactions contemplated by the Merger Agreement, affect
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<PAGE> 51
the Purchaser, the Merger Sub, Company or any of their respective
affiliates which, in the sole judgment of Purchaser, may have or be likely
to have a Material Adverse Effect or a material adverse effect on the
Purchaser and Merger Sub or any of their affiliates or otherwise make
consummation of the Offer or the Merger or the consummation of the
transactions contemplated hereunder unduly burdensome; or
(b) there shall have been promulgated, enacted, entered,
enforced or deemed applicable to the Offer or the Merger, by any
Governmental Entity any Law that could directly or indirectly result in any
of the consequences referred to in subsection (a) above; or
(c) this Agreement shall have been terminated in accordance with
its terms; or
(d) (i) any of the representations and warranties made by the
Company in this Agreement that are qualified by materiality or Material
Adverse Effect shall not have been true and correct in all respects when
made (except to the extent that any such representation or warranty refers
specifically to another date, in which case such representation or warranty
shall be true and correct in all respects as of such other date), or the
other representations and warranties made by the Company in this Agreement
shall not have been true and correct in all material respects when made
(except to the extent that any such representation or warranty refers
specifically to another date, in which case such representation or warranty
shall be true and correct in all material respects as of such other date),
or (ii) the Company shall have breached or failed to comply in any material
respect with any of its obligations under this Agreement; or
(e) any corporation, entity, "group" or "person" (as defined in
the Exchange Act), other than Purchaser or Merger Sub, shall have acquired
beneficial ownership of a majority of the outstanding shares of Common
Stock; or
(f) the Company's Board of Directors shall have modified or
amended its recommendation of the Offer in any manner adverse to Purchaser
or Merger Sub or shall have withdrawn its recommendation of the Offer or
shall have recommended acceptance of any Alternative Proposal or shall have
resolved to do any of the foregoing; or
(g) there shall have occurred (i) any general suspension of, or
limitation on prices for, trading in securities on any national securities
exchange or in the over the counter market in the United States, (ii) a
declaration of any banking moratorium by federal or state authorities or
any suspension of payments
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<PAGE> 52
in respect of banks or any limitation (whether or not mandatory) imposed by
federal or state authorities on the extension of credit by lending
institutions in the United States, or (iii) in the case of any of the
foregoing existing at the time of the commencement of the Offer, in the
sole judgment of the Purchaser, a material acceleration or worsening
thereof.
Other than the Minimum Condition, the foregoing conditions are for the
sole benefit of Purchaser and Merger Sub and may be asserted by Purchaser or
Merger Sub regardless of the circumstances (including any action or inaction by
Purchaser or the Company) giving rise to any such condition and may be waived by
Purchaser or Merger Sub, in whole or in part, at any time and from time to time,
in the sole discretion of Purchaser. The failure by Purchaser or Merger Sub at
any time to exercise any of the foregoing rights will not be deemed a waiver of
any right, the waiver of such right with respect to any particular facts or
circumstances shall not be deemed a waiver with respect to any other facts or
circumstances, and each right will be deemed an ongoing right which may be
asserted at any time and from time to time.
Should the Offer be terminated pursuant to the foregoing provisions,
all tendered shares of Common Stock shall promptly be returned by the depositary
to the tendering stockholders.
-3-
<PAGE> 1
EXHIBIT 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
-----------------------------------
AMENDMENT NO. 1, date as of May 26, 1999 (this "AMENDMENT"), to the AMENDED
AND RESTATED RIGHTS AGREEMENT, dated as of September 18, 1999 between MARCAM
SOLUTIONS, INC., a Delaware corporation (the "COMPANY"), and BANKBOSTON, N.A., a
national banking association, as Rights Agent (the "RIGHTS AGREEMENT"). All
terms not otherwise defined herein shall have the meanings given such terms in
the Rights Agreement.
WITNESSETH:
WHEREAS, on June 13, 1997, the Board of Directors of the Company (the
"BOARD") authorized and declared a dividend distribution with respect to each
share of Common Stock of the Company (the "COMMON STOCK") outstanding as of the
close of business on July 21, 1997 constituting the right to purchase
one-thousandth of a share of Series A Junior Participating Preferred Stock of
the Company, as reflected in the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may
cause the Rights Agreement to be amended at any time prior to the Final
Amendment Date (as defined in the Rights Agreement) without the approval of any
holders of certificates representing shares of Common Stock; and
WHEREAS, on May 26, 1999, the Board authorized and approved the amendment
of the Rights Agreement in anticipation of and in connection with approving the
acquisition of the Company pursuant to a cash tender offer and merger (the
"MERGER") pursuant to an Agreement and Plan of Merger (the "MERGER AGREEMENT")
among Company, Invensys, plc (the "PARENT"), M Acquisition Corp., an indirect
wholly-owned subsidiary of Parent (the "PURCHASER"), and M Merger Sub, Inc., a
wholly-owned subsidiary of Purchaser ("MERGER SUB"); and
WHEREAS, on May 26, 1999, in connection with the Merger, the Board
authorized and approved the execution of the Tender and Option Agreement dated
as of May 27, 1999 among Purchaser, Merger Sub, and certain stockholders (the
"Option Stockholders") of the Company listed on SCHEDULE A thereto (the "Option
Agreement"), including for the express purpose of ensuring that General Atlantic
Partners 32, L.P., General Atlantic Partners 21, L.P. and GAP Coinvestment
Partners, L.P., and their Affiliates and Associates (each as defined as "Exempt
Persons" under the Rights Agreement notwithstanding the execution and delivery
of the Merger Agreement and Option Agreement and the consummation of the
transactions contemplated thereby.
<PAGE> 2
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Notwithstanding anything to the contrary in the Rights Agreement, the
Rights Agreement shall not apply to, and, without limiting the foregoing, none
of Parent, Purchaser, Merger Sub, nor any Option Stockholder (including, without
limitation, the GAP Parties), nor any Affiliate or Associate of any such
parties, will become an "Acquiring Person" or an "Adverse Person," and no
"Adverse Person Event," "Triggering Event," "Stock Acquisition Date,"
"Distribution Date" or "Final Amendment Date" (as such terms are defined in the
Rights Agreement) will occur, as a result of (i) the approval, execution,
delivery or performance of the Merger Agreement or the consummation of the Offer
or Merger pursuant thereto, (ii) the announcement of the Offer or Merger, (iii)
the approval, execution, delivery or performance of the Option Agreement by any
of the parties thereto, or (iv) the purchase, disposition, voting or beneficial
ownership (as defined in the Rights Agreement) of shares of Common Stock of the
Company by Parent, Purchaser, Merger Sub or any of the Option Stockholders
(including, without limitation, the GAP Parties) pursuant to or otherwise
arising from or relating to any of the foregoing, and no shares of Common Stock
shall be deemed to be Beneficially Owned by any such persons as a result of the
foregoing.
2. Without limiting the provisions of Section 1 above, the Board has
authorized and approved the Offer, the Merger and the other transactions
contemplated by the Merger Agreement and Option Agreement as provided for in the
penultimate proviso of the definition of "Exempt Person" in Section 1 of the
Rights Agreement, such that the GAP Parties shall not be deemed to have become
the Beneficial Owner of an additional 1% or more of shares of Common Stock of
the Company or to have entered into any of the transactions set forth in Section
11(a)(ii)(A) of the Rights Agreement pursuant to clauses (1)(i) and (1)(ii),
respectively, of said "Exempt Persons" for all purposes under the Rights
Agreement, notwithstanding the execution and delivery of the Merger Agreement
and Option Agreement and the consummation of the transactions contemplated
thereby.
3. Parent, Purchaser and Merger Sub are third party beneficiaries of this
Amendment and the terms of this Amendment shall not be withdrawn, amended or
otherwise modified without their written consent.
4. Except as amended hereby, the Rights Agreement shall continue in full
force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
the Rights Agreement to be duly executed and their respective corporate seals to
be hereunto affixed and arrested, all as of the day and year first above
written.
Attest:
MARCAM SOLUTIONS, INC.
By: /s/ Diane R. Tormey By: /s/ Harlan Plumley
---------------------------- --------------------------
Name: Diane R. Tormey Name: Harlan Plumley
Title: Secretary Title: Chief Financial Officer
Attest:
BANKBOSTON, N.A.
By: /s/ Geoffrey D. Anderson By: /s/ James J. Robinson
---------------------------- --------------------------
Name: Geoffrey D. Anderson Name: James J. Robinson
Title: Director Title: Vice President
-3-
<PAGE> 4
MARCAM SOLUTIONS, INC.
Officer's Certificate
---------------------
The undersigned, Diane R. Tormey, does hereby certify (a) that she is the
duly elected and acting Secretary of Marcam Solutions, Inc., a Delaware
corporation (the "COMPANY"), (b) that she is familiar with the facts herein
certified and is duly authorized to certify the same and to deliver this
Certificate pursuant to Section 27 of that certain Amended and Restated Rights
Agreement dated as of September 18, 1998 between the Company and BankBoston,
N.A., as Rights Agent (the "RIGHTS AGREEMENT"), and (c) as follows:
1. The proposed amendment to the Rights Agreement attached hereto as
EXHIBIT A (the "Amendment") is in compliance with the terms of Section 27 of the
Rights Agreement.
2. As of the date hereof, the Final Amendment Date (as defined in the
Rights Agreement) has not occurred.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this 26th
day of May, 1999.
/s/ Diane R. Tormey
---------------------------------------
Diane R. Tormey
Secretary
<PAGE> 1
EXHIBIT 99.1
=========================================
TENDER AND OPTION AGREEMENT
between
M ACQUISITION CORP.,
M MERGER SUB, INC.
and
THE STOCKHOLDERS LISTED ON SCHEDULE A
Dated as of May 27, 1999
=========================================
<PAGE> 2
TENDER AND OPTION AGREEMENT
TENDER AND OPTION AGREEMENT, dated as of May 27, 1999 (this
"AGREEMENT"), between M Acquisition Corp., a Delaware corporation ("PURCHASER"),
M Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Purchaser ("MERGER SUB"), and each of the persons listed on Schedule A hereto
(each a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS").
RECITALS
WHEREAS, Invensys, plc ("Parent") Purchaser, Merger Sub and Marcam
Solutions, Inc., a Delaware corporation (the "COMPANY"), propose to enter into
an Agreement and Plan of Merger dated as of the date hereof (as the same may be
amended or supplemented, the "MERGER AGREEMENT") providing for, among other
things, the making of the Offer by Purchaser for all of the issued and
outstanding shares of common stock, par value $0.01 per share, of the Company
(referred to herein as "COMMON STOCK"), and the merger of the Company and Merger
Sub on the terms and conditions set forth in the Merger Agreement (the
"MERGER");
WHEREAS, each Stockholder is the beneficial owner of the shares of
Common Stock, Options, Warrants and Rights set forth opposite such Stockholder's
name on Schedule A hereto (collectively referred to herein as the "SECURITIES"
of such Stockholder; such Securities, as such Securities may be adjusted by
stock dividend, stock split, recapitalization, combination or exchange of
shares, merger, consolidation, reorganization or other change or transaction of
or by the Company, together with shares of Common Stock issuable upon the
exercise of Options, Warrants and Preferred Shares issuable upon the exercise of
Rights being referred to herein as the "SHARES" of such Stockholder); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent, Purchaser and Merger Sub have requested that the Stockholders
enter into this Agreement;
NOW, THEREFORE, to induce Purchaser and Merger Sub to enter into, and
in consideration of their entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
Section 1. CERTAIN DEFINITIONS. Capitalized terms used but not otherwise
defined herein have the meanings ascribed to such terms in the Merger Agreement.
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<PAGE> 3
Section 2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder, severally and not jointly, represents and warrants to Purchaser and
Merger Sub, as of the date hereof and as of the Closing (as defined below), as
follows:
(a) The Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of, and has good title to, all of the Shares, free and
clear of any pledge, hypothecation, claim, security interest, charge,
encumbrance, voting trust agreement, interest, option, lien, charge or similar
restriction or limitation, including any restriction on the right to vote, sell
or otherwise dispose of the Shares, other than those arising under the federal
and state securities laws (each, a "LIEN"), except as set forth in this
Agreement.
(b) The Shares constitute all of the securities (as defined in Section
3(a)(10) of the Exchange Act) of the Company beneficially owned, directly or
indirectly, by the Stockholder.
(c) Except for the Shares, the Stockholder does not, directly or
indirectly, beneficially own or have any option, warrant or other right to
acquire any securities of the Company that are or may by their terms become
entitled to vote or any securities that are convertible or exchangeable into or
exercisable for any securities of the Company that are or may by their terms
become entitled to vote, nor is the Stockholder subject to any contract,
commitment, arrangement, understanding, restriction or relationship (whether or
not legally enforceable), other than this Agreement, that provides for such
Stockholder to vote or acquire any securities of the Company. The Stockholder
holds exclusive power to vote the Common Stock and has not granted a proxy to
any other Person to vote the Common Stock (including those issuable upon
exercise of the Options, Warrants or Rights), subject to the limitations set
forth in this Agreement.
(d) This Agreement has been duly executed and delivered by the
Stockholder.
(e) Neither the execution and delivery of this Agreement nor the
performance by the Stockholder of the Stockholder's obligations hereunder will
conflict with, result in a violation or breach of, or constitute a default (or
an event that, with notice or lapse of time or both, would result in a default)
or give rise to any right of termination, amendment, cancellation, or
acceleration or result in the creation of any Lien on any Shares under, (i) any
contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which the
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<PAGE> 4
Stockholder is a party or by which the Stockholder is bound or (ii) any
injunction, judgment, writ, decree, order or ruling applicable to the
Stockholder; except for conflicts, violations, breaches, defaults, terminations,
amendments, cancellations, accelerations or Liens that would not individually or
in the aggregate be expected to prevent or materially impair or delay the
consummation by such Stockholder of the transactions contemplated hereby.
(f) Neither the execution and delivery of this Agreement nor the
performance by the Stockholder of the Stockholder's obligations hereunder will
violate any Law applicable to the Stockholder or require any order, consent,
authorization or approval of, filing or registration with, or declaration or
notice to, any court, administrative agency or other governmental body or
authority, other than any required notices or filings pursuant to the HSR Act,
foreign antitrust or competition laws or the federal securities laws.
(g) No investment banker, broker, finder or other intermediary is, or
will be, entitled to a fee or commission from Merger Sub, Purchaser or the
Company in respect of this Agreement based on any arrangement or agreement made
by or on behalf of such Stockholder in his or her capacity as a stockholder of
the Company.
(h) The Stockholder understands and acknowledges that Purchaser is
entering into, and causing Merger Sub to enter into, the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this Agreement.
Section 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGER SUB.
Purchaser and Merger Sub represent and warrant to the Stockholders, as of the
date hereof and as of the Closing, as follows:
(a) Each of Purchaser and Merger Sub is a corporation duly organized,
validly existing and in good standing under the laws of their respective
jurisdictions of incorporation, has the requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly executed and delivered by Purchaser
and Merger Sub and, assuming the due authorization, execution and delivery of
this Agreement by the Company and the Stockholders, is a valid and binding
obligation of each of Purchaser and Merger Sub, enforceable against each of them
in accordance with its terms, except as such enforceability may be limited
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<PAGE> 5
by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally; and (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(c) Neither the execution and delivery of this Agreement nor the
performance by Purchaser and Merger Sub of their respective obligations
hereunder will conflict with, result in a violation or breach of, or constitute
a default (or an event that, with notice or lapse of time or both, would result
in a default) or give rise to any right of termination, amendment, cancellation,
or acceleration under, (i) their respective certificates of incorporation or
bylaws, (ii) any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which Purchaser or Merger Sub is a party or by which
Purchaser or Merger Sub is bound or (iii) any judgment, writ, decree, order or
ruling applicable to Purchaser or Merger Sub; except in the case of clauses (ii)
and (iii) for conflicts, violations, breaches or defaults that would not
individually or in the aggregate be reasonably expected to prevent or materially
impair or delay the consummation by Purchaser or Merger Sub of the transactions
contemplated hereby.
(d) Neither the execution and delivery of this Agreement nor the
performance by Purchaser and Merger Sub of their respective obligations
hereunder will violate any Law applicable to Purchaser or Merger Sub or require
any order, consent, authorization or approval of, filing or registration with,
or declaration or notice to, any court, administrative agency or other
governmental body or authority, other than any required notices or filings
pursuant to the HSR Act or the federal securities laws.
(e) Any Shares acquired upon exercise of the Purchase Option (as
defined below) will be acquired for Purchaser's or Merger Sub's own account, for
investment purposes only and will not be, and the Purchase Option is not being,
acquired by Purchaser and Merger Sub with a view to public distribution thereof
in violation of any applicable provisions of the Securities Act.
Section 4. TRANSFER OF THE SHARES. During the term of this Agreement,
except as otherwise expressly provided herein, each Stockholder agrees that such
Stockholder will not (a) tender into any tender or exchange offer or otherwise
sell, transfer, pledge, assign, hypothecate or otherwise dispose of, or encumber
with any Lien, any of the Shares, except for (i) transfers to any spouse or
descendant (including by adoption) of such Stockholder, or any trust or
retirement plan or account for the benefit of such Stockholder, spouse or
descendant; provided any
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<PAGE> 6
such transferee agrees in writing to be bound by the terms of this Agreement and
(ii) transfers by operation of Law; provided that any such transferee shall be
bound by the terms of this Agreement, (b) acquire any shares of Common Stock or
other securities of the Company (otherwise than in connection with a transaction
of the type described in Section 5 or by exercising any of the Options, Warrants
or Rights), (c) deposit the Shares into a voting trust, enter into a voting
agreement or arrangement with respect to the Shares or grant any proxy or power
of attorney with respect to the Shares, (d) enter into any contract, option or
other arrangement (including any profit sharing arrangement) or undertaking with
respect to the direct or indirect acquisition or sale, transfer, pledge,
assignment, hypothecation or other disposition of any interest in or the voting
of any Shares or any other securities of the Company, (e) exercise any rights
(including, without limitation, under Section 262 of the Delaware General
Corporation Law) to demand appraisal of any Shares which may arise with respect
to the Merger, or (f) take any other action that would in any way restrict,
limit or interfere with the performance of such Stockholder's obligations
hereunder or the transactions contemplated hereby or which would otherwise
diminish the benefits of this Agreement to Purchaser or Merger Sub.
Section 5. ADJUSTMENTS. (a) In the event (i) of any stock dividend, stock
split, recapitalization, reclassification, combination or exchange of shares of
capital stock or other securities of the Company on, of or affecting the Shares
or the like or any other action that would have the effect of changing a
Stockholder's ownership of the Company's capital stock or other securities or
(ii) a Stockholder becomes the beneficial owner of any additional Shares of or
other securities of the Company, then the terms of this Agreement will apply to
the shares of capital stock held by such Stockholder immediately following the
effectiveness of the events described in clause (i) or such Stockholder becoming
the beneficial owner thereof, as described in clause (ii), as though they were
Shares hereunder.
(b) Each Stockholder hereby agrees, while this Agreement is in effect,
to promptly notify Purchaser and Merger Sub of the number of any new Shares
acquired by such Stockholder, if any, after the date hereof.
Section 6. TENDER OF SHARES. Each Stockholder hereby agrees that such
Stockholder will validly tender (or cause the record owner of such shares to
validly tender) and sell (and not withdraw, except in the event the Purchase
Option is exercised, in which case such withdrawal shall be for the limited
purpose of consummating the Purchase Option) pursuant to and in accordance with
the terms of the Offer not later than the fifth business day after commencement
of the Offer (or the earlier of the expiration date of the Offer and the fifth
business day after
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<PAGE> 7
such Shares are acquired by such Stockholder if the Stockholder acquires Shares
after the date hereof), or, if the Stockholder has not received the Offer
Documents by such time, within two business days following receipt of such
documents, all of the then outstanding shares of Common Stock beneficially owned
by such Stockholder (including the shares of Common Stock outstanding as of the
date hereof and shares issued following the exercise (if any) of the Options,
Warrants and Rights, in each case as set forth on Schedule A hereto opposite
such Stockholder's name). Upon the purchase by Purchaser or Merger Sub of all of
such then outstanding shares of Common Stock beneficially owned by such
Stockholder pursuant to the Offer in accordance with this Section 6, this
Agreement will terminate as it relates to such Stockholder. In the event,
notwithstanding the provisions of the first sentence of this Section 6, any
shares of Common Stock beneficially owned by a Stockholder are for any reason
withdrawn from the Offer or are not purchased pursuant to the Offer, such Shares
will remain subject to the terms of this Agreement. Each Stockholder
acknowledges that Purchaser's obligation to accept for payment and pay for the
shares of Common Stock tendered in the Offer is subject to all the terms and
conditions of the Offer.
Section 7. VOTING AGREEMENT. Each Stockholder, by this Agreement, does
hereby (a) agree to appear (or not appear, if requested by Purchaser or Merger
Sub) at any annual, special, postponed or adjourned meeting of the stockholders
of the Company or otherwise cause the shares of Common Stock such Stockholder
beneficially owns to be counted as present (or absent, if requested by Purchaser
or Merger Sub) thereat for purposes of establishing a quorum and to vote or
consent, and (b) constitute and appoint Purchaser and Merger Sub, or any nominee
thereof, with full power of substitution, during and for the term of this
Agreement, as his true and lawful attorney and proxy for and in his name, place
and stead, to vote all the shares of Common Stock such Stockholder beneficially
owns at the time of such vote, at any annual, special, postponed or adjourned
meeting of the stockholders of the Company (and this appointment will include
the right to sign his or its name (as stockholder) to any consent, certificate
or other document relating to the Company that laws of the State of Delaware and
the Commonwealth of Massachusetts may require or permit), in the case of both
(a) and (b) above, (x) in favor of approval and adoption of the Merger Agreement
and approval and adoption of the Merger and the other transactions contemplated
thereby and (y) against (1) any Alternative Proposal, (2) any action or
agreement that would result in a breach in any respect of any covenant,
agreement, representation or warranty of the Company under the Merger Agreement
and (3) the following actions (other than the Merger and the other transactions
contemplated by the Merger Agreement and the Ancillary Documents): (i) any
extraordinary corporate transaction, such as
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<PAGE> 8
a merger, consolidation or other business combination involving the Company or
any of its subsidiaries; (ii) a sale, lease or transfer of a material amount of
assets of the Company or any of its subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or any of its
Subsidiaries; (iii) (A) any change in a majority of the persons who constitute
the board of directors of the Company or any of its Subsidiaries as of the date
hereof; (B) any change in the present capitalization of the Company or any
amendment of the Company's or any of its Subsidiaries' certificate of
incorporation or bylaws, as amended to date; (C) any other material change in
the Company's or any of its Subsidiaries' corporate structure or business; or
(D) any other action that is intended, or could be expected, to impede,
interfere with, delay, postpone, or adversely affect the Offer, the Merger and
the other transactions contemplated by this Agreement, the Merger Agreement and
the Ancillary Documents. This proxy and power of attorney is a proxy and power
coupled with an interest, and each Stockholder declares that it is irrevocable
until this Agreement shall terminate in accordance with its terms. Each
Stockholder hereby revokes all and any other proxies with respect to the shares
of Common Stock that such Stockholder may have heretofore made or granted. For
shares of Common Stock as to which a Stockholder is the beneficial but not the
record owner, such Stockholder shall use his or its best efforts to cause any
record owner of such Shares to grant to Purchaser a proxy to the same effect as
that contained herein. Each Stockholder hereby agrees to permit Purchaser and
Merger Sub to publish and disclose in the Offer Documents and the Proxy
Statement and related filings under the securities laws such Stockholder's
identity and ownership of Shares and the nature of his or its commitments,
arrangements and understandings under this Agreement.
Section 8. NO SOLICITATION. Each Stockholder agrees that neither such
Stockholder nor any of such Stockholder's officers, directors, employees,
trustees, representatives, agents or affiliates (including, without limitation,
any investment banker, attorney or accountant retained by any of them) will
directly or indirectly initiate, solicit or encourage (including by way of
furnishing non-public information or assistance), or take any other action to
facilitate, any inquiries or the making or submission of any Alternative
Proposal, or enter into or maintain or continue discussions or negotiate with
any person or entity in furtherance of such inquiries or to obtain or induce any
person to make or submit an Alternative Proposal or agree to or endorse any
Alternative Proposal or assist or participate in, facilitate or encourage, any
effort or attempt by any other person or entity to do or seek any of the
foregoing or authorize or permit any of its officers, directors, employees,
trustees or any of its affiliates or any investment banker, financial advisor,
attorney, accountant or other representative or agent retained by any of
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<PAGE> 9
them to take any such action. Each Stockholder shall promptly advise Purchaser
in writing of the receipt of request for information or any inquiries or
proposals relating to an Alternative Proposal.
Section 9. GRANT OF PURCHASE OPTION. The Stockholder hereby grants to
Purchaser and Merger Sub an irrevocable option (the "PURCHASE OPTION") to
purchase for cash, in a manner set forth below, any or all of the Shares (and
including Shares acquired after the date hereof by such Stockholder)
beneficially owned by the Stockholder at a price per share (the "EXERCISE
PRICE") equal to the Merger Consideration. In the event of any stock dividends,
stock splits, recapitalizations, combinations, exchanges of shares or the like,
the Merger Consideration will be appropriately adjusted for the purpose of this
Section 9. The Merger Consideration as it relates to the Options, Warrants and
Rights shall be an amount in cash equal to the excess, if any, of the Merger
Consideration over the per share exercise price of such Option, Warrant or
Right, without interest, in full settlement of the Company's (and the Surviving
Corporation's) obligations under each such Option, Warrant or Right. To the
extent that the per share exercise price of any Option, Warrant or Right exceeds
the Merger Consideration, such Option, Warrant or Right shall be canceled and
the Stockholder shall not receive or be entitled to receive any consideration
from Purchaser, Merger Sub or the Company relating thereto. The amount payable
pursuant to this Section 9 shall be subject to all applicable withholding taxes.
Section 10. Exercise of Purchase Option.
---------------------------
(a) Subject to the conditions set forth in Section 12 hereof, the
Purchase Option may be exercised by Purchaser or Merger Sub, in whole or in
part, at any time or from time to time after the occurrence of any Trigger Event
(as defined below). Each Stockholder shall notify Purchaser in writing of the
occurrence of any Trigger Event promptly after the learning of the occurrence
thereof, it being understood that the giving of such notice by the Stockholder
is not a condition to the right of Purchaser or Merger Sub to exercise the
Purchase Option. In the event Purchaser or Merger Sub wishes to exercise the
Purchase Option, Purchaser shall deliver to each Stockholder a written notice
(an "EXERCISE NOTICE") specifying the total number of Shares it wishes to
purchase from such Stockholder. Each closing of a purchase of Shares (a
"CLOSING") will occur at a place, on a date and at a time designated by
Purchaser or Merger Sub in an Exercise Notice delivered at least two business
days prior to the date of the Closing.
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<PAGE> 10
(b) A "TRIGGER EVENT" means any one of the following: (i) the Merger
Agreement becomes terminable under circumstances that entitle Purchaser or
Merger Sub to receive the Termination Fee under Section 8.2 of the Merger
Agreement (regardless of whether the Merger Agreement is actually terminated and
whether such Termination Fee is then actually paid), (ii) the Offer is
consummated but, due to the failure of the Stockholder to validly tender and not
withdraw all of the then outstanding shares of Common Stock beneficially owned
by such Stockholder, the Purchaser has not accepted for payment or paid for all
of such Stockholder's shares of Common Stock, (iii) a tender or exchange offer
for at least 20% of the shares of Common Stock shall have been publicly proposed
to be made or shall have been made by another Person or group (as defined in
Section 13(d)(3) of the Exchange Act) (other than Parent, Purchaser or Merger
Sub), or (iv) it shall have been publicly disclosed that (A) any Person or
"group" (as defined in Section 13(d)(3) of the Exchange Act) (other than
Purchaser or Merger Sub) shall have acquired or proposed to acquire beneficial
ownership of more than 20% of any class or series of capital stock of the
Company (including the Common Stock), through the acquisition of stock, the
formation of a group or otherwise, or shall have been granted any option, right
or warrant, conditional or otherwise, to acquire beneficial ownership of more
than 20% of any class or series of capital stock of the Company or any of its
subsidiaries, or (B) any Person or group (other than Parent, Purchaser and
Merger Sub) shall have entered into or publicly offered to enter into a
definitive agreement or an agreement in principle with respect to a merger,
consolidation or other business combination with the Company or any of its
subsidiaries.
(c) If requested by Purchaser and Merger Sub in the Exercise Notice,
such Stockholder shall exercise all Options, Warrants and Rights (to the extent
exercisable) and other rights (including conversion or exchange rights), other
than Options, Warrants and Rights with exercise prices above the Exercise Price,
beneficially owned by such Stockholder and shall sell or, if directed by
Purchaser and Merger Sub, tender the Shares acquired pursuant to such exercise
to Purchaser or Merger Sub as provided in this Agreement; PROVIDED, HOWEVER,
that Purchaser and Merger Sub shall not be entitled to require General Atlantic
Partners 32, L.P., General Atlantic Partners 21, L.P., and GAP Coinvestment
Partners, L.P. and their affiliates to exercise any Options, Warrants or Rights
that can be transferred to and exercised by Purchaser or Merger Sub.
(d) In the event that, within 12 months of the exercise of the
Purchase Options, Purchaser or Merger Sub sells, to a third party which is not
an affiliate of Purchaser, Shares acquired by means of exercise of the Purchase
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<PAGE> 11
Options ("EXERCISE SHARES") for an aggregate consideration (the "AGGREGATE
Consideration") greater than the aggregate Exercise Price (the "AGGREGATE
EXERCISE PRICE") paid for such Exercise Shares, Purchaser agrees to pay to the
Stockholders an amount equal to the excess of the Aggregate Consideration over
the Aggregate Exercise Price. The excess of the Aggregate Consideration over the
Aggregate Exercise Price shall be distributed to the Stockholders who sold
shares to Purchasers or Merger Sub pursuant to the exercise of the Purchase
Options in a manner so that each such Stockholder shall have received the same
consideration after including such payments for each Share so sold. In addition,
in the event that, within 12 months of the exercise of the Purchase Options,
Parent, Purchaser or Merger Sub or any of their affiliates shall consummate a
merger or other business combination with the Company, or shall purchase Shares
pursuant to a tender offer for all shares of Common Stock, at a price per share
(taking into account any stock dividends, stock splits, reverse stock splits,
recapitalizations, combinations, exchanges of shares or the like) in excess of
the Exercise Price paid for any Shares, Purchaser agrees to pay each Stockholder
such excess for each Exercise Share purchased from such Stockholder.
Section 11. TERMINATION. This Agreement will terminate (a) pursuant to
Section 6 or (b) upon the earliest of: (i) the Effective Time; (ii) termination
of the Merger Agreement other than upon, during the continuance of, or after, a
Trigger Event; or (iii) 90 days following any termination of the Merger
Agreement upon, during the continuance of or after a Trigger Event (or if, at
the expiration of such 90 day period the Purchase Option cannot be exercised by
reason of any applicable judgment, decree, order, injunction, law or regulation,
10 business days after such impediment to exercise has been removed or has
become final and not subject to appeal). Upon the giving by Purchaser or Merger
Sub to the Stockholder of the Exercise Notice and the tender of the aggregate
Exercise Price, Purchaser or Merger Sub, as the case may be, will be deemed to
be the holder of record of the Shares transferable upon such exercise,
notwithstanding that the stock transfer books of the Company are then closed or
that certificates representing such Shares have not been actually delivered to
Purchaser.
Section 12. CONDITIONS TO CLOSING. The obligation of each Stockholder to
sell such Stockholder's Shares to Purchaser or Merger Sub hereunder is subject
to the conditions that (i) all waiting periods, if any, under the HSR Act,
applicable to the sale of the Shares or the acquisition of the Shares by
Purchaser or Merger Sub, as the case may be, hereunder have expired or have been
terminated; (ii) all consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any court, administrative agency or
other Governmental Entity, if any,
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<PAGE> 12
required in connection with the sale of the Shares or the acquisition of the
Shares by Purchaser or Merger Sub hereunder have been obtained or made; and
(iii) no preliminary or permanent injunction or other order by any court of
competent jurisdiction prohibiting or otherwise restraining such sale or
acquisition is in effect.
Section 13. CLOSING. At any Closing with respect to Shares beneficially
owned by a Stockholder, (a) such Stockholder will deliver to Purchaser, Merger
Sub or their respective designee a certificate or certificates in definitive
form representing the number of the Shares designated by Purchaser or Merger
Sub, as the case may be, in its Exercise Notice, such certificate to be
registered in the name of Purchaser, Merger Sub or their respective designee and
(b) Purchaser or Merger Sub, as the case may be, will deliver to the Stockholder
the aggregate Exercise Price for the Shares so designated and being purchased by
wire transfer of immediately available funds.
Section 14. FEES AND EXPENSES. Except as otherwise expressly provided
herein or in the Merger Agreement, whether of not the Merger is consummated, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses.
Section 15. FURTHER ASSURANCES. Each party hereto will execute and deliver
all such further documents and instruments and take all such further action as
may be reasonably necessary in order to consummate the transactions contemplated
hereby.
Section 16. PUBLICITY. A Stockholder shall not issue any press release or
otherwise make any public statements with respect to this Agreement or the
Merger Agreement or the other transactions contemplated hereby or thereby
without the consent of Purchaser and Merger Sub, except as may be required by
Law or applicable stock exchange rules.
Section 17. STOCKHOLDER CAPACITY. No person executing this Agreement makes
any agreement or understanding herein in such Stockholder's capacity as a
director or officer of the Company or any Subsidiary of the Company. Each
Stockholder signs solely in such Stockholder's capacity as the beneficial owner
of such Stockholder's Shares and nothing herein shall limit or affect any
actions taken by a Stockholder in such Stockholder's capacity as an officer or
director of the Company or any subsidiary of the Company to the extent
specifically permitted by the Merger Agreement.
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<PAGE> 13
Section 18. ENFORCEMENT. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or was otherwise breached. It is
accordingly agreed that 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 Delaware Court, this being in addition to
any other remedy to which they are entitled at law or in equity.
Section 19. Miscellaneous.
-------------
(a) All representations and warranties contained herein will survive
for twelve months after the termination hereof. The covenants and agreements
made herein will survive in accordance with their respective terms.
(b) Any provision of this Agreement may be waived at any time by the
party that is entitled to the benefits thereof. No such waiver, amendment or
supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(c) This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements among the parties with respect to such matters. This Agreement may
not be amended, changed, supplemented, waived or otherwise modified, except upon
the delivery of a written agreement executed by the parties hereto.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to its rules of conflict
of laws. Each of the Company, Purchaser and Merger Sub hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the Delaware
Courts for any litigation arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any litigation
relating thereto except in such courts), waives any objection to the laying of
venue of any such litigation in the Delaware Courts and agrees not to plead or
claim in any Delaware Court that such litigation brought therein has been
brought
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<PAGE> 14
in an inconvenient forum.
(e) The descriptive headings contained herein are for convenience and
reference only and will not affect in any way the meaning or interpretation of
this Agreement. In this Agreement, unless the context otherwise requires, words
describing the singular number shall include the plural and vice versa, and
words denoting any gender shall include all genders and words denoting natural
persons shall include corporations and partnerships and vice versa. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be understood to be followed by the words "without limitation."
(f) All notices and other communications hereunder will be in writing
and will be given (and will be deemed to have been duly given upon receipt) by
delivery in person, by telecopy, or by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
If to Company to:
Marcam Solutions, Inc.
95 Wells Avenue
Newton, Massachusetts 02159
Attention: President
Facsimile: (617) 964-5614
With a Copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02110
Attention: Mark H. Burnett, Esq. and
Edwin L. Miller, Esq.
Facsimile: (617) 248-7100
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<PAGE> 15
If to Purchaser or Merger Sub to:
Foxboro Company
33 Commercial Street
B52-SI
Foxboro, Massachusetts 02035-2099
Attention: Dr. George Sarney
Facsimile: (508) 549-6689
with copies to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Paul Reinstein
Facsimile: (212) 859-8586
and
Wonderware Corporation
100 Technology Drive
Irvine, California 92618
Attention: Philip Maynard
Facsimile: (949) 453-6543
If to a Stockholder, at the address set forth on Schedule A hereto or to
such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(g) This Agreement may be executed by the parties hereto in separate
counterparts, each of which, when so executed and delivered, shall be an
original. All such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
(h) This Agreement is binding upon and is solely for the benefit of
the parties hereto and their respective successors, legal representatives and
assigns. Neither this Agreement nor any of the rights, interests or obligations
under this Agreement will be assigned by any of the parties hereto without the
prior written consent of the other parties, except that Purchaser and Merger Sub
will have the right to assign to any direct or indirect wholly owned subsidiary
or subsidiaries of
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<PAGE> 16
Parent or Purchaser any and all rights and obligations of Purchaser or Merger
Sub under this Agreement, provided that any such assignment will not relieve
either Purchaser or Merger Sub from any of its obligations hereunder.
(i) Any term or provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
(j) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity will be cumulative and
not alternative, and the exercise of any thereof by either party will not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
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<PAGE> 17
IN WITNESS WHEREOF, each of the Purchaser and Merger Sub has caused
this Agreement to be signed by its officer or director thereunto duly authorized
and each Stockholder has signed this Agreement, all as of the date first written
above.
M ACQUISITION CORP.
By: /s/ George Sarney
-------------------------------
Name: George Sarney
Title: President
M MERGER SUB, INC.
By: /s/ Thomas G. Foley
-------------------------------
Name: Thomas G. Foley
Title: Vice President
STOCKHOLDERS:
/s/ Michael J. Quinlan
------------------------------------
Michael J. Quinlan
/s/ John Campbell
------------------------------------
John Campbell
/s/ E. Clark Grimes
------------------------------------
E. Clark Grimes
/s/ Joe M. Henson
------------------------------------
Joe M. Henson
/s/ Franchon M. Smithson
------------------------------------
Franchon M. Smithson
/s/ William W. Wyman
------------------------------------
William W. Wyman
/s/ Denis E. Liptak
------------------------------------
Denis E. Liptak
/s/ Harlan Plumley
------------------------------------
Harlan Plumley
/s/ Stephen R. Quehl
------------------------------------
Stephen R. Quehl
/s/ Diane R. Tormey
------------------------------------
Diane R. Tormey
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Thomas J. Murphy
-------------------------------
Name: Thomas J. Murphy
Title: Attorney-In-Fact
<PAGE> 18
SCHEDULE A
<TABLE>
<CAPTION>
Number Number Number of Number
Stockholder Address of Shares of Options Warrants of Rights
<S> <C> <C> <C> <C> <C>
John Campbell 99,403 13,000 -- 99,403
Jonathan C. Crane 20,000 296,270 -- 20,000
E. Clark Grimes 1,000 11,500 -- 1,000
Joe M. Henson 500 13,000 -- 500
Michael J. Quinlan 350 86,500 -- 350
Franchon M. Smithson** -- 13,000 -- --
William W. Wyman -- 11,500 -- --
Z. Alan Fink 210* 25,000 -- 210*
Denis E. Liptak 500 35,000 -- 500
Harlan B. Plumley 1,250* 22,000 -- 1,250*
Stephen Quehl -- 150,000 -- --
Diane R. Tormey 5,428 42,696 -- 5,428
General Atlantic c/o General Atlantic 431,595 -- 431,595 431,595
Partners 32, L.P. Service Corporation
3 Pickwick Plaza
Greenwich, CT 06830
</TABLE>
--------------------
* Currently participating in Employee Stock Purchase Plan.
** Excluding shares held by General Atlantic Partners 32, L.P., General
Atlantic Partners 21, L.P. and GAP Coinvestment Partners, L.P.
<PAGE> 19
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
General Atlantic c/o General Atlantic 880,290 -- -- 880,290
Partners 21, L.P. Service Corporation
3 Pickwick Plaza
Greenwich, CT 06830
GAP Coinvestment c/o General Atlantic 188,115 -- 68,405 188,115
Partners, L.P. Service Corporation
3 Pickwick Plaza
Greenwich, CT 06830
</TABLE>
<PAGE> 1
BROADVIEW
EXHIBIT 99.2
May 17, 1999
CONFIDENTIAL
------------
Mr. Roy H. Slavin
President & Chief Executive Officer
Wonderware Corp., an Invensys Company
100 Technology Drive
Irvine, CA 92618
Dear Mr. Slavin:
In connection with your consideration of a possible transaction with Marcam
Solutions, Inc. (the "Company"), you have requested financial and other
information concerning the business and affairs of the Company. As a condition
to the Company's furnishing to you and your representatives financial and other
information which has not theretofore been made available to the public, you
agree to treat all such non-public information furnished to you in writing or
orally by the Company or its representatives on and after the date of this
agreement (herein collectively referred to as the "evaluation material"), as
follows:
(1) You recognize and acknowledge the competitive value and
confidential nature of the evaluation material and the damage
that could result to the Company if information contained
therein is disclosed to any third party. You also recognize and
acknowledge that the evaluation material is being provided to
you in reliance upon your acceptance of the terms of this
agreement.
(2) You agree that the evaluation material will be used solely for
the purpose of evaluating the proposed transaction. You also
agree that you, your directors, officers, employees and agents
and representatives of your advisors, herein collectively
referred to as "your representatives," will not disclose or
permit the disclosure of any of the evaluation material now or
hereafter received or obtained from the Company or its
representatives to any third party or otherwise use or permit
the use of the evaluation material in any way detrimental to the
Company, except as required by applicable law or legal process,
without the prior written consent of the Company, provided,
however, that any such information may be disclosed to such of
your representatives who need to know such information for
the purpose of
<PAGE> 2
Mr. Roy H. Salvin May 17, 1999
Page 2
evaluating the proposed transaction and who are advised of this
agreement and agree to keep such information confidential and to
be bound by this agreement to the same extent as if they were
parties hereto, it being understood that you shall be
responsible for any breach of this agreement by your
representatives.
(3) In the event that the transaction contemplated by this
agreement is not consummated, neither you nor any of your
representatives shall, without prior written consent of the
Company, use any of the evaluation material now or hereafter
received or obtained from the Company or its representatives for
any purpose.
(4) In the event that the transaction contemplated by this
agreement is not consummated, all evaluation material (and all
copies, summaries, and notes of the contents or parts thereof)
shall be returned upon the Company's request or destroyed and
not retained by you or your representatives in any form or for
any reason.
(5) You and your representatives shall have no obligation hereunder
with respect to any information in the evaluation materials to
the extent that such information has been made publicly
available nor any obligation with respect to information which
can be demonstrated by you to be already properly in your
possession on a non-confidential basis from sources other than
the Company, or its representatives other than by acts by you or
your representatives in violation of this agreement.
(6) You are aware, and will advise your representatives who are
informed of the matters that are the subject of this Agreement,
of the restrictions imposed by the United States securities laws
on the purchase or sale of securities by any person who has
received material, non-public information from the Company and
on the communication of such information to any other person who
may purchase or sell such securities in reliance upon such
information. You and your representatives will comply with all
applicable securities laws in connection with the purchase or
sale, directly or indirectly, of securities of the Company for
as long as you or your representatives are in possession of
material non-public information about the Company.
<PAGE> 3
Mr. Roy H. Salvin May 17, 1999
Page 3
(7) The provisions of this agreement relating to confidentiality
shall terminate three years from the date hereof. The invalidity
or unenforceability of any provision of this agreement shall not
affect the validity or enforceability of any other provision.
It is further agreed that the intention of Marcam Solutions, Inc. to engage in
these discussions, and the subsequent exercise of that intention shall be kept
confidential by you.
Acceptance of the above terms shall be indicated by having this letter
countersigned on your behalf and returning one original to Broadview.
Sincerely,
BROADVIEW INTERNATIONAL LLC
For: Marcam Solutions, Inc.
By:
-------------------------------
Received and consented to this
17th day of May, 1999
Invensys plc
By: /s/ Roy H. Salvin
------------------------------------
