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EXHIBIT (d)(1)(E)
WAIVER REGARDING
AGREEMENT AND PLAN OF MERGER
THIS WAIVER REGARDING AGREEMENT AND PLAN OF MERGER (this "WAIVER"), dated
as of December 20, 2000, is by and among Trilogy Software, Inc., a Delaware
corporation ("PARENT"), POI Acquisition Corp., Inc., a Delaware corporation and
a wholly owned subsidiary of Parent ("SUB"), and pcOrder.com, Inc., a Delaware
corporation (the "COMPANY").
WHEREAS, Parent, Sub and the Company are parties to that certain Agreement
and Plan of Merger dated October 25, 2000 (the "MERGER AGREEMENT"); and
WHEREAS, Section 2.08(a) and Section 2.08(b) of the Merger Agreement
provide that the Paying Agent (as defined in the Merger Agreement) will make
certain payments to holders of options to acquire Class A common stock of the
Company who have previously delivered an Option Relinquishment and Release
Agreement (as defined in the Merger Agreement); and
WHEREAS, the Company desires to waive the requirement of having the Paying
Agent make such payments contingent on and in consideration of Parent agreeing
to make such payments directly or to cause the Company, as the Surviving
Corporation (as defined in the Merger Agreement), to make such payments
directly.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and other consideration, the receipt and adequacy of which hereby is
acknowledged, Parent, Sub and the Company agree as follows:
1. Capitalized terms that are used in this Waiver but are not defined
herein shall have the meanings given to them in the Merger
Agreement.
2. Parent hereby agrees to pay directly or to cause the Surviving
Corporation to pay directly, as soon as practicable after the
Effective Time, to holders of options to purchase Class A Common
Stock granted under the Company's Stock Option Plans or the
Company's 2000 Plan, in either case, who have previously delivered
an Option Relinquishment and Release Agreement, a cash amount equal
to the product of (i) the number of shares of Class A Common Stock
subject to such option (irrespective of whether such option is then
exercisable) and (ii) the amount by which the Merger Consideration
exceeds the exercise or strike price per share of Class A Common
Stock subject to such option immediately prior to the Effective
Time, less any required withholding taxes.
3. In consideration of the agreements by Parent in Section 2 hereof,
the Company hereby waives the requirements of Section 2.08(a) and
Section 2.08(b) of the Merger Agreement that the Paying Agent make
the payments referred to in Section 2 hereof.
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4. This Waiver shall be governed by and construed in accordance with
the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws
thereof, except to the extent that mandatory provisions of federal
law apply.
5. This Waiver may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, each of the parties has caused this Waiver to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
TRILOGY SOFTWARE, INC.
/s/ T. PATRICK KELLY
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Name: T. Patrick Kelly
Title: Vice President and
Chief Financial Officer
POI ACQUISITION CORP., INC.
/s/ T. PATRICK KELLY
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Name: T. Patrick Kelly
Title: Vice President and
Chief Financial Officer
pcORDER.COM, INC.
/s/ RICHARD FRIEDMAN
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Name: Richard Friedman
Title: Vice President and
General Counsel
The following are executing this Waiver solely for the purpose of
evidencing the consent of the Special Committee to the execution of this Waiver
by the Company as required by Section 6.12 of the Merger Agreement.
/s/ ROBERT W. STEARNS
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ROBERT W. STEARNS
/s/ LINWOOD A. LACY, JR.
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LINWOOD A. LACY, JR.
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