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EXECUTION COPY
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT, dated as of October 13, 2000 (the
"AGREEMENT"), by and among Convergent Holding Corporation, a Delaware
corporation ("PARENT"), Convergent Acquisition Sub, Inc., a Delaware corporation
and a wholly owned subsidiary of Parent ("PURCHASER"), Schlumberger Technology
Corp., a Texas corporation ("STC"), and the stockholders of Convergent Group
Corporation, a Delaware corporation (the "COMPANY"), whose names appear on
Schedule I hereto (collectively, the "MAJOR STOCKHOLDERS").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Parent, Purchaser and the Company are entering into an Agreement and
Plan of Merger, dated as of the date hereof (the "MERGER AGREEMENT"), which
provides for, upon the terms and subject to the conditions set forth therein,
(i) the commencement by Purchaser of a tender offer (the "OFFER") for all of the
issued and outstanding shares of common stock, par value $0.001 per share, of
the Company (the "COMPANY COMMON STOCK"), and (ii) the subsequent merger of
Purchaser with and into the Company and the Company being the surviving
corporation (the "MERGER");
WHEREAS, as of the date hereof, each Major Stockholder owns beneficially
the number of shares of Company Common Stock set forth opposite such Major
Stockholder's name on Schedule I hereto (all such shares so owned and which may
hereafter be acquired by such Major Stockholder prior to the termination of this
Agreement, whether upon the exercise of options or by means of purchase,
dividend, distribution or otherwise, being referred to herein as such Major
Stockholder's "SHARES");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that the Major Stockholders enter
into this Agreement; and
WHEREAS, in order to induce Parent and Purchaser to enter into the Merger
Agreement, the Major Stockholders are willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE MAJOR STOCKHOLDERS
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Section 1.1 VOTING OF SHARES. From the date hereof until the termination of
this Agreement pursuant to Section 5.3 hereof (the "TERM"), at any meeting of
the stockholders of the Company, however called, and in any action by consent of
the stockholders of the Company, each Major Stockholder shall vote its Shares
(i) in favor of the Merger and the Merger Agreement (as amended from time to
time pursuant to the terms thereof; (ii) against any Acquisition Proposal and
against any proposal for action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement, any change in the directors of the
Company, any change in the present capitalization of the Company or any
amendment to the Company's Amended and Restated Certificate of Incorporation or
Amended By-Laws, which in the case of each of the matters referred to in this
clause (ii) could reasonably be expected to impede, interfere with, delay,
postpone or materially adversely affect the transactions contemplated by the
Merger Agreement or the likelihood of such transactions being consummated and
(iii) in favor of any other matter necessary for consummation of the
Transactions which is considered at any such meeting of stockholders or in such
consent, and in connection therewith to execute any documents which are
necessary in order to effectuate the foregoing, including the ability for
Purchaser or its nominees to vote such Shares directly.
Section 1.2 PROXY. Each Major Stockholder hereby revokes any and all prior
proxies or powers of attorney in respect of any of such Major Stockholder's
Shares and constitutes and appoints Purchaser and Parent, or any nominee of
Purchaser and Parent, with full power of substitution and resubstitution, at any
time during the Term, as its true and lawful attorney and proxy (its "PROXY"),
for and in its name, place and stead, to demand that the Secretary of the
Company call a special meeting of the stockholders of the Company for the
purpose of considering any matter referred to, and as specified in, Section 1.1
(if permitted under the Company's Amended and Restated Certificate of
Incorporation or By-Laws) and to vote each of such Shares as its Proxy, at every
annual, special, adjourned or postponed meeting of the stockholders of the
Company, including the right to sign its name (as stockholder) to any consent,
certificate or other document relating to the Company that the laws of the state
of Delaware may permit or require with respect to any matter referred to in
Section 1.1. THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND
COUPLED WITH AN INTEREST THROUGHOUT THE TERM.
Section 1.3 NO PROXIES FOR OR ENCUMBRANCES ON MAJOR STOCKHOLDER SHARES.
Except pursuant to the terms of this Agreement or the Tender Documents (as
defined in Section 2.1(b)) during the Term, such Major Stockholder shall not,
without the prior written consent of Purchaser, directly or indirectly, (i)
grant any proxies (other than proxies relating to the election of management's
slate of directors at an annual meeting of the Company's Major Stockholders, and
other routine matters which would not require the filing of a preliminary proxy
statement under Rule 14a-6(a) of the Exchange Act) or enter into any voting
trust or other agreement or arrangement with respect to the voting of any such
Major Stockholder's Shares or (ii) sell, assign, transfer, encumber or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment, transfer,
encumbrance or other disposition of, any such Major Stockholder's Shares.
Section 1.4 WAIVER OF APPRAISAL RIGHTS. Each Major Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger.
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Section 1.5 STOP TRANSFER. During the Term, no Major Stockholder shall
request that the Company register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of such Major
Stockholder's Shares, unless such transfer is made in compliance with this
Agreement (including the provisions of Article III hereof).
Section 1.6 NOTIFICATION. Each Major Stockholder will promptly, but in any
event within 24 hours, notify Parent of the existence of any proposal,
discussion, negotiation or inquiry received by such Major Stockholder, and each
Major Stockholder will promptly, but in any event within 24 hours, communicate
to Parent the terms of any proposal, discussion, negotiation or inquiry which it
may receive which could reasonably be expected to lead to an Acquisition
Proposal (and will immediately provide to Parent copies of any written materials
received by it in connection with such proposal, discussion, negotiation or
inquiry) and the identity of the Person making such proposal or inquiry or
engaging in such discussion or negotiation. Notwithstanding anything in this
Agreement or the Merger Agreement to the contrary, the provisions of this
Section 1.6 and the provisions of Section 6.4 of the Merger Agreement in so far
as such provisions may be applicable to GS Private Equity Partners II, L.P., GS
Private Equity Partners II Offshore, L.P., GS Private Equity Partners III, L.P.,
GS Private Equity Partners III Offshore, L.P., and NBK/GS Private Equity
Partners, L.P. (collectively, the "GS Stockholders") are intended to and shall
apply only to the GS Stockholders and not to any Affiliates thereof (including
without limitation, Goldman Sachs & Co. and its Affiliates other than the GS
Stockholders) or any of their officers, directors, employees, agents or
representatives.
ARTICLE II.
TENDER OFFER
Section 2.1 TENDER OF SHARES.
(a) Each Major Stockholder hereby agrees, pursuant to the terms and
subject to the conditions set forth herein, to tender (or cause the record owner
of such Shares to validly tender) for payment in the Offer (which must be made
pursuant to the terms and subject to the conditions set forth in the Merger
Agreement) all Shares currently owned by such Major Stockholder as set forth on
Schedule I hereto and any additional Shares acquired by such Major Stockholder
(whether by purchase or otherwise) after the date of this Agreement (such "MAJOR
STOCKHOLDER'S SHARES" and, collectively, the "MAJOR STOCKHOLDERS SHARES");
PROVIDED, HOWEVER, that notwithstanding the foregoing, Cinergy shall tender 50%
of its Shares as set forth on Schedule I hereto. Parent and Purchaser
acknowledge that the Major Stockholder's obligations to sell such Shares to
Purchaser is conditioned on Purchaser's acceptance and payment for Shares of
Company Common Stock in the Offer.
(b) Not later than two (2) days prior to the initial Expiration Date
of the Offer (and within five business days of any acquisition by each Major
Stockholder of any additional Shares), each Major Stockholder shall, as
appropriate, deliver to the exchange agent (the "EXCHANGE AGENT") designated in
the Offer (i) a letter of transmittal with respect to such Major Stockholder's
Shares complying with the terms of the Offer together with instructions
directing the Exchange Agent to make payment for such Shares directly to the
Major Stockholder, (ii) a
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certificate or certificates representing such Major Stockholder's Shares and
(iii) all other documents or instruments required to be delivered pursuant to
the terms of the Offer (such documents in clauses (i) through (iii) collectively
being hereinafter referred to as the "TENDER DOCUMENTS"), and/or (iv) instruct
its broker or such other person who is the holder of record of any Shares
Beneficially Owned (as defined below) by such Major Stockholder to tender such
Shares for exchange in the Offer pursuant to the terms and conditions of the
Offer.
(c) During the Term, no Major Stockholder shall withdraw any tender
effected in accordance with Section 2.1(b).
Section 2.2 DISCLOSURE.
(a) Each Major Stockholder hereby authorizes Parent and Purchaser to
publish and disclose in the Offer Documents and, if approval of the Company's
Major Stockholders is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the SEC), its identity and
ownership of the Company Common Stock and the nature of its commitments,
arrangements and understandings under this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE MAJOR STOCKHOLDERS
Each Major Stockholder hereby represents and warrants to Parent and
Purchaser as follows:
Section 3.1 DUE AUTHORIZATION, ETC. Such Major Stockholder has all
requisite power and authority to execute, deliver and perform this Agreement, to
appoint Purchaser and Parent as its Proxy and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
the appointment of Purchaser and Parent as Major Stockholder's Proxy and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of Major Stockholder. This Agreement has
been duly executed and delivered by or on behalf of such Major Stockholder and
constitutes a legal, valid and binding obligation of such Major Stockholder,
enforceable against such Major Stockholder in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting creditor rights generally
and except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding for such remedy may be brought. There is no beneficiary or holder of
a voting trust certificate or other interest of any trust of which such Major
Stockholder is trustee whose consent is required for the execution and delivery
of this Agreement or the consummation by such Major Stockholder of the
transactions contemplated hereby.
Section 3.2 NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by such Major
Stockholder does not, and the performance of this Agreement by such Major
Stockholder will not, (i) conflict with or result in any breach of any provision
of the respective certificate of incorporation, bylaws or other similar
documents relating to the respective Major Stockholder, (ii) conflict with or
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violate any law applicable to such Major Stockholder or by which such Major
Stockholder or any of such Major Stockholder's properties is bound or affected
or (iii) except as set forth on SCHEDULE 3.2 hereto, result in any material
breach of or constitute a material default (or an event that with notice or
lapse of time or both would become a material default) under, or give to others
any rights of termination, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any assets of such Major Stockholder,
including, without limitation, such Major Stockholder's Shares, pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such Major Stockholder is a
party or by which such Major Stockholder or any of such Major Stockholder's
assets is bound or affected, except, in the case of clauses (ii) and (iii), for
any such material breaches, defaults or other occurrences that would not prevent
or delay the performance by such Major Stockholder of such Major Stockholder's
obligations under this Agreement.
(b) Except as set forth on SCHEDULE 3.2 hereto, the execution and
delivery of this Agreement by such Major Stockholder does not, and the
performance of this Agreement by such Major Stockholder will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority (other than any necessary filing
under the HSR Act or the Exchange Act), domestic or foreign, except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by such Major Stockholder of such Major Stockholder's obligations under this
Agreement.
Section 3.3 VALID TITLE. Such Major Stockholder is the sole, true, lawful
and beneficial owner of such Major Stockholder's Shares with no restrictions on
such Major Stockholder's voting rights or rights of disposition pertaining
thereto, except for any such restrictions contemplated herein and except as set
forth on SCHEDULE 3.3 hereto. None of such Major Stockholder's Shares is subject
to any voting trust or other agreement or arrangement with respect to the voting
of such Shares. None of such Major Stockholder's Shares is subject to any
adverse claims, liens, charges, encumbrances, security interests or other
restrictions on transfer.
Section 3.4 TOTAL SHARES. Each Major Stockholder is the record and
Beneficial Owner of the number of Shares set forth next to such Major
Stockholder's name on Schedule I hereto. Except with respect to Cinergy, such
Shares constitute all of the Shares owned of record or Beneficially Owned by
such Major Stockholder as of the date hereof. Except as set forth on Schedule I
hereto, neither such Major Stockholder nor any beneficial owner or owners of
such Major Stockholder's Shares own any options to purchase or rights to
subscribe for or otherwise acquire any securities of the Company. Except as set
forth on SCHEDULE 3.4 hereto, each Major Stockholder has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Articles I and II of this Agreement, sole power of disposition, sole power of
conversion and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares beneficially owned by
such Major Stockholder with no limitations, qualifications or restrictions on
such rights, subject to applicable securities laws and the terms of this
Agreement. The terms "BENEFICIALLY OWN", "BENEFICIALLY OWNED", "BENEFICIAL
OWNERSHIP" and "BENEFICIAL OWNER" with respect to any securities shall mean
having "beneficial ownership" of such securities as determined pursuant to Rule
13d-3 under the Exchange Act.
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Section 3.5 NO FINDER'S FEES. Except for Morgan Stanley Dean Witter &
Company, whose fee arrangements are disclosed in the Merger Agreement, no
broker, investment banker, financial advisor or other person is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of such Major Stockholder. Such Major Stockholder, on
behalf of itself and its affiliates, hereby acknowledges that it is not entitled
to receive any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby or by the
Merger Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF
PARENT, PURCHASER AND STC
Parent, Purchaser and STC hereby, jointly and severally, represent and
warrant to the Major Stockholders as follows:
Section 4.1 DUE ORGANIZATION, AUTHORIZATION, ETC. Purchaser, Parent and STC
are duly organized, validly existing and in good standing under the laws of
their jurisdiction of incorporation. Purchaser, Parent and STC have all
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby by each of STC, Parent and Purchaser have been duly authorized by the
boards of directors of each of STC, Parent and Purchaser, by STC as the sole
stockholder of Parent, and by Parent as the sole stockholder of Purchaser, and
no other corporate action on the part of STC, Parent or Purchaser is necessary
to authorize the execution and delivery by STC, Parent and Purchaser of this
Agreement. This Agreement has been duly executed and delivered by each of
Purchaser, Parent and STC and constitutes a legal, valid and binding obligation
of each of Purchaser, Parent and STC, enforceable against Purchaser, Parent and
STC in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding for such remedy may
be brought.
Section 4.2 NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by Purchaser, Parent
and STC does not, and the performance of this Agreement by Purchaser, Parent and
STC will not, (i) conflict with or result in any breach of any provision of the
respective certificate of incorporation, bylaws or other similar documents
relating to the respective party, (ii) conflict with or violate any law
applicable to Purchaser, Parent and STC or by which Purchaser, Parent and STC or
any of Purchaser's, Parent's or STC's properties is bound or affected or (iii)
result in any material breach of or constitute a material default (or an event
that with notice or lapse of time or both would become a material default)
under, or give to others any rights of termination, acceleration or cancellation
of, or result in the creation of a lien or encumbrance on any assets of
Purchaser, Parent and STC, including, without limitation, Purchaser's, Parent's
and STC's Shares, pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license,
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permit, franchise or other instrument or obligation to which Purchaser, Parent
and STC is a party or by which Purchaser, Parent or STC or any of Purchaser's,
Parent's and STC's assets is bound or affected, except, in the case of clauses
(ii) and (iii), for any such material breaches, defaults or other occurrences
that would not prevent or delay the performance by Purchaser, Parent and STC of
Purchaser's and Parent's obligations under this Agreement.
(b) The execution and delivery of this Agreement by Purchaser, Parent
and STC does not, and the performance of this Agreement by Purchaser, Parent and
STC will not, require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority (other
than any necessary filing under the HSR Act or the Exchange Act), domestic or
foreign, except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent or delay the performance by Purchaser, Parent and STC of Purchaser's and
Parent's obligations under this Agreement.
ARTICLE V.
MISCELLANEOUS
Section 5.1 DEFINITIONS. Capitalized terms used but not otherwise defined
in this Agreement have the respective meanings ascribed to such terms in the
Merger Agreement.
Section 5.2 ADDITIONAL AGREEMENTS. Subject to the terms and conditions of
this Agreement, each of the Purchaser and each Major Stockholder, in the
capacity as a Major Stockholder, agrees to use all reasonable efforts to take,
or cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations and which
may be required under any agreements, contracts, commitments, instruments,
understandings, arrangements or restrictions of any kind to which such party is
a party or by which such party is governed or bound, to consummate and make
effective the transactions contemplated by this Agreement.
Section 5.3 TERMINATION. This Agreement and the proxies granted pursuant to
Section 1.2 shall terminate automatically and without any action of any of the
parties hereto and be of no further force and effect upon the earlier to occur
of: (i) the written mutual consent of the parties hereto, (ii) the Effective
Time, (iii) the termination of the Merger Agreement in accordance with its terms
or (iv) March 31, 2001. No such termination of this Agreement shall relieve any
party hereto from any liability for any breach of this Agreement prior to
termination or from any obligation pursuant to a Notice delivered on or before
the date of such termination. In the event this Agreement is terminated in
accordance with its terms, Purchaser shall cause each Major Stockholder's Shares
to be promptly returned to such Major Stockholder.
Section 5.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except for Sections
3.3 and 3.4 which shall survive the termination of this Agreement for the
applicable statute of limitations, the representations and warranties contained
in this Agreement shall not survive delivery of and payment for the Major
Stockholders Shares or the termination of this Agreement.
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Section 5.5 FURTHER ASSURANCE. From time to time, at another party's
request and without consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
Section 5.6 CERTAIN EVENTS; SUCCESSORS. Each Major Stockholder agrees that
this Agreement and such Major Stockholder's obligations hereunder shall attach
to such Major Stockholder's Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including, without limitation, such Major
Stockholder's heirs, guardians, administrators, or successors. Notwithstanding
any transfer of Shares, the transferor shall remain liable for the performance
of all its obligations under this Agreement.
Section 5.7 NO WAIVER. The failure of any party hereto to exercise any
right, power, or remedy provided under this agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
Section 5.8 NOTICE. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or sent by an internationally recognized overnight courier
service, such as Federal Express, to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice):
(a) if to Parent or Purchaser, to:
Convergent Holding Corporation
c/o Schlumberger Technology Corp.
277 Park Avenue
New York, New York 10172
Attention: General Counsel
Telephone No.: (212) 350-9100
Telecopy No.: (212) 350-8127
with a copy (which shall not constitute notice) to:
Brobeck, Phleger & Harrison LLP
370 Interlocken Boulevard
Suite 500
Broomfield, Colorado 80021
Attention: Richard Plumridge
Telephone No.: (303) 410-2014
Telecopy No.: (303) 410-2199
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and
(b) If to a Major Stockholder, at the address set forth below such
Major Stockholder's name on Schedule I hereto.
Section 5.9 EXPENSES. Except as otherwise expressly set forth herein, 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.
Section 5.10 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 5.11 SEVERABILITY. Any term or provision of this Agreement that is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the invalid, void or unenforceable term or
provision in any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction or other authority declares that
any term or provision hereof is invalid, void or unenforceable, the parties
agree that the court making such determination shall have the power to and
shall, subject to the discretion of such court, reduce the scope, duration, area
or applicability of the term or provision, to delete specific words or phrases,
or to replace any invalid, void or unenforceable term or provision with a term
or provision that is valid and enforceable and that comes closest to expressing
the intention of the invalid or unenforceable term or provision.
Section 5.12 ENTIRE AGREEMENT. This Tender and Voting Agreement and the
Merger Agreement, including the documents and the instruments referred to herein
and therein, constitute the entire agreement and supersede all prior agreements,
negotiations, arrangements and understandings, both written and oral, among the
parties with respect to the subject matter hereof and thereof. Nothing in this
Tender and Voting Agreement, subject to Section 5.13, shall be construed to give
any person other than the parties to this Tender and Voting Agreement or their
respective successors or permitted assigns any right or remedy hereunder.
Section 5.13 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
(whether by operation of law or otherwise) without the prior written consent of
the other parties, except that Purchaser may assign, in its sole discretion, any
or all of its rights, interests and obligations hereunder to Parent or to any
direct or indirect wholly owned subsidiary of Parent and such assignment shall
not relieve Purchaser of any obligation under this Agreement. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
, and be enforceable by the parties and their respective successors and assigns.
Section 5.14 GOVERNING LAW.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware without giving effect to the principles
of conflicts of law thereof.
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(b) The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. 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 of this Agreement in any court of the United States
located in the State of Delaware or in a Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties (a) consents to submit itself to the personal
jurisdiction of any Federal court in the State of Delaware or any Delaware state
court in the event any dispute arises out of this Agreement or any of the
transactions contemplated by the Merger Agreement, (b) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by the Merger
Agreement in any court other than a Federal court sitting in the State of
Delaware or a Delaware state court.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUR OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 5.14.
Section 5.15 AMENDMENT. This Agreement may not be amended, modified or
supplemented except by an instrument in writing signed by all of the parties
hereto.
Section 5.16 WAIVER. At any time prior to the Effective Time, any party
hereto may (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 of the other parties hereto contained herein or
in any document delivered pursuant hereto and (c) waive compliance by the other
parties hereto with any of their agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only as against such party and only if set forth in an instrument in
writing signed by such party. The failure of any party hereto to assert any of
its rights under this Agreement or otherwise shall not constitute a waiver of
those rights.
Section 5.17 ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with
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their specific terms or were 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
of this Agreement in any court of the United States located in the State of
Delaware or in Delaware state court, this being in addition to any other remedy
to which they are entitled at law or in equity. In addition, each of the parties
(a) consents to submit itself to the personal jurisdiction of any Federal court
located in the State of Delaware or any Delaware state court in the event any
dispute arises out of this Agreement or any of the Transactions, (b) agrees that
it will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, and (c) agrees that it will not
bring any action relating to this Agreement or any of the Transactions in any
court other than a Federal court sitting in the State of Delaware or a Delaware
state court.
Section 5.18 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement.
11
<PAGE>
IN WITNESS WHEREOF, Parent, Purchaser and each of the Major Stockholders
have caused this Agreement to be executed as of the date first written above.
CONVERGENT HOLDING CORPORATION
------------------------------------
By:
Title:
SCHLUMBERGER TECHNOLOGY CORP.
------------------------------------
By:
Title:
CONVERGENT ACQUISITION SUB, INC.
------------------------------------
By:
Title:
<PAGE>
MAJOR STOCKHOLDERS
INSIGHT CAPITAL PARTNERS III, L.P. INSIGHT CAPITAL PARTNERS III
(CAYMAN), L.P.
By: InSight Venture Associates III, By: InSight Venture Associates III,
L.L.C., its General Partner L.L.C., its General Partner
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
INSIGHT CAPITAL PARTNERS III GS PRIVATE EQUITY PARTNERS III
(CO-INVESTORS), L.P. OFFSHORE, L.P.
By: InSight Venture Associates III, By: GS PEP III Offshore Advisors,
L.L.C., its General Partner Inc., General Partner
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
GS PRIVATE EQUITY PARTNERS II, L.P. GS PRIVATE EQUITY PARTNERS II
OFFSHORE, L.P.
By: GS PEP II Advisors, L.L.C., By: GS PEP II Offshore Advisors,
General Partner Inc., General Partner
By: GSAM Gen-Par, L.L.C., Managing
Member
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
GS PRIVATE EQUITY PARTNERS III, L.P.
By: GS PEP III Advisors, L.L.C.,
General Partner
By: GSAM Gen-Par, L.L.C., Managing Member
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
<PAGE>
NBK/GS PRIVATE EQUITY PARTNERS, L.P. CINERGY VENTURES, LLC
By: GS PEP Offshore Advisors (NBK),
Inc., General Partner
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
<PAGE>
SCHEDULE I
MAJOR STOCKHOLDERS
<TABLE>
<CAPTION>
SHARES OF COMPANY COMMON STOCK
MAJOR STOCKHOLDER BENEFICIALLY OWNED
----------------- ------------------------------
<S> <C>
InSight Capital Partners III, L.P. 5,696,190
c/o InSight Capital Partners
527 Madison Avenue, 10th Floor
New York, New York 10022
InSight Capital Partners III (Cayman), L.P. 1,411,047
c/o W.S. Walker & Company
Walker House
P.O. Box 265 GT, Mary Street
Georgetown, Grand Cayman
Cayman Islands
InSight Capital Partners III (Co-Investors), L.P. 852,816
c/o InSight Capital Partners
527 Madison Avenue, 10th Floor
New York, New York 10022
GS Private Equity Partners II, L.P. 788,784.5
One New York Plaza
New York, New York 10004
GS Private Equity Partners II Offshore, L.P. 408,459
One New York Plaza
New York, New York 10004
GS Private Equity Partners III, L.P. 826,757.5
One New York Plaza
New York, New York 10004
GS Private Equity Partners III Offshore, L.P. 192,737.5
One New York Plaza
New York, New York 10004
NBK/GS Private Equity Partners, L.P. 87,451
One New York Plaza
New York, New York 10004
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SHARES OF COMPANY COMMON STOCK
MAJOR STOCKHOLDER BENEFICIALLY OWNED
----------------- ------------------------------
<S> <C>
Cinergy Ventures, LLC 1,083,281
221 E. Fourth Street, Suite 30
Cincinnati, Ohio 45201
</TABLE>
<PAGE>
SCHEDULE 3.2
180 Day Lock-Up Agreement among the Major Stockholders and FleetBoston
Robertson Stephens, Inc.
<PAGE>
SCHEDULE 3.3
180 Day Lock-Up Agreement among the Major Stockholders and FleetBoston
Robertson Stephens, Inc.
