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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K/A
AMENDMENT NO. 1
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 27, 1998
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CAYENNE SOFTWARE, INC.
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(Exact name of registrant as specified in its charter)
Massachusetts 0-19682 04-2784044
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
14 Crosby Drive, Bedford, MA 01730
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (781) 280-0505
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Cayenne Software, Inc. ("Cayenne") hereby amends its Current Report on Form
8-K dated August 27, 1998 to add Item 7 thereto. Exhibits 2.3, 10.29, 10.31 and
10.32 listed below were previously filed with Cayenne's Current Report dated
August 27, 1998 and are not being changed by this amendment. Exhibit 10.30
listed below supersedes in its entirety Exhibit 10.30 as filed with Cayenne's
Current Report dated August 27, 1998.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
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(c) Exhibits.
Exhibit
Number Exhibit
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2.3 Agreement and Plan of Merger by and among Cayenne, Sterling
Software and Sterling Software (Southern), Inc. dated as of
August 27, 1998 (previously filed as an exhibit to Cayenne's
Current Report on Form 8-K dated August 27, 1998 and
incorporated herein by reference). The disclosure schedule and
annexes relating to the Agreement and Plan of Merger have been
omitted. Cayenne will furnish supplementally to the Securities
and Exchange Commission such schedule or annexes upon request.
10.29 Stock Option Agreement between Cayenne and Sterling Software
dated as of August 27, 1998 (previously filed as an exhibit to
Cayenne's Current Report on Form 8-K dated August 27, 1998 and
incorporated herein by reference)
10.30 Stockholder Agreement among the holders of Class D Convertible
Preferred Stock and Sterling Software dated as of August 27,
1998 (filed herewith)
10.31 Forbearance Agreement by and among Cayenne, Silicon Valley
Bank and certain wholly owned subsidiaries of Cayenne dated as
of August 27, 1998 (previously filed as an exhibit to
Cayenne's Current Report on Form 8-K dated August 27, 1998 and
incorporated herein by reference)
10.32 Form of Promissory Note of Cayenne payable to the order of
Silicon Valley Bank (previously filed as an exhibit to
Cayenne's Current Report on Form 8-K dated August 27, 1998 and
incorporated herein by reference)
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SIGNATURES
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 hereunto duly authorized.
Cayenne Software, Inc.
Dated: September 4, 1998 By: /s/ Frederick H. Phillips
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Frederick H. Phillips
Vice President, Finance and Administration,
Treasurer and Chief Financial Officer
(Principal Financial and Accounting Officer)
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________
EXHIBITS
TO
AMENDMENT NO. 1 TO
CURRENT REPORT ON FORM 8-K/A
_______________________________
CAYENNE SOFTWARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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EXHIBIT INDEX
EXHIBIT
NO.
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2.3 Agreement and Plan of Merger by and among Cayenne, Sterling Software
and Sterling Software (Southern), Inc. dated as of August 27, 1998
(previously filed as an exhibit to Cayenne's Current Report on Form
8-K dated August 27, 1998 and incorporated herein by reference). The
disclosure schedule and annexes relating to the Agreement and Plan
of Merger have been omitted. Cayenne will furnish supplementally to
the Securities and Exchange Commission such schedule or annexes upon
request.
10.29 Stock Option Agreement between Cayenne and Sterling Software dated
as of August 27, 1998 (previously filed as an exhibit to Cayenne's
Current Report on Form 8-K dated August 27, 1998 and incorporated
herein by reference)
10.30 Stockholder Agreement among the holders of Class D Convertible
Preferred Stock and Sterling Software dated as of August 27, 1998
(filed herewith)
10.31 Forbearance Agreement by and among Cayenne, Silicon Valley Bank, and
certain wholly owned subsidiaries of Cayenne dated as of August 27,
1998 (previously filed as an exhibit to Cayenne's Current Report on
Form 8-K dated August 27, 1998 and incorporated herein by reference)
10.32 Form of Promissory Note of Cayenne payable to the order of Silicon
Valley Bank (previously filed as an exhibit to Cayenne's Current
Report on Form 8-K dated August 27, 1998 and incorporated herein by
reference)
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Exhibit 10.30
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of August 27, 1998 (this "Agreement"),
is made and entered into among Sterling Software, Inc., a Delaware corporation
("Parent"), Integral Capital Partners III, L.P., Integral Capital Partners
International III, L.P., Winston Partners L.P., Winston Partners II LLC and
Winston Partners II LDC (each, a "Stockholder" and, collectively, the
"Stockholders").
RECITALS:
A. Parent, Sterling Software (Southern), Inc., a Georgia corporation and
wholly owned subsidiary of Parent ("Merger Sub"), and Cayenne Software, Inc., a
Massachusetts corporation ("Company"), propose to enter into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), pursuant
to which Company will merge with and into Merger Sub (the "Merger") on the terms
and subject to the conditions set forth in the Merger Agreement. Except as
otherwise defined herein, terms used herein with initial capital letters have
the respective meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, each Stockholder beneficially owns and is
entitled to vote (or to direct the voting of) the number of Common Shares and
Preferred Shares set forth opposite such Stockholder's name on Schedule A hereto
(such Common Shares and Preferred Shares, together with any other shares of
capital stock of Company the beneficial ownership of which is acquired by such
Stockholder during the period from and including the date hereof through and
including the earlier of (i) the Effective Time and (ii) the date that is one
year after the date on which the Merger Agreement is terminated pursuant to
Section 8.1 thereof, are collectively referred to herein as such Stockholder's
"Subject Shares").
C. As a condition and inducement to Parent's willingness to enter into
the Merger Agreement, Parent has requested that each Stockholder agree, and each
Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement and the Merger Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
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ARTICLE I
VOTING AGREEMENT
Section 1.1 Agreement to Vote Shares. During the period (the
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"Restricted Period") from and including the date hereof through and including
the earlier of (a) the Effective Time and (b) the date on which the Merger
Agreement is terminated pursuant to Section 8.1 thereof, at any meeting of the
stockholders of Company called to consider and vote upon the approval of the
Merger Agreement (and at any and all postponements and adjournments thereof),
and in connection with any action to be taken in respect of the approval of the
Merger Agreement by written consent of stockholders of Company, each Stockholder
shall vote or cause to be voted (including by written consent, if applicable)
all of such Stockholder's Subject Shares in favor of the approval of the Merger
Agreement, and in favor of any other matter necessary for the consummation of
the transactions contemplated by the Merger Agreement and considered and voted
upon at any such meeting or made the subject of any such written consent, as
applicable. During the Restricted Period, at any meeting of the stockholders of
Company called to consider and vote upon any Adverse Proposal (as hereinafter
defined) (and at any and all postponements and adjournments thereof), and in
connection with any action to be taken in respect of any Adverse Proposal by
written consent of stockholders of Company, each Stockholder shall vote or cause
to be voted (including by written consent, if applicable) all of such
Stockholder's Subject Shares against such Adverse Proposal. For purposes of this
Agreement, the term "Adverse Proposal" means any (x) Acquisition Proposal (as
defined in the Merger Agreement) or (y) other action which is intended or could
reasonably be expected to impede, interfere with, delay or materially and
adversely affect the contemplated economic benefits to Parent of the Merger or
any of the other transactions contemplated by the Merger Agreement or this
Agreement.
Section 1.2 Irrevocable Proxy.
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(a) Grant of Proxy. EACH STOCKHOLDER HEREBY APPOINTS PARENT AND ANY
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DESIGNEE OF PARENT, EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDER'S PROXY AND
ATTORNEY-IN-FACT PURSUANT TO THE PROVISIONS OF SECTION 41 OF THE MASSACHUSETTS
BUSINESS CORPORATION LAW, WITH FULL POWER OF SUBSTITUTION AND RESUBSTITUTION, TO
VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT TO SUCH STOCKHOLDER'S SUBJECT SHARES
IN ACCORDANCE WITH SECTION 1.1 HEREOF. THIS PROXY IS GIVEN TO SECURE THE
PERFORMANCE OF THE DUTIES OF SUCH STOCKHOLDER UNDER THIS AGREEMENT. EACH
STOCKHOLDER AFFIRMS THAT THIS PROXY IS COUPLED WITH AN INTEREST AND SHALL BE
IRREVOCABLE. EACH STOCKHOLDER SHALL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH
OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY.
(b) Other Proxies Revoked. Each Stockholder represents that any
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proxies heretofore given in respect of such Stockholder's Subject Shares are not
irrevocable, and that all such proxies are hereby revoked.
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ARTICLE II
OPTION
Section 2.1 Grant of Option. Each Stockholder hereby grants to Parent
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an irrevocable option (each, an "Option" and, collectively, the "Options") to
purchase such Stockholder's Subject Shares on the terms and subject to the
conditions set forth herein, in exchange for a cash payment (the "Option
Consideration") equal to the product of (a)(i)$0.375, in the case of Common
Shares and (ii) $20.00, in the case of Preferred Shares and (b) the number of
Common Shares or Preferred Shares, as applicable, to be purchased upon any
particular exercise of such Option; provided, however, that in the event there
shall be outstanding on the date of any Option Closing (as hereinafter defined)
any Advances made to Company pursuant to Section 6.11 of the Merger Agreement,
the Option Consideration shall be reduced, in the case of each Common Share, by
an amount (rounded to the nearest one-tenth of a cent) equal to the quotient
obtained by dividing (1) the aggregate amount of such outstanding Advances by
(2) 21,333,398. The type and number of shares, securities or other property
subject to each of the Options, and the Option Consideration payable therefor,
shall be subject to adjustment as provided in Section 2.4.
Section 2.2 Exercise of Option. (a) During the Restricted Period,
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Parent may exercise all or any of the Options, in whole or in part, at any time
or from time to time. Notwithstanding anything in this Agreement to the
contrary, Parent shall be entitled to purchase all Subject Shares in respect of
which it shall have exercised an Option in accordance with the terms hereof
prior to the expiration of the Restricted Period, and the expiration of the
Restricted Period shall not affect any rights hereunder which by their terms do
not terminate or expire prior to or as of such expiration.
(b) If Parent wishes to exercise an Option, it shall deliver to
the applicable Stockholder (each a "Selling Stockholder") a written notice (an
"Exercise Notice") to that effect which specifies (i) the number of Subject
Shares to be purchased from such Selling Stockholder and (ii) a date (an "Option
Closing Date") not earlier than three business days after the date such Exercise
Notice is delivered for the consummation of the purchase and sale of such
Subject Shares (an "Option Closing"). If the Option Closing cannot be effected
on the Option Closing Date specified in the Exercise Notice by reason of any
applicable judgment, decree, order, law or regulation, or because any applicable
waiting period under the HSR Act shall not have expired or been terminated, (i)
the Stockholders shall promptly take all such actions as may be requested by
Parent, and shall otherwise fully cooperate with Parent, to cause the
elimination of all such impediments to the Option Closing and (ii) the Option
Closing Date specified in the Exercise Notice shall be extended to the third
business day following the elimination of all such impediments. The place of the
Option Closing shall be at the offices of Jones, Day, Reavis & Pogue, 2300
Trammell Crow Center, 2001 Ross Avenue, Dallas, Texas, and the time of the
Option Closing shall be 10:00 a.m. (Central Time) on the Option Closing Date.
Section 2.3 Payment and Delivery of Certificates. At any Option
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Closing, Parent shall deliver to each Selling Stockholder a cash payment
representing the Option Consideration payable in respect of the Subject Shares
to be purchased from such Selling Stockholder at the Option Closing, and each
Selling Stockholder shall deliver to Parent such Subject Shares, free and clear
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of all Liens, with the certificate or certificates evidencing such Subject
Shares being duly endorsed for transfer by such Selling Stockholder and
accompanied by all powers of attorney and/or other instruments necessary to
convey valid and unencumbered title thereto to Parent, and shall assign to
Parent (pursuant to a written instrument in form and substance satisfactory to
Parent) all rights that such Selling Stockholder may have to require Company to
register such Subject Shares under the Securities Act of 1933, as amended (the
"Securities Act"). Transfer taxes, if any, imposed as a result of the exercise
of an Option shall be borne by the Selling Stockholder.
Section 2.4 Adjustment upon Changes in Capitalization, Etc. In the
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event of any change in the capital stock of Company by reason of a stock
dividend, split-up, merger, recapitalization, combination, exchange of shares,
extraordinary distribution or similar transaction, the type and number or amount
of shares, securities or other property subject to each of the Options, and the
Option Consideration payable therefor, shall be adjusted appropriately, and
proper provision shall be made in the agreements governing such transaction, so
that Parent shall receive upon exercise of any Option the type and number or
amount of shares, securities or property that Parent would have held and/or been
entitled to receive in respect of the applicable Selling Stockholder's Subject
Shares immediately after such event or the record date therefor, as applicable,
if the Option had been exercised immediately prior to such event or the record
date therefor, as applicable. The provisions of this Section 2.4 shall apply in
a like manner to successive stock dividends, split-ups, mergers,
recapitalizations, combinations, exchanges of shares or extraordinary
distributions or similar transactions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Certain Representations and Warranties of the Stockholders.
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Each Stockholder, severally and not jointly, represents and warrants to Parent
as follows:
(a) Ownership. Such Stockholder is the sole record and
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beneficial owner of the number of Shares set forth opposite such Stockholder's
name on Schedule A hereto and has full and unrestricted power to dispose of and
to vote such Shares. Such Stockholder does not beneficially own any securities
of Company on the date hereof other than the Shares and the options and warrants
to purchase Common Shares set forth on Schedule A.
(b) Power and Authority; Execution and Delivery. Such
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Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. In the case of each
Stockholder that is not a natural person, the execution and delivery of this
Agreement by such Stockholder and the consummation by such Stockholder of the
transactions contemplated hereby have been duly authorized by all necessary
action, if any, on the part of such Stockholder. This Agreement has been duly
executed and delivered by such Stockholder and, assuming that this Agreement
constitutes the valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms, subject to applicable
bankruptcy,
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insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and to general principles of
equity.
(c) No Conflicts. The execution and delivery of this Agreement
------------
do not, and, subject to compliance with the HSR Act, to the extent applicable,
the consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, a right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking, law,
rule, regulation, judgment, order, injunction, decree, determination or award
binding on such Stockholder, other than any such conflicts, breaches,
violations, defaults, obligations, rights or losses that individually or in the
aggregate would not (i) impair the ability of such Stockholder to perform such
Stockholder's obligations under this Agreement or (ii) prevent or delay the
consummation of any of the transactions contemplated hereby.
Section 3.2 Representations and Warranties of Parent. Parent hereby
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represents and warrants to each Stockholder that:
(a) Power and Authority; Execution and Delivery. Parent has all
-------------------------------------------
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent and, assuming that this Agreement constitutes the valid and binding
obligation of each Stockholder, constitutes a valid and binding obligation of
Parent, enforceable against Parent in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and to general principles of equity.
(b) No Conflicts. The execution and delivery of this Agreement
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do not, and, subject to compliance with the HSR Act, to the extent applicable,
the consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking, law,
rule, regulation, judgment, order, injunction, decree, determination or award
binding on Parent, other than any such conflicts, breaches, violations,
defaults, obligations, rights or losses that individually or in the aggregate
would not (i) impair the ability of Parent to perform its obligations under this
Agreement or (ii) prevent or delay the consummation of any of the transactions
contemplated hereby.
(c) Purchase for Own Account. The Options and the Subject Shares
------------------------
to be acquired upon exercise of the Options are being and shall be acquired by
Parent for its own account, and shall not be sold, transferred or otherwise
disposed of by Parent except in a
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transaction registered or exempt from registration under the Securities Act and
in compliance with applicable state securities laws.
ARTICLE IV
CERTAIN COVENANTS
Section 4.1 Certain Covenants of Stockholders.
---------------------------------
(a) Restriction on Transfer of Subject Shares, Proxies and
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Noninterference. During the Restricted Period, no Stockholder shall directly or
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indirectly: (i) except pursuant to the terms of this Agreement and for the
conversion of Subject Shares at the Effective Time pursuant to the terms of the
Merger Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of (including by conversion thereof into Common
Shares), or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
such Stockholder's Subject Shares; (ii) except pursuant to the terms of this
Agreement, grant any proxies or powers of attorney, deposit any of such
Stockholder's Subject Shares into a voting trust or enter into a voting
agreement with respect to any of such Stockholder's Subject Shares; or (iii)
take any action that would make any representation or warranty contained herein
untrue or incorrect or have the effect of impairing the ability of such
Stockholder to perform such Stockholder's obligations under this Agreement or
preventing or delaying the consummation of any of the transactions hereby.
(b) Cooperation. Each Stockholder shall cooperate fully with
-----------
Parent and Company in connection with their respective efforts to fulfill the
conditions to the Merger set forth in Article VII of the Merger Agreement.
(c) Acknowledgments and Waivers. Each Stockholder hereby (i)
---------------------------
acknowledges that such Stockholder is familiar with (A) the provisions of the
articles of organization of Company fixing the powers, preferences and rights
appurtenant to such Stockholder's Subject Shares, (B) the provisions of the
Convertible Stock Purchase Agreement, dated August 28, 1997 (the "Preferred
Share Purchase Agreement"), among Company and the purchasers of Preferred Shares
named therein, (C) the provisions of the Registration Rights Agreement, dated
August 28, 1997 (the "Registration Rights Agreement"), among Company and the
purchasers of Preferred Shares named therein and (D) the provisions of the
Merger Agreement and this Agreement, (ii) consents to the provisions of the
Merger Agreement and this Agreement, and (iii) agrees that if and to the extent
that the provisions of the Merger Agreement or this Agreement conflict with or
are inconsistent with any of the provisions of the instruments referred to in
clauses (i)(A), (i)(B) or (i)(C) of this sentence, the provisions of the Merger
Agreement and of this Agreement shall control and any and all such conflicts or
inconsistencies (and any and all claims and causes of action that might
otherwise exist with respect thereto) are hereby irrevocably waived. Without
limiting the generality or effect of the foregoing, (i) each Stockholder hereby
irrevocably waives any and all claims and causes of action that might otherwise
exist with respect to the manner in which the aggregate consideration to holders
of
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capital stock of Company provided for in the Merger Agreement has been allocated
pursuant to the Merger Agreement between the holders of Common Shares and the
holders of Preferred Shares, and (ii) each Stockholder hereby agrees that such
Stockholder will not assert or seek to exercise, at any time prior to the
termination of the Merger Agreement pursuant to Section 8.1 thereof, any rights
that it might have under the Preferred Share Purchase Agreement, Section 5 of
the Statement of Rights and Preferences of Series D Convertible Preferred Stock
of Company or the Registration Rights Agreement.
(d) Releases. Each Stockholder hereby fully, unconditionally and
--------
irrevocably releases, effective as of the Effective Time, any and all claims and
causes of action that such Stockholder has or may have against Company or any of
its Subsidiaries or any present or former director, officer, employee or agent
of Company or any of its Subsidiaries (collectively, the "Released Parties")
arising or resulting from or relating to any act, omission, event or occurrence
prior to the Effective Time.
Section 4.2 Covenant of Parent. Parent shall not, without the prior
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written consent of the Stockholders, enter into any amendment or modification of
the Merger Agreement which would adversely affect the rights or interests of the
Stockholders.
ARTICLE V
MISCELLANEOUS
Section 5.1 Fees and Expenses. Each party hereto shall pay its own
-----------------
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 5.2 Termination; Amendment. This Agreement, the proxies
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granted pursuant to Section 1.2 and the option granted pursuant to Section 2.1
shall terminate immediately upon any termination of the Merger Agreement
pursuant to Section 8.1 thereof. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 5.3 Extension; Waiver. Any agreement on the part of a party to
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waive any provision of this Agreement, or to extend the time for any performance
hereunder, shall be valid only if set forth in an instrument in writing signed
on behalf of such party. The failure of any party
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to this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
Section 5.4 Entire Agreement; No Third-Party Beneficiaries. This
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Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies; provided, however, that the
provisions of Sections 4.1(c) and 4.1(d) are intended to inure the benefit of,
and to be enforceable by, the Released Parties.
Section 5.5 Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of The Commonwealth of Massachusetts,
regardless of the laws that might otherwise govern under applicable principles
of conflict of laws thereof.
Section 5.6 Notices. All notices, requests, claims, demands and other
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communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, or sent by overnight courier (providing proof of
delivery), in the case of the Stockholders, to the address set forth on Schedule
A hereto or, in the case of Parent, to the address set forth below (or, in each
case, at such other address as shall be specified by like notice).
Sterling Software, Inc.
300 Crescent Court
Suite 1200
Dallas, Texas 75201
Attention: Don J. McDermett, Jr., Esq.
Telecopy: (214) 981-1265
with a copy (which shall not constitute notice) to:
Jones, Day, Reavis & Pogue
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
Attention: Mark E. Betzen, Esq.
Telecopy: (214) 969-5100
Section 5.7 Assignment. Neither this Agreement nor any of the rights,
----------
interests, or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any Stockholder without
the prior written consent of Parent, and any such assignment or delegation that
is not consented to shall be null and void. This Agreement, together with any
rights, interests, or obligations of Parent hereunder, may be assigned or
delegated, in whole or in part, by Parent without the consent of or any action
by any Stockholder upon notice by Parent to each Stockholder affected thereby as
herein provided. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
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Section 5.8 Further Assurances. Each Stockholder and Parent shall
------------------
execute and deliver all other documents and instruments and take all other
action that may be reasonably necessary in order to consummate the transactions
provided for herein.
Section 5.9 Enforcement. 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. Accordingly, 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 appropriate state court in The Commonwealth of Massachusetts or federal
court in Suffolk County in The Commonwealth of Massachusetts, this being in
addition to any other remedy to which they are entitled at law or in equity.
Each of the parties hereto (i) shall submit itself to the personal jurisdiction
of any appropriate state court in The Commonwealth of Massachusetts or federal
court in Suffolk County in The Commonwealth of Massachusetts in the event any
dispute arises out of this Agreement or any of the transactions contemplated
hereby, (ii) shall not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, and (iii) shall not bring
any action relating to this Agreement or any of the transactions contemplated
hereby in any court other than any appropriate state court in The Commonwealth
of Massachusetts or federal court in Suffolk County in The Commonwealth of
Massachusetts.
Section 5.10 Severability. Whenever possible, each provision or portion
------------
of any provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
Section 5.11 Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same instrument and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other parties.
[signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed as of the day and year first written above.
STERLING SOFTWARE, INC.
By: /s/ Don J. McDermett, Jr.
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Don J. McDermett, Jr.
Senior Vice President and General Counsel
STOCKHOLDERS:
INTEGRAL CAPITAL PARTNERS III, L.P.
By: Integral Capital Management III, L.P.,
Its General Partner
By: /s/ Pamela Hagenah
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Name: Pamela Hagenah
----------------------------------
Its: General Partner
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INTEGRAL CAPITAL PARTNERS
INTERNATIONAL III, L.P.
By: Integral Capital Management III, L.P.,
Its Investment General Partner
By: /s/ Pamela Hagenah
----------------------------------
Name: Pamela Hagenah
----------------------------------
Its: General Partner
----------------------------------
WINSTON PARTNERS L.P.
By: Chatterjee Fund Management, L.P.
By: /s/ Peter Hurwitz
----------------------------------
Name: Peter Hurwitz
----------------------------------
Its: General Partner
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WINSTON PARTNERS II LLC
By: Chatterjee Advisors, LLC
By: /s/ Peter Hurwitz
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Name: Peter Hurwitz
----------------------------------
Its: Manager
----------------------------------
WINSTON PARTNERS II LDC
By: /s/ Peter Hurwitz
----------------------------------
Name: Peter Hurwitz
----------------------------------
Its: Attorney-in-Fact
----------------------------------
11
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Total Number of
Common Shares Subject
to Options or Warrants
Total Number of Total Number of to Purchase
Name and Address Common Shares Preferred Shares Common Shares
of Stockholder Beneficially Owned Beneficially Owned Beneficially Owned
-------------- ------------------ ------------------ ------------------
<S> <C> <C> <C>
Integral Capital Partners III, L.P.
2750 Sand Hill Road
Menlo Park, CA 94026
Attention: Pamela K. Hagenah __ 81,550 190,282
Integral Capital Partners
International III, L.P.
2750 Sand Hill Road
Menlo Park, CA 94026
Attention: Pamela K. Hagenah __ 18,450 43,050
Winston Partners L.P.
c/o Chatterjee Fund
Management
888 Seventh Avenue
New York, NY 10106 __ 23,333 54,443
Winston Partners II LLC
c/o Chatterjee Advisors LLC
888 Seventh Avenue
New York, NY 10106 __ 15,555 36,295
Winston Partners II LDC
c/o Kaya Flamboyan 9
Curacao, Netherlands Antilles 50,000 31,112 72,594
</TABLE>
12
