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AMENDMENT AND WAIVER TO
SHARE RIGHTS AGREEMENT
AMENDMENT AND WAIVER TO SHARE RIGHTS AGREEMENT, dated as of November
24, 1999 (this "Agreement"), between Baan Company N.V. ("Baan") and Fletcher
International Limited ("Fletcher").
WHEREAS, Baan and Fletcher are parties to that certain Share Rights
Agreement dated as of December 31, 1998 (the "Share Rights Agreement"); and
WHEREAS, Baan and Fletcher wish to amend and waive the Share Rights
Agreement in certain respects, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used without definition in
this Agreement have the same meaning set forth for such terms in the Share
Rights Agreement.
2. AMENDMENTS. The Share Rights Agreement is hereby amended as follows:
(a) The first sentence of the second paragraph of Section 1.a.
is amended and restated in its entirety to read as follows:
"Aggregate Dollar Value" means the amount specified by
Fletcher in the applicable Initial Investment Notice as the "Specified Amount"
(the "Specified Amount"), plus any adjustment pursuant to Section 3.A.a. hereof;
and
(b) The last paragraph of Section 1.a. is amended and restated
in its entirety to read as follows:
"Share Price" means as to any Initial Investment Issuance Date
(A) the Average Price (as defined below) minus (B) an amount equal to
the Average Price multiplied by 8.5% per annum (pro rata for partial
years) from the Initial Closing Date through and including that Initial
Investment Issuance Date. The "Average Price" means the lowest of (I)
the average of
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the daily volume-weighted average prices as reported by Bloomberg, L.P.
on Nasdaq for the 30-Trading Day period ending and excluding 5 Trading
Days immediately prior to the date an Initial Investment Notice is
delivered (the "Initial Pricing Period"), (II) the average of the daily
volume-weighted average prices as reported by Bloomberg, L.P. on Nasdaq
of the first 5 Trading Days of the Initial Pricing Period and (III)
105% of the closing price of the Common Shares as reported by
Bloomberg, L.P. on Nasdaq for the Trading Day immediately prior to the
date on which the Initial Investment Notice is delivered, provided that
the Average Price shall not in any event be greater than $16.00 per
share.
(c) The first sentence of Section 1.b. is amended to replace
the reference to "$75,000,000" with "$175,000,000".
(d) The first sentence of Section 1.c. is amended to replace
the reference to "$75,000,000" with "$175,000,000".
(e) The second sentence of Section 1.d. is amended to replace
the reference to "$75,000,000" with "$175,000,000".
(f) The first sentence of the second paragraph of Section 1.d.
is amended and restated in its entirety to read as follows:
"Additional Aggregate Dollar Value" means the amount specified
by Fletcher in the applicable Additional Investment Notice as the
"Additional Specified Amount" (the "Additional Specified Amount"), plus
any adjustment pursuant to Section 3.A.a. hereof.
(g) The last paragraph of Section 1.d. is amended and restated
in its entirety to read as follows:
"Additional Share Price" means as to any Additional Investment
Issuance Date (A) the Additional Average Price (as defined below) minus
(B) an amount equal to the Additional Average Price multiplied by 8.5%
per annum (pro rata for partial years) from the corresponding Rights
Closing Date through and including that Additional Investment Issuance
Date. The "Additional Average Price" means the lowest of (I) the
average of the daily volume-weighted average prices as reported by
Bloomberg, L.P. on Nasdaq for the 30-Trading Day period ending and
excluding 5 Trading Days immediately prior to the date an Additional
Investment Notice is delivered
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(the "Additional Pricing Period"), (II) the average of the daily
volume-weighted average prices as reported by Bloomberg, L.P. on Nasdaq
of the first 5 Trading Days of the Additional Pricing Period and (III)
105% of the closing price of the Common Shares as reported by
Bloomberg, L.P. on Nasdaq for the Trading Day immediately prior to the
date on which the Additional Investment Notice is delivered, provided
that the Additional Average Price shall not in any event be greater
than (a) $18.00 per share in the case of the last $100 million in Baan
Rights and the last $100 million in Fletcher Rights exercised and (b)
$16.00 per share in all other cases.
(h) Section 2.B. is amended by adding the following subsection
c. thereto:
c. Legal Opinion. Baan shall deliver to Fletcher an
opinion of Stibbe Simont Monahan Duhot, or other Dutch counsel
reasonably satisfactory to Fletcher, dated the date of delivery,
substantially in the form attached hereto as Annex H.
(i) Section 2.D. is amended by adding the following subsection
c. thereto:
c. Legal Opinion. Baan shall deliver to Fletcher an
opinion of Stibbe Simont Monahan Duhot, or other Dutch counsel
reasonably satisfactory to Fletcher, dated the date of delivery,
substantially in the form attached hereto as Annex H.
(j) The last sentence of Section 3.A.a. is amended and
replaced in its entirety with the following:
If (i) the Registration Statement has not been declared effective by
June 30, 1999 or (ii) if declared effective, the Registration
Requirement is not satisfied at all times (except for Blackout Periods
permitted by Section 3.A.e.) from the effective date until the earlier
to occur of the events specified in Section 3.A.b.(i)(A), (B) and (C)
hereof (a "Lapse"), then the Aggregate Dollar Value and Additional
Aggregate Dollar Value for purposes of Section 1 hereof shall be
permanently increased, on a compounded basis, by (x) 2.5% for each
month (or portion thereof) during the period following June 30, 1999
and ending on and including December 31, 1999 that such Registration
Statement shall not have been declared effective or, if declared
effective, for each month (or portion thereof) during which a Lapse
exists and (y) 0.5% for each
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month (or portion thereof) following April 1, 2000 that such
Registration Statement shall not have been declared effective or, if
declared effective, for each month (or portion thereof) during which a
Lapse exists; provided, however, that the adjustment in (y) shall not
apply with respect to a calendar month if at all times during such
month (1) all Common Shares held by Fletcher and issuable under this
Agreement are freely tradable on the AEX (other than at times during
trading halts or suspensions on the Common Shares imposed by the AEX or
the Dutch Securities Board); and (2) Baan shall have delivered the
opinions required by Sections 2.B.c., 2.D.c. and the second sentence of
Section 9.b., as applicable, on all Initial Investment Issuance Dates,
all Additional Investment Issuance Dates, the Initial Closing Date and
all Rights Closing Dates, except for such dates occurring before
November 15, 1999; and (3) the trading volume of Common Shares on the
AEX exceeds 20,000,000 shares in the aggregate for such month. The
increases in (x) and (y) above shall be compounded monthly and shall:
(a) begin to accrue on the Aggregate Dollar
Value as of June 30, 1999 and shall cease to accrue on the
Aggregate Dollar Value to the extent that, and on and
including each date that, Initial Common Shares are issued
pursuant to a corresponding Initial Investment Notice, and
(b) begin to accrue on the Additional
Aggregate Dollar Value as it relates to any Right, as of the
corresponding Rights Closing Date, and shall cease to accrue
on the Additional Aggregate Dollar Value to the extent that,
and on and including each date that, Additional Common Shares
are issued pursuant to a corresponding Additional Investment
Notice.
No remedy prescribed by this paragraph shall be deemed to be liquidated
damages or to limit the other remedies available to Fletcher pursuant
to Section 12 or Section 13 hereof or otherwise.
(k) The second sentence of Section 3.B.d. is amended to
replace:
(i) the reference to "Initially" with "As of
November 24, 1999"; and
(ii) the reference to "18,439,768" with
"21,085,501"; and
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(l) The third sentence of Section 3.B.d. is amended to replace
the the reference to "The "Exercisable Number" is initially zero" with "As of
November 24, 1999, the "Exercisable Number" is zero".
(m) Section 9.b. is amended and restated in its entirety to
read as follows:
On the Initial Closing Date and each Rights Closing Date, Baan shall
have delivered to Fletcher an opinion of DeBrauw Blackstone Westbroek
(in the case of the Initial Closing Date) or Stibbe Simont Monahan
Duhot or other Dutch counsel reasonably satisfactory to Fletcher (in
the case of each Rights Closing Date), in a form reasonably
satisfactory to Fletcher, dated the date of delivery, which shall
confirm in substance the matters covered in paragraphs (a), (b), (c),
(d), (e), (f), and (h) (as it relates to the AEX) of Section 3 hereof.
On each Rights Closing Date, Baan shall also have delivered to Fletcher
an opinion of Stibbe Simont Monahan Duhot or other Dutch counsel
reasonably satisfactory to Fletcher, dated the date of delivery,
substantially in the form attached hereto as Annex H.
(n) Annex H attached hereto shall be appended to the Share
Rights Agreement as Annex H to the Share Rights Agreement.
3. EXERCISE OF BAAN RIGHTS. Baan hereby gives notice (which the parties
agree shall be deemed to constitute a "Baan Notice" for purposes of the Share
Rights Agreement), and Fletcher hereby acknowledges, that, after giving effect
to this Agreement, Baan has elected to exercise its Baan Rights in part (the
"First Exercise") at an Additional Issuance Price of US$50 million on December
3, 1999 or such other date that, by mutual agreement of Baan and Fletcher, the
First Exercise closes (such closing date, the "First Exercise Date") and in part
(the "Second Exercise") at an Additional Issuance Price of US$60 million on
December 30, 1999 or such other date that, by mutual agreement of Baan and
Fletcher, the Second Exercise closes (such closing date, the "Second Exercise
Date"). Each of the First Exercise Date and the Second Exercise Date shall be
deemed a Rights Closing Date. In connection with the First Exercise and the
Second Exercise, Fletcher hereby agrees as follows:
(a) Solely in connection with the First Exercise, and subject
to Section 3(b) of this Agreement, Fletcher hereby agrees to waive on the First
Exercise Date:
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(i) the requirement in the third sentence of
Section 1.b of the Share Rights Agreement that a Baan Exercise
Date occur thirty-five Trading Days following delivery of a
Baan Notice and hereby agrees with Baan that the First
Exercise may instead occur on the First Exercise Date; and
(ii) the conditions to exercise of Baan
Rights specified in clauses (ii) and (vii) of the last
sentence of Section 1.b. of the Share Rights Agreement.
(b) The waivers specified in Section 3(a) of this Agreement
shall become effective on the First Exercise Date upon satisfaction of the
following condition:
(i) except as otherwise provided in Section
3(a) of this Agreement, Baan shall have satisfied each of the
conditions precedent set forth in Section 9 of the Share
Rights Agreement (as amended by this Agreement) in connection
with the Baan Exercise; and
(c) Solely in connection with the Second Exercise, and subject
to Section 3(d) of this Agreement, Fletcher hereby agrees to waive on the Second
Exercise Date:
(i) the requirement in the third sentence of
Section 1.b of the Share Rights Agreement that a Baan Exercise
Date occur thirty-five Trading Days following delivery of a
Baan Notice and hereby agrees with Baan that the Second
Exercise may instead occur on the Second Exercise Date; and
(ii) the conditions to exercise of Baan
Rights specified in clauses (ii) and (vii) of the last
sentence of Section 1.b. of the Share Rights Agreement.
(d) The waivers specified in Section 3(c) of this Agreement
shall become effective on the Second Exercise Date upon satisfaction of the
following conditions:
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(i) except as otherwise provided in Section
3(c) of this Agreement, Baan shall have satisfied each of the
conditions precedent set forth in Section 9 of the Share
Rights Agreement (as amended by this Agreement) in connection
with the Baan Exercise;
(ii) the closing price of the Common Shares
as reported by Bloomberg, L.P. on Nasdaq for each of the three
Trading Days immediately prior to the Second Exercise Date
must exceed $9.00 per share, as certified in writing on the
Second Exercise Date by an executive officer of Baan; and
4. REPRESENTATIONS AND WARRANTIES OF BAAN. Baan represents and warrants
that:
(a) Subject only to receipt of the Baan Board Consent
specified in Section 6 of this Agreement on or before 2:00 p.m.,
eastern time, on December 3, 1999, (i) the execution, delivery and
performance of this Agreement by Baan have been duly authorized by all
requisite corporate action and no further consent or authorization of
Baan, its Board of Directors or its shareholders is required, and (ii)
this Agreement has been duly executed and delivered by Baan and, when
this Agreement is duly authorized, executed and delivered by Fletcher,
will be a valid and binding agreement enforceable against Baan in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights generally and to general
principles of equity.
(b) As of September 30, 1999, 212,984,867 Common Shares were
issued and outstanding.
5. REPRESENTATIONS AND WARRANTIES OF FLETCHER. Fletcher represents and
warrants that, subject only to receipt of the Fletcher Board Consent specified
in Section 6 of this Agreement on or before 2:00 p.m., eastern time, on December
3, 1999, (i) the execution, delivery and performance of this Agreement by
Fletcher have been duly authorized by all requisite corporate action and no
further consent or authorization of Fletcher, its Board of Directors or its
shareholders is required and (ii) this Agreement has been duly executed and
delivered by Fletcher and, when this Agreement is duly authorized, executed and
delivered by Baan, will be a valid and binding agreement enforceable against
Fletcher in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general
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applicability relating to or affecting creditors' rights generally and to
general principles of equity.
6. EFFECTIVENESS OF THIS AGREEMENT. It shall be a condition precedent
to the effectiveness of this Agreement that, on or before 2:00 p.m., eastern
time, on December 3, 1999:
(a) The Board of Directors of Baan shall have duly authorized
the execution, delivery and performance of this Agreement by Baan and
ratified and confirmed the due authorization of all actions previously
taken by any officer of Baan in connection with this Agreement (such
Board approval, the "Baan Board Consent") and an executive officer of
Baan shall have delivered to Fletcher a certificate certifying that the
Baan Board Consent has been obtained; and
(b) The Board of Directors of Fletcher shall have duly
authorized the execution, delivery and performance of this Agreement by
Fletcher and ratified and confirmed the due authorization of all
actions previously taken by any officer of Fletcher in connection with
this Agreement (such Board approval, the "Fletcher Board Consent") and
an executive officer of Fletcher shall have delivered to Baan a
certificate certifying that the Fletcher Board Consent has been
obtained.
If the conditions specified in the preceding clauses (a) and (b) have not been
satisfied by 2:00 p.m., eastern time, on December 3, 1999, this Agreement shall
be null and void and of no further force or effect without any further action on
the part of any party to this Agreement.
7. REFERENCE AND EFFECT ON THE SHARE RIGHTS AGREEMENT. Except as
specifically consented to hereby, the Share Rights Agreement shall continue in
full force and effect without change by reason hereof.
8. HEADINGS AND COUNTERPARTS. The headings of the sections of this
document have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement. This Agreement may be executed in one or
more counterparts and it is not necessary that signatures of all parties appear
on the same counterpart, but such counterparts together shall constitute but one
and the same agreement.
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9. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
[Remainder of Page Left Blank Intentionally]
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IN WITNESS WHEREOF, Baan and Fletcher have duly caused this Agreement
to be executed and delivered as of the date set forth above.
BAAN COMPANY N.V.
By:________________________
Name:
Title:
FLETCHER
INTERNATIONAL LIMITED, by its duly authorized
investment advisor, FLETCHER ASSET MANAGEMENT,INC.
By:________________________
Name:
Title:
Acknowledged and Agreed:
LEHMAN BROTHERS FINANCE S.A.
By:___________________________
Name:
Title:
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ANNEX H
[FORM OF OPINION OF STIBBE SIMONT MONAHAN DUHOT]
[date]
Fletcher International Ltd.
C/o Midland Bank Trust Corporation (Cayman)
P.O. Box 1109
Mary Street
Grand Cayman, Cayman Islands, BWI
Ladies and Gentlemen,
SHARE RIGHTS AGREEMENT BETWEEN BAAN COMPANY N.V. AND FLETCHER INTERNATIONAL
LIMITED OF 31 DECEMBER 1998, AS AMENDED
1. As legal counsel in the Netherlands to Baan Company N.V. (the
"Company"), a company incorporated under the law of the Netherlands,
with its corporate seat in Barneveld, the Netherlands, we have been
asked to render an opinion as to matters of Netherlands law in
connection with the Share Rights Agreement dated 31 December 1998
between the Company and Fletcher International Limited ("Fletcher"), as
amended (the "Agreement"), and the granting by the Company to Fletcher
of rights to acquire such number of common shares, each with a nominal
value of NLG 0.06, in the capital of the Company (the "Shares") for an
exercise price and on such other terms as provided for in the Agreement
(the "Options").
All words and expressions defined in the Agreement shall have the same
meaning herein as is ascribed to them in the Agreement, unless
otherwise expressly provided.
2. Reference is made to our opinion letter of today to you, of which a
copy is attached hereto, notably to our opinion mentioned in paragraph
5(4) thereof, where for the purpose of this opinion "Baan Rights"
should read "Option".
3. The filing of an application for listing of the Shares on the Official
Market of the AEX-Stock Exchange ("AEX-Effectenbeurs N.V.") is to be
done by the Company's Dutch bank and will, absent any highly
exceptional circumstances
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(that to the best of our knowledge are indeed absent in the present
case), will be honoured by the AEX-Effectenbeurs N.V. in not more than
a few number of days as a matter of routine.
Very truly yours,
J.J.J. van Lanschot
