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Exhibit 2.5
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 the daily volume-weighted average prices
as reported by Bloomberg, L.P. on Nasdaq
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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 (the "Additional Pricing Period"), (II)
the average of the daily
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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 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
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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
(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:
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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:
(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.
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(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:
(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
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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
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
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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.
9. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York.
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