MISSION CRITICAL SOFTWARE, INC.
FORM OF ACCREDITED STOCKHOLDER STOCK PURCHASE
AGREEMENT
AGREEMENT, dated as of March 10, 2000, between Mission Critical
Software, Inc., a Delaware corporation ("Parent") and the stockholder of
Ganymede Software Inc., a Delaware corporation (the "Company") whose name
appears in the signature block to this Agreement (the "Accredited
Stockholder").
W I T N E S S E T H :
WHEREAS, Parent and the Company have entered into an Agreement and
Plan of Merger dated March 10, 2000 (the "Merger Agreement"), pursuant to which
the Company will merge into a wholly-owned subsidiary of Parent (the "Merger").
WHEREAS, the Accredited Stockholder has approved of the Merger
Agreement and the Merger.
WHEREAS, Parent will issue shares of its common stock, par value
$0.001 per share (the "Parent Stock"), as consideration for the Accredited
Stockholder's shares of common stock, par value $0.001 per share, and preferred
stock, par value $0.001, of the Company ("Company Stock"), upon the terms and
subject to the conditions hereinafter set forth.
WHEREAS, in consideration of the mutual promises made herein and in
the Merger Agreement, the Accredited Stockholder has executed a proxy agreement
in favor of Parent (the "Proxy Agreement"), dated the date hereof, and will
enter into a Registration Rights Agreement at the Closing (as defined herein).
WHEREAS, it is the intent of Parent and the Accredited Stockholder
that the transactions contemplated by this Agreement and the Merger Agreement
constitute an exchange qualifying for tax-free treatment pursuant to Section
368 of the Internal Revenue Code of 1986, as amended.
The parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE
SECTION 1.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, Parent agrees to purchase from the Accredited
Stockholder, and the Accredited Stockholder agrees to sell to Parent, those
shares of Company Stock held by such Accredited Stockholder as indicated on the
final page of this Agreement under such Accredited Stockholder's signature. The
Company Stock held by the Accredited Stockholder shall be exchanged, at the
Closing, for the number of shares of Parent Stock (rounded to the nearest ten-
thousandth of a share) equal to the number of shares of Common Stock multiplied
by the Exchange Ratio, as such term is defined in the Merger Agreement.
SECTION 1.02. Adjustments. If, during the period between the date of
this Agreement and the Closing, any change in the outstanding shares of capital
stock of Company or Parent shall occur, including by reason of any
reclassification, recapitalization, stock split or combination, exchange or
readjustment of shares, or any stock dividend thereon with a record date during
such period, the Merger Consideration and any other amounts payable pursuant to
this Agreement and, if applicable, the Exchange Ratio and its determination
shall be appropriately adjusted.
SECTION 1.03. Fractional Shares. No fractional shares of Parent Stock
shall be issued pursuant to this Agreement. Such holder shall be entitled to
receive, in lieu thereof, an amount in cash without interest determined by
multiplying the closing sale price of a share of Parent Stock on the Nasdaq
National Market on the trading day immediately preceding the Closing by the
fraction of a share of Parent Stock to which such holder would otherwise have
been entitled.
SECTION 1.04. Withholding Rights. Parent shall be entitled to deduct
and withhold from the consideration otherwise payable to any Person pursuant to
this Article such amounts as it is required to deduct and withhold with respect
to the making of any payment under any provision of federal, state, local or
foreign tax law. If Parent so withholds such tax amounts, such amounts shall be
treated for all purposes of this Agreement as having been paid to the holder of
the shares of Company Stock with respect to whom Parent made such deduction and
withholding.
SECTION 1.05. Closing. The closing (the "Closing") of the purchase of
the Company Stock shall take place at the offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ at
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ in Menlo Park, California, at such time as Parent shall
determine that it has received the Stock Purchase Agreements and Proxy
2
Agreements representing at least eighty percent (80%) of the outstanding voting
securities of the Company, or at such other time or place as the Company and
Parent may agree (the "Closing Date"). At the Closing:
(a) The Accredited Stockholder shall deliver to Parent certificates
evidencing his, her or its shares of Company Stock.
(b) Parent shall deliver, or cause to be delivered, to the Accredited
Stockholder certificates, or other appropriate documentation, evidencing shares
of Parent Stock, duly registered with Parent's stock transfer agent in the name
of such Accredited Stockholder.
(c) Each Accredited Stockholder shall execute a Waiver of Notice,
substantially in the form attached hereto as Exhibit B, and a Written Consent
of Stockholders approving the Merger, the Merger Agreement and the transactions
comtemplated thereby, substantially in the form attached hereto as Exhibit C.
Parent may, in its sole discretion, purchase additional shares of
Company Stock at subsequent closings.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF ACCREDITED STOCKHOLDER
The Accredited Stockholder represents and warrants to Parent, as of
the date hereof and as of the Closing Date that:
SECTION 2.01. Authorization. The execution, delivery and performance
by such Accredited Stockholder of this Agreement, and the consummation of the
transactions contemplated hereby are or, when executed, will be within the
powers (corporate, partnership or otherwise) of such Accredited Stockholder and
this Agreement has been or will have been duly authorized by all necessary
action on the part of such Accredited Stockholder. This Agreement constitutes a
valid and binding agreement of such Accredited Stockholder, enforceable in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally or (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
SECTION 2.02. Governmental Authorization. The execution, delivery and
performance by such Accredited Stockholder of this Agreement and the
consummation of the transactions contemplated hereby require no order, license,
consent, authorization or approval of, or exemption by, or action by or in
respect
3
of, or notice to, or filing or registration with, any governmental body, agency
or official.
SECTION 2.03. Investigation of Parent's Business. The Accredited
Stockholder:
(a) is aware of Parent's business affairs and financial condition and
has acquired sufficient information about Parent to reach an informed and
knowledgeable decision to acquire shares of Parent Stock;
(b) has completed his, her or its due diligence investigation; and
(c) has reviewed the registration statements and other reports filed
with the Securities and Exchange Commission by Parent, including the disclosure
under "Item 5 - Other Information - Factors That May Affect Future Results" in
Parent's 10-Q for the quarter ended December 31, 1999 relating to the risks of
Parent's business.
SECTION 2.04. Acquisition for Investment. The Accredited Stockholder
is acquiring Parent Stock for investment for his, her or its own account and
not with a view to, or for sale in connection with, any distribution thereof.
SECTION 2.05. Ownership of Shares. The Accredited Stockholder is the
record and beneficial owner of the shares of Company Stock as indicated on the
signature page hereof, free and clear of any lien and any other limitation or
restriction (including any restriction on the right to vote, sell or otherwise
dispose of his, her or its, shares of Company Stock), and will transfer and
deliver to Parent at the Closing valid title to his, her or its shares free and
clear of any lien and any such limitation or restriction.
SECTION 2.06. Private Placement. (a) The Accredited Stockholder
understands that the offering of the shares of Parent Stock hereby is intended
to be exempt from registration under the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, which exemption depends
upon, among other things, the bona fide nature of the investment intent and the
accuracy of the Accredited Stockholder's representations expressed herein.
(b) The Accredited Stockholder is an accredited investor as that term
is defined in Rule 501(a) promulgated under the Securities Act of 1933, as
amended.
(c) The Accredited Stockholder's financial situation is such that he,
she or it can afford to bear the economic risk of holding the shares of Parent
Stock acquired hereunder for an indefinite period of time, and the Accredited
4
Stockholder can afford to suffer the complete loss of the investment in the
shares of Parent Stock.
(d) The Accredited Stockholder understands that the Certificates
evidencing the shares of Parent Stock, and any securities issued upon
conversion or in respect thereof, will bear the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY FOREIGN OR STATE SECURITIES LAWS AND MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED EXCEPT IN COMPLIANCE THEREWITH."
SECTION 2.07. Brokers or Finders' Fees. There is no investment banker,
broker, finder or other intermediary which has been retained by, will be
retained by or is authorized to act on behalf of the Accredited Stockholder who
might be entitled to any fee or commission from Parent or the Accredited
Stockholder upon consummation of the transactions contemplated by this
Agreement.
ARTICLE 3
CONDITIONS TO CLOSING
SECTION 3.01. Conditions to Obligations of the Accredited Stockholder
and Parent. The obligations of the Accredited Stockholder and Parent to
consummate the Closing are subject to the satisfaction of the following
conditions:
(a) No provision of any applicable law, rule or regulation and no
judgment, injunction, order or decree by any governmental entity of
competent jurisdiction shall prohibit the consummation of the Closing.
(b) All material actions by or in respect of, or filings with,
any governmental body, agency, official or authority required to permit
the consummation of the Closing shall have been taken, made or
obtained.
SECTION 3.02. Conditions to Obligation of Parent. The obligation of
Parent to consummate the Closing is subject to the satisfaction of the following
further conditions:
(a) Parent shall have received all documents it may reasonably
request relating to the existence of each Accredited Stockholder and
the authority of each Accredited Stockholder to enter into this
Agreement, all in form and substance reasonably satisfactory to
Parent.
5
(b) The representations and warranties of each Accredited
Stockholder shall be true in all material respects at and as of the
Closing as if made at and as of such time.
(c) Each Accredited Stockholder shall have delivered to Parent a
Registration Rights Agreement substantially in the form attached
hereto as Exhibit A.
(d) Each Accredited Stockholder shall have delivered to Parent a
Waiver of Notice and a Written Consent approving the Merger Agreement
in substantially the forms attached hereto as Exhibits B and C,
respectively.
(e) Parent shall have entered into Stock Purchase Agreements with
stockholders of the Company who together hold at least eighty percent
(80%) of the outstanding voting securities of the Company and
certificates representing such securities have been presented at the
Closing.
(f) The Merger Agreement and the Merger shall have been approved
by the Board of Directors of the Company.
SECTION 3.03. Conditions to Obligation of the Accredited Stockholder.
The obligation of the Accredited Stockholder to consummate the Closing is
subject to the satisfaction of the following further conditions:
(a) Parent shall have delivered to the Accredited Stockholder
certificates representing those shares of Parent Stock issued in
exchange for the Company Stock held by the Accredited Stockholder
pursuant to this Agreement.
(b) Parent shall have delivered to the Accredited Stockholder a
Registration Rights Agreement substantially in the form attached
hereto as Exhibit A.
ARTICLE 4
MISCELLANEOUS
SECTION 4.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given,
6
if to an Accredited Stockholder to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer
Ganymede Software Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Parent to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Mission Critical Software, Inc.
Ganymede Software, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or telecopy number and with such other copies as such
party may hereafter specify for the purpose of notice.
All such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding business day in the place
of receipt.
SECTION 4.02. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial
7
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
SECTION 4.03. Expenses; Other Payments. All costs and expenses
incurred in connection with this Agreement shall be paid by the party incurring
such cost or expense. Any expense other than Registration Expenses, as that
term is defined in Section 2.02 of the Registration Rights Agreement attached
hereto as Exhibit A (in such case limited to $5,000 in the aggregate in the
case of counsel to Selling Holders), incurred by separate legal counsel for the
Accredited Stockholder in connection with the transactions contemplated by this
Agreement shall be borne by such Accredited Stockholder.
SECTION 4.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
SECTION 4.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws, but not the choice of law
rules, of the State of Delaware.
SECTION 4.06. Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in any federal court located in the State of Delaware or any Delaware
state court, and each of the parties hereby consents to the jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court or that
any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 4.01 shall
be deemed effective service of process on such party.
SECTION 4.07. Counterparts; Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by the other party
hereto. No provision
8
of this Agreement shall confer upon any person other than the parties hereto
any rights or remedies hereunder.
SECTION 4.08. Entire Agreement. This Agreement and the Merger
Agreement, together with their respective exhibits and schedules, constitute
the entire agreement between the parties with respect to the subject matter of
this Agreement and the Merger Agreement and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter of this Agreement.
SECTION 4.09. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
SECTION 4.10. Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of this Agreement shall
be interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
SECTION 4.11. Interpretation. 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.
9