EXHIBIT (c)(2)
EXECUTION COPY
STOCKHOLDER AGREEMENT dated as of
January 30, 1996, among INTERNATIONAL
BUSINESS MACHINES CORPORATION, a New York
corporation ("Parent"), TOPAZ ACQUISITION
CORP., a Delaware corporation and a wholly
owned subsidiary of Parent ("Sub"), and the
other parties signatory hereto (each, a
"Stockholder").
WHEREAS each Stockholder desires that Tivoli
Systems Inc., a Delaware corporation (the "Company"), Parent
and Sub enter into an Agreement and Plan of Merger dated as
of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") with respect to the
merger of Sub with and into the Company (the "Merger"); and
WHEREAS each Stockholder is executing this
Agreement as an inducement to Parent to enter into and
execute, and to cause Sub to enter into and execute, the
Merger Agreement.
NOW, THEREFORE, in consideration of the execution
and delivery by Parent and Sub of the Merger Agreement and
the mutual covenants, conditions and agreements contained
herein and therein, the parties agree as follows:
SECTION 1. Representations and Warranties. Each
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Stockholder severally, and not jointly, represents and
warrants to Parent and Sub as follows:
(a) Such Stockholder is the record and beneficial
owner of the number of shares of Common Stock, par
value $0.01 per share, of the Company (the "Company
Common Stock") set forth opposite such Stockholder's
name in Schedule A hereto (as may be adjusted from time
to time pursuant to Section 5, such Stockholder's
"Shares"). Except for such Stockholder's Shares and
any other shares of Company Common Stock subject
hereto, such Stockholder is not the record or
beneficial owner of any shares of Company Common Stock.
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(b) This Agreement has been duly authorized,
executed and delivered by such Stockholder and
constitutes the legal, valid and binding obligation of
such Stockholder, enforceable against such Stockholder
in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application
affecting enforcement of creditors' rights generally
and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief
or other equitable remedies. Neither the execution and
delivery of this Agreement nor the consummation by such
Stockholder of the transactions contemplated hereby
will result in a violation of, or a default under, or
conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of
any kind to which such Stockholder is a party or bound
or to which such Stockholder's Shares are subject. To
the best of such Stockholder's knowledge, consummation
by such Stockholder of the transactions contemplated
hereby will not violate, or require any consent,
approval, or notice under, any provision of any
judgment, order, decree, statute, law, rule or
regulation applicable to such Stockholder or such
Stockholder's Shares, except for any necessary filing
under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended, or state takeover laws.
(c) Such Stockholder's Shares and the
certificates representing such Shares are now and at
all times during the term hereof will be held by such
Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all
liens, claims, security interests, proxies, voting
trusts or agreements, understandings or arrangements or
any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial
adviser or other person is entitled to any broker's,
finder's, financial adviser's or other similar fee or
commission from Parent, Sub or the Company in
connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of such
Stockholder.
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(e) Such Stockholder understands and acknowledges
that Parent is entering into, and causing Sub to enter
into, the Merger Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement.
Such Stockholder acknowledges that the irrevocable
proxy set forth in Section 4 is granted in
consideration for the execution and delivery of the
Merger Agreement by Parent and Sub.
SECTION 2. Purchase and Sale of Shares.
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(a) Each Stockholder hereby severally agrees that it shall
tender its Shares into the Offer and that it shall not
withdraw any Shares so tendered (it being understood that
the obligation contained in this sentence is
unconditional). In addition, each Stockholder hereby
severally agrees to sell to Sub, and Sub hereby agrees to
purchase, all such Stockholder's Shares at a price per Share
equal to $47.50, or such higher price per Share as may be
offered by Sub in the Offer, provided that (i) such
obligation to purchase is subject to Sub having accepted
Shares for payment under the Offer and the Minimum Condition
(as defined in Exhibit A to the Merger Agreement) having
been satisfied, which conditions may be waived by Sub in its
sole discretion, and (ii) such obligation to sell is subject
to the Minimum Condition having been satisfied or a Takeover
Proposal having been made.
(b) Subject to the satisfaction or waiver of the
requirements of the second sentence in paragraph (a) above,
(i) if a Takeover Proposal shall have been made and the
Minimum Condition shall not have been satisfied, Shares
shall be purchased within three business days of the
delivery by Sub to the Stockholder of notice of Sub's
intention to so purchase such Stockholder's Shares, or
(ii) if Sub shall have accepted Shares for payment under the
Offer and the Minimum Condition shall have been satisfied,
Shares shall be purchased under the Offer.
SECTION 3. Covenants. Each Stockholder
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severally, and not jointly, agrees with, and covenants to,
Parent and Sub as follows:
(a) Such Stockholder shall not, except as contem-
plated by the terms of this Agreement, (i) transfer
(which term shall include, without limitation, for the
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purposes of this Agreement, any sale, gift, pledge or
other disposition), or consent to any transfer of, any
or all of such Stockholder's Shares or any interest
therein, (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer
of any or all of such Shares or any interest therein,
(iii) grant any proxy, power-of-attorney or other
authorization or consent in or with respect to such
Shares, (iv) deposit such Shares into a voting trust or
enter into a voting agreement or arrangement with
respect to such Shares or (v) take any other action
that would in any way restrict, limit or interfere with
the performance of its obligations hereunder or the
transactions contemplated hereby.
(b) Subject to Section 8, such Stockholder shall
not, nor shall it permit any investment banker,
attorney or other adviser or representative of such
Stockholder to, directly or indirectly, (i) solicit,
initiate or encourage the submission of, any Takeover
Proposal or (ii) participate in any discussions or
negotiations regarding, or furnish to any person any
information with respect to, or take any other action
to facilitate any inquiries or the making of any
proposal that constitutes, or may reasonably be
expected to lead to, any Takeover Proposal. Without
limiting the foregoing, it is understood that any
violation of the restrictions set forth in the
preceding sentence by an investment banker, attorney or
other adviser or representative of such Stockholder,
whether or not such person is purporting to act on
behalf of such Stockholder or otherwise, shall be
deemed to be a violation of this Section 3(b) by such
Stockholder.
SECTION 4. Grant of Irrevocable Proxy; Appoint-
------------------------------------
ment of Proxy. (a) Each Stockholder hereby irrevocably
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grants to, and appoints, Parent and ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and any other individual who
shall hereafter be designated by Parent, such Stockholder's
proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such
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Stockholder, to vote such Stockholder's Shares, or grant a
consent or approval in respect of such Shares, at any
meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which their vote,
consent or other approval is sought, against (i) any merger
agreement or merger (other than the Merger Agreement and the
Merger), consolidation, combination, sale of substantial
assets, reorganization, joint venture, recapitalization,
dissolution, liquidation or winding up of or by the Company
and (ii) any amendment of the Company's Amended and Restated
Certificate of Incorporation or By-laws or other proposal or
transaction (including any consent solicitation to remove or
elect any directors of the Company) involving the Company or
any of its subsidiaries which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent
or nullify, or result in a breach of any covenant,
representation or warranty or any other obligation or
agreement of the Company under or with respect to, the
Offer, the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement (each of
the foregoing in clause (i) or (ii) above, a "Competing
Transaction").
(b) Such Stockholder represents that any proxies
heretofore given in respect of such Stockholder's Shares are
not irrevocable, and that any such proxies are hereby
revoked.
(c) Such Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 4 is given in
connection with the execution of the Merger Agreement, and
that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this
Agreement. Such Stockholder hereby further affirms that the
irrevocable proxy is coupled with an interest and may under
no circumstances be revoked. Such Stockholder hereby
ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable
in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law (the "DGCL").
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SECTION 5. Certain Events. Each Stockholder
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agrees that this Agreement and the obligations hereunder
shall attach to such 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 Stockholder's heirs, guardians, administrators or
successors. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other
change in the capital structure of the Company affecting the
Company Common Stock, or the acquisition of additional
shares of Company Common Stock or other securities or rights
of the Company by any Stockholder, the number of Shares
listed on Schedule A beside the name of such Stockholder
shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares
of Company Common Stock or other securities or rights of the
Company issued to or acquired by such Stockholder.
SECTION 6. Stop Transfer; Legend. The Company
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agrees with, and covenants to, Parent that the Company shall
not register the transfer of any certificate representing
any Stockholder's Shares, unless such transfer is made to
Parent or Sub or otherwise in compliance with this
Agreement. Each Stockholder agrees that such Stockholder
will tender to the Company, within five business days after
the date hereof, any and all certificates representing such
Stockholder's Shares and the Company will inscribe upon such
certificates the following legend: "The shares of Common
Stock, par value $0.01 per share, of Tivoli Systems Inc.
represented by this certificate are subject to a Stockholder
Agreement dated as of January 30, 1996, and may not be sold
or otherwise transferred, except in accordance therewith.
Copies of such Agreement may be obtained at the principal
executive offices of Tivoli Systems Inc."
SECTION 7. Voidability. If prior to the
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execution hereof, the Board of Directors of the Company
shall not have duly and validly authorized and approved by
all necessary corporate action the acquisition of Company
Common Stock by Parent and Sub and the other transactions
contemplated by this Agreement and the Merger Agreement, so
that by the execution and delivery hereof Parent or Sub
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would become, or could reasonably be expected to become, an
"interested stockholder" with whom the Company would be
prevented for any period pursuant to Section 203 of the DGCL
from engaging in any "business combination" (as such terms
are defined in Section 203 of the DGCL), then this Agreement
shall be void and unenforceable until such time as such
authorization and approval shall have been duly and validly
obtained.
SECTION 8. Stockholder Capacity. No person
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executing this Agreement who is or becomes during the term
hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as
such director or officer. Each Stockholder signs solely in
his or her capacity as the record holder and beneficial
owner of such Stockholder's Shares and nothing herein shall
limit or affect any actions taken by a Stockholder in its
capacity as an officer or director of the Company to the
extent specifically permitted by the Merger Agreement.
SECTION 9. Further Assurances. Each Stockholder
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shall, upon request of Parent or Sub, execute and deliver
any additional documents and take such further actions as
may reasonably be deemed by Parent or Sub to be necessary or
desirable to carry out the provisions hereof and to vest the
power to vote such Stockholder's Shares as contemplated by
Section 4 in Parent and the other irrevocable proxies
described therein.
SECTION 10. Termination. This Agreement, and all
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rights and obligations of the parties hereunder, shall
terminate upon the earlier of (a) the date upon which the
Merger Agreement is terminated in accordance with its terms
either (i) by Parent or Sub or (ii) by mutual written
consent of Parent, Sub and the Company or (b) the date that
Parent or Sub shall have purchased and paid for the Shares
of each Stockholder pursuant to Section 2.
SECTION 11. Public Announcements. Each
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Stockholder will consult with Parent before issuing, and
provide Parent with the opportunity to review and comment
upon, any press release or other public statements with
respect to the transactions contemplated by this Agreement
and the Merger Agreement, and shall not issue any such press
release or make any such public statement prior to such
consultation, except as may be required by applicable law,
court process or by obligations pursuant to any listing
agreement with any national securities exchange.
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SECTION 12. Miscellaneous. (a) Capitalized
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terms used and not otherwise defined in this Agreement shall
have the respective meanings assigned to such terms in the
Merger Agreement.
(b) All notices, requests, claims, demands and
other 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) to
the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(i) if to Parent or Sub, to the address set forth in
Section 10.02 of the Merger Agreement; and (ii) if to a
Stockholder, to the address set forth on Schedule A hereto,
or such other address as may be specified in writing by such
Stockholder.
(c) 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.
(d) This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the
same agreement, and shall become effective (even without the
signature of any other Stockholder) as to any Stockholder
when one or more counterparts have been signed by each of
Parent, Sub and such Stockholder and delivered to Parent,
Sub and such Stockholder.
(e) This Agreement (including the documents and
instruments referred to herein) constitutes the entire
agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties
with respect to the subject matter hereof.
(f) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of
Delaware, regardless of the laws that might otherwise govern
under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be
assigned, in whole or in part, by operation of law or
otherwise, by any of the parties without the prior written
consent of the other parties, except by laws of descent.
Any assignment in violation of the foregoing shall be void.
(h) If any term, provision, covenant or
restriction herein, or the application thereof to any
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circumstance, shall, to any event, be held by a court of
competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other
circumstances, shall remain in full force and effect, shall
not in any way be affected, impaired or invalidated, and
shall be enforced to the fullest extent permitted by law.
(i) Each Stockholder agrees that irreparable
damage would occur and that Parent and Sub would not have
any adequate remedy at law 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 Parent and Sub
shall be entitled to an injunction or injunctions to prevent
breaches by any Stockholder 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 Parent and Sub are entitled at
law or in equity. In addition, each of the parties hereto
(i) consents to submit such party 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 contemplated hereby, (ii) agrees that such
party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any
such court, (iii) agrees that such party will not bring any
action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court
located in the State of Delaware or a Delaware state court
and (iv) waives any right to trial by jury with respect to
any claim or proceeding related to or arising out of this
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Agreement, or any transaction or conduct in connection
herewith.
(j) No amendment, modification or waiver in
respect of this Agreement shall be effective against any
party unless it shall be in writing and signed by such
party.
IN WITNESS WHEREOF, Parent, Sub and the Stock-
holders have caused this Agreement to be duly executed and
delivered as of the date first written above.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
TOPAZ ACQUISITION CORP.,
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title:
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
12
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ACKNOWLEDGED AND AGREED
TO AS TO SECTION 6:
TIVOLI SYSTEMS INC.,
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
_________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Schedule A
Number of
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Shares
------
Stockholder (including address) Owned
------------------------------- -----
▇▇▇▇ ▇. ▇▇▇▇▇ 87,041
Tivoli Systems Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇. North
Arboretum Plaza One, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 0
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇(1) 25,644
Matrix Partners
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (1) 65,507
Austin Ventures
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ 0
Norwest Ventures
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 93,900
Tivoli Systems Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇. North
Arboretum Plaza One, Suite 500
Austin, TX 78759
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 14,500
Tivoli Systems Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇. North
Arboretum Plaza One, Suite 500
Austin, TX 78759
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 71,500
Tivoli Systems Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇. North
Arboretum Plaza One, Suite 500
Austin, TX 78759
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(1) ▇▇. ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇ may donate after acquired Shares to
charitable organizations.
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Number of
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Shares
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Stockholder (including address) Owned
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 157,349
Tivoli Systems Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇. North
Arboretum Plaza One, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 15,000
Tivoli Systems Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇. North
Arboretum ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇