AMENDMENT TO
CONFIDENTIALITY AGREEMENT
This Amendment to Confidentiality Agreement is entered into on March 5, 2007, by and between Software AG, a German corporation (“SAG”) and webMethods, Inc. (the “Company”) and amends that certain confidentiality and non-disclosure letter agreement, dated January 30, 2007, by and between SAG and the Company (the “Confidentiality Agreement”).
All capitalized terms used herein shall have the meaning given them in the Confidentiality Agreement, unless otherwise defined herein.
SAG and the Company acknowledge that discussions relating to a Transaction continue under the Confidentiality Agreement, and that the terms and conditions of the Confidentiality Agreement remain in full force and effect.
SAG and the Company wish to share additional documents during the due diligence process relating to a Transaction, and desire to amend the Confidentiality Agreement to facilitate due diligence.
Accordingly, the Confidentiality Agreement is hereby amended to add the following paragraph:
Each party understands that certain categories of Evaluation Material are highly confidential (herein collectively referred to as the “Highly Confidential Evaluation Material”). In the event the disclosing party deems any Evaluation Material to be Highly Confidential Evaluation Material, the following procedures shall apply: the disclosing party shall indicate or instruct that such information (or categories of information) is Highly Confidential Evaluation Material and the disclosing party shall provide access to such Highly Confidential Evaluation Material only to legal counsel for the receiving party, financial advisors to the receiving party or the employees or advisors of the receiving party specifically listed on Exhibit A hereto (collectively, the “Restricted Group”). Subject to the terms of this letter agreement, each party hereby agrees that without the prior written consent of the disclosing party: (a) Highly Confidential Evaluation Material will be reviewed only by members of the Restricted Group of the receiving party; (b) no employees for the receiving party other than the employees listed on Exhibit A will review Highly Confidential Evaluation Material; (c) the members of the Restricted Group shall not communicate any Highly Confidential Evaluation Material or any details regarding any Highly Confidential Evaluation Material (including any written summaries, analysis, compilations, studies or other documents that contain or reflect any Highly Confidential Evaluation Material) to any other individuals for the receiving party except as provided below; and (d) the receiving party shall be responsible for any breach of this paragraph by any member of the Restricted Group. Each party further agrees that (except as otherwise provided in this letter agreement) Highly Confidential Evaluation Material also constitutes Evaluation Material and shall be entitled to all of the protections with respect to Evaluation Material otherwise provided for in this letter agreement. Notwithstanding the foregoing and unless otherwise permitted by the disclosing party, members of the Restricted Group may disclose to other employees and representatives of the receiving party involved in the Transaction (i) summaries or analyses of contracts or agreements designated as Highly Confidential Evaluation Material provided that any information which would permit the receiving party to identify the counterparty
to such contract or agreement is masked or redacted, and (ii) financial data or analyses constituting or derived from Highly Confidential Evaluation Material, provided that such data or analyses are aggregated in a manner whereby the terms and conditions (including, where applicable, the price) of transactions with individual customers are not identifiable. No Highly Confidential Evaluation Material shall be given, shown, made available or communicated in any way to a person designated as a member of the Restricted Group until such person has read this agreement. Notwithstanding the foregoing, each party further acknowledges and agrees that each party may desire to disclose Highly Confidential Evaluation Material to persons outside the Restricted Group for the purpose of evaluating the Transaction. Each party agrees to discuss in good faith the terms and restrictions under which such Highly Confidential Evaluation Material may be disclosed to such persons.
In addition, the Confidentiality Agreement is hereby amended to add Exhibit A, attached hereto, to the Confidentiality Agreement.
All other provisions of the Confidentiality Agreement remain in full force and effect.
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| SOFTWARE AG | | | | WEBMETHODS, INC. | | |
| | | | | | | | | | | |
| By: | | /s/ Arnd Zinnhardt /s/ Jochen Deuse | | | | By: | | /s/ Doug McNitt | | |
| Name: Arnd Zinnhardt Jochen Deuse | | | | Name: Doug McNitt | | |
| Title: CFO General Counsel | | | | Title: General Counsel | | |
EXHIBIT A
Restricted Group of SAG
| | | | | |
| Name | | Title | | Email |
SAG | | | | |
| David Broadbent | | Member of the Executive Board | | |
| Jonathan Smith | | Vice President | | |
| Arnd Zindhardt | | Chief Financial Officer | | |
| Markus Lehnert | | Vice President | | |
| Mark Edwards | | Member of the Executive Board | | |
| Andreas Gosewisch | | Director Corporate Counsel | | |
| Jochen Deuse | | Vice President | | |
| Wolfgang Fuss | | Vice President | | |
| Matt Durham | | Vice President | | |
Davis Polk | | | | |
| Peter Douglas | | Partner | | |
| Martin Wellington | | Partner | | |
| Patrick Kenadjian | | Partner | | |
| Mischa Travers | | Associate | | |
| Stefan Quick | | Associate | | |
| Waqaas Fahmawi | | Associate | | |
| Joanna McGinley | | Associate | | |
KPMG | | | | |
| Allen Westergard | | Partner | | |
| Bryan Walker | | Director | | |
Jad Salha
Arma | | | | |
| Paul Guely | | Partner | | |
| Brian Skiba | | Partner | | |
| Keith Robinson | | Vice President | | |
| Varun Sunderraman | | Analyst | | |
Restricted Group of the Company
| | | | | |
| Name | | Title | | Email |
Legal Department | | | | |
| Doug McNitt | | General Counsel | | |
| Edmund Graff | | VP, Legal Affairs | | |
| Scott Brown | | VP, Legal Affairs | | |
| Paul Bosco | | VP, Legal Services | | |
| David Sigler | | VP, Legal Services | | |
Finance Department | | | | |
| | | | | |
| Name | | Title | | Email |
| Mike Krone | | CAO | | |
| Stacy Beveridge | | VP, Finance | | |
| Jenny Hayes | | VP, Revenue | | |
Additional Reviewers | | | | |
| Ken Sexton | | CFO and EVP | | |
| Karen Woodward | | SVP, Corporate Development | | |
| Chris Martin | | VP, Office of the CEO | | |
