EXHIBIT 10.2
STANDSTILL AND STOCK
RESTRICTION AGREEMENT
by and between
COMMERCE ONE, INC.,
and
SAP AG
JUNE 14, 2000
TABLE OF CONTENTS
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PAGE
ARTICLE I DEFINITIONS.........................................................1
ARTICLE II STANDSTILL OBLIGATIONS AND TRANSFER RESTRICTIONS...................5
2.1 The Purchaser's Standstill Obligations................................5
2.2 The Purchaser's Transfer Restrictions.................................6
2.3 Company Notice to Purchaser...........................................8
ARTICLE III VOTING OBLIGATIONS................................................8
3.1 The Purchaser's Voting Obligations....................................8
ARTICLE IV MISCELLANEOUS......................................................9
4.1 Governing Law; Jurisdiction and Venue.................................9
4.2 Survival.............................................................10
4.3 Assignment...........................................................10
4.4 Entire Agreement; Amendment..........................................10
4.5 Notices, etc.........................................................10
4.6 Delays or Omissions..................................................10
4.7 Expenses.............................................................10
4.8 Specific Performance.................................................10
4.9 Stop Transfer Orders; Legends........................................11
4.10 Further Assurances...................................................11
4.11 Facsimile; Counterparts..............................................11
4.12 Severability.........................................................11
4.13 Interpretation.......................................................11
4.14 Attorneys' Fees......................................................11
EXECUTION COPY
STANDSTILL AND STOCK RESTRICTION AGREEMENT
This Standstill and Stock Restriction Agreement (hereinafter the
"Agreement") is made as of June 14, 2000 by and between Commerce One, Inc., a
Delaware corporation (the "Company") and SAP Aktiengesellschaft, a stock
corporation incorporated under the laws of the Federal Republic of Germany
(the "Purchaser").
WHEREAS, the Company and Purchaser have executed that certain Share
Purchase Agreement pursuant to which Purchaser has agreed to purchase common
stock of the Company, dated as of even date herewith (the "Purchase
Agreement");
WHEREAS, as a condition precedent to the Company entering into the
Purchase Agreement and completing the purchase contemplated therein,
simultaneously with entering into the Purchase Agreement, Purchaser is
entering in this Agreement;
WHEREAS, the Company and Purchaser desire, in connection with the
execution of the Purchase Agreement, to make certain covenants and agreements
with one another pursuant to this Agreement;
NOW THEREFORE, in consideration of the covenants and promises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement, the following terms shall have the
meanings specified with respect thereto below:
"Affiliate" shall have the meaning set forth in Rule 12b-2 of the rules
and regulations promulgated under the Exchange Act; PROVIDED, HOWEVER, that
for purposes of this Agreement, the Purchaser and its Affiliates, on the one
hand, and the Company and its Affiliates, on the other, shall not be deemed
to be "Affiliates" of one another.
"Beneficially Own," "Beneficially Owned," or "Beneficial Ownership"
shall have the meaning set forth in Rule 13d-3 of the rules and regulations
promulgated under the Exchange Act.
"Board Approval" shall mean the affirmative vote of a majority of the
Disinterested Directors of the Company or a unanimous written consent of the
Board of Directors of the Company duly obtained in accordance with the
applicable provisions of the Company's certificate of incorporation, bylaws
and applicable law.
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"Change in Control of the Company" shall mean any of the following:
(i) a merger, consolidation or other business combination or transaction to
which the Company is a party if the stockholders of the Company immediately
prior to the effective date of such merger, consolidation or other business
combination or transaction, as a result of such share ownership, have
Beneficial Ownership of voting securities representing less than 50% of the
Total Current Voting Power of the surviving entity following such merger,
consolidation or other business combination or transaction; (ii) an
acquisition by any person, entity or 13D Group of direct or indirect
Beneficial Ownership of Voting Stock of the Company representing 50% or more
of the Total Current Voting Power of the Company; (iii) an acquisition by any
Competitor of direct or indirect Beneficial Ownership of Voting Stock of the
Company representing 25% or more of the Total Current Voting Power of the
Company; (iv) a sale of all or substantially all of the assets of the
Company; (v) a liquidation or dissolution of the Company; (vi) the
institution of any proceeding by or against the Company under the provisions
of any insolvency or bankruptcy law which is not dismissed within ninety (90)
days, the appointment of a receiver of a material portion of the assets or
property of the Company, or the issuance of an order for an execution on a
material portion of the property of the Company pursuant to a judgment which
is not dismissed within ninety (90) days; or (vii) during any period of two
consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the stockholders of the Company was approved by a vote of a
majority of the directors of the Company then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved, other than a director designated by a
person who has entered into an agreement with the Company to effect a
transaction described in the preceding clauses) cease for any reason to
constitute a majority of the Board of Directors of the Company then in
office.
"Company Common Stock" shall mean shares of the Common Stock of the
Company.
"Competitor" shall mean (a) Oracle Corporation, International Business
Machines Corporation, i2 Technologies, Inc., Peoplesoft, Inc., Baan Company,
N.V., Siebel Systems, Inc. and Ariba Inc. and their successors, (b) any
person in which any of the persons set forth in clause (a) own more than
twenty percent (20%) of the Total Current Voting Power of such person or (c)
any person with which any of the persons set forth in clause (a) have a
strategic alliance or similar agreement that provides for the joint offering
of a solution that substantially competes with a solution offered by
SAPMarkets, Inc. or its Affiliates.
"Competitor Offer" shall mean (a) a bona fide public tender offer
subject to the provisions of Regulation 14D of the rules and regulations
promulgated under the Exchange Act made by a Competitor when first commenced
within the meaning of Rule 14d-2(a) of the rules and regulations promulgated
under the Exchange Act, by a person or 13D Group (which is not made by and
does not include the Purchaser or any Affiliate of the Purchaser) to purchase
or exchange for cash or other consideration any Voting Stock and which
consists of an offer that, if consummated, would result in the Competitor
acquiring Beneficial Ownership of Voting Stock of the Company representing
more than 25% of the Total Current Voting Power of the Company or (b) the
execution of a definitive agreement between the Company and a Competitor that
provides for the Competitor acquiring
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Beneficial Ownership of Voting Stock of the Company representing more than
25% of the Total Current Voting Power of the Company.
"Control" or "Controlled by" shall have the meaning set forth in Rule
12b-2 of the rules and regulations promulgated under the Exchange Act.
"Disinterested Director" means a member of the Board of Directors of
the Company who is not (i) an employee or consultant of Purchaser or any of
its Affiliates; (ii) a member of the Board of Directors of Purchaser or any
of its Affiliates; or (iii) the holder of more than three percent (3%) of the
voting stock of Purchaser or any of its Affiliates.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Non-Voting Convertible Securities" shall mean any securities of the
Company which are convertible into, exchangeable for or otherwise exercisable
to acquire Voting Stock of the Company, including convertible securities,
warrants, rights or options to purchase Voting Stock of the Company.
"Opposed Tender Offer" shall mean a Third Party Tender Offer pursuant
to which the Board of Directors of the Company has publicly published, sent
or given to security holders of the Company a statement disclosing that the
Company recommends rejection of the Third Party Tender Offer pursuant to Rule
14e-2 of the rules and regulations promulgated under the Exchange Act.
"person" shall mean an individual, corporation, partnership, limited
liability company, association, trust, or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Purchaser Controlled Entity" shall mean an entity of which the
Purchaser collectively owns not less than a majority of the outstanding
voting power entitled to vote in the election of directors of such entity
(or, in the event the entity is not a corporation, the governing members,
board or other similar body of such entity).
"Rule 144" shall mean Rule 144 as promulgated under the Securities Act.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shares" shall mean the shares of Company Common Stock sold to
Purchaser pursuant to the Purchase Agreement (and all securities of Company
issued with respect to such shares pursuant to the reorganization of the
Company into a holding company structure, stock splits, stock dividends and
similar events).
"Standstill Limit" shall mean 10% of the Total Current Voting Power of
the Company.
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"Standstill Period" shall mean the period beginning on the date hereof
and ending on the occurrence of a Standstill Termination Event.
"Standstill Reinstatement Event" shall mean the occurrence of the
withdrawal or termination (including, without limitation, as a result of a
temporary restraining order or an injunction issued by a governmental entity)
of a Competitor Offer prior to the third anniversary of the date of this
Agreement.
"Standstill Revised Limit" shall mean the percentage of the Total
Voting Current Voting Power of the Company represented by all Voting Stock
held by Purchaser as of the occurrence of a Standstill Reinstatement Event.
"Standstill Termination Event" shall mean the earliest to occur of the
following: (i) a Change in Control of the Company (other than a Change in
Control of the Company involving the Purchaser or any Affiliate of the
Purchaser or a 13D Group of which Purchaser or any Affiliate of Purchaser is
a member), (ii) a Strategic Alliance Agreement Termination; (iii) the third
anniversary of the date of this Agreement; or (iv) a Competitor Offer,
PROVIDED, HOWEVER, that upon a Standstill Reinstatement Event, the Standstill
Termination Event shall not be deemed to have occurred and the Standstill
Period shall be deemed to be reinstated and, PROVIDED, FURTHER, that if the
Standstill Revised Limit is greater than the Standstill Limit, then the
Standstill Revised Limit and not the Standstill Limit shall thereafter be
deemed the Standstill Limit for all purposes hereunder.
"Strategic Alliance Agreement" shall mean the strategic alliance
agreement contemplated among the Company, Purchaser and SAPMarkets, Inc.
"Strategic Alliance Agreement Termination" shall mean a termination of
the Strategic Alliance Agreement in accordance with its terms, other than a
termination by the Company due to a material breach of the Technology
Agreement by Purchaser as provided for in the Strategic Alliance Agreement;
PROVIDED, HOWEVER, if the Strategic Alliance Agreement is not entered into
with one (1) year of the date hereof, a "Strategic Alliance Agreement
Termination" shall mean the first anniversary of the date of this Agreement.
"Third Party Tender Offer" shall mean a bona fide public tender offer
subject to the provisions of Regulation 14D of the rules and regulations
promulgated under the Exchange Act when first commenced within the meaning of
Rule 14d-2(a) of the rules and regulations promulgated under the Exchange
Act, by a person or 13D Group (which is not made by and does not include any
of the Company, the Purchaser or any Affiliate of the Purchaser) to purchase
or exchange for cash or other consideration any Voting Stock and which
consists of an offer to acquire more than 50% of the Total Current Voting
Power of the Company.
"Total Current Voting Power" shall mean, with respect to any entity, at
the time of determination of Total Current Voting Power, the total number of
votes which may be cast in the election of members of the board of directors
of the corporation if all securities entitled to vote in the election of such
directors are present and voted (or, in the event the entity is not a
corporation, the governing members, board or other similar body of such
entity).
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"Transfer" shall have the meaning ascribed to it in SECTION 2.2 hereof.
"Transfer Restriction Termination Date" shall mean the earlier of (i) a
Strategic Alliance Agreement Termination, or (ii) the second anniversary of
the date of this Agreement.
"Voting Stock" shall mean shares of the Company Common Stock and any
other securities of the Company having the ordinary power to vote in the
election of members of the Board of Directors of the Company.
"Written Approval" shall mean receipt of a certificate signed by the
Chief Executive Officer or Secretary of the Company providing consent to the
matter for which Written Approval is required.
"13D Group" means any group of persons formed for the purpose of
acquiring, holding, voting or disposing of Voting Stock which would be
required under Section 13(d) of the Exchange Act, and the rules and
regulations promulgated thereunder, to file a statement on Schedule 13D
pursuant to Rule 13d-1(a) of the rules and regulations promulgated under the
Exchange Act or a Schedule 13G of the rules and regulations promulgated under
the Exchange Act pursuant to Rule 13d-1(c) of the rules and regulations
promulgated under the Exchange Act with the SEC as a "person" within the
meaning of Section 13(d)(3) of the Exchange Act if such group Beneficially
Owned Voting Stock representing more than 5% of any class of Voting Stock
then outstanding.
ARTICLE II
STANDSTILL OBLIGATIONS AND TRANSFER RESTRICTIONS
2.1 THE PURCHASER'S STANDSTILL OBLIGATIONS.
(a) During the Standstill Period, none of Purchaser, any
Affiliate of Purchaser or any 13D Group of which Purchaser or any of its
Affiliates is a member shall, without first obtaining Written Approval,
directly or indirectly, acquire or Beneficially Own Voting Stock or authorize
or make a tender offer, exchange offer or other offer to acquire Voting
Stock, if the effect of such acquisition would be to increase the percentage
of Total Current Voting Power of the Company represented by all Voting Stock
Beneficially Owned by Purchaser and its Affiliates (and any 13D Group to
which Purchaser and its Affiliates is a party) to more than the Standstill
Limit.
(b) Purchaser shall not be deemed to have violated its covenants
under this SECTION 2.1 solely by virtue of (and only to the extent of) any
increase in the aggregate percentage of the Total Current Voting Power of the
Company represented by Voting Stock Beneficially Owned by Purchaser or its
Affiliates if such increase is the result of a recapitalization of the
Company, a repurchase of securities by the Company or other actions taken by
the Company or any of the Company's Affiliates that have the effect of
reducing the Total Current Voting Power of the Company.
(c) During the Standstill Period, Purchaser shall promptly (and
in no case later than 5 business days of such event) notify the Company if
the aggregate Beneficial Ownership of Voting Stock of Purchaser and its
Affiliates (and any 13D Group to which Purchaser and its Affiliates is a
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party) exceeds the aggregate Beneficial Ownership of Voting Stock specified
in Purchaser's most recent prior notice to the Company under this SECTION
2.1(c) (or if no such notice has yet been given, the aggregate Beneficial
Ownership of Voting Stock purchased pursuant to the Purchase Agreement) by
more than 1% of the outstanding Voting Stock. Such notice shall specify the
amount of Voting Stock Beneficially Owned by Purchaser and its Affiliates
(and any 13D Group to which Purchaser and its Affiliates is a party) as of
the date of the notice. Notwithstanding any provision of this SECTION 2.1(c)
to the contrary, the provisions of this SECTION 2.1(c) requiring notice to
the Company may be satisfied by the delivery by Purchaser to the Company of
any Schedule 13D or Schedule 13G filed by Purchaser with respect to the
Voting Stock (or any amendment thereto).
(d) During the Standstill Period, Purchaser and its Affiliates
shall not, without first obtaining Written Approval, solicit or participate
in any solicitation of proxies with respect to any Voting Stock, nor shall
they seek to advise or influence any person with respect to the voting of any
Voting Stock (other than as otherwise provided or contemplated by this
Agreement).
(e) During the Standstill Period, Purchaser shall not, without
first obtaining Written Approval, deposit any Voting Stock in a voting trust
or, except as otherwise provided or contemplated herein, subject any Voting
Stock to any arrangement or agreement with any third party with respect to
the voting of such Voting Stock.
(f) During the Standstill Period, Purchaser shall not, without
first obtaining Written Approval, join a 13D Group (other than a group
comprising solely Purchaser and its Affiliates) or other group, or otherwise
act in concert with any third person for the purpose of acquiring, holding,
voting or disposing of Voting Stock or Non-Voting Convertible Securities.
(g) During the Standstill Period, Purchaser shall not, without
first obtaining a Written Approval, otherwise act, alone or in concert with
others, to seek control or influence the management, Board of Directors or
policies of the Company.
2.2 THE PURCHASER'S TRANSFER RESTRICTIONS.
(a) Until the Transfer Restriction Termination Date, Purchaser
shall not, directly or indirectly, sell, transfer, pledge, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, transfer the economic
risk of ownership of, or otherwise dispose of (each, a "Transfer"), any
Shares except:
(i) to the Company;
(ii) to a Purchaser Controlled Entity so long as such
Purchaser Controlled Entity agrees, by executing a counterpart to this
Agreement, to (A) hold such Shares subject to all of the provisions of this
Agreement as if it were the Purchaser, and (B) promptly transfer such Shares
to Purchaser or another Purchaser Controlled Entity if, prior to the Transfer
Restriction Termination Date, it ceases to be a Purchaser Controlled Entity;
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(iii) in response to a bona fide public tender offer or
exchange offer subject to Regulation 14D or Rule 13e-3 of the rules and
regulations promulgated under the Exchange Act for cash or other
consideration which is made by or on behalf of the Company;
(iv) in response to a Third Party Tender Offer with
respect to which the Board of Directors of the Company shall have recommended
to the stockholders of the Company that they accept such offer pursuant to
Rule 14d-9 of the rules and regulations promulgated under the Exchange Act;
(v) in response to an Opposed Tender Offer, PROVIDED,
HOWEVER, that Purchaser's tender of shares into such Opposed Tender Offer is
expressly conditioned upon receipt by the person making such Opposed Tender
Offer of valid tenders which are not revoked or withdrawn as of the
"scheduled expiration date" (as set forth in Item 1004(a)(1)(iii) of
Regulation M-A of the rules and regulations promulgated under the Exchange
Act (or any extension of such scheduled expiration or the expiration of any
"subsequent offering period" as set forth in Rule 14d-11 of the rules and
regulations promulgated under the Exchange Act, as the case may be) of shares
of Voting Stock representing at least fifty-one percent (51%) of the Total
Current Voting Power of the Company by persons other than the Purchaser, its
Affiliates and any 13D Group of which Purchaser or any of its Affiliates is
party.
(vi) in connection with a Change in Control of the Company
which has received Board Approval.
(vii) After July 1, 2001, in a Transfer which (A) when
taken together with all prior sales of Shares by Purchaser and its Affiliates
does not exceed twenty percent (20%) of the total number of shares initially
sold to Purchaser pursuant to the Purchase Agreement (as adjusted for
reorganizations, stock splits, stock dividends, and similar events); (B) is
made in compliance with Rule 144 of the rules and regulations promulgated
under the Securities Act or pursuant to a private placement in which the
Company has received an opinion of counsel reasonably acceptable to the
Company that an exemption from registration is available; and (C) is made
without public disclosure other than as may be required pursuant to Rule 144
of the rules and regulations promulgated under the Securities Act, pursuant
to disclosure requirements of Section 13(d) of the Exchange Act and the rules
and regulations promulgated thereunder, or under other applicable law, in
each case solely to the minimum extent required under such rule, regulation
or law. Notwithstanding anything to the contrary contained in this
subparagraph, (x) Purchaser shall not, prior to the Transfer Restriction
Termination Date, without first obtaining Written Approval, Transfer Shares
to any person or 13D Group of which Purchaser has knowledge, after due
investigation, will hold (including the Shares to be received in the
transfer) more than ten percent (10%) (other than through resales on the open
market through unsolicited broker's transactions or through transactions
directly with a market maker in which the market maker is not soliciting
purchasers of the shares on behalf of the Purchaser, its Affiliates, or any
13G Group of which Purchaser or any Affiliate of Purchaser is a party) of the
Current Voting Power of the Company; (y) Purchaser shall not Transfer more
than five percent (5%) of the total number of shares initially sold to
Purchaser pursuant to the Purchase Agreement (as adjusted for
reorganizations, stock splits,
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stock dividends and similar events) in any single five (5) trading day
period, and (z) Purchaser shall not Transfer more than two percent (2%) of
the total number of shares initially sold to Purchaser pursuant to the
Purchase Agreement (as adjusted for reorganizations, stock splits, stock
dividends and similar events) in any single trading day.
(b) During the pendency of a Competitor Offer, the restrictions
on Transfer set forth in SECTION 2.2(a) hereof shall be suspended.
(c) Any attempted sale, transfer or other disposition of Shares
by a Purchaser, a Purchaser Controlled Entity or any other person that is a
party to this Agreement that is not in compliance with this SECTION 2.2,
shall be null and void ab initio.
2.3 COMPANY NOTICE TO PURCHASER. In the event that, during the
Standstill Period, the Company's Board of Directors resolves to seek a
potential acquiror of the Company, and directs the Company's executive
officers to seek offers from multiple (three or more) potential acquirors,
the Company shall within five (5) days of such resolution give notice of the
Company's intention to seek offers for the acquisition of the Company.
ARTICLE III
VOTING OBLIGATIONS
3.1 THE PURCHASER'S VOTING OBLIGATIONS.
(a) During the Standstill Period, Purchaser shall take such
action as may be required so that all Shares Beneficially Owned by Purchaser
or any Purchaser Controlled Corporation (and shall use commercially
reasonable efforts to cause any Shares held by an Affiliate of Purchaser or
any 13D Group of which Purchaser or any Affiliate of Purchaser is a party)
are voted for or cast or cause to be voted or cast in the same manner and
proportion as the votes cast by the holders of the Voting Securities other
than Purchaser or any Affiliate of Purchaser (or any 13D Group of which
Purchaser or any Affiliate of Purchaser is a party).
(b) During the Standstill Period, Purchaser, as the holder of shares of
Voting Stock, shall be present, in person or by proxy, (and shall cause any
Purchaser Controlled Corporations holding Voting Stock to be so present and
shall use reasonable efforts to cause its Affiliates holding Voting Stock to
be so present) at all meetings of stockholders of the Company so that all
shares of Voting Stock and any Purchaser Controlled Corporation may be
counted for purposes of determining the presence of a quorum at such meetings.
(c) During the Standstill Period, Purchaser agrees not to exercise (and
to cause any Purchaser Controlled Corporation not to exercise and to use
commercially reasonable efforts to cause any Affiliate of Purchaser and any
13D Group of which Purchaser or any Affiliate of Purchaser is a party not to
exercise) dissenter's rights, if any, that it may have with respect to the
Shares under applicable law in connection with any merger, consolidation or
other reorganization which is approved by the Company's Board of Directors
and if such transaction is a pooling-of-interests transaction, Purchaser
hereby covenants to enter (and to cause any Purchaser Controlled
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Corporation to enter and to use commercially reasonable efforts to cause any
Affiliate of Purchaser and any 13D Group of which Purchaser or any Affiliate
of Purchaser is a party to enter) into a standard pooling affiliate lock-up
agreement if requested by the Company and if required to maintain
pooling-of-interests treatment with respect to such transaction (based upon
the recommendation of an independent accounting firm retained by either the
Company or the potential acquiror of the Company), regardless of the manner
in which Purchaser (or any Purchaser Controlled Corporation or any Affiliate
of Purchaser or any 13D Group of which Purchaser or any Affiliate of
Purchaser is a party) voted or cast Shares Owned by Purchaser with respect to
such transaction pursuant to paragraph (a) above.
ARTICLE IV
MISCELLANEOUS
4.1 GOVERNING LAW; JURISDICTION AND VENUE.
(a) This Agreement is to be construed in accordance with and
governed by the internal laws of the State of Delaware without giving effect
to any choice of law rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of Delaware to the
rights and duties of the parties.
(b) Any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this Agreement may be
brought or otherwise commenced in any state or federal court located in the
State of Delaware. Each party to this Agreement:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the State of Delaware
(and each appellate court located in the State of Delaware in connection with
any such legal proceeding, including to enforce any settlement, order or
award;
(ii) agrees that each state and federal court located in
the State of Delaware shall be deemed to be a convenient forum; and
(iii) waives and agrees not to assert (by way of motion, as
a defense or otherwise), in any such legal proceeding commenced in any state
or federal court located in the State of Delaware, any claim that such party
is not subject personally to the jurisdiction of such court, that such legal
proceeding has been brought in an inconvenient forum, that the venue of such
proceeding is improper or that this Agreement or the subject matter hereof or
thereof may not be enforced in or by such court.
(c) Each party hereto agrees to the entry of an order to enforce
any resolution, settlement, order or award made pursuant to this SECTION 4.1
by the state and federal courts located in the State of Delaware and in
connection therewith hereby waives, and agrees not to assert by way of
motion, as a defense, or otherwise, any claim that such resolution,
settlement, order or award is inconsistent with or violative of the laws or
public policy of the laws of the State of Delaware or any other jurisdiction.
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4.2 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by Purchaser and
the closing of the transactions contemplated by the Purchase Agreement.
4.3 ASSIGNMENT. No party may assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior written
approval of the other parties; provided, however, that Purchaser may, without
the prior written approval of the Company, assign this Agreement and its
rights and obligations hereunder, in connection with a transfer of Shares as
provided in Section 2.2 hereof and Company may, without the prior written
approval of Purchaser, assign this Agreement and its rights and obligations
hereunder to a holding company in the event of the reorganization of Company
into a holding company structure. Except as provided herein, any assignment
of rights or delegation of duties under this Agreement by a party without the
prior written consent of other parties shall be void ab initio. Subject to
the preceding two sentences, this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
4.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the agreements
referred to herein constitute the full and entire understanding and agreement
between the parties with regard to the subject hereof, and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein and in
the agreements referred to herein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged
or terminated other than by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge or termination is
sought.
4.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be made in the manner and to the addresses set
forth in the Purchase Agreement.
4.6 DELAYS OR OMISSIONS. Except as expressly provided herein, no delay
or omission to exercise any right, power or remedy accruing to a party under
this Agreement shall impair any such right, power or remedy nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring.
4.7 EXPENSES. Except as otherwise specifically provided herein, the
Company and Purchaser shall bear their own expenses incurred with respect to
this Agreement and the transactions contemplated hereby.
4.8 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific intent or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions, without bond, to prevent or cure breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof, this being in addition to any other remedy to which they
may be entitled by law or equity, and any party sued for breach of this
Agreement expressly waives any defense that a remedy in damages would be
adequate.
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4.9 STOP TRANSFER ORDERS; LEGENDS. The stock certificates representing
the Shares shall bear legends, and be subject to stop transfer orders as
provided in the Purchase Agreement.
4.10 FURTHER ASSURANCES. The parties hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments or
documents as any other party may reasonably request from time to time in
order to carry out the intent and purposes of this Agreement and the
consummation of the transactions contemplated hereby. Neither the Company
nor Purchaser shall voluntarily undertake any course of action inconsistent
with satisfaction of the requirements applicable to them set forth in this
Agreement and each shall promptly do all such acts and take all such measures
as may be appropriate to enable them to perform as early as practicable the
obligations herein and therein required to be performed by them.
4.11 FACSIMILE; COUNTERPARTS. This Agreement may be executed by
facsimile and in any number of counterparts, each of which may be executed by
fewer than all of the parties, each of which shall be enforceable against the
parties actually executing such counterparts, and all of which together shall
constitute one instrument.
4.12 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; PROVIDED, that no such severability shall be
effective if it materially changes the economic impact of this Agreement on
any party.
4.13 INTERPRETATION.
(a) The various section headings are inserted for purposes of
reference only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof. The definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of
such terms.
(b) Each party hereto acknowledges that it has been represented
by competent counsel and participated in the drafting of this Agreement, and
agrees that any applicable rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be
applied in connection with the construction or interpretation of this
Agreement.
(c) When a reference is made in this Agreement to a Section,
Exhibit or Schedule, such reference shall be to a Section of, Exhibit to or
Schedule to this Agreement unless otherwise indicated.
4.14 ATTORNEYS' FEES. In any action at law or suit in equity in
relation to this Agreement, the prevailing party in such action or suit shall
be entitled to receive a reasonable sum for its attorneys' fees and all other
reasonable costs and expenses incurred in such action or suit.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
COMMERCE ONE, INC.
By: /s/ Robert. M. Tarkoff
----------------------------------------
Name: Robert M. Tarkoff
Title: Senior Vice President, Corporate
Development and General Counsel
SAP AG
By: /s/ Prof. Dr. Henning Kagermann
----------------------------------------
Name: Prof. Dr. Henning Kagermann
Title: Member of the Executive Board
By: /s/ Werner Sinzig
----------------------------------------
Name: Werner Sinzig
Title: Prokurist
[STANDSTILL AND STOCK RESTRICTION AGREEMENT]