Exhibit 2.5
COMPANY AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT (this "AGREEMENT") is dated as of ______________,
1998, by and between SIEBEL SYSTEMS, INC., a Delaware corporation ("PARENT"),
SCOPUS TECHNOLOGY, INC., a California corporation ("COMPANY"), and
("AFFILIATE").
WHEREAS, Affiliate is a shareholder [and an officer and director] of the
Company.
WHEREAS, Parent, Syracuse Acquisition Sub, Inc., a California corporation
and a wholly-owned subsidiary of Parent ("MERGER SUB"), and the Company have
entered into an Agreement and Plan of Merger and Reorganization dated as of
March 1, 1998 (the "MERGER AGREEMENT"), providing for the merger of Merger Sub
with and into the Company (the "MERGER"). The Merger Agreement contemplates
that, upon consummation of the Merger, (i) the holders of the common stock of
the Company ("COMPANY COMMON STOCK") will receive shares of common stock of
Parent ("PARENT COMMON STOCK") in exchange for their shares of Company Common
Stock and (ii) the Company will become a wholly-owned subsidiary of Parent. It
is accordingly contemplated that Affiliate will receive shares of Parent Common
Stock in the Merger.
WHEREAS, Affiliate understands that the Parent Common Stock being issued in
the Merger will be issued pursuant to a registration statement on Form S-4 and
that Affiliate may be deemed to be an "affiliate" of the Company, as the term
"affiliate" is used (i)for purposes of paragraphs (c) and (d) of Rule 145 ("RULE
145") of the General Rules and Regulations of the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and (ii) in the SEC's Accounting Series Releases 130 and 135,
and, as such, Affiliate may only transfer, sell or dispose of such Parent Common
Stock in accordance with this Affiliate Agreement and Rule 145.
WHEREAS, it is a condition to the consummation of the Merger pursuant to
the Merger Agreement that the independent accounting firms that audit the annual
financial statements of Parent and the Company will have delivered the written
concurrences with the conclusions of management of Parent and the Company to the
effect that the Merger will be accounted for as a pooling of interests under
Accounting Principles Board Opinion No. 16.
NOW, THEREFORE, in order to induce Parent to consummate the transactions
contemplated by the Merger Agreement, and for other valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by Affiliate),
Affiliate hereby covenants and agrees as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES. Affiliate represents and
warrants to Parent as follows:
1.
(a) Affiliate is the holder and "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended) of the number of
shares of the Company Common Stock set forth under Affiliate's signature below
(the "COMPANY SHARES"), and Affiliate has good and valid title to the Company
Shares, free and clear of any liens, pledges, security interests, adverse
claims, equities, options, proxies, charges, encumbrances or restrictions of any
nature with the exception of any option to purchase shares of Company Common
Stock owned by Affiliate that is held by General Atlantic Partners 17, L.P. or
GAP Coinvestments Partners, L.P. as of the date of this Agreement.
(b) Affiliate has carefully read this Agreement, and has discussed
with Affiliate's own independent counsel to the extent Affiliate felt necessary
the limitations imposed on Affiliate's ability to sell, transfer or otherwise
dispose of the shares of Parent Common Stock that Affiliate is to receive in the
Merger (the "PARENT SHARES"). Affiliate fully understands the limitations this
Agreement places upon Affiliate's ability to sell, transfer or otherwise dispose
of the Parent Shares.
(c) Affiliate understands that the representations, warranties and
covenants set forth herein will be relied upon by Parent, the Company, and their
respective affiliates, counsel and accounting firms for purposes of determining
Parent's eligibility to account for the Merger as a "pooling of interests," and
that substantial losses and damages may be incurred by these persons if
Affiliate's representations, warranties or covenants are breached.
SECTION 2. PROHIBITION AGAINST TRANSFER. In addition to the restrictions
set forth elsewhere herein, Affiliate agrees that Affiliate shall not effect any
sale, transfer or other disposition of the Parent Shares unless:
(a) such sale, transfer or other disposition is made in conformity
with the volume and other requirements of Rule 145 under the Securities Act, as
evidenced by a broker's letter and a representation letter executed by Affiliate
(reasonably satisfactory in form and content to Parent), each stating that such
requirements have been met;
(b) counsel reasonably satisfactory to Parent shall have advised
Parent in a written opinion letter (reasonably satisfactory in form and content
to Parent), upon which Parent may rely, that such sale, transfer or other
disposition will be exempt from registration under the Securities Act;
(c) such sale, transfer or other disposition is effected pursuant to
an effective registration statement under the Securities Act; or
(d) an authorized representative of the SEC shall have rendered
written advice to Affiliate to the effect that the SEC would take no action, or
that the staff of the SEC would not recommend that the SEC take action, with
respect to such proposed sale, transfer or other disposition, and a copy of such
written advice and all other related communications with the SEC shall have been
delivered to Parent.
2.
SECTION 3. STOP TRANSFER INSTRUCTIONS; LEGEND. Affiliate acknowledges and
agrees that (a) stop transfer instructions will be given to Parent's transfer
agent with respect to the Parent Shares, and (b) each certificate representing
any of such shares of Parent Common Stock or any substitutions thereof shall
bear a legend (together with any other legend or legends required by applicable
state securities laws or otherwise), stating in substance:
THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF
1933 APPLIES. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH RULE AND
IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED AS OF _______,
1998, BETWEEN THE REGISTERED HOLDER HEREOF AND SIEBEL SYSTEMS, INC., A
COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF SIEBEL
SYSTEMS, INC..
SECTION 4. COVENANTS RELATED TO POOLING OF INTERESTS. In accordance with
SEC Staff Accounting Bulletin No. 65 ("SAB 65"), during the period contemplated
by SAB 65, until the earlier of (i) Parent's public announcement of financial
results covering at least 30 days of combined operations of Parent and the
Company or (ii) the Merger Agreement is terminated in accordance with its terms,
Affiliate will not sell, exchange, transfer, pledge, distribute, or otherwise
dispose of or grant any option, establish any "short" or put-equivalent position
with respect to or enter into any similar transaction (through derivatives or
otherwise) intended or having the effect, directly or indirectly, to reduce its
risk relative to: (i) any shares of Company Common Stock, except pursuant to
and upon the consummation of the Merger; or (ii) any shares of Parent Common
Stock received by Affiliate in the Merger or any shares of Parent Common Stock
received by Affiliate upon exercise of options assumed by Parent in connection
with the Merger. Parent may, at its discretion, cause a restrictive legend
covering the restrictions referred to in this Section 4 to be placed on Parent
Common Stock certificates issued to Affiliate in the Merger and place a stock
transfer notice consistent with the restrictions referred to in this Section 4
with its transfer agent with respect to such certificates, provided such
restrictive legend shall be removed and/or notice shall be countermanded
promptly upon expiration of the necessity therefor at the request of Affiliate.
SECTION 5. PERMITTED TRANSFERS. Notwithstanding anything to the contrary
contained in this Agreement, Affiliate (i) may transfer Affiliate's pro rata
portion (of the total number of shares available under the "de minimis"
exception referred to in this clause (i) to all affiliates of Parent and
Company) of the "de minimis" number of shares of Company Common Stock and Parent
Common Stock available for sale in accordance with SEC Staff Accounting Bulletin
No. 76 (the "DE MINIMIS POOL") contingent upon confirmation and approval by
legal counsel for Company and independent auditors to the Company and Parent
that such transfer qualifies as within Affiliate's pro rata portion of the De
Minimis Pool and does not otherwise adversely affect the Parent's ability to
account for the Merger as a "pooling of interests" (ii) may
3.
(with the written consent of Parent, not to be unreasonably withheld): (A)
transfer shares of Company Common Stock or Parent Common Stock to the Company in
payment of the exercise price of options to purchase Company Common Stock; (B)
transfer shares of Parent Common Stock in payment of the exercise price of
options to purchase Parent Common Stock; (C) transfer shares of Company Common
Stock or Parent Common Stock to any organization qualified under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended, so long as such
organization has traditionally been supported by contributions from the general
public (as opposed to being supported largely by a specific donor); and (D)
transfer shares of Company Common Stock or shares of Parent Common Stock to a
trust established for the benefit of Affiliate and/or for the benefit of one or
more members of Affiliate's family, or make a bona fide gift of shares of Common
Stock of the Company or shares of Parent Common Stock to one or more members of
Affiliate's family, provided that in the case of a transfer or gift pursuant to
this clause (C) or (D), a transferee of such shares agrees to be bound by the
limitations set forth in this Agreement.
SECTION 6. SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement was not
performed in accordance with its specific terms or was otherwise breached.
Affiliate agrees that, in the event of any breach or threatened breach by
Affiliate of any covenant or obligation contained in this Agreement, each of
Parent and the Company shall be entitled (in addition to any other remedy that
may be available to it, including monetary damages) to seek and obtain (a) a
decree or order of specific performance to enforce the observance and
performance of such covenant or obligation, and (b) an injunction restraining
such breach or threatened breach.
SECTION 7. INDEPENDENCE OF OBLIGATIONS. The covenants and obligations of
Affiliate set forth in this Affiliate Agreement shall be construed as
independent of any other agreement or arrangement between Affiliate, on the one
hand, and the Company or Parent, on the other. The existence of any claim or
cause of action by Affiliate against the Company or Parent shall not constitute
a defense to the enforcement of any of such covenants or obligations against
Affiliate.
SECTION 8. NOTICES. Any notice or other communication required or
permitted to be delivered under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile
confirmation) to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
party):
IF TO PARENT: SIEBEL SYSTEMS, INC.
1885 South Grant Street
San Mateo, CA 94402
Attn: Vice President Legal Affairs
Fax: (650) 295-5116
WITH A COPY TO: COOLEY GODWARD LLP
3000 Sand Hill Road
4.
Building 3, Suite 230
Menlo Park, CA 94025
Attn: Eric C. Jensen, Esq.
IF TO COMPANY: SCOPUS TECHNOLOGY, INC.
1900 Powell Street
Emeryville, CA 94608
Attn: Chief Financial Officer
Fax: (510) 597-5964
WITH A COPY TO: WILSON, SONSINI, GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304
Attn: Howard Zeprun, Esq.
Fax: (650) 493-9311
IF TO AFFILIATE:
at the address or facsimile phone number set forth below Affiliate's
signature on the signature page hereof.
WITH A COPY TO: WILSON, SONSINI, GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304
Attn: Howard Zeprun, Esq.
Fax: (650) 493-9311
SECTION 9. SEVERABILITY. If any provision of this Agreement or any part of
any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Agreement. Each
provision of this Agreement is separable from every other provision of this
Agreement, and each part of each provision of this Agreement is separable from
every other part of such provision.
SECTION 10. GOVERNING LAW. This Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
California (without giving effect to principles of conflicts of laws).
5.
SECTION 11. WAIVER. No failure on the part of Parent or the Company to
exercise any power, right, privilege or remedy under this Agreement, and no
delay on the part of Parent or the Company in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver of such
power, right, privilege or remedy; and no single or partial exercise of any
such power, right, privilege or remedy shall preclude any other or further
exercise thereof or of any other power, right, privilege or remedy. Neither
Parent or the Company shall be deemed to have waived any claim arising out of
this Agreement, or any power, right, privilege or remedy under this Agreement,
unless the waiver of such claim, power, right, privilege or remedy is expressly
set forth in a written instrument duly executed and delivered on behalf of the
party deemed to be charged; and any such waiver shall not be applicable or have
any effect except in the specific instance in which it is given.
SECTION 12. CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
SECTION 13. FURTHER ASSURANCES. Affiliate shall execute and/or cause to
be delivered to Parent or the Company such instruments and other documents and
shall take such other actions as Parent or the Company may reasonably request to
effectuate the intent and purposes of this Agreement.
SECTION 14. ENTIRE AGREEMENT. This Agreement, the Merger Agreement and any
Voting Agreement or Noncompetition Agreement between Affiliate and Parent or
Irrevocable Proxy executed by Affiliate in favor of Parent constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto.
SECTION 15. NON-EXCLUSIVITY. The rights and remedies of Parent and the
Company hereunder are not exclusive of or limited by any other rights or
remedies which Parent may have, whether at law, in equity, by contract or
otherwise, all of which shall be cumulative (and not alternative). Nothing in
this Agreement shall limit any of Affiliate's obligations, or the rights or
remedies of Parent or the Company, under any Voting Agreement (including any
Irrevocable Proxy contained therein) or Noncompetition Agreement between Parent
and Affiliate; and nothing in any such Voting Agreement (including any
Irrevocable Proxy) or Noncompetition Agreement shall limit any of Affiliate's
obligations, or any of the rights or remedies of Parent, under this Agreement.
SECTION 16. AMENDMENTS. This Agreement may not be amended, modified,
altered, or supplemented other than by means of a written instrument duly
executed and delivered on behalf of Parent, the Company and Affiliate.
SECTION 17. BINDING NATURE. This Agreement will be binding upon Affiliate
and Affiliate's representatives, executors, administrators, estate, heirs,
successors and assigns, and shall inure to the benefit of the Company, Parent
and their respective successors and assigns.
6.
SECTION 18. ATTORNEYS' FEES AND EXPENSES. If any legal action or other
legal proceeding relating to the enforcement of any provision of this Agreement
is brought against Affiliate, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
SECTION 19. ASSIGNMENT. This Agreement and all obligations of Affiliate
hereunder are personal to Affiliate and may not be transferred or delegated by
Affiliate at any time. The Company or Parent may freely assign any or all of
its rights under this Affiliate Agreement, in whole or in part, to any other
person or entity without obtaining the consent or approval of Affiliate.
SECTION 20. SURVIVAL. Each of the representations, warranties, covenants
and obligations contained in this Agreement shall survive the consummation of
the Merger.
7.
The undersigned have executed this Agreement as of the date first set forth
above.
SIEBEL SYSTEMS, INC.
By:_______________________________
Title:____________________________
SCOPUS TECHNOLOGY, INC.
By:_______________________________
Title:____________________________
AFFILIATE:
_________________________________
Address:_________________________
_________________________________
_________________________________
Facsimile:_______________________
SCOPUS TECHNOLOGY, INC.
STOCK BENEFICIALLY OWNED BY AFFILIATE:
___________________________shares
of Common Stock
___________________________shares
of Common Stock issuable upon
exercise of outstanding options
8.