EXHIBIT 99.2
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SETTLEMENT AGREEMENT
This Settlement Agreement (this "AGREEMENT") dated as of April 17, 2003 is
among Strategic Software Holdings, LLC, a Connecticut limited liability company
("SSH"), Broken Arrow I, L.P., a Delaware limited partnership ("BROKEN ARROW"),
Rodney Bienvenu, an individual ("BIENVENU"), James Dennedy, an individual
("DENNEDY"), Empire Capital Partners, L.P., a Delaware limited partnership
("EMPIRE CAPITAL PARTNERS"), Empire GP, L.L.C., a Delaware limited liability
company, Empire Capital Management, L.L.C., a Delaware limited liability
company, Charter Oak Partners, L.P., a Connecticut limited partnership, Scott A.
Fine, an individual, Peter J. Richards, an individual, Peter J. Boni, an
individual, Daniel Hoogterp, an individual, Edward Sanchez, Jr., an individual,
Sean P. Sears, an individual, and Michael R. Wodopian, an individual (together
with the foregoing entities and individuals, the "STOCKHOLDER GROUP"), and
Mercator Software, Inc., a Delaware corporation (the "COMPANY").
Recitals
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The Stockholder Group has: (i) publicly stated its intention to nominate
six individuals for election to the Company's Board of Directors (the "BOARD")
at the Company's annual meeting of stockholders to be held on May 14, 2003 (the
"2003 ANNUAL MEETING") and to solicit proxies for the election of its nominees
and in opposition to the slate of nominees of the Board (the "PROXY CONTEST");
and (ii) filed a preliminary proxy statement with the Securities and Exchange
Commission regarding the solicitation of proxies to be used at the 2003 Annual
Meeting to elect the nominees of the Stockholder Group to the Board.
The Stockholder Group has determined that its and the Company's best
interests would be served by: (i) not engaging in the Proxy Contest; and (ii)
receipt of the rights and benefits set forth herein.
The Company has determined that the best interests of the Company and its
stockholders would be served by: (i) not engaging in the Proxy Contest; (ii) the
restrictions on the members of the Stockholder Group set forth herein; and (iii)
receipt of the other rights and benefits set forth herein.
Agreement
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The parties agree as follows:
Section 1. Settlement of Proxy Contest.
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Section 1.1 STOCKHOLDER LIST. The Stockholder Group hereby withdraws its
demand dated March 18, 2003 through Cede & Co. as the holder of record of
outstanding shares of the Company's common stock, par value $0.01 per share
("COMMON STOCK"), for a stockholder list and related information.
Section 1.2 Directors.
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(a) The Company and the Stockholder Group agree that there shall be seven
nominees standing for election to the Board at the 2003 Annual Meeting for a
one-year term until the Company's annual meeting of stockholders in 2004 (the
"2004 ANNUAL Meeting") and until their respective successors shall be elected
and qualified. Such seven nominees shall be Constance F. Galley, Ernest E. Keet,
Roy C. King, Michael E. Lehman, James P. Schadt, Dennis G. Sisco and Mark C.
Stevens or, in the event that any one or more such nominees shall be unable to
serve as a director, any replacements selected by the Board.
(b) The Stockholder Group shall support the slate of nominees provided
for in Section 1.2(a) hereof for election to the Board at the 2003 Annual
Meeting, and the members of the Stockholder Group shall vote all shares of
Common Stock that they are entitled to vote at the 2003 Annual Meeting in favor
of the election of each such nominee.
Section 2. Covenants of the Parties.
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Section 2.1 SPECIAL ADVISOR. The Company hereby engages Bienvenu as a
special advisor to the Board regarding the Company's strategic affairs. Bienvenu
shall make a presentation to the Board regarding the Company's strategic affairs
at the meeting of the Board to be held on May 14, 2003 and at such other
meetings of the Board prior to the Standstill Termination Date as the Company
and Bienvenu may from time to time thereafter mutually agree. Such presentation
shall incorporate the strategic recommendations that he believes are necessary
for the Company and, without limitation, shall include the
proposals/recommendations for the Company that he has presented (or may in the
future present) to persons who have considered (or may in the future consider)
providing financing for his offer to buy the Company. The Company shall
reimburse Bienvenu for the reasonable expenses he shall incur in traveling to
such any such meeting and shall pay him $1,500 for each such meeting that he
shall attend. In connection with Bienvenu's engagement as a strategic advisor to
the Board, he is entering into the Confidentiality Agreement attached as EXHIBIT
A hereto.
Section 2.2 Standstill.
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(a) Except as otherwise specifically provided in Section 1, each member
of the Stockholder Group will not, and will cause each of its Affiliates (as
defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), as in effect on the date hereof) not to, during the period
commencing on the date hereof and ending on January 15, 2004 (the "STANDSTILL
TERMINATION DATE"), directly or indirectly, without the written consent of the
Company (which may be withheld or delayed by the Company at its sole
discretion):
(i) acquire, announce an intention to acquire, offer or propose
to acquire, or agree to acquire, directly or indirectly, by purchase or
otherwise, beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of: (A) any Common Stock or direct or indirect rights to options
to acquire (through purchase, exchange, conversion or otherwise) any Common
Stock; or (B) any other Voting Securities, or direct or indirect rights to
options to acquire (through purchase, exchange, conversion or otherwise) any
other Voting Securities; PROVIDED, HOWEVER, that clauses (A) and (B) shall not
include Common Stock or other Voting
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Securities received as a result of a stock dividend, stock distribution or stock
split or through the exercise of any rights under any Company rights offering or
shareholder rights plan; PROVIDED, FURTHER, HOWEVER, that clause (i) shall not
prohibit any open-market purchase of Common Stock only if, after giving effect
to any such purchase, the Stockholder Group does not beneficially own in excess
of 15% of the Common Stock;
(ii) solicit proxies (or written consents) or assist or
participate in any other way, directly or indirectly, in any solicitation of
proxies (or written consents), or otherwise become a "participant" in a
"solicitation" (as such terms are defined in Instruction 3 of Item 4 of Schedule
14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act) in
opposition to the recommendation or proposal of the Board, or recommend or
request or induce or attempt to induce any other individual or entity (each, a
"PERSON") to take any such actions, or seek to advise, encourage or influence
any other person with respect to the voting of (or the execution of a written
consent in respect of) the Common Stock or other Voting Securities, or execute
any written consent in lieu of a meeting of the holders of the Common Stock or
other Voting Securities or grant a proxy with respect to the voting of the
Common Stock or other Voting Securities to any person other than to the Board or
persons appointed as proxies by the Board;
(iii) initiate, propose or submit one or more stockholder
proposals or induce or attempt to induce any other person to initiate any
stockholder proposal;
(iv) call or request, seek to call or request the call of, a
special meeting of the Company's stockholders, or make a request for a list of
the Company's stockholders;
(v) form, join or in any way participate in a "group" (within
the meaning of Section 13(d)(3) of the Exchange Act) for the purpose of
acquiring holding, voting or disposing of any securities of the Company other
than the Stockholder Group;
(vi) vote for any nominee or nominees for election to the Board,
other than those nominated or supported by the Board;
(vii) seek, alone or in concert with others, to place a
representative or other affiliate or nominee on the Board or seek the removal of
any member of the Board or a change in the size or composition of the Board;
(viii) deposit any Common Stock or other Voting Securities in a
voting trust or enter into any other arrangement or agreement with respect to
the voting thereof; PROVIDED, HOWEVER, that the foregoing shall not prohibit
Broken Arrow's investment committee from taking any action that is not otherwise
inconsistent with this Agreement;
(ix) acquire or agree, offer, seek or propose to acquire, or
cause to be acquired, ownership (including beneficial ownership) of any of the
assets or business of the Company or any rights or options to acquire any such
assets or business from any person;
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(x) seek, propose, or make any statement with respect to, or
solicit, negotiate with, or provide any information to any person with respect
to, a merger, consolidation, acquisition of control or other business
combination, tender or exchange offer, purchase, sale or transfer of assets or
securities, dissolution, liquidation, reorganization, recapitalization,
dividend, share repurchase or similar transaction involving the Company, its
subsidiaries or its business, whether or not any such transaction involves a
change of control of the Company;
(xi) take any action, alone or in concert with any other person,
advise, finance, assist or participate in or encourage any person to take any
action which is prohibited to be taken by any Investor or any of its affiliates
or associates pursuant to this Agreement, or make any investment in or enter
into any arrangement with, any other person that engages, or offers or proposes
to engage in any of the foregoing;
(xii) disclose publicly, or privately in a manner that could
reasonably be expected to become public, any intention, plan or arrangement
inconsistent with the foregoing; or
(xiii) take any action challenging the validity or enforceability
of any provisions of this Section 2.2;
PROVIDED, HOWEVER, that the foregoing shall not prohibit: (x) the Offeror (as
defined below) from presenting to the Board Qualified Proposals (as defined
below); or (y) the Offeror from conducting non-hostile discussions with officers
of and advisors to the Company that are incidental to the development of any
Qualified Proposal. The Company shall cause any such Qualified Proposals to be
presented to the Board (or a committee thereof) and shall permit any such
discussions to occur, but nothing in this Agreement shall impose upon the Board
or the Company any obligation to act (or not to act) other than as required by
applicable Delaware law.
(b) A "QUALIFIED PROPOSAL" shall mean a proposal to acquire 100% of the
outstanding Common Stock or any other proposal regarding the acquisition of a
significant portion of the equity of the Company (either from the Company or
from its stockholders): (i) with respect to which SSH, Broken Arrow or a
subsidiary or other designee of SSH or Broken Arrow (the "Offeror") either: (A)
provides to the Board reasonably satisfactory evidence that the Offeror has
available for the acquisition of such stock an amount in cash equal to no less
than 50% of the aggregate consideration to be paid for such stock; or (B) has
received a binding commitment or a non-binding letter of intent to finance the
acquisition of at least 50% of such shares from a financial sponsor (a
"FINANCIAL SPONSOR") either: (I) that provides to the Board reasonably
satisfactory evidence that such Financial Sponsor has an amount in cash, or
commitments to receive such cash, equal to no less than 50% of the aggregate
consideration to be paid for such stock; or (II) that the Company's financial
advisor, JP Morgan Securities, Inc. (or such other successor financial advisor
of comparable stature as may be engaged by the Company) shall reasonably
determine has the financial wherewithal to fund in cash 50% of the aggregate
consideration to be paid for such stock; and (ii) with respect to which the
Offeror shall not have used any non-public information about the Company without
the Company's prior written consent or pursuant to a non-disclosure agreement
between the Company and the Offeror. The Stockholder Group may not, and the
Stockholder Group shall not permit the Offeror to, disclose
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any Qualified Proposal other than to the Board unless required to do so under
applicable securities laws and, if such disclosure is so required, the
Stockholder Group will, and the Stockholder Group will cause the Offeror to, so
advise the Company in advance and will limit the nature and content of such
disclosure as and to the extent the Company may reasonably request.
(c) At all times prior to the Standstill Termination Date, no member of
the Stockholder Group shall, nor shall any member of the Stockholder Group
permit its Affiliates to, directly or indirectly: (i) aid, encourage or act in
concert with any person, firm, corporation, group or entity to take any of the
actions prohibited by this Section 2.2; (ii) other than with respect to (and as
permitted by the definition of) a Qualified Proposal, request the Company (or
its directors, officers, employees or agents), directly or indirectly, to amend
or waive any provision of this Section 2.2 (including this sentence) if such
request would require public disclosure by the Company; or (iii) other than with
respect to (and as permitted by the definition of) a Qualified Proposal, take
any action that would require the Company to make a public announcement
regarding the possibility of a business combination or merger.
Section 2.3 DISPOSITIONS OF VOTING SECURITIES. During the period
commencing on the date hereof and ending on the Standstill Termination Date,
each member of the Stockholder Group agrees that it will not, directly or
indirectly, sell, assign, transfer, grant an option with respect to or otherwise
dispose of any interest in (or enter into an agreement or under-standing with
respect to the foregoing) (collectively, a "DISPOSITION") any Voting Securities;
PROVIDED, HOWEVER, that such limitation shall not apply with respect to:
(a) a Disposition to or through any market maker with respect to the
Common Stock; PROVIDED, HOWEVER, that, except as contemplated by Section 2.3(c),
in no event may any member of the Stockholder Group effect the Disposition
during any 30-day period of Voting Securities that (assuming the exercise,
exchange or conversion of any such Voting Securities that are exercisable or
exchangeable for, or convertible into, Common Stock) in the aggregate (together
with all other Dispositions by all of the members of the Stockholder Group
during such 30-day period) constitute more than 1% of the Common Stock
outstanding at the time of such Disposition;
(b) a Disposition pursuant to a bona fide pledge of Voting Securities by
a member of the Stockholder Group as security for BONA FIDE indebtedness to a
brokerage firm, financial institution or Empire Capital Partners of an Affiliate
of Empire Capital Partners (but only to Empire Capital Partners or such an
Affiliate if such transferee shall first agree in writing (if it has not already
done so) to be bound by all of the terms and provisions of this Agreement with
the same force and effect as if such transferee was a party to this Agreement as
a member of the Stockholder Group as of the date hereof) for money borrowed;
(c) a Disposition in any amount to any principal for its own account
through a broker-dealer, so long as such broker-dealer agrees that it shall not,
either as principal or agent, make any Disposition to a person who, after giving
effect to such Disposition, would, together with its Affiliates, to the
knowledge of such broker-dealer, beneficially own 5% or more of the outstanding
Voting Securities;
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(d) a Disposition to any other member of the Stockholder Group or any
Affiliates, immediate family member or trust for the benefit of such member;
PROVIDED, HOWEVER, that any such transferee shall first agree in writing to be
bound by all of the terms and provisions of this Agreement with the same force
and effect as if such person were a member of the Stockholder Group as of the
date hereof; or
(e) a Disposition pursuant to a tender or exchange offer;
PROVIDED, HOWEVER, that, notwithstanding the foregoing, no Disposition permitted
by this Section 2.3 shall affect the obligation of the Stockholder Group to vote
all of the shares of Common Stock beneficially owned by them on the date hereof
in the manner required by Section 1.2(b).
Section 2.4 JOINT PRESS RELEASE. The Stockholder Group and the Company
shall issue a joint press release in the form of EXHIBIT B hereto no earlier
than 6:00 a.m. Eastern time on Monday, April 21, 2003 and no later than such
time as the market opens on such date. Neither the Company nor any member of the
Stockholder Group will make any public statements that are inconsistent with, or
are otherwise contrary to, the statements in the joint press release.
Section 2.5 REIMBURSEMENT OF EXPENSES. The Company agrees to reimburse
the Stockholder Group for its out-of-pocket expenses reasonably incurred
directly or indirectly in connection with the Proxy Contest in an amount of up
to $300,000. The Stockholder Group represents and warrants to the Company that
the Stockholder Group has reasonably incurred out-of-pocket expenses in excess
of $300,000 directly or indirectly in connection with the Proxy Contest. The
Company shall pay such amount to SSH in full satisfaction of its obligation in
the first sentence of this Section 2.5 only upon its receipt of signatures from
each member of the Stockholder Group.
Section 3. REPRESENTATIONS AND WARRANTIES.
Section 3.1 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER GROUP.
Each member of the Stockholder Group, jointly and severally and on behalf of his
or its Affiliates (but not as to any other member of the Stockholder Group),
represents and warrants to the Company as follows:
(a) Such member of the Stockholder Group has the power and authority to:
(i) execute and deliver this Agreement; (ii) consummate the transactions
contemplated hereby; and (iii) perform his or its obligations hereunder. If such
member of the Stockholder Group is not an individual, such member has been duly
organized and is validly existing and in good standing under the laws of its
jurisdiction of organization.
(b) Such member of the Stockholder Group has taken all necessary action
to authorize: (i) the execution and delivery of this Agreement; (ii) the
performance of his or its obligations hereunder; and (iii) the consummation of
the transactions contemplated hereby.
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(c) Such member of the Stockholder Group has duly authorized, executed
and delivered this Agreement.
(d) This Agreement constitutes the valid and binding obligation of such
member of the Stockholder Group, enforceable against him or it in accordance
with its terms.
(e) The execution and delivery of this Agreement by such member of the
Stockholder Group and the performance by such member of the Stockholder Group of
his or its obligations hereunder will not, with or without the giving of notice
or the passage of time, or both: (i) require the consent of any third party or
governmental authority under the laws of any applicable jurisdiction; or (ii)
conflict with, result in a default, right to accelerate or loss of rights under,
or result in the creation of any encumbrance pursuant to, or pursuant to its
organizational documents or any material franchise, mortgage, indenture or deed
of trust or any material lease, license or other agreement or under any statute,
law, ordinance, rule of regulation, or any order, writ, injunction, judgment,
plan or decree of any court, arbitrator, department, commission, board, bureau,
agency, authority, instrumentality or other body.
(f) Such member of the Stockholder Group beneficially owns the shares of
Common Stock set forth next to his or its name on SCHEDULE I free and clear of
all liens, claims and other encumbrances, and such shares constitute all of the
securities of the Company entitled, or which may be entitled, to vote (whether
or not entitled to vote generally in the election of directors), or securities
convertible into or exercisable or exchangeable for such securities, whether or
not subject to the passage of time or contingencies (collectively, "VOTING
SECURITIES"). The Schedule 13D filed by the Stockholder Group (as amended
through Amendment No. 4, filed with the SEC on April 4, 2003) correctly sets
forth the beneficial ownership of shares of Common Stock of such member of the
Stockholder Group.
Section 3.2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Stockholder Group as follows:
(a) The Company has the power and authority to: (i) execute and deliver
this Agreement; (ii) consummate the transactions contemplated hereby; and (iii)
perform its obligations hereunder. the Company has been duly organized and is
validly existing and in good standing under the laws of the state of Delaware.
(b) The Company has taken all necessary action to: (i) authorize the
execution and delivery of this Agreement; (ii) the consummation of the
transactions contemplated hereby; and (iii) the performance of its obligations
hereunder.
(c) The Company has duly authorized, executed and delivered this
Agreement.
(d) This Agreement constitutes the valid and binding obligation of the
Company, enforceable against it in accordance with its terms.
(e) The execution and delivery of this Agreement by the Company and the
performance by it of its obligations hereunder will not, with or without the
giving of notice or the
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passage of time, or both: (i) require the consent of any third party or
governmental authority under the laws of any applicable jurisdiction; or (ii)
conflict with, result in a default, right to accelerate or loss of rights under,
or result in the creation of any encumbrance pursuant to, or pursuant to its
organizational documents or any material franchise, mortgage, indenture or deed
of trust or any material lease, license or other agreement or under any statute,
law, ordinance, rule of regulation, or any order, writ, injunction, judgment,
plan or decree of any court, arbitrator, department, commission, board, bureau,
agency, authority, instrumentality or other body.
Section 4. MISCELLANEOUS.
Section 4.1 NOTICES. All notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing signed by
the sender, and shall be deemed duly given: (a) on the date delivered if
personally delivered; (b) on the date sent by telecopier with automatic
confirmation by the transmitting machine showing the proper number of pages were
transmitted without error; (c) on the business day after being sent by Federal
Express or another recognized overnight mail service for next day or next
business day delivery; or (d) five business days after mailing, if mailed by
United States postage-prepaid certified or registered mail, return receipt
requested, in each case addressed to following addresses (or at such other
address or telecopier number for a party as shall be specified by like notice):
(a) if to the Company, to:
45 Danbury Road
Wilton, CT 06897
Telecopier: (203) 563-1376
Attention: Kenneth J. Hall
with a copy to:
Jenkens & Gilchrist Parker Chapin LLP
405 Lexington Avenue
New York, NY 10174
Telecopier No.: (212) 704-6288
Attention: Michael Weinsier
(b) If to a member of the Stockholder Group, to him or it at the address
set forth below its name on a signature page hereto.
with a copy to:
Tempus Legal LLC
191 Post Road West
Westport, CT 06880
Telecopier No.: (203) 221-2705
Attention: Ernest Mysogland
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Section 4.2 AMENDMENT. This Agreement may be amended only by a written
instrument duly executed by the parties or their respective successors or
assigns.
Section 4.3 NO WAIVER. 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 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 4.4 SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 4.5 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, HOWEVER, that no party may delegate
or otherwise transfer any of its obligations under this Agreement without the
consent of the other parties hereto.
Section 4.6 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York
that apply to agreements made and performed entirely within such state.
Section 4.7 JURISDICTION. Each of the parties hereto hereby irrevocably
consents and submits to the exclusive jurisdiction of the United States District
Court for the Southern District of New York in connection with any dispute
arising out of or relating to this Agreement or the transactions contemplated
hereby, waives any objection to venue in such District (unless such court lacks
jurisdiction with respect to such dispute, in which case, each of the parties
hereto irrevocably consents to the jurisdiction of the courts of the State of
New York in connection with such dispute and waives any objection to venue in
the State of New York), and agrees that service of any summons, complaint,
notice or other process relating to such dispute may be effected in the manner
provided by Section 4.1.
Section 4.8 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated herein is not affected in any manner
materially adverse to any party hereto.
Section 4.9 LITIGATION EXPENSES. In the event of any litigation among
any of the parties hereto concerning this Agreement or the transactions
contemplated hereby (including, without limitation, any act or failure to act
with respect to a Qualified Proposal), the prevailing party in such litigation
shall be entitled to reimbursement from the party opposing such prevailing party
of all reasonable attorneys' fees and costs incurred in connection therewith.
Section 4.10 PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely
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to the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to, or shall confer upon, any other person any right,
benefit or remedy of any nature whatsoever under, or by reason of, this
Agreement, including, without limitation, by way of subrogation.
Section 4.11 SPECIFIC PERFORMANCE. Each of the members of the Stockholder
Group, on the one hand, and the Company, on the other hand, agrees that
irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with their specific terms or otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof, in addition to any other remedy to which they
are entitled at law or in equity.
Section 4.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties and agreements made herein by the Company and the
members of the Stockholder Group shall survive the execution and delivery
hereof.
Section 4.13 ENTIRE AGREEMENT. This Agreement and the exhibits and
schedules hereto constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and supersede all other prior agreements
and understandings, both written and oral, among the parties with respect tot he
subject matter hereof and thereof.
Section 4.14 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
one or more 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 signed by the Company, SSH, Broken
Arrow, Bienvenu and Dennedy, but the Company may terminate this Agreement at any
time after 5:00 p.m. Eastern time on April 18, 2003 if the Company shall not,
prior to such termination, have received signatures to this Agreement from each
member of the Stockholder Group by giving written notice thereof to each member
of the Stockholder Group who has signed this Agreement prior to such
termination.
[The next page is the signature page]
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The parties have executed and delivered this Settlement Agreement as of the
date first written above.
MERCATOR SOFTWARE, INC.
By: /s/ Kenneth J. Hall
----------------------------------------
Name: Kenneth J. Hall
Title: Executive VP, CFO and
Treasurer
STRATEGIC SOFTWARE HOLDINGS, LLC
By: /s/ Rodney Bienvenu
----------------------------------------
Name: Rodney Bienvenu
Title: CEO
Address:
1465 East Post Road, Second Floor
Westport, CT 06880
Telecopier No: (203) 259-7854
Attn: Rodney Bienvenu
BROKEN ARROW I, L.P.
By: /s/ Rodney Bienvenu
----------------------------------------
Name: Rodney Bienvenu
Title: Duly Authorized
Representative of the
General Partner, SSH
Address:
1465 East Post Road, Second Floor
Westport, CT 06880
Telecopier No: (203) 259-7854
Attn: Rodney Bienvenu
[Signatures continued on next page]
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/s/ Rodney Bienvenu
-------------------------------------------
Rodney Bienvenu
Address:
1465 East Post Road, Second Floor
Westport, CT 06880
Telecopier No: (203) 259-7854
/s/ James Dennedy
-------------------------------------------
James Dennedy
Address:
1465 East Post Road, Second Floor
Westport, CT 06880
Telecopier No: (203) 259-7854
EMPIRE CAPITAL PARTNERS, L.P.
By: /s/ Peter Richards
----------------------------------------
Name: Peter Richards
Title: Managing Partner
Address:
1 Gorham Island
Westport, CT 06880
Telecopier No.: (203) ___-___
Attn: Scott A. Fine and Peter J. Richards
EMPIRE GP, L.L.C.
By: /s/ Peter Richards
----------------------------------------
Name: Peter Richards
Title: Managing Partner
Address:
1 Gorham Island
Westport, CT 06880
Telecopier No.: (203) ___-___
Attn: Scott A. Fine and Peter J. Richards
[Signatures continued on next page]
S-2
EMPIRE CAPITAL MANAGEMENT, L.L.C.
By: /s/ Peter Richards
----------------------------------------
Name: Peter Richards
Title: Managing Partner
Address:
1 Gorham Island
Westport, CT 06880
Telecopier No.: (203) ___-___
Attn: Scott A. Fine and Peter J. Richards
CHARTER OAK PARTNERS, L.P.
By: /s/ Peter Richards
----------------------------------------
Name: Peter Richards
Title: Investment Manager
Address:
10 Wright Street, Building B, 4th Floor
Westport, CT 06880
Telecopier No.: (203) ___-___
Attn:
------------------------------
/s/ Scott A. Fine
-------------------------------------------
Scott A. Fine
Address:
1 Gorham Island
Westport, CT 06880
Telecopier No.: (203) ___-___
/s/ Peter J. Richards
-------------------------------------------
Peter J. Richards
Address:
1 Gorham Island
Westport, CT 06880
Telecopier No.: (203) ___-___
[Signatures continued on next page]
S-3
/s/ Peter J. Boni
-------------------------------------------
Peter J. Boni
Address:
10 Maguire Road, Suite 332
Lexington, MA 02421
Telecopier No.: (___) ___-___
/s/ Daniel P. Hoogterp
-------------------------------------------
Daniel P. Hoogterp
Address:
3 Cherry Hill Circle, Suite 102
Monroe, CT 06468
Telecopier No.: (203) 445-8446
/s/ Edward Sanchez, Jr.
-------------------------------------------
Edward Sanchez, Jr.
Address:
150 East 52nd Street, 2nd Floor
New York, NY 10022
Telecopier No.: (___) ___-___
/s/ Sean P. Sears
-------------------------------------------
Sean P. Sears
Address:
TD Centre
1791 Barrington Street, 4th Floor
Halifax, Nova Scotia B3J 3K9, Canada
Telecopier No.: (___) ___-___
-------------------------------------------
Michael R. Wodopian
Address:
9750 Goethe Road
Sacramento, CA 95827
Telecopier No.: (___) ___-___
S-4
SCHEDULE I
OWNERSHIP BY STOCKHOLDER GROUP
Name Shares
- ---- ------
Strategic Software Holdings, LLC.................................... 1,672,500
Broken Arrow I, L.P................................................. 1,672,500
Rodney Bienvenu..................................................... 1,672,500
James Dennedy....................................................... 1,672,500
Empire Capital Partners, L.P........................................ 906,900
Empire GP, L.L.C.................................................... 906,900
Empire Capital Management, L.L.C.................................... 906,900
Charter Oak Partners, L.P........................................... 906,900
Scott A. Fine....................................................... 906,900
Peter J. Richards................................................... 906,900
Peter J. Boni....................................................... 0
Daniel Hoogterp..................................................... 0
Edward Sanchez, Jr.................................................. 19,200
Sean P. Sears....................................................... 3,450
Michael R. Wodopian................................................. 0