STOCK TENDER AGREEMENT
STOCK TENDER AGREEMENT, dated as of December 21, 1999, by and
among EMC Corporation, a Massachusetts corporation ("Parent"), Eagle Merger
Corp., a Delaware corporation and a wholly-owned subsidiary of Parent
("Purchaser"), Computer Concepts Corp., a Delaware corporation (the "Major
Shareholder"), and James Cannavino, Dennis Murray and Charles Feld, solely in
their capacities as trustees under the Voting Trust Agreement (as defined
below), or any successor trustees appointed pursuant to the terms of such
Agreement (each, a "Trustee" and collectively, the "Trustees").
W I T N E S S E T H :
WHEREAS, the Major Shareholder Beneficially Owns 6,145,767
shares of the common stock, $.001 par value per share (the "Common Stock"), of
Softworks, Inc., a Delaware corporation (the "Company"); and
WHEREAS, the Major Shareholder entered into a Voting Trust
Agreement, dated as of August 3, 1998, by and among Daniel DelGiorno, Jr., James
Cannavino and Robert Devine, as trustees, the Company and Major Shareholder (the
"Voting Trust Agreement") and deposited into the voting trust created pursuant
and subject to the terms and conditions of the Voting Trust Agreement (the
"Voting Trust"), and assigned and transferred to the Trustees, the shares of
Common Stock owned by the Major Shareholder (the shares of Common Stock
Beneficially Owned by the Major Shareholder, together with any shares of Common
Stock acquired by the Major Shareholder after the date hereof and prior to the
consummation or termination of the Offer (as hereinafter defined), upon exercise
of options or otherwise, and subject to the Voting Trust are referred to herein
as the "Shares"); and
WHEREAS, the Voting Trust Agreement provides, among other
things, that the Trustees will have certain rights relating to the sale and
voting of the Shares; and
WHEREAS, simultaneously with the execution of this Agreement,
Parent, Purchaser and the Company are entering into an Agreement and Plan of
Merger (as amended from time to time, the "Merger Agreement")
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pursuant to which, among other things, Purchaser is agreeing to promptly
commence a cash tender offer (as such tender offer may hereafter be amended from
time to time, the "Offer") to purchase all of the issued and outstanding shares
of Common Stock; and
WHEREAS, as an inducement and a condition to their willingness
to enter into the Merger Agreement and incur the obligations set forth therein,
including the Offer and the subsequent merger of the Purchaser with and into the
Company as contemplated thereby (the "Merger"), Parent and Purchaser have
requested that the Trustees and the Major Shareholder agree, and the Trustees
and the Major Shareholder have agreed, to tender the Shares at any time during
the term of this Agreement pursuant to the Offer, to vote all the Shares in
favor of the Merger, and to grant to Parent an option to acquire all the Shares
under certain circumstances, all on the terms and conditions contained in this
Agreement; and
WHEREAS, the Major Shareholder desires that the Trustees
undertake, pursuant to the Voting Trust, all of the actions set forth herein and
intends and hereby directs the Trustees to take all such actions.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises, representations, warranties, covenants and agreements set forth
herein and the promises, representations, warranties, covenants and agreements
of Parent and Purchaser in the Merger Agreement, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Certain Definitions. For purposes of this Agreement, except as
otherwise expressly provided or unless the context clearly requires otherwise:
"Beneficially Own" or "Beneficial Ownership" shall mean, with
respect to any securities, having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended), including pursuant to any agreement, arrangement or understanding,
whether or not in writing.
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"Option Expiration Date" shall mean the date 15 business days
after the termination of the Merger Agreement in accordance with Article VII
thereof.
"Person" shall mean a natural person, corporation,
partnership, joint venture, association, trust, limited liability company,
business trust, joint stock company, unincorporated organization or other
entity.
"Transfer" shall mean, with respect to a security, the sale,
transfer, pledge, hypothecation, encumbrance, assignment or disposition of such
security or the Beneficial Ownership thereof, the offer to make such a sale,
transfer or other disposition, and the entering into of any option, agreement,
arrangement or understanding, whether or not in writing, to effect any of the
foregoing. As a verb, "Transfer" shall have a correlative meaning.
"Voting Period" shall mean the period from the date hereof
until the termination of this Agreement in accordance with its terms.
2. Restrictions. Neither the Trustees nor the Major Shareholder shall,
until the termination of this Agreement in accordance with its terms, directly
or indirectly, (a) except as provided in Section 3 hereof, Transfer the Shares
to any Person, grant any proxies or powers of attorney or enter into a voting
agreement, understanding or arrangement with respect to the Shares, or (b) take
any action that would make any representation or warranty of the Trustees or the
Major Shareholder herein untrue or incorrect or would result in a breach by the
Trustees or the Major Shareholder of any of its respective obligations under
this Agreement or a breach by the Company of its obligations under the Merger
Agreement.
3. Tender of Shares. The Trustees and the Major Shareholder hereby
agree to validly tender or cause to be validly tendered, pursuant to and in
accordance with the terms of the Offer, promptly after Purchaser commences the
Offer (but in no event later than five business days after the date of such
commencement or,
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with respect to shares of Common Stock acquired by the Major Shareholder and
deposited in the Voting Trust after the date of this Agreement upon exercise of
options or otherwise, no later than five business days after the date of such
acquisition), all of the Shares and to not withdraw such Shares unless the
Merger Agreement shall be validly terminated in accordance with Article VII
thereof.
4. No Solicitation of Competing Transaction. Neither the Trustees nor
the Major Shareholder shall (and each of them shall cause its respective
representatives and agents not to), directly or indirectly, (a) initiate,
solicit or encourage, or take any action to facilitate the making of, any offer
or proposal which constitutes or is reasonably likely to lead to any Acquisition
Proposal (as defined in the Merger Agreement) or any inquiry with respect
thereto, or (b) in the event of an unsolicited Acquisition Proposal, engage in
negotiations or discussions with, or provide any information or data to, any
Person (other than Parent, Purchaser or any of their respective representatives
or agents) relating to any Acquisition Proposal.
5. Voting of Shares; Proxy. (a) During the Voting Period, at any
meeting (whether annual or special and whether or not an adjourned or postponed
meeting) of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, the Major Shareholder and the
Trustees shall vote (or cause to be voted) all of the Shares: (i) in favor of
the Merger, the execution and delivery by the Company of the Merger Agreement
and the approval and adoption of the Merger and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof, provided that to the extent that such actions
require the payment of filing or registration fees on the part of the Trustees
or Major Shareholder in excess of $10,000, Parent shall reimburse the Trustees
or Major Shareholder, as the case may be, for any such excess; (ii) against any
action or agreement that would (A) result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the
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Company under the Merger Agreement or of the Trustees or the Major Shareholder
under this Agreement or (B) impede, interfere with, delay, postpone, or
adversely affect the Offer, the Merger or any other transaction contemplated by
the Merger Agreement or this Agreement; and (iii) except as otherwise agreed to
in writing in advance by Parent, against the following actions (other than the
Offer, the Merger and any other transaction contemplated by the Merger Agreement
and this Agreement): (A) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or any
of its Subsidiaries (as defined in the Merger Agreement) (including any
transaction contemplated by an Acquisition Proposal); (B) any sale, lease or
transfer of a material amount of the assets or business of the Company or its
Subsidiaries, or any reorganization, restructuring, recapitalization, special
dividend, dissolution, liquidation or winding up of the Company or its
Subsidiaries; (C) any material change in the present capitalization of the
Company or its Subsidiaries or any amendment of the Certificate of Incorporation
of the Company; (D) any other material change in the Company's corporate
structure or business; and (E) any other action that is intended or could
reasonably be expected to impede, interfere with, delay, postpone, discourage or
materially adversely affect the Offer, the Merger, any other transaction
contemplated by the Merger Agreement or this Agreement or the contemplated
economic benefits of any of the foregoing. The Trustees shall not enter into any
agreement, arrangement or understanding with any Person the effect of which
would be inconsistent or violative of the provisions and agreements contained in
this Section 5.
(b) IRREVOCABLE PROXY. THE MAJOR SHAREHOLDER AND EACH TRUSTEE HEREBY
SEVERALLY APPOINTS PAUL T. DACIER AND DAVID DONATELLI IN THEIR RESPECTIVE
CAPACITIES AS OFFICERS OF PURCHASER, AND ANY INDIVIDUAL WHO SHALL HEREAFTER
SUCCEED TO ANY SUCH OFFICE OF PURCHASER, AND ANY OTHER DESIGNEE OF PURCHASER,
EACH OF THEM INDIVIDUALLY, THE MAJOR SHAREHOLDER'S AND THE TRUSTEE'S, AS
APPROPRIATE, IRREVOCABLE (UNTIL THE TERMINATION OF THE VOTING PERIOD) PROXY AND
ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES AS
INDICATED
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IN SECTION 5(A) ABOVE. EACH OF THE MAJOR SHAREHOLDER AND EACH TRUSTEE INTENDS
THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION OF THE VOTING PERIOD) AND
COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION AND EXECUTE SUCH
OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY THE TRUSTEE WITH RESPECT TO THE
SHARES.
6. Waiver of Appraisal or Dissenting Rights. The Trustees and the Major
Shareholder hereby waive any rights of appraisal or rights to dissent from the
Merger under the General Corporation Law of the State of Delaware.
7. Waiver of Claims. Each of the Trustees and the Major Shareholder
hereby waives and relinquishes any claims, actions, recourse or other rights of
any nature which the Trustees or the Major Shareholder may have against the
Company, Parent or Purchaser which arises out of or relates to the Major
Shareholder's ownership of the Shares, its status as a stockholder of the
Company, the conduct of the business of the Company or the Major Shareholder or
the authorization, execution and delivery of the Merger Agreement or this
Agreement or the consummation of the transactions contemplated thereby or
hereby; provided, however, that the provisions of this Section 7 shall not
extend to the obligations of Parent and Purchaser pursuant to this Agreement.
8. Option. (a) The Major Shareholder and the Trustees hereby
irrevocably grant Parent an option (the "Option"), exercisable only upon the
events and subject to the conditions set forth herein, but in no event earlier
than January 1, 2000, to purchase any or all of the Shares at a purchase price
per share equal to $10.00 (or such higher per share price as may be offered by
Purchaser in the Offer).
(b) Subject to the conditions to the Offer and Purchaser's obligation
to purchase tendered Common Stock, each as set forth in the Merger Agreement,
and the termination provisions of Section 12, and provided that theretofore
Purchaser shall have commenced the
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Offer, Parent may exercise the Option in whole or in part at any time prior to
the Option Expiration Date if (x) the Major Shareholder or the Trustees fail to
comply with any of their obligations under this Agreement, or the Major
Shareholder or the Trustees withdraw the tender of the Shares (but the Option
shall not limit any other right or remedy available to Parent or Purchaser
against the Major Shareholder or the Trustees for breach of this Agreement) or
(y) the Offer is not consummated because of the failure to satisfy any of the
conditions to the Offer set forth in the Merger Agreement (other than as a
result of any action or inaction of the Parent or Purchaser that constitutes a
breach of the Merger Agreement).
Upon the occurrence of any of such circumstances, Parent shall
be entitled to exercise the Option and purchase the Shares, and the Trustees and
the Major Shareholder shall sell the Shares to Parent. Parent shall exercise the
Option by delivering written notice of such exercise to the Trustees (the
"Notice"), specifying the number of Shares to be purchased and the date, time
and place for the closing of such purchase, which date shall not be less than
three business days nor more than five business days from the date the Trustees
receive the Notice and in no event shall such date be later than the Option
Expiration Date. The closing of the purchase of Shares pursuant to this Section
7(b) (the "Closing") shall take place on the date, at the time and at the place
specified in such Notice; provided, that if at such date any of the conditions
to the Offer and Purchaser's obligation to purchase tendered Common Stock shall
not have been satisfied (or waived), Parent may postpone the Closing until a
date within five business days after such conditions are satisfied (but not
later than the Option Expiration Date). Upon the request of Parent, the Trustees
and the Major Shareholder shall promptly take, or cause to be taken, all action
required to effect all necessary filings by the Trustees and the Major
Shareholder under the HSR Act (as defined in the Merger Agreement) and shall
cooperate with Parent with respect to the filing obligations of Parent and
Purchaser, in each case as may be required in connection with the Closing.
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(c) At the Closing, the Trustees and the Major Shareholder will deliver
to Parent (i) a certificate, dated the date of the Closing, certifying that the
representation and warranty of the Trustees in Section 10(a) is true and correct
as of the date of the Closing; (ii) a certificate, dated the date of the
Closing, signed by an officer of the Major Shareholder certifying that the
representation and warranty of the Major Shareholder in Section 11(a) is true
and correct as of the date of the Closing; and (iii) in accordance with Parent's
instructions, the certificates representing the Shares and being purchased
pursuant to Section 7(a), duly endorsed or accompanied by stock powers duly
executed in blank. At such Closing, Parent shall deliver to the Major
Shareholder, by bank wire transfer of immediately available funds, an amount
equal to the number of Shares being purchased from the Major Shareholder as
specified in the Notice multiplied by $10.00 (or such higher per share price as
may be offered by Purchaser in the Offer).
(d) In the event of the exercise by Parent of the Option and the
subsequent sale by Parent of any or all of the Shares within 60 days of the
Closing (provided, however, that in the event of the commencement of any tender
offer by any third party, unaffiliated with Major Shareholder, for any and all
shares of the Common Stock outstanding (a "Third Party Tender Offer") during
such 60 day period, such 60 day period shall be extended to the earlier of (x)
60 days from the commencement of the Third Party Tender Offer or (y) 120 days
from the Closing) in connection with or pursuant to any Acquisition Proposal (a
"Subsequent Sale"), Parent shall pay Major Shareholder, within two business days
of the Subsequent Sale, an amount equal to the product of (A) 30% of the
difference between (x) the proceeds per Share received by Parent from the
Subsequent Sale and (y) the Offer Price or such higher price per Share as shall
be paid to the Major Shareholder by Purchaser, as adjusted for splits,
combinations and the like, multiplied by (B) the number of Shares sold pursuant
to the Subsequent Sale.
(e) Parent and Purchaser shall be solely responsible for any
obligations either of them have
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pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended, or
the rules and regulations thereunder.
9. No Purchase. Purchaser and Parent may allow the Offer to expire
without accepting for payment or paying for any Shares, on the terms and
conditions set forth in the Offer to Purchase (as defined in the Merger
Agreement), and may allow the Option to expire without exercising the Option and
purchasing all or any Shares pursuant to such exercise. If all Shares validly
tendered and not withdrawn are not accepted for payment and paid for in
accordance with the terms of the Offer to Purchase or pursuant to the exercise
of the Option, they shall be returned to the Trustees, whereupon they shall
continue to be held by the Trustees subject to the terms and conditions of this
Agreement.
10. Representations and Warranties of the Trustees. Each Trustee
represents and warrants to Parent and Purchaser as follows:
(a) The Trustees have, in trust, good and marketable record title
to the Shares, free and clear of any claims, security
interests, liens and encumbrances, and the transfer of such
portion of the Shares hereunder will pass to Purchaser (or to
Parent pursuant to the exercise of the Option) good and
marketable record title to such portion of the Shares, free
and clear of any claims, security interests, liens and
encumbrances whatsoever.
(b) James Cannavino, Dennis Murray and Charles Feld are the only
lawful and duly appointed trustees of the Voting Trust and
have the full power, authority and legal right to enter into
this Agreement and to carry out the transactions contemplated
hereby.
(c) This Agreement constitutes the legal, valid and binding
agreement of the Trustee, enforceable in accordance with its
terms (except as enforceability may be limited by bankruptcy,
insolvency, moratorium or other
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similar laws affecting creditors' rights generally or by the
principles governing the availability of equitable remedies).
(d) This Agreement and the execution and delivery hereof by the
Trustee does not, and the consummation of the transactions
contemplated hereby will not, (i) conflict with or result in
any violation of the Voting Trust Agreement, or (ii) violate
any order, writ, injunction, decree, statute, rule or
regulation applicable to the Trustee.
(e) Any information furnished by Major Shareholder for inclusion
in the Schedule 14D-1, the Schedule 14D-9 and the Proxy
Statement (as each such term is defined in the Merger
Agreement) will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to
make any such statement made by the Major Shareholder, in the
light of the circumstances under which it is made, not
misleading.
11. Representations and Warranties of the Major Shareholder. The Major
Shareholder represents and warrants to Parent and Purchaser as follows:
(a) The Major Shareholder Beneficially Owns, but is not the record
holder of, the Shares, free and clear of any claims, security
interests, liens and encumbrances, other than the Voting
Trust, and the transfer of such portion of the Shares
hereunder will pass to Purchaser (or to Parent pursuant to the
exercise of the Option) Beneficial Ownership to such portion
of the Shares free and clear of any claims, security
interests, liens and encumbrances whatsoever.
(b) Major Shareholder is a corporation duly organized and validly
existing under the laws of its jurisdiction of incorporation,
and is in good standing under the laws of its jurisdiction of
incorporation. Major Shareholder has the corporate power and
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authority to execute and deliver this Agreement and perform
its obligations hereunder. The execution and delivery by Major
Shareholder of this Agreement and the performance by Major
Shareholder of its obligations hereunder have been duly and
validly authorized by the Board of Directors of Major
Shareholder and no other corporate proceedings on the part of
Major Shareholder is necessary to authorize the execution,
delivery or performance of this Agreement or the consummation
of the transactions contemplated hereby.
(c) This Agreement constitutes the legal, valid and binding
agreement of the Major Shareholder enforceable in accordance
with its terms (except as enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws
affecting creditors' rights generally or by the principles
governing the availability of equitable remedies).
(d) This Agreement covers all of the shares of Common Stock owned
by the Major Shareholder and its affiliates except for options
to purchase shares of Common Stock which were granted by the
Company to the Major Shareholder (provided, however, that any
Shares acquired by the Major Shareholder upon exercise of any
such options after the date hereof and prior to the
consummation or termination of the Offer are covered by this
Agreement). As of the date hereof, the Major Shareholder
Beneficially Owns 6,145,767 shares of the Company's Common
Stock and all such shares are subject to the Voting Trust.
(e) This Agreement and the execution and delivery hereof by the
Major Shareholder does not, and the consummation of the
transactions contemplated hereby will not, (i) conflict with
or result in any violation of the Voting Trust Agreement, (ii)
result in a violation of or breach of, or constitute (with or
without
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due notice or lapse of time or both) a default (or give rise
to any right of termination, cancellation or acceleration)
under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, agreement or other
instruments or obligations to which the Major Shareholder is a
party or by which any of their property or assets may be
bound, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Major
Shareholder or any of its properties or assets.
(f) To the knowledge of the Major Shareholder, the representations
and warranties made by the Company in the Merger Agreement are
true and correct in all material respects as of the date
hereof, and, to the knowledge of the Major Shareholder, there
is no condition or state of facts which could cause the
Company to breach any of such representations and warranties
during the period from the date hereof until the earlier of
(x) the consummation of the Merger or (y) the termination of
the Merger Agreement in accordance with its terms.
12. Representations and Warranties of Parent and Purchaser.
Parent and Purchaser hereby represent and warrant to Major
Shareholder and the Trustees as follows:
(a) Each of Parent and Purchaser is a corporation duly organized
and validly existing under the laws of its jurisdiction of
incorporation, and each of them is in good standing under the
laws of its jurisdiction of incorporation. Parent and
Purchaser have all necessary corporate power and authority to
execute and deliver this Agreement and perform their
respective obligations hereunder. The execution and delivery
by Parent and Purchaser of this Agreement and the performance
by Parent and Purchaser of their respective obligations
hereunder have been duly and
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validly authorized by the Board of Directors of each of Parent
and Purchaser and no other corporate proceedings on the part
of Parent or Purchaser are necessary to authorize the
execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and
delivered by Parent and Purchaser and constitutes a valid and
binding Agreement of each of Parent and Purchaser, enforceable
against each of them in accordance with its terms (except as
enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting creditors' rights
generally or by the principles governing the availability of
equitable remedies).
13. Termination. This Agreement shall terminate on the earlier of (i)
the purchase by Purchaser of the Shares pursuant to the Offer or (ii) the Option
Expiration Date. The provisions of Sections 7, 10 and 11 hereof shall survive
the termination of this Agreement.
14. Specific Performance. The parties hereto acknowledge and agree that
if any of the provisions of this Agreement were not performed by the Trustees or
the Major Shareholder, as the case may be, in accordance with their specific
terms or were otherwise breached, Parent would not have an adequate remedy at
law and would be irreparably harmed and that the damages therefor would be
difficult to determine. It is accordingly agreed that Parent shall be entitled
to injunctive relief to prevent breaches of this Agreement by the Trustees and
the Major Shareholder and to specifically enforce the terms and provisions
hereof in any court of the United States located in the Commonwealth of
Massachusetts or in Massachusetts state court, this being in addition to any
other remedy to which they are entitled at law or in equity.
15. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to
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have been duly given if hand delivered in person or by next-day courier,
transmitted by facsimile or mailed by registered or certified mail, postage
prepaid, return receipt requested, as follows:
(a) If to Parent, to:
EMC Corporation
35 Parkwood Drive
Hopkinton, Massachusetts 01748
Attention: Vice President,
Corporate Development
Telephone No.: (508) 435-1000
Facsimile No.: (508) 435-8900
with a copy to:
EMC Corporation
35 Parkwood Drive
Hopkinton, Massachusetts 01748
Attention: Office of the General Counsel
Telephone No.: (508) 435-1000
Facsimile No.: (508) 497-6915
and a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Beacon Street
Boston, Massachusetts 02108
Attention: Margaret A. Brown, Esq.
Telephone No: (617) 573-4800
Facsimile No: (617) 573-4822
(b) If to the Trustees, to:
c/o Softworks, Inc.
803 Windsor Drive SE
Redmond, Washington 98053
Attention: James A. Cannavino
Telephone No.: (425) 427-8985
Facsimile No.: (425) 837-1083
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4437 Livingston Avenue
Dallas, Texas 75205
Attention: Charles Feld
Telephone No.: (214) 522-3140
Facsimile No.: (972) 791-3951
Marist College
3399 North Road
Poughkeepsie, New York 12601
Attention: Dr. Dennis Murray
Telephone No.: (914) 575-3600
Facsimile No.: (914) 575-3337
with a copy to:
Blau, Kramer, Wactlar & Lieberman, P.C.
100 Jericho Quadrangle
Jericho, New York 11753
Attention: David H. Lieberman, Esq.
Telephone No.: (516) 822-4820
Facsimile No.: (516) 822-4824
(c) If to the Major Shareholder, to:
Computer Concepts Corp.
80 Orville Drive
Bohemia, New York 11716
Attention: Daniel DelGiorno, Jr., President
Telephone No.: (516) 244-1500
Facsimile No.: (516) 244-1468
with a copy to:
Beckman, Millman & Sanders LLP
116 John Street
New York, New York 10038
Attention: Michael Beckman, Esq.
Telephone No.: (212) 406-4700
Facsimile No.: (212) 406-3750
or to such other address as the person to whom notice is given may have
previously furnished to the other parties in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
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16. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties, except that Purchaser may assign, in its sole discretion, any or all of
its rights, interests and obligations hereunder to Parent or to any direct or
indirect wholly owned Subsidiary of Parent. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and assigns.
17. Amendments. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
18. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, without
regard to its conflicts of law rules. Each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of any Federal court located in the
Commonwealth of Massachusetts or any Massachusetts state court in the event any
dispute arises out of this Agreement or any of the transactions contemplated by
this Agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court
and (c) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any court other than a
Federal or state court sitting in the Commonwealth of Massachusetts.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
20. Effect of Headings. The headings herein are for reference purposes
only and shall not in any way affect the meaning or interpretation hereof.
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21. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto and supersedes all prior agreements and understandings,
oral or written, among the parties hereto with respect to the subject matter
hereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed under
seal and delivered by the parties hereto on the date first above written.
EMC CORPORATION
By /s/ Michael J. Cody
---------------------------------
Name: Michael J. Cody
Title: Vice President, Corporate
Development
EAGLE MERGER CORP.
By /s/ Paul T. Dacier
---------------------------------
Name: Paul T. Dacier
Title: Secretary
COMPUTER CONCEPTS CORP.
By /s/ Daniel DelGiorno
---------------------------------
Name: Daniel DelGiorno
Title: Chairman
TRUSTEES:
/s/ James Cannavino
---------------------------------
James Cannavino, as trustee under
the Voting Trust Agreement, dated
as of August 3, 1998
/s/ Dennis Murray
---------------------------------
Dennis Murray, as trustee under
the Voting Trust Agreement, dated
as of August 3, 1998
/s/ Charles Feld
---------------------------------
Charles Feld, as trustee under
the Voting Trust Agreement, dated
as of August 3, 1998
