EX-99.(D)(4) 10 a07-10508_1ex99dd4.htm EX-99.(D)(4)

Exhibit (d)(4)

AMENDMENT TO

CONFIDENTIALITY AGREEMENT

This Amendment to Confidentiality Agreement is entered into on March 5, 2007, by and between Software AG, a German corporation (“SAG“) and webMethods, Inc. ( the “Company”) and amends that certain confidentiality and non-disclosure letter agreement, dated January 30, 2007, by and between SAG and the Company ( the “Confidentiality Agreement”).

All capitialized terms used herein shall have the meaning given them in the Confidentiality Agreement, unless otherwise defined herein.

SAG and the Company acknowledge that discussions relating to a Transaction continue under the Confidentiality Agreement, and that the terms and conditions of the Confidentiality Agreement remain in full force and effect.

SAG and the Company wish to share additional documents during the due diligence process relating to a Transaction, and desire to amend the Confidentiality Agreement to facilitate due diligence.

Accordingly, the Confidentiality Agreement is hereby amended to add the following paragraph:

                                                Each party understands that certain categories of Evalution Material are highly Confidentiality (herein collectively referred to as the “Highly Confidential Evaluation Material”).  In the event the disclosing party deems any Evaluation Material to be Highly Confidentiality Evaluation, the following procedures shall apply: the disclosing party shall indicate or instruct that such information (or categories of information) is Highly Confidential Evaluation Material and the disclosing party shall provide access to such Highly Confidential Evaluation Material only to legal counsel for the receiving party, financial advisors to the receiving party or the employees or advisors of the receiving party specifically listed on Exhibit A hereto (collectively, the “Restricted Group”).  Subject to the terms of this letter agreement, each party hereby agrees that without the prior written consent of the disclosing party: (a) Highly Confidential Evaluation Material will be reviewed only by members of the Restricted Group of the receiving party; (b) no employees for the receiving party other than the employees listed on Exhibit A will review Highly Confidential Evaluation Material; (c) the members of the Resticted Group shall not communicate any Highly Confidential Evaluation Material or any details regarding any Highly Confidential Evaluation Material (including any written summaries, analysis, complications, studies or other documents that contain or reflect any Highly Confidenatil Evaluation Material) to any other individuals for the receiving party except as provided below, and (d) the receiving party shall be responsible for any breach of this paragraph by any member of the Restricted Group.  Each party further agrees that (except as otherwise provided in this letter agreement) Highly Confidential Evaluation Material also constitutes Evaluation Material and shall be entitled to all of the protections with respect to Evaulation Material otherwise provided for in this letter agreement.  Notwithstanding the foregoing and unless otherwise permitted by the disclosing party, members of the Restricted Group may disclose to other employees and representatives of the receiving party involved in the Transaction (i) summaries or analyses of contacts or agreements designated as Highly Confidential Evaluation Material provided that any information which would permit the receiving party to identify the couterparty




                                                to such contract or agreement is masked or redacted and (ii) financial data or analyses constituting or derived from Highly Confidential Evaluation Material, provided that such data or analyses are aggregated in a manner whereby the terms and conditions (including, where applicable, the price) of transactions with individual customers are not identifiable.  No Highly Confidential Evaluation Material shall be given, shown, made available or communicated in any way to a person designated as a member of the Restricted Group until such person has read this agreement.  Notwithstanding the foregoing, each party further acknowledges and agrees that each party may desire to disclose Highly Confidential Evaluation Material to persons outside the Restricted Group for the purpose of evaluating the Transaction.  Each party agrees to discuss in good faith the terms and restrictions under which such Highly Confidential Evaluation Material may be disclosed to such persons.

In addition, the Confidentiality Agreement is hereby amended to add Exhibit A, attached hereto, to the Confidentiality Agreement.

All other provisions of the Confidentiality Agreement remain in full force and effect.

SOFTWARE AG

 

WEBMETHODS, INC.

 

 

 

By:

/s/ Arnd Zinnhardt      /s/ Jochen Deuse

 

By:

/s/ Doug McNitt

 

 

 

Name: Arnd Zinnhardt

Jochen Deuse

 

Name: Doug McNitt

Title:   CFO

 General Counsel

 

Title: General Counsel

 




EXHIBIT A

Restricted Group of SAG

Name

 

Title

 

Email

SAG

 

 

 

 

David Broadbent

 

Member of the Executive Board

 

david.broadbent@softwareag.com

Johnathan Smith

 

Vice President

 

johnathan.smith@softwareag.co.uk

Arnd Zindhardt

 

Chief Financial Officer

 

arnd.zinnhardt@softwareag.com

Markus Lehnert

 

Vice President

 

Markus.Lehnert@softwareag.com

Mark Edwards

 

Member of the Executive Board

 

mark.edwards@softwareag.com

Andreas Gosewisch

 

Director Corporate Counsel

 

andreas.gosewisch@softwareag.com

Jochen Deuse

 

Vice President

 

jochen.deuse@softwareag.com

Wolfgang Fuss

 

Vice President

 

wolfgang.fuss@softwareag.com

Matt Durham

 

Vice President

 

matt.durham@softwareag.com

Davis Polk

 

 

 

 

Peter Douglas

 

Partner

 

peter.douglas@dpw.com

Martin Wellington

 

Partner

 

martin.wellington@dpw.com

Patrick Kenadjian

 

Partner

 

patrick.kenadjian@dpw.com

Mischa Travers

 

Associate

 

mischa.travers@dpw.com

Stefan Quick

 

Associate

 

stefan.quick@dpw.com

Waqaas Fahmawi

 

Associate

 

waqaas.fahmawi@dpw.com

Joanna McGinley

 

Associate

 

joanna.mcginley@dpw.com

KPMG

 

 

 

 

Allen Westergard

 

Partner

 

awestergard@kpmg.com

Bryan Walker

 

Director

 

bwalker@kpmg.com

Jad Salha

 

 

 

jsalha@kpmg.com

Arma

 

 

 

 

Paul Guely

 

Partner

 

PGuely@armapartners.com

Brian Skiba

 

Partner

 

BSkiba@armapartners.com

Keith Robinson

 

Vice President

 

Keith.Robinson@armapartners.com

Varun Sunderraman

 

Analyst

 

VSunderraman@armapartners.com

 

Restricted Group of the Company

Name

 

Title

 

Email

Legal Department

 

 

 

 

Doug McNitt

 

General Counsel

 

dmcnitt@webmethods.com

Edmund Graff

 

VP, Legal Affairs

 

egraff@webmethods.com

Scott Brown

 

VP, Legal Affairs

 

scott.brown@webmethods.com

Paul Bosco

 

VP, Legal Services

 

pbosco@webmethods.com

David Sigler

 

VP, Legal Services

 

disgler@webmethods.com

 




 

Finance Department

 

 

 

 

Mike Krone

 

CAO

 

mkrone@webmethods.com

Stacy Beveridge

 

VP, Finance

 

sbeverid@webmethods.com

Jenny Hayes

 

VP, Finanace

 

jhayes@webmethods.com

Additional Reviewers

 

 

 

 

Ken Sexton

 

CFO and EVP

 

ksexton@webmethods.com

Karen Woodward

 

SVP, Corporate Development

 

kwoodward@webmethods.com

Chris Martin

 

VP, Office of the CEO

 

emartin@webmethods.com