Exhibit 99(b)
SUPPORT AGREEMENT, dated as of May
16, 2001 (the "AGREEMENT"), by and among
SIRSI HOLDINGS CORP., a Delaware corporation
("PARENT"), ▇▇▇▇▇▇▇ ACQUISITION INC., a
Delaware corporation and a wholly owned
subsidiary of Parent ("PURCHASER") and the
shareholders of DATA RESEARCH ASSOCIATES,
INC., a Missouri corporation (the
"COMPANY"), whose names appear on Schedule I
hereto (collectively, the "MAJOR
STOCKHOLDERS").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Parent, Purchaser and the Company are entering into an Agreement and
Plan of Merger, dated as of the date hereof (the "MERGER AGREEMENT"), which
provides for, upon the terms and subject to the conditions set forth therein,
(i) the commencement by Purchaser of a tender offer (the "OFFER") for all of the
issued and outstanding shares of common stock, par value $0.01 per share, of the
Company (the "COMPANY COMMON STOCK"), and (ii) the subsequent merger of
Purchaser with and into the Company and the Company being the surviving
corporation (the "MERGER");
WHEREAS, as of the date hereof, each Major Stockholder owns
beneficially the number of shares of Company Common Stock set forth opposite
such Major Stockholder's name on Schedule I hereto (all such shares so owned and
which may hereafter be acquired by such Major Stockholder prior to the
termination of this Agreement, whether upon the exercise of options or by means
of purchase, dividend, distribution or otherwise, being referred to herein as
such Major Stockholder's "SHARES");
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Purchaser have requested that the Major
Stockholders enter into this Agreement; and
WHEREAS, in order to induce Parent and Purchaser to enter into the
Merger Agreement, the Major Stockholders are willing to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE MAJOR STOCKHOLDERS
Section 1.1 VOTING OF SHARES. From the date hereof until the termination
of this Agreement pursuant to SECTION 5.3 (the "TERM"), at any meeting of the
shareholders of the Company, however called, and in any action by consent of the
shareholders of the Company, each Major Stockholder shall vote its Shares (i) in
favor of the Merger and the Merger Agreement (as amended from time to time
pursuant to the terms thereof), (ii) against any Acquisition Proposal and
against any proposal for action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement, any change in the directors of the
Company, any change in the present capitalization of the Company or any
amendment to the Company's Restated Certificate of Incorporation or By-Laws,
which in the case of each of the matters referred to in this clause (ii), could
reasonably be expected to impede, interfere with, delay, postpone or materially
adversely affect the transactions contemplated by the Merger Agreement or the
likelihood of such transactions being consummated, and (iii) at the direction of
Parent, in favor of any other matter necessary, as may be reasonably determined
by Parent, for consummation of the Transactions which is considered at any such
meeting of shareholders or in such consent, and in connection therewith to
execute any documents which are necessary in order to effectuate the foregoing,
including the ability for Purchaser or its nominees to vote such Shares
directly.
Section 1.2 PROXY. Each Major Stockholder hereby revokes any and all prior
proxies or powers of attorney in respect of any of such Major Stockholder's
Shares and constitutes and appoints Purchaser and Parent, or any nominee of
Purchaser and Parent, with full power of substitution and resubstitution, at any
time during the Term, as its true and lawful attorney and proxy (its "PROXY"),
for and in its name, place and stead, to demand that the Secretary of the
Company call a special meeting of the shareholders of the Company for the
purpose of considering any matter referred to, and as specified in, SECTION 1.1
(if permitted under the Company's Restated Certificate of Incorporation or
By-Laws) and to vote each of such Shares as its Proxy, at every annual, special,
adjourned or postponed meeting of the shareholders of the Company, including the
right to sign its name (as shareholder) to any consent, certificate or other
document relating to the Company that the laws of the state of Missouri may
permit or require with respect to any matter referred to in SECTION 1.1. THE
FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST THROUGHOUT THE TERM.
Section 1.3 NO PROXIES FOR OR ENCUMBRANCES ON MAJOR STOCKHOLDER SHARES.
Except pursuant to the terms of this Agreement or the Offer Documents (as
defined in SECTION 2.1(b)) during the Term, such Major Stockholder shall not,
without the prior written consent of Purchaser, directly or indirectly, (i)
grant any proxies (other than proxies relating to the election of management's
slate of directors at an annual meeting of the Company's Major Stockholders, and
other routine matters which would not require the filing of a preliminary proxy
statement under Rule 14a-6(a) of the Exchange Act) or enter into any voting
trust or other agreement or arrangement with respect to the voting of any such
Major Stockholder's Shares, or (ii) sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other
2
arrangement or understanding with respect to the direct or indirect sale,
assignment, transfer, encumbrance or other disposition of, any such Major
Stockholder's Shares or any securities convertible into or exercisable for any
shares of Company Common Stock.
Section 1.4 WAIVER OF APPRAISAL RIGHTS. Each Major Stockholder hereby
waives any rights to demand "fair value" for such Major Stockholder's Shares or
rights to dissent from the Merger.
Section 1.5 STOP TRANSFER. During the Term, no Major Stockholder shall
request that the Company register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of such Major
Stockholder's Shares, unless such transfer is made in compliance with this
Agreement (including the provisions of ARTICLE III hereof).
Section 1.6 NO SOLICITATION; NOTIFICATION. Subject to SECTION 5.19, during
the Term the Major Stockholders shall not (and the Major Stockholders shall
cause their respective investment bankers, financial advisers, attorneys,
accountants or other representatives and agents not to), directly or indirectly,
encourage, solicit, participate in or initiate or resume (including by way of
furnishing or disclosing non-public information) or take any action designed to
facilitate any discussions, inquiries, negotiations or the making of any
proposals with respect to or concerning any Acquisition Proposal. Upon execution
of this Agreement, the Major Stockholders will immediately cease any and all
existing activities, discussions or negotiations with any and all parties
conducted heretofore with respect to any Acquisition Proposal. Each Major
Stockholder will immediately notify Parent of the existence of any proposal,
discussion, negotiation or inquiry received by such Major Stockholder or any of
its representatives, and such Major Stockholder will immediately communicate to
Parent the terms of any proposal, discussion, negotiation or inquiry which it or
any of its respective representatives may receive (and will immediately provide
to Parent copies of any written materials received by such Major Stockholder or
its representatives in connection with such proposal, discussion, negotiation or
inquiry) and the identity of the party making such proposal or inquiry or
engaging in such discussion or negotiation, and shall immediately communicate to
Parent the status of such proposal, discussion or inquiry. The Major Stockholder
will simultaneously provide to Parent any non-public information concerning the
Company provided to any other party which was not previously provided to Parent.
The Major Stockholders shall not be entitled to enter into any agreement with
respect to an Acquisition Proposal unless and until this Agreement is terminated
pursuant to SECTION 5.3 of this Agreement.
ARTICLE II.
TENDER OFFER
Section 2.1 TENDER OF SHARES.
(a) Each Major Stockholder hereby agrees, pursuant to the terms and
subject to the conditions set forth herein, to tender (or cause the record owner
of such Shares to validly tender) for payment in the Offer all of such Major
Stockholder's Shares.
3
(b) Not later than ten (10) days after the commencement of the Offer (and
within two business days of any acquisition by each Major Stockholder of any
additional Shares or immediately if such acquisition is made after the fifth day
prior to the Expiration Date (as it may be extended), each Major Stockholder
shall, as appropriate, deliver to the exchange agent (the "EXCHANGE AGENT")
designated in the Offer (i) a letter of transmittal with respect to such Major
Stockholder's Shares complying with the terms of the Offer together with
instructions directing the Exchange Agent to make payment for such Shares
directly to the Major Stockholder, (ii) a certificate or certificates
representing such Major Stockholder's Shares and (iii) all other documents or
instruments required to be delivered pursuant to the terms of the Offer (such
documents in clauses (i) through (iii) collectively being hereinafter referred
to as the "OFFER DOCUMENTS"), and/or (iv) instruct its broker or such other
person who is the holder of record of any Shares Beneficially Owned (as defined
below) by such Major Stockholder to tender such Shares for exchange in the Offer
pursuant to the terms and conditions of the Offer.
(c) During the Term, no Major Stockholder shall withdraw any tender
effected in accordance with SECTION 2.1(b).
Section 2.2 PUBLIC ANNOUNCEMENTS; DISCLOSURE. Each Major Stockholder will
state publicly state their intention to, among other things, tender into the
offer and to vote in favor of the Merger and hereby authorizes Parent and
Purchaser to publish and disclose in the Offer Documents and, if approval of the
Company's Major Stockholders is required under Applicable Law, the Proxy
Statement (including all documents and schedules filed with the SEC), its
identity and ownership of the Company Common Stock and the nature of its
commitments, arrangements and understandings under this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE MAJOR STOCKHOLDERS
Each Major Stockholder hereby represents and warrants to Parent and
Purchaser as follows:
Section 3.1 DUE AUTHORIZATION, ETC. Such Major Stockholder has all
requisite power and authority to execute, deliver and perform this Agreement, to
appoint Purchaser and Parent as its Proxy and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
the appointment of Purchaser and Parent as Major Stockholder's Proxy and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of Major Stockholder. This Agreement has
been duly executed and delivered by or on behalf of such Major Stockholder and
constitutes a legal, valid and binding obligation of such Major Stockholder,
enforceable against such Major Stockholder in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting creditor rights generally
and except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding for such remedy may be brought. There is no beneficiary or holder of
a voting trust certificate or other interest of any trust of which such Major
Stockholder is trustee whose consent is required for the execution and
4
delivery of this Agreement or the consummation by such Major Stockholder of the
transactions contemplated hereby.
Section 3.2 NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by such Major Stockholder
does not, and the performance of this Agreement by such Major Stockholder will
not, (i) conflict with or violate any law applicable to such Major Stockholder
or by which such Major Stockholder or any of such Major Stockholder's properties
is bound or affected, or (ii) result in any breach of or constitute a default
(or an event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, acceleration or cancellation
of, or result in the creation of a lien or encumbrance on any assets of such
Major Stockholder, including, without limitation, such Major Stockholder's
Shares, pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
such Major Stockholder is a party or by which such Major Stockholder or any of
such Major Stockholder's assets is bound or affected, except for any such
breaches, defaults or other occurrences that would not prevent or delay the
performance by such Major Stockholder of such Major Stockholder's obligations
under this Agreement.
(b) The execution and delivery of this Agreement by such Major Stockholder
does not, and the performance of this Agreement by such Major Stockholder will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority (other than any
necessary filing under the HSR Act or the Exchange Act), domestic or foreign,
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by such Major Stockholder of such Major Stockholder's
obligations under this Agreement.
Section 3.3 VALID TITLE. Such Major Stockholder is the sole, true, lawful
and beneficial owner of such Major Stockholder's Shares with no restrictions on
such Major Stockholder's voting rights or rights of disposition pertaining
thereto, except for any such restrictions contemplated herein. None of such
Major Stockholder's Shares is subject to any voting trust or other agreement or
arrangement with respect to the voting of such Shares. None of such Major
Stockholder's Shares is subject to any adverse claims, liens, charges,
encumbrances, security interests or other restrictions on transfer.
Section 3.4 TOTAL SHARES. Each Major Stockholder is the record and
Beneficial Owner of the number of Shares set forth next to such Major
Stockholder's name on Schedule I hereto. Such Shares constitute all of the
Shares owned of record or Beneficially Owned by such Major Stockholder as of the
date hereof. Except as set forth on SCHEDULE I hereto, neither such Major
Stockholder nor any beneficial owner or owners of such Major Stockholder's
Shares own any options to purchase or rights to subscribe for or otherwise
acquire any securities of the Company. Except as set forth on SCHEDULE 3.4
hereto, each Major Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in ARTICLES I and II of this
Agreement, sole power of disposition, sole power of conversion and sole power to
agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Shares beneficially owned by such Major Stockholder with
no limitations, qualifications or restrictions on such
5
rights, subject to applicable securities laws and the terms of this Agreement.
The terms "BENEFICIALLY OWN", "BENEFICIALLY OWNED", "BENEFICIAL OWNERSHIP" and
"BENEFICIAL OWNER" with respect to any securities shall mean having "beneficial
ownership" of such securities as determined pursuant to Rule 13d-3 under the
Exchange Act.
Section 3.5 NO FINDER'S FEES. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such Major
Stockholder. Such Major Stockholder, on behalf of itself and its affiliates,
hereby acknowledges that it is not entitled to receive any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby or by the Merger Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF
PARENT AND PURCHASER
Parent and Purchaser hereby, jointly and severally, represent and
warrant to the Major Stockholders as follows:
Section 4.1 DUE ORGANIZATION, AUTHORIZATION, ETC. Parent and Purchaser are
duly organized, validly existing and in good standing under the laws of their
jurisdiction of incorporation. Parent and Purchaser have all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by each of Parent
and Purchaser have been duly authorized by the boards of directors of each of
Parent and Purchaser and by Parent as the sole stockholder of Purchaser, and no
other corporate action on the part of Parent and Purchaser is necessary to
authorize the execution and delivery by Parent and Purchaser of this Agreement.
This Agreement has been duly executed and delivered by each of Parent and
Purchaser and constitutes a legal, valid and binding obligation of each of
Parent and Purchaser, enforceable against Parent and Purchaser in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting creditor rights generally and except
that the availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding for such
remedy may be brought.
Section 4.2 NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by Parent and Purchaser
does not, and the performance of this Agreement by Parent and Purchaser will
not, (i) conflict with or result in any breach of any provision of the
respective certificate of incorporation, bylaws or other similar documents
relating to the respective party, (ii) conflict with or violate any law
applicable to Parent and Purchaser or by which Parent and Purchaser or any of
Purchaser's or Parent's properties is bound or affected or (iii) result in any
material breach of or constitute a material default (or an event that with
notice or lapse of time or both would become a material default) under, or give
to others any rights of termination, acceleration or cancellation of, or
6
result in the creation of a lien or encumbrance on any assets of Parent and
Purchaser, including, without limitation, Purchaser's or Parent's Shares,
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Parent and
Purchaser is a party or by which Purchaser or Parent or any of Purchaser's or
Parent's assets is bound or affected, except, in the case of clauses (ii) and
(iii), for any such material breaches, defaults or other occurrences that would
not prevent or delay the performance by Parent and Purchaser of Purchaser's and
Parent's obligations under this Agreement.
(b) The execution and delivery of this Agreement by Parent and Purchaser
does not, and the performance of this Agreement by Parent and Purchaser will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority (other than any
necessary filing under the HSR Act or the Exchange Act), domestic or foreign,
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by Parent and Purchaser of Purchaser's and Parent's obligations
under this Agreement.
ARTICLE V.
MISCELLANEOUS
Section 5.1 DEFINITIONS. Capitalized terms used but not otherwise defined
in this Agreement have the respective meanings ascribed to such terms in the
Merger Agreement.
Section 5.2 ADDITIONAL AGREEMENTS. Subject to the terms and conditions of
this Agreement, each of the Purchaser and each Major Stockholder, in the
capacity as a Major Stockholder, agrees to use all reasonable efforts to take,
or cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations and which
may be required under any agreements, contracts, commitments, instruments,
understandings, arrangements or restrictions of any kind to which such party is
a party or by which such party is governed or bound, to consummate and make
effective the transactions contemplated by this Agreement.
Section 5.3 TERMINATION. This Agreement and the proxies granted pursuant
to SECTION 1.2 shall terminate automatically and without any action of any of
the parties hereto and be of no further force and effect upon the earlier to
occur of: (i) the written mutual consent of the parties hereto, (ii) the
Effective Time, or (iii) the termination of the Merger Agreement in accordance
with its terms. No such termination of this Agreement shall relieve any party
hereto from any liability for any breach of this Agreement prior to termination
or from any obligation pursuant to a Notice delivered on or before the date of
such termination. In the event this Agreement is terminated in accordance with
its terms, Purchaser shall cause each Major Stockholder's Shares to be promptly
returned to such Major Stockholder.
Section 5.4 SURVIVAL. The representations, warranties and covenants
contained in this Agreement shall survive delivery of and payment for the Major
Stockholders Shares but shall not survive the termination of this Agreement. It
being understood that nothing contained herein shall relieve any party for
liability for breach of any representation, warranty or covenant prior to such
termination.
7
Section 5.5 FURTHER ASSURANCE. From time to time, at another party's
request and without consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement; PROVIDED THAT, in
the case of any action by a Major Stockholder pursuant to this SECTION 5.5,
Parent shall reimburse such Major Stockholder for all reasonable fees, costs and
expenses (including reaonable legal fees) incurred in connection with such
action.
Section 5.6 CERTAIN EVENTS; SUCCESSORS. Each Major Stockholder agrees that
this Agreement and such Major Stockholder's obligations hereunder shall attach
to such Major Stockholder's Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including, without limitation, such Major
Stockholder's heirs, guardians, administrators, or successors. Notwithstanding
any transfer of Shares, the transferor shall remain liable for the performance
of all its obligations under this Agreement.
Section 5.7 NO WAIVER. The failure of any party hereto to exercise any
right, power, or remedy provided under this agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
Section 5.8 NOTICE. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied
(which is confirmed) or sent by an internationally recognized overnight courier
service, such as Federal Express, to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice):
(a) if to Parent or Purchaser, to:
Sirsi Holdings Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies (which shall not constitute notice) to:
Seaport Capital Partners II, L.P.
One Seaport Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
8
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to a Major Stockholder, at the address set forth below such Major
Stockholder's name on Schedule I hereto.
Section 5.9 EXPENSES. Except as otherwise expressly set forth herein, all
fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses.
Section 5.10 HEADINGS. The 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 5.11 SEVERABILITY. Any term or provision of this Agreement that is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the invalid, void or unenforceable term or
provision in any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction or other authority declares that
any term or provision hereof is invalid, void or unenforceable, the parties
agree that the court making such determination shall have the power to and
shall, subject to the discretion of such court, reduce the scope, duration, area
or applicability of the term or provision, to delete specific words or phrases,
or to replace any invalid, void or unenforceable term or provision with a term
or provision that is valid and enforceable and that comes closest to expressing
the intention of the invalid or unenforceable term or provision.
Section 5.12 ENTIRE AGREEMENT. This Support Agreement and the Merger
Agreement, including the documents and the instruments referred to herein and
therein, constitute the entire agreement and supersede all prior agreements,
negotiations, arrangements and understandings, both written and oral, among the
parties with respect to the subject matter hereof and thereof. Nothing in this
Support Agreement, subject to SECTION 5.13, shall be construed to give any
person other than the parties to this Support Agreement or their respective
successors or permitted assigns any right or remedy hereunder.
Section 5.13 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
(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 and such assignment shall
not relieve Purchaser of any obligation under this Agreement. 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.
9
Section 5.14 GOVERNING LAW.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware without giving effect to the principles
of conflicts of law thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUR OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 5.14.
Section 5.15 AMENDMENT. This Agreement may not be amended, modified or
supplemented except by an instrument in writing signed by all of the parties
hereto.
Section 5.16 WAIVER. At any time prior to the Effective Time, any party
hereto may (a) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties of the other parties hereto contained herein or
in any document delivered pursuant hereto and (c) waive compliance by the other
parties hereto with any of their agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only as against such party and only if set forth in an instrument in
writing signed by such party. The failure of any party hereto to assert any of
its rights under this Agreement or otherwise shall not constitute a waiver of
those rights.
Section 5.17 ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were 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 of this Agreement in any court of the United States
located in the State of Delaware or in Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties (a) consents to submit itself to the personal
jurisdiction of any Federal court located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this Agreement or
any of the Transactions, (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
10
action relating to this Agreement or any of the Transactions in any court other
than a Federal court sitting in the State of Delaware or a Delaware state court.
Section 5.18 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement.
Section 5.19 STOCKHOLDER CAPACITY. No person executing this Agreement who
is or becomes during the term hereof a director or officer of the Company makes
any agreement or understanding herein in his capacity as such director or
officer. Each Major Stockholder signs solely in his capacity as the record
holder and beneficial owner of such Major Stockholder's Shares and nothing
herein (including, without limitation, the provisions of SECTION 1.6) shall
limit or affect any actions taken by a Major Stockholder in his capacity as an
officer or director of the Company.
11
IN WITNESS WHEREOF, Parent, Purchaser and each of the Major
Stockholders have caused this Agreement to be executed as of the date first
written above.
SIRSI HOLDINGS CORP.
By:
----------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ACQUISITION INC.
By:
----------------------------------
Name:
Title:
MAJOR STOCKHOLDERS
--------------------------- ---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ F. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III
--------------------------- ---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE I
MAJOR STOCKHOLDERS
SHARES OF COMPANY COMMON STOCK
MAJOR STOCKHOLDER BENEFICIALLY OWNED
----------------- ------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 1,817,797
F. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III 640,950
▇▇▇▇▇▇ ▇▇▇▇▇▇ 75,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 36,150
