EXHIBIT 99.2
ACTIVANT SOLUTIONS INC.
000 Xxx Xxxxx Xxxxxxx
Xxxxxx, XX 00000
January 24, 2005
SPEEDWARE CORPORATION INC.
TO: THE PERSONS NAMED ON SCHEDULE A TO THIS LETTER (each person being referred
to individually as a "SELLER" or collectively as the "SELLERS")
This letter sets out the terms and conditions upon which Activant Solutions Inc.
("PARENT"), through Activant Solutions Acquisitionco Ltd. (the "OFFEROR"),
agrees to make an offer (the "OFFER") as described below to purchase all of the
common shares (the "SHARES") in the capital of Speedware Corporation Inc. (the
"COMPANY").
Unless otherwise defined, all capitalized terms referred to herein shall have
the meanings attributed to them in the support agreement made the date hereof
among Parent, the Offeror and the Company (the "SUPPORT AGREEMENT").
This letter also sets out the terms and conditions of the agreement of each
Seller to deposit under the Offer or cause to be deposited under the Offer all
the Shares beneficially owned by the Seller and any Shares which may be issued
on the exercise of (i) all currently outstanding options ("OPTIONS") granted
pursuant to the Company's Stock Option Plans, (ii) Warrants; or (iii) other
entitlements that such Seller may have to acquire Shares (such Options,
Warrants, or other entitlements to acquire Shares being collectively referred to
as "RIGHTS", and such Shares beneficially owned by a Seller (including any
Shares acquired by a Seller before the Offer is completed) and the Shares
issuable to the Seller pursuant to Rights are hereinafter collectively referred
to as the "SUBJECT SHARES").
1. OFFER FOR SHARES OF THE COMPANY
(a) Subject to the terms and conditions below, the Offeror shall
make the Offer. The terms of the Offer shall include any
amendments to, or extensions of, such Offer made in accordance
with the terms of the Support Agreement, including, without
limitation, removing or waiving any condition or extending the
date by which Shares may be deposited. The Offeror shall offer
to acquire the Shares for CDN$3.91 per Share, in cash.
(b) Subject to Subsection 1.1(h) and 1.2(d) of the Support
Agreement, the Offeror shall make, or cause to be made, the
Offer to all Shareholders and mail the Bid Circular to each
registered Shareholder, Option holder and Warrant holder not
later than 11:59 p.m. (Toronto time) on the Latest Mailing
Date; provided, however, that if the mailing of the Bid
Circular is delayed by reason of (i) an injunction or order
made by a court or regulatory authority of competent
jurisdiction or (ii) the Offeror not having regulatory waiver,
consent or approval which is necessary to permit the Offeror
to mail the Offer then, provided that such injunction or order
is being contested or appealed or such regulatory waiver,
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consent or approval is being actively sought, as applicable,
then the Latest Mailing Date shall be extended to the second
business day following the date on which such injunction or
order ceases to be in effect or such waiver, consent or
approval is obtained, as applicable.
(c) The Bid Circular shall be prepared in both the English and
French languages and in accordance with the Support Agreement
and applicable Securities Laws.
(d) The Offer will be made in accordance with applicable
Securities Laws and shall expire no earlier than 8:00 a.m.
(Toronto time) on the 36th day after the Mailing Date, subject
to the right of the Offeror to extend the period during which
Shares may be deposited under the Offer (as it may be
extended, the "EXPIRY TIME"). The Offer shall be subject only
to the conditions set forth in Schedule A annexed to the
Support Agreement.
(e) Each of the Sellers acknowledges and agrees that the Offeror
may, in its sole discretion, amend, supplement, modify or
waive any term or condition of the Offer, provided that the
Offeror will not, without the prior written consent of the
Company, (i) increase the Minimum Tender Condition, (ii)
decrease the consideration per Share, (iii) change the form of
consideration payable under the Offer (other than to add
additional consideration or the option of Shareholders to
choose one or more alternative forms of consideration in
addition to the form of consideration contemplated herein) or
(iv) impose additional conditions to the Offer.
2. AGREEMENT TO TENDER
(a) This Agreement when signed and delivered by a Seller to Parent
and the Offeror will constitute the agreement of that Seller,
among other things, to irrevocably accept the Offer and
validly to tender or cause to be tendered and to do or to
cause to be done all acts and things (including exercising or
converting, as applicable, all Rights held by such Seller) to
tender the Subject Shares owned by that Seller under the Offer
on the terms and conditions set out herein.
(b) Each of the Sellers shall:
(i) irrevocably and unconditionally deposit or cause to
be deposited with the designated depositary under the
Offer (the "DEPOSITARY") in response to the Offer all
of the Subject Shares (other than Subject Shares
issuable upon the exercise or conversion of Rights,
which shall be deposited as described below), free
and clear of all Encumbrances (as defined herein), in
accordance with the terms of the Offer (together with
a duly executed letter of transmittal in respect of
such Shares completed in accordance with the Offer)
as soon as reasonably practicable but in any event
not later than two business days following the date
of mailing of the Bid Circular or in the case of the
deposit of Holdco Shares as contemplated by the
Support Agreement, no later than 5:00 p.m. (Toronto
time) on the seventh business
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day prior to the Expiry Time (in which case the
Seller shall enter into a Holdco Agreement as
provided in the Support Agreement); and
(ii) irrevocably and unconditionally deposit or cause to
be deposited any Shares issuable upon exercise or
conversion of all Rights it holds, free and clear of
all Encumbrances, by providing the Depositary or
another entity designated by the Offeror (which may
be the Company's transfer agent) as soon as
reasonably practicable, but in any event not later
than two business days following the date of mailing
of the Bid Circular, with a completed notice of
guaranteed delivery in form acceptable to the Offeror
accepting the Offer and providing for the tendering
of the Subject Shares issuable upon the exercise of
Rights to the Offer, together with an irrevocable
direction to exercise all such Rights and to remit a
portion of the payment therefor equal to the
aggregate exercise price of the Rights to the Company
and to deliver the Subject Shares issuable upon the
exercise or conversion thereof to the Offer (together
with a duly executed letter of transmittal completed
in accordance with the Offer or such other
documentation that the Offeror may reasonably require
in respect of such Shares, including documentation
evidencing ownership of such Rights), such exercise
to be effective upon receipt by the Depositary or
such other designee of notice from the Offeror that
it is taking up Shares tendered to the Offer,
and thereafter, none of the Sellers shall withdraw or permit
its Subject Shares (including Rights exercisable for or
convertible into Subject Shares) to be withdrawn from the
Offer (notwithstanding any statutory or other legal or
equitable rights), unless this Agreement is terminated in
accordance with its terms. The Offeror will take up and pay
for the Subject Shares deposited under the Offer by a Seller
in accordance with the terms of the Offer within the periods
required by applicable Securities Laws and upon the conditions
of the Offer having been satisfied or waived by the Offeror.
(c) For greater certainty, for the purposes of this Agreement, the
term "SUBJECT SHARES" shall refer to Shares which each Seller
is required to tender under the Offer and shall include all
shares or other securities into or for which the Subject
Shares may be converted, exchanged or otherwise changed
pursuant to any reorganization, merger, amalgamation or other
transaction involving the Company prior to the acquisition of
the Subject Shares by the Offeror, and shall also include any
and all distributions of cash, securities or other property
made with respect to such Shares on or after the date hereof,
and in the event that the Seller elects to tender Holdco
Shares in accordance with the Support Agreement, the term
"Subject Shares" shall include Holdco Shares.
3. CONDITIONS TO MAKING THE OFFER
The obligation of the Offeror to make the Offer is conditional on the
prior satisfaction of the conditions set forth in Subsection 1.1(h) of
the Support Agreement, any or all of
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which may be waived by the Offeror in whole or in part in its sole
discretion without prejudice to any other rights it may have under the
Support Agreement or otherwise.
4. COVENANTS OF THE SELLERS
Each Seller agrees severally (but not jointly and severally) that
during the period commencing on the date hereof and continuing until
the termination of the Offer (as extended, where applicable) or the
termination hereof in accordance with Section 7, as the case may be:
(a) (i) except to the extent permitted hereunder, each Seller
will not take any act, directly or indirectly, which
may in any way adversely affect the success of the
Offer or the purchase of any Shares under the Offer;
(ii) each Seller will exercise the voting rights attaching
to the Subject Shares and otherwise use its best
efforts as a Shareholder of the Company to oppose any
proposed action by the Company, its Shareholders or any
of its Subsidiaries or any other Person in respect of
(A) an Acquisition Proposal; or (B) any action or
transaction that would impede, interfere with, delay,
postpone or attempt to discourage the Offer;
(iii) each Seller will immediately cease and cause to be
terminated any existing discussions, negotiations,
proposals or offers with any Person (other than the
Offeror and Parent) with respect to any proposal that
constitutes, or may reasonably be expected to lead to,
an Acquisition Proposal; and
(iv) each Seller will not: (A) make, solicit, initiate,
encourage or otherwise facilitate (including by way of
furnishing information or entering into any form of
agreement, arrangement or understanding) inquiries from
or submissions of proposals or offers from any other
Person (including any of its officers or employees)
relating to any Acquisition Proposal; (B) participate
in any discussions or negotiations regarding, or
furnish to any Person any information with respect to
or otherwise co-operate in any way with, respond to,
assist or participate in, facilitate or encourage any
effort or attempt by any other Person to do or seek to
do any of the foregoing; or (C) enter into any
agreement, arrangement or understanding related to any
Acquisition Proposal,
provided, however, that the foregoing shall not prevent any of
the Sellers who is a director of the Company from doing any
act or thing that he properly is obliged to do in his capacity
as a director of the Company including, without limitation,
responding in his capacity as a director to any Superior
Proposal.
(b) Each of the Sellers agrees to immediately provide notice to
Parent and the Offeror of any future bona fide Acquisition
Proposal or any request for non-public information relating to
the Company or any of the Subsidiaries in connection with a
bona fide Acquisition Proposal or for access to the
properties, books or records of the Company or any Subsidiary
by any Person that informs the Seller that it is
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considering making, or has made, an Acquisition Proposal. Such
notice to Parent and the Offeror shall be made from time to
time upon any Seller being aware of such request or proposal,
first immediately orally and promptly in writing and shall
indicate the identity of the Person making such proposal,
inquiry or contact, all material terms thereof and such other
details of the proposal, inquiry or contact known to the
Seller or as Parent or Offeror may reasonably request.
(c) Each Seller agrees to use its reasonable best efforts to do,
or cause to be done, all things necessary, proper or advisable
under applicable Laws, to consummate the transactions
contemplated by this Agreement and the Offer as it relates to
the Seller, including using its reasonable best efforts to:
(i) support the Offer; (ii) obtain or assist or facilitate the
Offeror in obtaining all necessary consents, approvals and
authorizations as are required to be obtained by or in respect
of the Seller under applicable Laws relating to this Agreement
or the Offer; (iii) lift or rescind any injunction or
restraining order or other order adversely affecting such
Seller's ability to consummate the transactions contemplated
hereby or by the Offer; and (iv) fulfill all conditions and
satisfy all provisions of this Agreement and the Offer
applicable to such Seller.
(d) Each of the Sellers agrees not to, except as contemplated by
this Agreement, sell, transfer, pledge, encumber, grant a
security interest in, hypothecate or otherwise convey,
directly or indirectly, any Subject Shares or Rights held by
the Seller to any Person, or agree to any of the foregoing.
(e) Each of the Sellers agrees not to grant any proxy or other
right to vote in respect of any Subject Shares, or enter into
any voting trust or other similar agreements with respect to
the right to vote the Subject Shares.
(f) Each Seller who is a director hereby agrees to resign as a
director of the Company, immediately following the acquisition
by the Offeror of more than 50% of the outstanding Shares
pursuant to the Offer in the manner contemplated by Section
1.4 of the Support Agreement, upon confirmation that the
Company is maintaining insurance coverage for services
rendered as director or officer in accordance with Section 5.8
of the Support Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller by its acceptance hereof represents and warrants severally
(but not jointly and severally) as follows, and acknowledges that
Parent and the Offeror are relying upon such representations and
warranties in connection with entering into this Agreement and the
purchase of the Subject Shares:
(a) (i) the Seller is the beneficial owner of the Subject Shares
and Rights listed on Schedule A hereto beside the Seller's
name with good and marketable title, free and clear of any and
all mortgages, liens, charges, pledge, claims or other
security of any nature or kind whatsoever, and such Subject
Shares are not subject to any shareholders' agreements, voting
trust or similar agreements or any right or
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privilege (whether by Law, pre-emptive or contractual) capable
of becoming a shareholders' agreement, voting trust or other
agreement affecting the Subject Shares or the ability of any
holder thereof to exercise ownership rights thereto, including
the voting of any such shares (collectively, the
"ENCUMBRANCES"); and (ii) the Seller is the registered owner
of such Subject Shares and Rights (other than as noted in
Schedule A) and will become the registered and beneficial
owner of the Shares issuable upon exercise or conversion of
Rights at the time such Shares are tendered to the Offer;
(b) (i) the Seller has the sole right to sell and vote all the
Subject Shares now held or hereafter acquired by the Seller;
and (ii) all Subject Shares that are Shares are, and the
Seller will make payment for, or provide all required
directions to ensure that, all Shares issued upon exercise of
Rights will be, fully paid for;
(c) no Person has any agreement or option, or any right or
privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase,
acquisition or transfer from the Seller of any of the Subject
Shares of the Seller or Rights owned by the Seller or any
interest therein or right thereto, except Parent and the
Offeror pursuant to the terms of this Agreement;
(d) none of the execution and delivery by the Seller of this
Agreement and the performance by it of its obligations
hereunder and the completion of the Offer will:
(i) violate, conflict with or result in a breach of any
provision of:
(A) the constating documents of the Seller (if
the Seller is not a natural person);
(B) any agreement, contract, indenture, deed of
trust, mortgage, bond, instrument, license,
franchise or permit to which the Seller is a
party or by which the Seller's property or
assets are bound (including, without
limitation, the Warrants held by the Sellers
and the Options held by the Sellers); or
(C) any Law to which the Seller is subject or by
which the Seller is bound;
(e) (i) there is no legal impediment to the Seller's consummation
of the transactions contemplated by this Agreement; and (ii)
no authorization, consent or approval of or filing with, any
Governmental Authority is necessary for the consummation by
the Seller of its obligations under this Agreement or for the
completion of the Offer;
(f) if the Seller is a corporation, the Seller is duly
incorporated and validly existing under the Laws of its
jurisdiction of incorporation and has the requisite corporate
power and authority to enter into this Agreement and to
perform its obligations hereunder;
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(g) if the Seller is an individual, he has all necessary capacity
to enter into this Agreement and to perform his obligations
hereunder;
(h) this Agreement has been duly executed and delivered by the
Seller and constitutes a valid and binding obligation of the
Seller enforceable against the Seller in accordance with its
terms, except as may be limited by: (i) bankruptcy, insolvency
and other similar Laws of general application affecting the
enforcement of creditors' rights generally, and (ii) specific
performance, injunctive relief and other equitable remedies
may be granted only in the discretion of a court of competent
jurisdiction;
(i) (i) the only securities of the Company beneficially owned,
directly or indirectly, or over which control or direction is
exercised by the Seller are those listed on Schedule A hereto
beside the Seller's name, (ii) except for Rights listed on
Schedule A hereto, the Seller has no agreement or option, or
right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement or option, for
the purchase or acquisition by the Seller or transfer to the
Seller of additional securities of the Company, and (iii) the
Seller will not purchase or obtain any agreement or right to
purchase any additional Shares of the Company from and
including the date hereof up to and including the time at
which the Offeror takes up and pays for the Shares;
(j) the Seller has no claim against the Company or any of its
Subsidiaries at the date of this Agreement and will not have
any such claim against the Company or any of its Subsidiaries
by reason of the entering into of this Agreement or the making
of the Offer by the Offeror or the completion of the Offer;
(k) there is no claim, action, lawsuit, mediation, arbitration or
other proceeding pending or, to the best knowledge and belief
of the Seller, threatened against the Seller, which could
materially impair the ability of the Seller or the Offeror to
consummate the transactions contemplated hereby; and
(l) other than as set out in the Disclosure Schedule to the
Support Agreement, the Seller is not entitled to severance or
termination pay (or other similar payments respecting or
related to employment or consulting services) from the Company
or any of its Subsidiaries.
Each Seller acknowledges and agrees that the foregoing representations
and warranties shall be true and correct in all material respects as of
the date of this Agreement, on the date the Offeror makes the Offer, on
the date the Seller deposits its Subject Shares to the Offer and at the
time the Offeror takes up and pays for the Shares pursuant to the terms
of the Offer, with the same effect as if such representations had been
made and such warranties given at each such time (except to the extent
any such representations and warranties expressly speak as of a
different date, in which case, the representations and warrants shall
be deemed made at such date).
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6. REPRESENTATIONS AND WARRANTIES OF PARENT AND OFFEROR
The Offeror and Parent hereby jointly and severally represent and
warrant to each of the Sellers as follows, and acknowledge that each of
the Sellers is relying upon these representations and warranties in
connection with the entering into of this Agreement:
(a) Parent is a corporation validly existing under the Laws of the
State of Delaware. The Offeror is a corporation validly
existing under the Laws of Canada. Each of Parent and the
Offeror has the right, power and authority to conduct its
business as conducted at the date of this Agreement.
(b) Each of the Offeror and Parent has the requisite corporate
power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution and delivery
of this Agreement by each of the Offeror and Parent and the
consummation of the transactions contemplated by this
Agreement have been duly authorized as necessary by the boards
of directors of Parent and the Offeror and no other corporate
proceedings on the part of either Parent or the Offeror are
necessary to authorize this Agreement and the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by each of the Offeror and Parent and constitutes a
valid and binding obligation of each of the Offeror and
Parent, enforceable by the Sellers against each of the Offeror
and Parent in accordance with its terms, provided that
enforcement may be limited by: (i) bankruptcy, insolvency and
other similar Laws of general application affecting the
enforcement of creditors' rights generally, and (ii) specific
performance, injunctive relief and other equitable remedies
may be granted only in the discretion of a court of competent
jurisdiction.
(c) The execution and delivery by each of the Offeror and Parent
of this Agreement and the performance by it of its obligations
hereunder and the completion of the Offer will not violate,
conflict with or result in a breach of any provision of (i)
the constating documents of Parent or the Offeror; (ii) any
Law to which Parent or the Offeror is subject or by which
Parent or the Offeror is bound; or (iii) any agreement,
contract, indenture, deed of trust, mortgage, bond,
instrument, licence, franchise or permit to which Parent or
the Offeror is a party or by which Parent or Offeror is bound,
other than, with respect to (ii) or (iii) above, such
violations, conflicts or breaches which will not, individually
or in the aggregate, prevent or materially delay the
consummation of the transactions contemplated by this
Agreement.
(d) Other than in connection with or in compliance with the
provisions of Securities Laws, no authorization, consent or
approval of, or filing with, any Governmental Authority is
necessary on the part of the Offeror or Parent for the
consummation of the transactions contemplated by this
Agreement, except for such authorizations, consents, approvals
and filings as to which the failure to obtain or make would
not, individually or in the aggregate, prevent or materially
delay consummation of the transactions contemplated by this
Agreement.
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(e) The Offeror has made adequate arrangements to ensure that the
required funds will be available to effect payment in full for
the Shares acquired pursuant to the Offer.
(f) None of the Offeror, Parent or their respective subsidiaries
beneficially own any Shares.
7. TERMINATION
This Agreement may be terminated by notice in writing:
(a) at any time prior to the Effective Time by mutual written
consent of Parent, the Offeror and each of the Sellers;
(b) by Parent or the Offeror at any time:
(i) after March 1, 2005 if any condition to making the
Offer is not satisfied or waived by such date;
(ii) if any of the Sellers is in default of any material
covenant or obligation under this Agreement; or
(iii) if any representation or warranty of any of the
Sellers is untrue or incorrect in any material
respect;
(c) by the Sellers (acting together) at any time if the Offer is
modified in a manner contrary to the terms and conditions of
the Support Agreement;
(d) by the Sellers (acting together) if the Offeror has not taken
up and paid for Shares deposited under the Offer within 90
days after the Bid Circular is mailed to the Shareholders,
otherwise than as a result of the breach by the Company of any
material covenant or obligation under the Support Agreement or
as a result of any representation or warranty of the Company
in the Support Agreement being untrue or incorrect in any
material respect; provided, however, that if the Offeror's
take-up and payment for Shares deposited under the Offer is
delayed by (i) an injunction or order made by a court or
regulatory authority of competent jurisdiction, or (ii) Parent
or the Offeror not having obtained any regulatory waiver,
consent or approval which is necessary to permit the Offeror
to take up and pay for Shares deposited under the Offer, then,
provided that such injunction or order is being contested or
appealed or such regulatory waiver, consent or approval is
being actively sought, as applicable, this Agreement shall not
be terminated by a Seller pursuant to this Section 7(d) until
the earlier of (i) 180 days after the Offer is commenced, and
(ii) the tenth business day following the date on which such
injunction or order ceases to be in effect or such waiver,
consent or approval is obtained, as applicable;
(e) by the Sellers (acting together) if the Offeror does not mail
the Offer within the time contemplated by Section 1(b) (other
than as a result of any act of the
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Company or breach by the Company of any of its obligations
under the Support Agreement or because any of the conditions
to the making of the Offer was not satisfied or waived);
(f) by Parent or the Offeror if any condition of the Offer shall
not be satisfied or waived at the Expiry Time of the Offer and
Parent or the Offeror has not elected to waive such condition;
(g) by Parent or the Offeror if any event described in Section
5.4(a) of the Support Agreement occurs that results in an
amount becoming payable to Parent thereunder; or
(h) by the Sellers (acting together) if any event described in
Section 5.4(a) of the Support Agreement occurs that results in
an amount becoming payable to Parent thereunder and such
amount is paid,
provided that the Sellers will be prohibited from exercising their
rights to terminate hereunder if any of the Sellers is in default of
any material covenant or obligation hereunder or if any representation
or warranty of any of the Sellers under this Agreement is untrue or
incorrect in any material respect.
8. EFFECT OF TERMINATION
If this Agreement is terminated as provided for in Section 7, there shall be no
liability or further obligation on the part of any party hereto; provided that
nothing in this Section 8 shall release the parties to this Agreement of
liability for breach of any representation, warranty or covenant of this
Agreement occurring prior to the termination hereof. Upon termination of this
Agreement, each Seller shall be entitled to withdraw any of its Subject Shares
or Rights deposited under the Offer.
9. GENERAL
(a) This Agreement shall become effective upon its execution and
delivery by each of the parties hereto.
(b) This Agreement may not be amended except by an instrument
signed by each of the parties hereto.
(c) Subject to Section 8, the representations, warranties and
agreements in this Agreement shall terminate at the Effective
Time or upon termination of this Agreement pursuant to Section
7.
(d) Other than in respect of the financial advisors to the
directors of the Company or any soliciting dealer retained by
the Offeror, Parent, the Offeror and each the Sellers
represent and warrant to each other that no broker, finder or
investment banker is entitled to any brokerage, finder's or
other fee or commission, or to the reimbursement of any of its
expenses, in connection with the Offer or any similar
transaction.
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(e) All fees, costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be
paid by the party incurring such fee, cost or expense, whether
or not the Offer is consummated.
(f) The Offeror, Parent and each of the Sellers agree that, from
the date hereof until the earlier of the completion of the
Offer and the termination of this Agreement, there will be no
public announcement or other disclosure of the transactions
contemplated by this Agreement unless it is made pursuant to
Section 7.4 of the Support Agreement. The parties acknowledge
that a copy of this Agreement (and/or a report relating
hereto) may be filed with the Canadian securities regulatory
authorities and the United States Securities and Exchange
Commission.
(g) All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given and made if
in writing and if served by personal delivery upon the party
for whom it is intended or delivered, or if sent by facsimile
transmission, upon confirmation that such transmission has
been properly effected, to the Person at the address set forth
below, or such other address as may be designated in writing
hereafter, in the same manner, by such Person. Where an action
is to be taken by the Sellers acting together, notice of such
action must be given by instrument in writing executed by each
Seller. The date of receipt of any such notice or other
communication if delivered personally shall be deemed to be
the date of delivery thereof, or if sent by facsimile
transmission the date of such transmission if sent on a
business day, failing which it shall be deemed to have been
received on the next business day.
If to Parent or the Offeror:
Activant Solutions Inc.
000 Xxx Xxxxx Xxxxxxx
Xxxxxx, XX
00000
Phone No.: 000-000-0000
Fax No.: 000-000-0000
Attention: General Counsel
with a copy to:
Xxxxxx Xxxxxxx
Suite 3800, P.O. Box 00
Xxxxx Xxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
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If to the Sellers:
The address and/or facsimile of each of the Sellers shown on
Schedule A, with a copy to:
Lang Xxxxxxxx LLP
BCE Place
000 Xxx Xxxxxx, Xxxxx 0000
X.X. Xxx 000
Xxxxxxx, XX X0X 0X0
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxx
Any party may at any time change its address for service from
time to time by giving notice to the other parties in
accordance with this Section 9(g).
(h) Unless otherwise indicated, all dollar amounts referred to in
this Agreement are expressed in Canadian dollars.
(i) 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. References to Sections and
articles refer to Sections and articles of this Agreement
unless otherwise stated. Unless the context otherwise
requires, words used herein importing the singular include the
plural and vice versa. Each reference herein to knowledge of a
party means, if the party is a body corporate, unless
otherwise specified, the knowledge of such party's officers
following due inquiry. If the date on which any action is
required to be taken hereunder by a party is not a business
day, such action shall be required to be taken on the next
succeeding day which is a business day. The parties hereto
agree that the terms and language of this Agreement were the
results of negotiations between each of the Sellers, Parent
and the Offeror and, as a result, there shall be no
presumption that any ambiguity in this Agreement shall be
resolved against any party to this Agreement.
(j) If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be
affected, impaired or invalidated and the parties shall
negotiate in good faith to modify this Agreement to preserve
each party's anticipated benefits under this Agreement.
(k) The parties hereto acknowledge and agree that an award of
money damages would be inadequate for any breach of this
Agreement by any party or its representatives and any such
breach would cause the non-breaching party
- 13 -
irreparable harm. Accordingly, the parties hereto agree that,
in the event of any breach or threatened breach of this
Agreement by one of the parties, the non-breaching party will
also be entitled, without the requirement of posting a bond or
other security, to equitable relief, including injunctive
relief and specific performance. Such remedies will not be
exclusive remedies for any breach of this Agreement but will
be in addition to all other remedies available at Law or
equity to each of the parties.
(l) This Agreement constitutes the entire agreement and supersede
all other prior agreements and undertakings, both written and
oral, between the parties with respect to the subject matter
hereof.
(m) This Agreement: (a) is not intended to confer upon any Person,
other than the parties hereto, any rights or remedies
hereunder; (b) shall not be assigned by operation of Law or
otherwise, except that the Offeror may assign all or any
portion of its rights under this Agreement to any affiliate of
Parent provided that such assignee shall be the party making
the Offer and such assignee becomes a party to the Support
Agreement; and (c) shall be governed in all respects,
including validity, interpretation and effect, exclusively by
the Laws of the Province of Ontario and the Laws of Canada
applicable therein. Each party hereby attorns to the
non-exclusive jurisdiction of the courts of Ontario.
(n) The parties hereto have requested that this Agreement and all
documents or notices relating thereto be drafted in the
English language. Les parties ont exige que la presente
convention et tous les documents qui s'y rattachent soient
rediges en anglais.
(o) This Agreement may be executed in any number of counterparts
(by facsimile or otherwise), each of which shall be deemed to
be an original and all of which taken together shall be deemed
to constitute one and the same instrument, and it shall not be
necessary in making proof of this Agreement to produce more
than one counterpart.
- 14 -
If the foregoing accurately reflects the terms and conditions of our agreement,
kindly indicate your acceptance hereof by signing, dating and returning to the
Offeror and Parent the enclosed duplicate original of this Agreement.
ACTIVANT SOLUTIONS INC.
By: /s/ A. XXXXXXXX XXXXX
---------------------------
Name: A. Xxxxxxxx Xxxxx
Title: President & CEO
ACTIVANT SOLUTIONS
ACQUISITIONCO LTD.
By: /s/ A. XXXXXXXX XXXXX
---------------------------
Name: A. Xxxxxxxx Xxxxx
Title: President
- 15 -
Irrevocably accepted and agreed to this 24th day of January, 2005.
POLAR ENTERPRISE PARTNERS INC.
Per: /s/ XXXXXX XXXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: V.P. & Secretary
POLAR ENTERPRISE PARTNERS LIMITED
PARTNERSHIP BY ITS GENERAL PARTNER
PEP GENERAL PARTNER INC.
Per: /s/ XXXXXX XXXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: V.P. & Secretary
POLAR CAPITAL CORPORATION
Per: /s/ XXXXXX XXXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: V.P. & Secretary
POLAR CAPITAL INVESTMENTS INC.
Per: /s/ XXXXXX XXXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: V.P. & Secretary
/s/ XXXX XXXXX
------------------------------------
XXXX XXXXX
- 00 -
/x/ XXXXX XXXXXXXX
------------------------------------
XXXXX XXXXXXXX
0000000 XXXXXX LTD.
Per: /s/ XXX XXXXXXXXXXX
-------------------------------
Name: Xxx Xxxxxxxxxxx
Title: President
/s/ XXX XXXXXXXXXXX
------------------------------------
XXX XXXXXXXXXXX
3188361 CANADA LTD.
Per: /s/ XXXX-XXXXXX XXXXXXX
-------------------------------
Name: Xxxx-Xxxxxx Xxxxxxx
Title: President
/s/ XXXX XXXXXX THEORET
------------------------------------
XXXX XXXXXX THEORET
/s/ XXXXXXX XXXXXXX
------------------------------------
XXXXXXX XXXXXXX
/s/ XXXXXX XXXXXX
------------------------------------
XXXXXX XXXXXX
/s/ NICK CRISTIANO
------------------------------------
NICK CRISTIANO
/s/ XXXXX XXXXXX
------------------------------------
XXXXX XXXXXX
/s/ XXXXX XXXXX
------------------------------------
XXXXX XXXXX
SCHEDULE A
[Holders and Number of Shares
Subject to Lock-Up Agreement]
