EXHIBIT 99.2
SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT, dated as of June 10, 2002 (this
"Agreement"), is made and entered into among IM Acquisition, Inc., a Delaware
corporation ("Parent"), IM Merger Corp., a Florida corporation and wholly owned
subsidiary of Parent ("Merger Sub"), Technisource, Inc., a Florida corporation
("Company"), J.W.C. Limited Partnership and Xxxxxx X. Xxxxxxx (the "Xxxxxxx
Shareholders") and J.F.R. Limited Partnership and Xxxxx X. Xxxxxxxxx (the
"Xxxxxxxxx Shareholders") (each of the Xxxxxxx Shareholders and the Xxxxxxxxx
Shareholders, a "Shareholder" and, collectively, the "Shareholders").
RECITALS:
A. Parent, Merger Sub and Company propose to enter into an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement"),
pursuant to which Merger Sub will merge with and into Company (the "Merger") on
the terms and subject to the conditions set forth in the Merger Agreement.
Except as otherwise defined herein, terms used herein with initial capital
letters have the respective meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, each Shareholder beneficially owns and is
entitled to vote (or to direct the voting of) the number of Common Shares set
forth opposite such Shareholder's name on Schedule A hereto (such Common Shares,
together with any other shares of capital stock of Company the beneficial
ownership of which is acquired by such Shareholder during the period from and
including the date hereof through and including the earlier of (i) the Effective
Time and (ii) the date that the Merger Agreement is terminated pursuant to
Section 8.01 thereof, are collectively referred to herein as such Shareholder's
"Subject Shares").
C. As a condition and inducement to Parent's willingness to enter into
the Merger Agreement, Parent has requested that each Shareholder agree, and each
Shareholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained in this Agreement and the
Merger Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I.
VOTING AGREEMENT
Section 1.1. AGREEMENT TO VOTE SHARES. During the period (the
"Restricted Period") from and including the date hereof through and including
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the earlier of (a) the Effective Time and (b) the date on which the Merger
Agreement is terminated pursuant to Section 8.01 thereof, at any meeting of the
shareholders of the Company called to consider and vote upon the approval of the
Merger Agreement (and at any and all postponements and adjournments thereof),
and in connection with any action to be taken in respect of the approval of the
Merger Agreement by written consent of shareholders of Company, each Shareholder
shall vote or cause to be voted (including by written consent, if applicable)
all of such Shareholder's Subject Shares in favor of the approval of the Merger
Agreement, and in favor of any other matter necessary for the consummation of
the transactions contemplated by the Merger Agreement and considered and voted
upon at any such meeting or made the subject of any such written consent, as
applicable. During the Restricted Period, at any meeting of the shareholders of
Company called to consider and vote upon any Adverse Proposal (as hereinafter
defined) (and at any and all postponements and adjournments thereof), and in
connection with any action to be taken in respect of any Adverse Proposal by
written consent of shareholders of Company, each Shareholder shall vote or cause
to be voted (including by written consent, if applicable) all of such
Shareholder's Subject Shares against such Adverse Proposal. For purposes of this
Agreement, the term "Adverse Proposal" means any (x) Acquisition Proposal (as
defined in the Merger Agreement) or (y) other action which is intended or could
reasonably be expected to impede, interfere with, delay or materially and
adversely affect the contemplated economic benefits to Parent of the Merger or
any of the other transactions contemplated by the Merger Agreement or this
Agreement.
Section 1.2. IRREVOCABLE PROXY.
(a) GRANT OF PROXY. EACH SHAREHOLDER HEREBY APPOINTS PARENT
AND ANY DESIGNEE OF PARENT, EACH OF THEM INDIVIDUALLY, SUCH SHAREHOLDER'S PROXY
AND ATTORNEY-IN-FACT PURSUANT TO THE PROVISIONS OF SECTION 607.0722 OF THE
FLORIDA BUSINESS CORPORATION ACT, WITH FULL POWER OF SUBSTITUTION AND
RESUBSTITUTION, TO VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT TO SUCH
SHAREHOLDER'S SUBJECT SHARES IN ACCORDANCE WITH SECTION 1.1 HEREOF. THIS PROXY
IS GIVEN TO SECURE THE PERFORMANCE OF THE DUTIES OF SUCH SHAREHOLDER UNDER THIS
AGREEMENT. EACH SHAREHOLDER AFFIRMS THAT THIS PROXY IS COUPLED WITH AN INTEREST
AND SHALL BE IRREVOCABLE. EACH SHAREHOLDER SHALL TAKE SUCH FURTHER ACTION OR
EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF
THIS PROXY.
(b) OTHER PROXIES REVOKED. Each Shareholder represents that
any proxies heretofore given in respect of such Shareholder's Subject Shares are
not irrevocable, and that all such proxies are hereby revoked.
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ARTICLE II.
AGREEMENT TO TENDER SHARES
Section 2.1. PURCHASE AND SALE OF THE SHARES. Each of the Shareholders
hereby agrees that it shall tender the Subject Shares into the Offer promptly,
and in any event no later than the tenth business day following the commencement
of the Offer pursuant to Section 1.1 of the Merger Agreement, and that such
Shareholder shall not withdraw any Subject Shares so tendered unless the Offer
is terminated or has expired. Merger Subsidiary hereby agrees to purchase all
the Shares so tendered at a price per Share equal to the Merger Consideration
(as defined in the Merger Agreement) or any higher price that may be paid in the
Offer; provided, however, that Merger Subsidiary's obligation to accept for
payment and pay for the Shares in the Offer is subject to all the terms and
conditions of the Offer set forth in the Merger Agreement and Exhibit A thereto.
Section 2.2. RESTRICTIONS ON DISPOSITIONS. Prior to the termination of
this Agreement, except as otherwise provided herein, none of the Shareholders
shall: (i) directly or indirectly, transfer (which term shall include, without
limitation, for the purposes of this Agreement, any sale, gift, pledge or other
disposition), or consent to any transfer of, any or all of the Shares or any
interest therein; (ii) directly or indirectly, encourage, solicit, participate
in or initiate discussions or negotiations with, or provide any information to,
any person or group (other than Parent or any of its affiliates or
representatives) concerning any such transfer; (iii) enter into any contract,
option or other agreement or understanding with respect to any transfer of any
or all of the Shares or any interest therein; (iv) grant any proxy,
power-of-attorney or other authorization or consent in or with respect to the
Shares; (v) deposit the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares or (vi) take any other
action that would in any way restrict, limit or interfere with the performance
of such Shareholder's obligations hereunder or the transactions contemplated
hereby.
ARTICLE III.
OPTION
Section 3.1. GRANT OF OPTION. Each Shareholder hereby grants to Parent
an irrevocable option (each, an "Option" and, collectively, the "Options") to
purchase such Shareholder's Subject Shares on the terms and subject to the
conditions set forth herein, in exchange for a cash payment (the "Option
Consideration") equal to the product of (a) $4.00 and (b) the number of Common
Shares to be purchased upon any particular exercise of such Option. The type and
number of shares, securities or other property subject to each of the Options,
and the Option Consideration payable therefor, shall be subject to adjustment as
provided in Section 3.4.
Section 3.2. EXERCISE OF OPTION.
(a) At any time from and after the first acceptance by Parent
for payment of Shares tendered in the Offer, and continuing for the duration of
the Restricted Period, Parent may exercise all or any of the Options, in whole
or in part, at any time or from time to time. Notwithstanding anything in this
Agreement to the contrary, Parent shall be entitled to purchase all Subject
Shares in respect of which it shall have exercised an Option in accordance with
the terms hereof prior to the expiration of the Restricted Period, and the
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expiration of the Restricted Period shall not affect any rights hereunder which
by their terms do not terminate or expire prior to or as of such expiration.
(b) If Parent wishes to exercise an Option, it shall deliver
to the applicable Shareholder (each a "Selling Shareholder") a written notice
(an "Exercise Notice") to that effect which specifies (i) the number of Subject
Shares to be purchased from such Selling Shareholder and (ii) a date (an "Option
Closing Date") not earlier than three business days after the date such Exercise
Notice is delivered for the consummation of the purchase and sale of such
Subject Shares (an "Option Closing"). If the Option Closing cannot be effected
on the Option Closing Date specified in the Exercise Notice by reason of any
applicable judgment, decree, order, law or regulation, or because any applicable
waiting period under the HSR Act shall not have expired or been terminated, (i)
the Shareholders shall promptly take all such actions as may be requested by
Parent, and shall otherwise fully cooperate with Parent, to cause the
elimination of all such impediments to the Option Closing and (ii) the Option
Closing Date specified in the Exercise Notice shall be extended to the third
business day following the elimination of all such impediments. The place of the
Option Closing shall be at the offices of Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000-0000 and the time of the Option Closing shall be
10:00 a.m. (Eastern Time) on the Option Closing Date.
Section 3.3. PAYMENT AND DELIVERY OF CERTIFICATES. At any Option
Closing, Parent shall deliver to each Selling Shareholder a cash payment
representing the Option Consideration payable in respect of the Subject Shares
to be purchased from such Selling Shareholder at the Option Closing, and each
Selling Shareholder shall deliver to Parent such Subject Shares, free and clear
of all Liens, with the certificate or certificates evidencing such Subject
Shares being duly endorsed for transfer by such Selling Shareholder and
accompanied by all powers of attorney and/or other instruments necessary to
convey valid and unencumbered title thereto to Parent, and shall assign to
Parent (pursuant to a written instrument in form and substance satisfactory to
Parent) all rights that such Selling Shareholder may have to require Company to
register such Subject Shares under the Securities Act of 1933, as amended (the
"Securities Act"). Notwithstanding the foregoing, the parties hereto agree that
in the event any Selling Shareholder does not present his or its shares at the
Option Closing Date as provided above, then upon the tender of the Option
Consideration in good faith by Parent to such Selling Shareholder on the terms
described herein, the respective Option shall be deemed to have been effectively
exercised, such Selling Shareholder shall be deemed to have properly transferred
the Subject Shares and Parent shall have full rights to the Subject Shares and
any registration rights held by such Selling Shareholder. Transfer taxes, if
any, imposed as a result of the exercise of an Option shall be borne by the
Selling Shareholder.
Section 3.4. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. In the
event of any change in the capital stock of Company by reason of a stock
dividend, split-up, merger, recapitalization, combination, exchange of shares,
extraordinary distribution or similar transaction, the type and number or amount
of shares, securities or other property subject to each of the Options, and the
Option Consideration payable therefor, shall be adjusted appropriately, and
proper provision shall be made in the agreements governing such transaction, so
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that Parent shall receive upon exercise of any Option the type and number or
amount of shares, securities or property that Parent would have held and/or been
entitled to receive in respect of the applicable Selling Shareholder's Subject
Shares immediately after such event or the record date therefor, as applicable,
if the Option had been exercised immediately prior to such event or the record
date therefor, as applicable. The provisions of this Section 3.4 shall apply in
a like manner to successive stock dividends, split-ups, mergers,
recapitalizations, combinations, exchanges of shares or extraordinary
distributions or similar transactions.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1. CERTAIN REPRESENTATIONS AND WARRANTIES OF THE
SHAREHOLDERS. Each Shareholder, severally and not jointly, represents and
warrants to Parent as follows:
(a) OWNERSHIP. Such Shareholder is the sole record and
beneficial owner of the number of Shares set forth opposite such Shareholder's
name on Schedule A hereto and has full and unrestricted power to dispose of and
to vote such Shares. Such Shareholder does not beneficially own any securities
of Company on the date hereof other than the Shares.
(b) POWER AND AUTHORITY; EXECUTION AND DELIVERY. Such
Shareholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. In the case of each
Shareholder that is not a natural person, the execution and delivery of this
Agreement by such Shareholder and the consummation by such Shareholder of the
transactions contemplated hereby have been duly authorized by all necessary
action, if any, on the part of such Shareholder. This Agreement has been duly
executed and delivered by such Shareholder and, assuming that this Agreement
constitutes the valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of such Shareholder, enforceable
against such Shareholder in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and to general
principles of equity.
(c) NO CONFLICTS. The execution and delivery of this Agreement
do not, and, subject to compliance with the HSR Act, to the extent applicable,
the consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, a right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking, law,
rule, regulation, judgment, order, injunction, decree, determination or award
binding on such Shareholder, other than any such conflicts, breaches,
violations, defaults, obligations, rights or losses that individually or in the
aggregate would not (i) impair the ability of such Shareholder to perform such
Shareholder's obligations under this Agreement or (ii) prevent or delay the
consummation of any of the transactions contemplated hereby.
Section 4.2. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent hereby
represents and warrants to each Shareholder that:
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(a) POWER AND AUTHORITY; EXECUTION AND DELIVERY. Parent has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent and, assuming that this Agreement constitutes the valid and binding
obligation of each Shareholder, constitutes a valid and binding obligation of
Parent, enforceable against Parent in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and to general principles of equity.
(b) NO CONFLICTS. The execution and delivery of this Agreement
do not, and, subject to compliance with the HSR Act, to the extent applicable,
the consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking, law,
rule, regulation, judgment, order, injunction, decree, determination or award
binding on Parent, other than any such conflicts, breaches, violations,
defaults, obligations, rights or losses that individually or in the aggregate
would not (i) impair the ability of Parent to perform its obligations under this
Agreement or (ii) prevent or delay the consummation of any of the transactions
contemplated hereby.
(c) PURCHASE FOR OWN ACCOUNT. The Options and the Subject
Shares to be acquired upon exercise of the Options are being and shall be
acquired by Parent for its own account, and shall not be sold, transferred or
otherwise disposed of by Parent except in a transaction registered or exempt
from registration under the Securities Act and in compliance with applicable
state securities laws.
ARTICLE V.
CERTAIN COVENANTS
Section 5.1. CERTAIN COVENANTS OF SHAREHOLDERS.
(a) RESTRICTION ON TRANSFER OF SUBJECT SHARES, PROXIES AND
NONINTERFERENCE. During the Restricted Period, and except as permitted in
Section 5.02 of the Merger Agreement, no Shareholder shall directly or
indirectly: (i) except pursuant to the terms of this Agreement and for the
conversion of Subject Shares at the Effective Time pursuant to the terms of the
Merger Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of (including by conversion thereof into Common
Shares), or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
such Shareholder's Subject Shares; (ii) except pursuant to the terms of this
Agreement, grant any proxies or powers of attorney, deposit any of such
Shareholder's Subject Shares into a voting trust or enter into a voting
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agreement with respect to any of such Shareholder's Subject Shares; or (iii)
take any action that would make any representation or warranty contained herein
untrue or incorrect or have the effect of impairing the ability of such
Shareholder to perform such Shareholder's obligations under this Agreement or
preventing or delaying the consummation of any of the transactions hereby.
(b) NONSOLICITATION. Neither Shareholder shall, and each
Shareholder shall cause any of such Shareholder's representatives and agents
(including, but not limited to, investment bankers, attorneys and accountants)
not to, (i) directly or indirectly, encourage, solicit or initiate discussions
or negotiations with any person or group (other than Parent, any of its
affiliates or representatives) concerning any Company Takeover Proposal (as
defined in Section 5.02(c) of the Merger Agreement) or (ii) except as permitted
in Section 5.02 of the Merger Agreement and necessary to fulfill the fiduciary
duties of the Shareholders as directors of the Company, participate in
discussions or negotiations with, or provide any information to, any person or
group (other than Parent, any of its affiliates or representatives) concerning
any Company Takeover Proposal.
(c) COOPERATION. Each Shareholder shall cooperate fully with
Parent and Company in connection with their respective efforts to fulfill the
conditions to the Merger set forth in Article VII of the Merger Agreement.
(d) ACKNOWLEDGMENTS AND WAIVERS. Each Shareholder hereby (i)
acknowledges that such Shareholder is familiar with the provisions of the
articles of incorporation of Company fixing the powers, preferences and rights
appurtenant to such Shareholder's Subject Shares, (ii) consents to the
provisions of the Merger Agreement and (iii) agrees that if and to the extent
that the provisions of the Merger Agreement or this Agreement conflict with or
are inconsistent with any of the provisions of the instruments referred to in
clause (i) of this sentence, the provisions of the Merger Agreement and of this
Agreement shall control and any and all such conflicts or inconsistencies (and
any and all claims and causes of action that might otherwise exist with respect
thereto) are hereby irrevocably waived.
(e) RELEASES.
(i) Each Shareholder hereby fully, unconditionally
and irrevocably releases, effective as of the Effective Time, any and all claims
and causes of action that such Shareholder has or may have against Company or
any of its Subsidiaries or any present or former director, officer, employee or
agent of any of those entities (collectively, the "Released Parties") arising or
resulting from or relating to any act, omission, event or occurrence prior to
the Effective Time; provided that nothing in this clause (i) shall (x) affect
the obligations of the Company to the Shareholders pursuant to any employment
agreement between the Company and such Shareholder, or (y) limit any claims or
causes of action by any Shareholder against any present or former director,
officer, employee or agent of Company or any of its Subsidiaries arising out of
or resulting from or relating to any act, omission, event or occurrence which
such Shareholder did not become aware of, and could not have been reasonably
expected to have become aware of, until after the Effective Time, other than any
claim or cause of action which, if asserted, would require Company, the Parent,
the Surviving Corporation or any of their Subsidiaries to indemnify and/or
defend the present or former director, officer, employee or agent with respect
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to such claim or cause of action, whether such requirement arose under Florida
law, the Company's articles of incorporation, or any contractual obligation of
the Company, the Parent, the Surviving Corporation or any of their Subsidiaries,
each of which claims shall be covered by the release in this clause (i).
(ii) The Company and its Subsidiaries hereby fully,
unconditionally and irrevocably release, effective as of the Effective Time, any
and all claims and causes of action that the Company and Subsidiaries have or
may have against each Shareholder arising or resulting from or relating to any
act, omission, event or occurrence prior to the Effective Time.
Section 5.2. INDEMNIFICATION.
(a) INDEMNIFICATION. Subject to the limitations set forth in
this Section 5.2(a), each Shareholder (each, an "INDEMNIFYING PARTY") shall
indemnify and hold harmless the Parent and each of its affiliates (including,
following the Closing, the Company), and the representatives and affiliates of
each of the foregoing persons (each, an "INDEMNIFIED PARTY"), from, against and
in respect of any and all suits, actions, proceedings, liabilities, orders from
governmental authorities, liens, losses, damages, dues, assessments, fines,
penalties, taxes, fees, costs (including costs of investigation, defense and
enforcement of this Agreement), expenses or amounts paid in settlement (in each
case, including reasonable attorneys' fees and expenses), whether or not
involving a Third Party Claim and including interest at the rate of 8% per
annum, compounded quarterly, from the date any of the foregoing are incurred or
suffered (collectively, "LOSSES"), incurred or suffered by the Indemnified
Parties or any of them as a result of, arising out of or relating to, directly
or indirectly, any breach or inaccuracy of any representation or warranty made
by such Shareholder in this Agreement. The Xxxxxxx Shareholders' indemnity
obligation shall be joint and several only among such Xxxxxxx Shareholders and
the Xxxxxxxxx Shareholders' indemnity obligations shall be joint and several
only among such Xxxxxxxxx Shareholders.
If and to the extent that the foregoing undertaking is unenforceable against the
Shareholders for any reason, the Shareholders shall make the maximum
contribution to the payment and satisfaction of each of the Losses described in
this Section 5.2 that is permissible under applicable legal requirements.
(b) KNOWLEDGE AND INVESTIGATION. The right of any Indemnified
Party to indemnification pursuant to this Section 5.2 shall not be affected by
any investigation conducted or knowledge acquired (or capable of being acquired)
at any time, whether before or after the execution and delivery of this
Agreement or the Closing, with respect to the accuracy of any representation or
warranty, or performance of or compliance with any covenant or agreement,
referred to in Section 5.2(a). The waiver of any condition contained in this
Agreement based on the accuracy of any such representation or warranty, or on
the performance of or compliance with any such covenant or agreement, shall not
affect the right of any Indemnified Party to indemnification pursuant to this
Section 5.2 based on such representation, warranty, covenant or agreement.
(c) REMEDIES CUMULATIVE. The rights of each Indemnified Party
under this Section 5.2 are cumulative, and each Indemnified Party shall have the
right in any particular circumstance, in its sole discretion, to enforce any
provision of this Section 5.2 without regard to the availability of a remedy
under any other provision of this Section 5.2.
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ARTICLE VI.
MISCELLANEOUS
Section 6.1. FEES AND EXPENSES. Each party hereto shall pay its own
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 6.2. TERMINATION; AMENDMENT. This Agreement shall terminate
immediately upon any termination of the Merger Agreement; provided in each such
instance that Parent has not within five business days of such termination by
the Company of the Merger Agreement contested such termination in a court of
competent jurisdiction. In the event Parent has challenged the Company's
termination of the Merger Agreement, this Agreement shall remain in full force
and effect until such challenge is either withdrawn or a final judgment is
rendered in the Company's favor. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 6.3. EXTENSION; WAIVER. Any agreement on the part of a party to
waive any provision of this Agreement, or to extend the time for any performance
hereunder, shall be valid only if set forth in an instrument in writing signed
on behalf of such party. The failure of any party to this Agreement to assert
any of its rights under this Agreement or otherwise shall not constitute a
waiver of such rights.
Section 6.4. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies; provided, however, that the
provisions of Sections 4.1(c) and 4.1(d) are intended to inure the benefit of,
and to be enforceable by, the Released Parties.
Section 6.5. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
Section 6.6. NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, or sent by overnight courier (providing proof of
delivery), in the case of the Shareholders, to the address set forth on Schedule
A hereto prior to the Effective Date and to the address as set forth in the
Company's records after the Effective Date, or, in the case of Parent, to the
address set forth below (or, in each case, at such other address as shall be
specified by like notice).
IM Acquisition, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Section 6.7. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests, or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any Shareholder without
the prior written consent of Parent, and any such assignment or delegation that
is not consented to shall be null and void. This Agreement, together with any
rights, interests, or obligations of Parent hereunder, may be assigned or
delegated, in whole or in part, by Parent without the consent of or any action
by any Shareholder upon notice by Parent to each Shareholder affected thereby as
herein provided. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
Section 6.8. FURTHER ASSURANCES. Each Shareholder and Parent shall
execute and deliver all other documents and instruments and take all other
action that may be reasonably necessary in order to consummate the transactions
provided for herein.
Section 6.9. ENFORCEMENT. 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. Accordingly, 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 appropriate state or federal court in the State of New York, this being
in addition to any other remedy to which they are entitled at law or in equity.
Each of the parties hereto (i) shall submit itself to the personal jurisdiction
of any appropriate state or federal court in the State of New York in the event
any dispute arises out of this Agreement or any of the transactions contemplated
hereby, (ii) shall not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, and (iii) shall not bring
any action relating to this Agreement or any of the transactions contemplated
hereby in any court other than any appropriate state or federal court in the
State of New York.
Section 6.10. SEVERABILITY. Whenever possible, each provision or
portion of any provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
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Section 6.11. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other parties.
[signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
IM ACQUISITION, INC. IM MERGER CORP.
By: By:
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Name: Name:
Title: Title
J.F.R. LIMITED PARTNERSHIP J.W.C. LIMITED PARTNERSHIP
J.F.R., INC., as General Partner J.W.C. INC., as General Partner
By: By:
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Name: Xxxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: President Title: President
XXXXX XXXXXXXXX, individually XXXXXX X. XXXXXXX, individually
By: By:
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Name: Xxxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxxxx
TECHNISOURCE, INC.
By:
--------------------------
Name:
Title:
-12-
SCHEDULE A
TOTAL NUMBER OF SHARES SUBJECT
TO OPTIONS OR WARRANTS TO PURCHASE
NAME AND ADDRESS OF SHAREHOLDER NUMBER OF SHARES OF COMMON STOCK COMMON SHARES BENEFICIALLY OWNED
------------------------------- -------------------------------- ------------------------------------
J.W.C. LIMITED PARTNERSHIP 3,425,348 shares 0
c/o Technisource, Inc.
0000 X. Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
J.F.R. LIMITED PARTNERSHIP 3,315,530 shares 0
c/o Technisource, Inc.
0000 X. Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
XXXXXX X. XXXXXXX 54,733 shares 0
c/o Technisource, Inc.
0000 X. Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
XXXXX X. XXXXXXXXX 0 0
c/o Technisource, Inc.
0000 X. Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
