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EXHIBIT 10.1
LIMITED WAIVER AGREEMENT
THIS LIMITED WAIVER AGREEMENT (the "Agreement") is made and entered
into as of the 31st day of July, 1997, by and between Software Spectrum, Inc.,
a Texas corporation (the "Company") and Private Capital Management, Inc., a
Florida corporation (the "Shareholder"). Terms used but not otherwise defined
herein shall have the meanings assigned them in the Rights Agreement, as
defined in such agreement as referenced below.
WITNESSETH:
WHEREAS, the Company and Keycorp Shareholder Services, Inc., a
Delaware corporation (the "Rights Agent"), have entered into that certain
Rights Agreement, dated as of December 13, 1996 (the "Rights Agreement"), which
provides that, upon the event of any person or entity becoming an "Acquiring
Person" as defined therein (an "Event"), shareholders of the Company may
exercise certain Rights, defined therein to be the rights to purchase from the
Company certain shares of the preferred stock of the Company having the rights
and preferences set forth in the Statement of Designation attached as Exhibit A
to the Rights Agreement; and
WHEREAS, the Company and the Shareholder have mutually agreed that it
is in the best interest of each of the Company and the Shareholder that the
Company effect a certain 1997 Stock Repurchase Plan (the "Plan") pursuant to
the terms of which the Company will from time to time during the operation of
the Plan repurchase, for an amount not to exceed in the aggregate $2.5 Million,
in the open market a certain number of shares of its common stock, par value
$.01 (the "Common Stock") (the "Repurchases"); and
WHEREAS, the Repurchases, when effected, could result in the
Shareholder owning a percentage of the Company's stock that would result in an
Event (the "Shareholder Event"); and
WHEREAS, the Company and the Shareholder have acknowledged that the
occurrence of the Shareholder Event would have undesirable consequences for
each of the Company and the Shareholder;
NOW, THEREFORE, in order to facilitate the Repurchases pursuant to the
Plan and simultaneously to preclude the occurrence of the Shareholder Event,
the Company and the Shareholder, in consideration of the mutual covenants and
agreements herein contained, do hereby agree as follows:
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1. CERTAIN DEFINITIONS.
"Affiliate(s)" shall mean any person or entity that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, the Shareholder. Furthermore, with respect to the
Shareholder, "Affiliate(s)" shall also mean any person or entity for whom the
Shareholder acts as an investment advisor or consultant with respect to the
Company.
"Beneficial Ownership" shall have the meaning assigned to such term in
Rule 13d-3 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended as in effect on the date hereof.
"Control" shall mean the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of the Company,
whether through ownership of the Common Stock, by contract, or otherwise.
"Current Shareholder Position" shall have the meaning assigned it in
Section 2 below.
"Prohibited Activity" shall mean: (i) any attempt by the Shareholder
or any of its Affiliates to gain Control of the Company; (ii) any Prohibited
Transaction, as hereinafter defined or (iii) any public action on the part of
the Shareholder or any of its Affiliates, acting individually or in concert
with other persons, which could reasonably be construed: (a) as an attempt to
effect a change of Control including, but not limited to, the issuance of press
releases or the filing of documents with the Securities And Exchange Commission
or any other Federal or State governmental entity or (b) as an action contrary
to the position of the then current board of directors of the Company.
"Prohibited Transaction" shall mean any transaction by the Shareholder
or any of its Affiliates which would result in the Beneficial Ownership by the
Shareholder or any of its Affiliates, either individually or as a group, of the
Common Stock in an amount in excess of the Current Shareholder Position.
"Standstill Period" shall mean that time period commencing with the
date of this Agreement and ending with that date which is the second annual
anniversary of the date of this Agreement.
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2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDER.
A. The Company hereby represents and warrants to the Shareholder that
it (i) has duly authorized the Plan and, subject to relevant market and other
factors and conditions affecting the Company in the good faith judgment of its
Board of Directors, the Company will make bona fide efforts, during the
operation of the Plan, to effect Repurchases pursuant to the Plan and (ii) is
currently authorized to spend up to $2.5 Million ($2,500,000.00) on Repurchases
pursuant to the Plan.
B. The Shareholder hereby represents and warrants to the Company that,
as of the date hereof, the total number of shares of Common Stock of which the
Shareholder or any of its Affiliates has Beneficial Ownership is 861,854 shares
(as such share ownership may be affected from time to time by stock splits,
stock dividends, reverse splits or any other such matter affecting all
shareholders equally, the "Current Shareholder Position").
3. CERTAIN COVENANTS AND AGREEMENTS.
A. Covenants and Agreements of the Company.
a. The Company hereby agrees that, notwithstanding the fact that
the Repurchases pursuant to the Plan may result in the Shareholder Event, if
the Shareholder Event should occur solely by virtue of the Repurchases pursuant
to the Plan, such Shareholder Event shall be deemed not to have occurred, and
the Company hereby grants a limited waiver of any provision of the Rights
Agreement pursuant to the terms of which the Shareholder Event would be
considered to have occurred solely by virtue of the Repurchases pursuant to the
Plan.
b. The Company hereby acknowledges and agrees that, by virtue of
the operation of this Agreement, the Shareholder, alone or together with its
Affiliates, may have Beneficial Ownership of twenty percent (20%) or more of
the shares of Common Stock of the Company then outstanding, provided that such
circumstance occurs solely as a result of Repurchases pursuant to the Plan, and
yet not be deemed to be an "Acquiring Person" for purposes of the Rights
Agreement.
c. The Company acknowledges and agrees that nothing in this
Agreement shall preclude the Shareholder from (i) effecting sales and purchases
of the Common Stock so long as the Current Shareholder Position is not exceeded
or (ii) subject to the provisions of paragraph 3(B)(a) below, exercising the
voting privileges commensurate with its ownership of the Common Stock.
B. Covenants and Agreements of the Shareholder.
a. The Shareholder agrees that neither the Shareholder nor any of
its Affiliates shall engage in any Prohibited Activity (i) at any time that the
Shareholder, alone or together with its Affiliates has Beneficial Ownership of
20% or more of the outstanding Common
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Stock of the Company as a result of Repurchases pursuant to the Plan, or (ii)
during the Standstill Period.
b. The Shareholder acknowledges and agrees that this Agreement
constitutes only a limited waiver of the Rights Agreement and that the waiver
herein contained applies only to the occurrence of the Shareholder Event as the
result solely of Repurchases pursuant to the Plan and not to any other
circumstances or conditions which may result in the occurrence of the
Shareholder Event.
c. The Shareholder hereby further acknowledges that, should the
Shareholder Event occur as a result of or in connection with the purchase or
acquisition by the Shareholder of Common Stock of the Company which results in
an increase in the Current Shareholder Position, then this limited waiver shall
not apply and the Shareholder shall, in accordance with the terms of the Rights
Agreement, be deemed to be an "Acquiring Person."
C. Covenants and Agreements of the Company and the Shareholder.
The Company and the Shareholder acknowledge and agree that this
Agreement constitutes a limited waiver of the Rights Agreement; by agreeing to
this waiver, the Company has not agreed to waive any other provisions of the
Rights Agreement and the Company hereby expressly reserves its right fully to
enforce the Rights Agreement except as such enforcement may be limited by the
express terms of this Agreement.
4. GENERAL PROVISIONS.
A. Voidability. This Agreement shall become null and void if the
Company shall not have publicly announced its authorization of the Plan on or
before September 15, 1997.
B. Entire Agreement. This Agreement constitutes the entire agreement
by and among the parties with respect to the subject matter hereof.
C. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
D. Assignability. This Agreement shall be binding upon and inure to
the benefit of the successors and assigns of the parties hereto; provided, that
neither this Agreement nor any right hereunder shall be assignable by the
Shareholder without the prior written consent of the Company and the Rights
Agent, but this Agreement shall be assignable by the Company to any successor
by merger or otherwise to the Company and by the Rights Agent to any successor
without the consent of the Shareholder.
E. Governing Law. The validity, interpretation and effect of this
Agreement shall be governed exclusively by the laws of the State of Texas.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SOFTWARE SPECTRUM, INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Chief Executive Officer
PRIVATE CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
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