Exhibit (d)(2)
STOCK OPTION AND TENDER AGREEMENT
Stock Option and Tender Agreement (this "Agreement"), dated as of December
19, 2000, by and among Wolters Kluwer U.S. Corporation, a Delaware corporation
("PARENT"), LL Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("SUB"), and the stockholders set forth in SCHEDULE I
hereto (each, a "STOCKHOLDER" and collectively, the "STOCKHOLDERS").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Parent, Sub, and Xxxxxxx.xxx, Inc., a Delaware corporation (the
"Company"), are entering into an Agreement and Plan of Merger (as the same may
be amended or supplemented, the "Merger Agreement") pursuant to which Sub has
agreed to make a tender offer (as the same may be amended or supplemented, the
"Offer") for all of the outstanding shares of Common Stock, par value $.001 per
share (the "Common Stock"), of the Company at the Offer Price (as defined in the
Merger Agreement) net to the seller in cash, to be followed by a merger (the
"Merger") of Sub with and into the Company.
WHEREAS, as a condition to the willingness of Parent and Sub to enter into
the Merger Agreement, each of Parent and Sub has required that each Stockholder
agree, and in order to induce Parent and Sub to enter into the Merger Agreement,
each Stockholder has agreed, among other things, (i) to tender in the Offer all
of the shares of Common Stock now owned or which may hereafter be acquired by
such Stockholder (the "Shares"), (ii) to grant to Parent or Sub, as Parent shall
designate (the "Optionee"), the option to purchase the Shares in certain
circumstances, (iii) to appoint Parent as such Stockholder's proxy under certain
circumstances to vote the Shares in connection with the Merger Agreement, (iv)
with respect to certain questions put to stockholders of the Company for a vote,
to vote the Shares, in each case, in accordance with the terms and conditions of
this Agreement, and (v) to restrict transfers or exercises of Company Options
(as defined in Section 8 below), if any, held by such Stockholder except as
provided herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the adequacy of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. TENDER OF SHARES. Each Stockholder severally (and not jointly) agrees
to tender and sell to Parent and/or Sub pursuant to the Offer all of the Shares
that are owned of record or owned beneficially with the right to sell ("Owned")
(as set forth on SCHEDULE I hereto) and each Stockholder further agrees that,
once tendered, such Shares will not be withdrawn from the Offer unless the Offer
is terminated by Parent or Sub without any shares of Common Stock being
purchased thereunder or unless the Offer is amended to reduce the purchase price
therefor or in any other respect that is materially adverse to the Stockholder.
Each Stockholder severally (and
not jointly) agrees that such Stockholder shall deliver to the depositary for
the Offer, promptly following the commencement of the Offer and in any event
within 10 business days after commencement, either a letter of transmittal
together with the certificates for the Shares, if available, or a "Notice of
Guaranteed Delivery", if the Shares are not available.
2. STOCK OPTION.
2.1 GRANT OF STOCK OPTION. Each Stockholder hereby grants to
Optionee an irrevocable option (the "STOCK OPTION"), on the terms and conditions
set forth in Sections 2.1 through 2.5, to purchase all of the Shares Owned by
such Stockholder (as set forth on SCHEDULE I hereto), at such time as Optionee
may exercise the Stock Option during the Exercise Period (as defined below), at
a purchase price equal to the Offer Price.
2.2 EXERCISE OF STOCK OPTION. (a) The Stock Option may be exercised
by Optionee, in whole and for all of such Stockholder's Shares but not in part
or for less than all of such Stockholder's Shares, during the period (the
"Exercise Period") beginning on the earlier of (i) the date the Offer is
terminated by Parent or Sub for the reasons set forth in (f) or (g) of the
Conditions to the Offer (as set forth in Annex A to the Merger Agreement)
without any violation of the Offer or the Merger Agreement by Parent or Sub
which would permit the Company to terminate the Merger Agreement and (ii) the
termination of the Merger Agreement by reason of the Company's exercise of its
termination rights pursuant to Section 7.1(c)(i)(a) or (b) of the Merger
Agreement and, in either case, ending twenty (20) business days after the
initial public announcement of a Superior Proposal (as defined in the Merger
Agreement).
(b) If Optionee wishes to exercise the Stock Option, Optionee
shall send a written notice (an "EXERCISE NOTICE") during the Exercise Period to
each Stockholder specifying that Optionee shall purchase the total number of
Shares held by such Stockholder and a date, which shall be a business day, and a
place, which shall be in the city of Chicago, Illinois, for the closing of such
purchase (the "STOCK OPTION CLOSING"). If the Stock Option is not exercised
during the Exercise Period, the Stock Option shall immediately terminate.
(c) Upon receipt of the Exercise Notice, each Stockholder
shall be obligated to deliver to Optionee a certificate or certificates
representing, and Optionee shall be obligated to (and Parent shall cause
Optionee to) purchase, the number of Shares held by such Stockholder (or to
direct the depositary for the Offer to so deliver such certificate or
certificates), in accordance with the terms of this Agreement, on the later of
the date specified in such Exercise Notice or the first business day on which
the conditions specified in Section 2.3 shall be satisfied. The date specified
in such Exercise Notice may be as early as one business day after the date of
such Exercise Notice but shall not be later than five (5) business days after
the later of (i) the date of such Exercise Notice, or (ii) the date all
conditions under Section 2.3 are satisfied.
2.3 CONDITIONS TO DELIVERY OF THE SHARES. The obligation of each
Stockholder to deliver, and of the Optionee to pay for, the Shares upon exercise
of the Stock Option is subject to the following conditions:
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(a) All waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, applicable to the exercise of the Stock
Option and the delivery of the Shares shall have expired or been terminated; and
(b) There shall be no permanent injunction or other order by
any court of competent jurisdiction restricting, preventing or prohibiting the
exercise of the Stock Option or the delivery of the Shares in respect of such
exercise.
2.4 STOCK OPTION CLOSING. At the Stock Option Closing, each
Stockholder will deliver to Optionee a certificate or certificates evidencing
the number of Shares owned by such Stockholder, each such certificate being duly
endorsed in blank and accompanied by such stock powers and such other documents
as may be necessary in Optionee's judgment to transfer record ownership of the
Shares into Optionee's name on the stock transfer books of the Company, and
Optionee will purchase the delivered Shares at the Offer Price. With respect to
the payment to be made from the Optionee to each Stockholder pursuant to this
Section 2.4, such payment shall be made by wire transfer of immediately
available funds or by certified bank check payable to such Stockholder, in an
amount for such Stockholder equal to the product of (a) the Offer Price and (b)
the number of Shares delivered by such Stockholder in respect of the Stock
Option Closing.
2.5 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of any
change in the number of issued and outstanding shares of Common Stock by reason
of any stock dividend, subdivision, merger, recapitalization, combination,
conversion or exchange of shares, or any other change in the corporate or
capital structure of the Company (including, without limitation, the declaration
or payment of an extraordinary dividend of cash or securities) which would have
the effect of diluting or otherwise adversely affecting Optionee's rights and
privileges under this Agreement, the number and kind of the shares and the
consideration payable in respect of the Shares shall be appropriately and
equitably adjusted to restore to Optionee its rights and privileges under this
Agreement. Without limiting the scope of the foregoing, in any such event, at
the option of Optionee, the Stock Option shall represent the right to purchase,
in addition to the number and kind of Shares which Optionee would be entitled to
purchase pursuant to the immediately preceding sentence, whatever securities,
cash or other property the Shares subject to the Stock Option shall have been
converted into or otherwise exchanged for, together with any securities, cash or
other property which shall have been distributed with respect to such Shares.
3. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS.
Each Stockholder severally (and not jointly), represents and
warrants to Parent and Sub that:
3.1 POWER AND AUTHORITY. Such Stockholder has all necessary power
and authority to enter into this Agreement and to sell, assign, transfer and
deliver to Parent and/or Sub, pursuant to the terms and conditions of this
Agreement and the Merger Agreement, the Shares Owned by such Stockholder (as set
forth on SCHEDULE I hereto).
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3.2 NO OTHER RIGHTS. Except for this Agreement and as shown on
Schedule I hereto, there are no outstanding options, warrants or rights to
purchase or acquire the Shares of such Stockholder.
3.3 ONLY SHARES. The Shares of such Stockholder subject to this
Agreement are the only shares of Common Stock Owned by such Stockholder.
3.4 TITLE. Such Stockholder has, and upon the closing of the
Offer, Sub shall receive, good and marketable title to such Shares of such
Stockholder, free and clear of all liens, claims, encumbrances and security
interests of any nature whatsoever (other than those imposed by applicable
federal and state securities laws).
3.5 VALIDITY. This Agreement has been duly executed and delivered by
such Stockholder and constitutes the legal, valid and binding agreement of such
Stockholder enforceable against such Stockholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' 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 therefor may be
brought.
3.6 NON-CONTRAVENTION. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both) by
Stockholder under, or give rise to a right of termination, cancellation or
acceleration of any obligation under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets of
such Stockholder under, any provision of (i) the certificate of incorporation or
other organizational documents of such Stockholder, if any, (ii) any loan or
credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to such
Stockholder or the Shares of such Stockholder or (iii) any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to such
Stockholder or any of his, her or its properties or assets or the Shares of such
Stockholder, other than, in the case of clauses (ii) and (iii), any such
conflicts, violations, defaults, rights, liens, security interests, charges or
encumbrances that, individually or in the aggregate, would not materially impair
the ability of such Stockholder to perform his, her or its obligations hereunder
or prevent, limit or restrict the consummation of any of the transactions
contemplated hereby.
4. REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB. Parent and Sub
hereby represent and warrant to each Stockholder as follows:
4.1 POWER AND AUTHORITY. Each of Parent and Sub has all necessary
power and authority to enter into the Agreement and to purchase the Shares
pursuant to the terms and conditions of this Agreement and the Merger Agreement.
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4.2 SUFFICIENT FUNDS. Parent and/or Sub has, or prior to the date of
the Stock Option Closing will have, all of the funds necessary to consummate the
transactions contemplated hereby on a timely basis and to pay any and all
related fees and expenses.
4.3 VALIDITY. This Agreement is the legal, valid and binding
agreement of Parent and Sub enforceable against them in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' 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 therefor may be brought.
4.4 NON-CONTRAVENTION. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of Parent, Sub or any
of Parent's other subsidiaries which (x) are owned directly or indirectly by
Parent and (y) directly or indirectly own Sub ("Owning Subs") under, any
provision of (i) the Certificate of Incorporation or Bylaws of Parent (or any
comparable organizational documents) or any provision of the comparable
certificate of incorporation or other organizational documents of Sub or any
Owning Sub, (ii) any loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise or license
applicable to Parent, Sub or any Owning Sub or (iii) any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to Parent, Sub or
any Owning Sub or any of their respective properties or assets, other than, in
the case of clauses (ii) or (iii), any such conflicts, violations, defaults,
rights, liens, security interests, charges or encumbrances that, individually or
in the aggregate would not have a Parent Material Adverse Effect (as defined in
the Merger Agreement), materially impair the ability of Parent or Sub to perform
its obligations hereunder or prevent, limit or restrict the consummation of any
of the transactions contemplated hereby.
5. COVENANTS OF STOCKHOLDERS.
5.1 NO DISPOSITION OR ENCUMBRANCE OF SHARES; NO ACQUISITION OF
SHARES. (a) Each Stockholder severally (and not jointly) covenants and agrees
that, except as contemplated by this Agreement, such Stockholder shall not (x)
offer or agree to sell, transfer, tender, assign, hypothecate or otherwise
dispose of, or (y) create any security interest, lien, claim, pledge, option,
right of first refusal, limitation on such Stockholder's voting rights, charge
or other encumbrance of any nature whatsoever with respect to, the Shares Owned
by, or that may hereafter be acquired by, such Stockholder. Each Stockholder
severally (and not jointly) agrees that such Stockholder shall not grant any
proxy or power of attorney with respect to the voting of Shares (each a "Voting
Proxy") to any person except to vote in favor of the transactions contemplated
by this Agreement or the Merger Agreement. Each Stockholder severally (and not
jointly) hereby represents and warrants that such Stockholder has granted no
Voting Proxy which is currently (or which will hereafter become) effective with
respect to Shares owned by such
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Stockholder except Voting Proxies, if any, granted to another Stockholder, and
if such Stockholder has granted a Voting Proxy to any person other than a
Stockholder, such Voting Proxy is hereby revoked and such Stockholder shall take
all such other actions as may be necessary or advisable to ensure that any such
Voting Proxy has been properly revoked. No Voting Proxy shall be given or
written consent executed by such Stockholder after the date hereof with respect
to such Stockholder's Shares (and if given or executed, shall not be effective)
so long as this Agreement remains in effect; PROVIDED, HOWEVER, that such
Stockholder may hereafter grant Voting Proxies in furtherance of such
Stockholder's obligations under Section 7.1 hereof.
(b) Each Stockholder hereby severally (and not jointly)
covenants and agrees that it shall not, and shall not offer or agree to, acquire
any additional shares of Common Stock, or options, warrants or other rights to
acquire shares of Common Stock, without the prior written consent of Parent or
Sub.
5.2 NO SOLICITATION OF TRANSACTIONS. Each Stockholder severally (and
not jointly) agrees that such Stockholder shall immediately cease any existing
discussions or negotiations, if any, with any parties conducted heretofore with
respect to any acquisition or exchange of all or any material portion of the
assets of, or any equity interest in, the Company or any of its subsidiaries or
any business combination with the Company or any of its subsidiaries. From and
after the date hereof, no Stockholder shall, directly or indirectly, solicit or
initiate any takeover proposal or offer from any person, or (except to the
extent permitted by the last sentence of Section 5.2 of the Merger Agreement)
engage in discussions or negotiations relating thereto (including by way of
furnishing information). Each Stockholder shall promptly advise Parent of the
receipt of any Alternative Proposal (as defined in the Merger Agreement).
5.3 STOCKHOLDERS' REPRESENTATIVE. Each Stockholder, other than
Capital Resource Lenders III, L.P., CRP Investment Partners III, L.L.C., Sandler
Capital Partners IV, L.P. and Sandler Capital Partners IV, FTE, L.P., hereby
appoints Xxxx X. Xxxxxx as Stockholders' Representative to act as Stockholders'
Representative for purposes of giving and receiving notices on behalf of each of
the Stockholders under this Agreement.
6. COVENANTS OF PARENT AND SUB.
6.1 NO SALE. After the purchase of the Shares hereunder, neither
Parent nor Sub will sell, offer to sell or otherwise dispose of the Shares in
violation of the Securities Act of 1933, as amended.
6.2 PERFORMANCE. Parent and Sub shall perform in all material
respects all of their respective obligations under the Merger Agreement.
7. VOTING AGREEMENT: PROXY OF STOCKHOLDER.
7.1 VOTING AGREEMENT. (a) Each Stockholder hereby severally (and not
jointly) agrees that, during the time this Agreement is in effect, at any
meeting of the
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stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company, such Stockholder shall (i) vote all
of the Shares Owned by such Stockholder in favor of the Merger, the Merger
Agreement and any of the transactions contemplated by the Merger Agreement; (ii)
vote such Shares against any action or agreement that would result in a breach
in any material respect of any covenant, representation or warranty or any other
obligation of the Company under the Merger Agreement; and (iii) vote the Shares
against any action or agreement that would materially impede, interfere with or
attempt to discourage the Offer or the Merger. Notwithstanding the foregoing, no
Stockholder shall be obligated to vote or execute a written consent to the
extent the Offer Price or Merger Consideration is reduced or the Offer or the
Merger Agreement is modified or amended to materially adversely affect the
rights or benefits of the Company or any stockholders (including the
Stockholders) or to materially diminish the obligations or to materially
increase the rights of Parent and/or Sub thereunder.
(b) Each Stockholder hereby severally (and not jointly)
further agrees that, if the Merger Agreement shall terminate solely by reason of
the Company's exercise of its termination rights pursuant to Section
7.1(c)(i)(a) or (b) of the Merger Agreement and for as long as the Exercise
Period has not ended, such Stockholder (i) shall attend or otherwise participate
in all duly called stockholder meetings and in all actions by written consent of
stockholders, (ii) shall not, without the prior written consent of Parent or
Sub, vote any of such Shares in favor of any actions requiring stockholder
approval which are described in Section 5 of the Merger Agreement and (iii)
shall otherwise vote such Shares, and use its reasonable efforts in its capacity
as stockholder of the Company, to prevent the actions prohibited by Section 5 of
the Merger Agreement.
7.2 IRREVOCABLE PROXY. In the event that any Stockholder shall
breach its covenant set forth in Section 7.1, such Stockholder (without any
further action on such Stockholder's part) shall be deemed to have hereby
irrevocably appointed Parent as the attorney-in-fact and proxy of such
Stockholder pursuant to the provisions of Section 212 of the Delaware General
Corporation Law, with full power of substitution, to vote, and otherwise act (by
written consent or otherwise) with respect to all shares of Common Stock
(including the Shares) that such Stockholder is entitled to vote at any meeting
of stockholders of the Company (whether annual or special and whether or not an
adjourned or postponed meeting) or consent in lieu of any such meeting or
otherwise to vote such shares as set forth in Section 7.1 above; PROVIDED, that
in any such vote or other action pursuant to such proxy Parent shall not have
the right (and such proxy shall not confer the right) to vote to reduce the
Offer Price or the Merger Consideration (as defined in the Merger Agreement) or
to otherwise modify or amend the Merger Agreement to materially adversely affect
the rights or benefits of the Company or any stockholders of the Company
(including the Stockholders) under the Offer or the Merger Agreement or to
materially diminish the obligations or to materially increase the rights of
Parent and/or Sub thereunder; and PROVIDED FURTHER, that this proxy shall
irrevocably cease to be in effect at any time that (x) the Offer shall have
expired or terminated without any shares of Common Stock being purchased
thereunder in violation of the terms of the Offer or the Merger Agreement or (y)
Parent or Sub shall be in violation of the terms of this Agreement. THIS PROXY
AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST AND
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IS EXECUTED AND INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 212(e) OF THE DELAWARE GENERAL CORPORATION LAW. Each Stockholder shall
execute and deliver to Parent any proxy cards that such Stockholder receives to
vote in favor of the consummation of the Merger. Parent shall deliver to the
Secretary of the Company any such proxy cards received by it at any meeting
called to approve the consummation of the Merger.
8. TRANSFER OF OPTIONS. Each of the Stockholders identified on Schedule I
hereto as holding options to purchase shares of Common Stock of the Company
(each a "Company Option") severally (and not jointly) agrees that so long as
this Agreement shall remain in effect, such Stockholder (for purposes of this
Section 8, an "Optionholder") will not transfer or exercise any Company Options
held by such Optionholder; PROVIDED, HOWEVER, that each Optionholder agrees to
accept at the Effective Time (as defined in the Merger Agreement) an amount in
respect of such Company Options equal to the product of (A) the excess, if any,
of the Offer Price over the per share exercise price of each such Company Option
and (B) the number of Shares subject thereto (such payment to be net of
applicable withholding taxes), and each such Company Option shall thereafter be
canceled.
9. EFFECTIVENESS: TERMINATION: NO SURVIVAL. This Agreement shall become
effective as to each Stockholder upon its execution by such Stockholder, Parent
and Sub and upon the execution of the Merger Agreement. This Agreement may be
terminated as to each Stockholder at any time by mutual written consent of such
Stockholder, Parent and Sub. Other than the Stock Option, which shall be
governed by Section 2.2, and other than the provisions of Section 7.1(b) and
7.2, this Agreement shall terminate, without any action by the parties hereto,
on the date on which the Merger Agreement terminates in accordance with its
terms; PROVIDED, HOWEVER, the provisions of Section 7.1(b) and 7.2 shall
terminate upon termination of the Stock Option. Any Stockholder may terminate
this Agreement in its entirety (including without limitation the Stock Option
even if it has been previously exercised) as to such Stockholder (i) at any time
on or after June 19, 2001, (ii) if the Offer Price or Merger Consideration is
reduced or the Offer or the Merger Agreement is modified or amended to
materially adversely affect the rights or benefits of the Company or any
stockholders (including the Stockholders) or to materially diminish the
obligations or to materially increase the rights of Parent and/or Sub
thereunder, or (iii) if, at any time after April 19, 2001, upon request made by
the Company in accordance with the terms of that certain Grid Promissory Demand
Note dated the date hereof made by the Company in favor of Parent (the "Note"),
Parent fails to make an advance to the Company as required in accordance with
the terms of the Note. No termination of this Agreement shall relieve any party
from liability for any breach of this Agreement. The representations and
warranties of the parties set forth in Sections 3 and 4 hereof shall not survive
the termination of this Agreement (except that if the Stock Option is duly
exercised, Sections 3.1, 3.2, 3.4 and 3.5 shall survive the exercise of the
Stock Option and the purchase of the Shares pursuant thereto, regardless of any
investigation made by Parent or Sub).
10. MISCELLANEOUS.
10.1 NOTICES. All notices and other communications hereunder shall
be in
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writing and shall be deemed to have been duly given if delivered personally or
sent by registered or certified mail, postage prepaid, with return receipt
requested, as follows:
(a) If to Parent or Sub, to:
Wolters Kluwer United States Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Executive Vice President
with a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
(b) If to Xxxx X. Xxxxxx or any Stockholder who has appointed
the Stockholder Representative, to the Stockholders'
Representative at:
Xxxxxxx.xxx, Inc.
000 Xxxxx 00xx Xxxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
with a copy to:
Novakov, Davis & Munck
900 Three Galleria Tower
00000 Xxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
and to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
(c) If to Capital Resource Lenders III, L.P. or CRP Investment
Partners III, L.L.C., to
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00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
with a copy to:
Xxxxx Xxxxxx
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
(d) If to Sandler Capital Partners, IV, L.P. or
Sandler Capital Partners IV, FTE, L.P., to
c/o Sandler Capital Management
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
with a copy to:
Xxxxxxx X. Xxxxxx
Sandler Capital Management
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
10.2 WAIVER AND AMENDMENT. Any provision of this Agreement may be
waived at any time by the party which is entitled to the benefits thereof and
this Agreement may be amended or supplemented at any time. No such waiver,
amendment or supplement shall be effective unless in writing and signed by the
party sought to be bound thereby.
10.3 NO PRIOR AGREEMENTS. This Agreement and the Merger Agreement
contain the entire agreement, and supersede all other prior agreements and
understandings, both written and oral, among the parties hereto with respect to
the subject matter hereof. This Agreement is not intended to confer upon any
other person any rights or remedies hereunder.
10.4 SUCCESSORS AND ASSIGNS. This Agreement shall not be assignable,
except that Parent or Sub may assign its rights under this Agreement to another
direct or indirect wholly-owned subsidiary of Parent, but such assignment shall
not relieve Parent or Sub of their respective obligations hereunder. This
Agreement shall be binding upon, inure to the benefit of and be enforceable by
and against the parties hereto and their successors (including heirs,
administrators and executors of individuals) and permitted assigns.
10.5 REMEDIES. Parent and Sub, on the one hand, and the
Stockholders, on the other hand, each acknowledge and agree that the other would
be irreparably damaged in the event any of the provisions of this Agreement were
not performed by the other in accordance with their
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specific terms or were otherwise breached. It is accordingly agreed that each
party shall be entitled to an injunction or injunctions to redress the breaches
of this Agreement and to specifically enforce the terms and provisions hereof in
any action instituted in any court of the United States or any state thereof
having jurisdiction, in addition to any other remedy to which such party may be
entitled at law or in equity.
10.6 EXPENSES. Each of the parties shall pay its own expenses in
connection with the negotiation, execution and performance of the Agreement.
10.7 COUNTERPARTS. This Agreement and any amendments hereto may be
executed in two or more counterparts, each of which shall be considered to be an
original, both of which together shall constitute the same instrument.
10.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the state of Delaware, without regard
to the principles of conflicts of laws.
10.9 SEVERABILITY. 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.
10.10 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
10.11 ACTIONS OF DIRECTORS. Nothing in this Agreement shall be
deemed to require or restrict any action, decision or failure to act of any
member of the Company's Board of Directors acting in his or her capacity as
such.
10.12 OBLIGATION OF PARENT. Whenever this Agreement requires Sub to
take any action, such requirement shall be deemed to include an undertaking on
the part of Parent to cause Sub to take such action and a guarantee of the
performance thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement to take
effect as of the date set forth above.
WOLTERS KLUWER U.S. CORPORATION
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Secretary
LL ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Secretary
STOCKHOLDERS
/s/ Xxxx X. Xxxxxx
-----------------------
Xxxx X. Xxxxxx
KDP Investments, Limited Partnership
By: KDP Management Company, LLC,
Its General Partner
By: /s/ Xxxx X. Xxxxxx
----------------------
Xxxx X. Xxxxxx
Managing Member
The Xxxxxx Trust
By: /s/ Xxxx X. Xxxxxx
---------------------
Xxxx X. Xxxxxx
Trustee
/s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------
Xxxxxxx X. Xxxxxx, Xx.
12
DWP & LAP INVESTMENTS, LIMITED PARTNERSHIP
By: DWP & LAP Management Company, LLC,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------
Xxxxxxx X. Xxxxxx, Xx.
Managing Member
/s/ Xxxxxxx X. Xxxxxx
-----------------------
Xxxxxxx X. Xxxxxx
XXXXXXX INVESTMENTS, LIMITED PARTNERSHIP
By: Xxxxxxx Management Company, LLC,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx
Managing Member
/s/ W. Xxxxx Xxxxxx
-----------------------
W. Xxxxx Xxxxxx
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CAPITAL RESOURCE LENDERS III, L.P.
By: Capital Resource Partners III, L.L.C. Its General
Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Partner
CRP INVESTMENT PARTNERS III, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Partner
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Sandler Capital Partners IV, L.P.
By: Sandler Investment Partners, L.P.,
a general partner
By: Sandler Capital Management,
a general partner
By: MJDM Corp.,
a general partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Sandler Capital Partners IV FTE, L.P.
By: Sandler Investment Partners, L.P.,
a general partner
By: Sandler Capital Management,
a general partner
By: MJDM Corp.,
a general partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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SCHEDULE I
STOCKHOLDER NUMBER OF SHARES NUMBER OF OPTIONS
HELD HELD
Xxxx X. Xxxxxx 1,119,200 38,000
KDP Investments, Limited Partnership 2,000,000 0
The Xxxxxx Trust 219,500 0
Xxxxxxx X. Xxxxxx, Xx. 479,600 0
DWP & LAP Investments,
Limited Partnership 1,000,000 0
Xxxxxxx X. Xxxxxx 559,600 0
Xxxxxxx Investments, Limited Partnership 1,000,000 0
W. Xxxxx Xxxxxx 219,500* 0
Capital Resource Lenders III, L.P. 5,659,542 0
CRP Investment Partners III, L.L.C. 4,628 0
Sandler Capital Partners IV, L.P. 1,587,360 0
Sandler Capital Partners IV, FTE, L.P. 650,160 0
* Represented by an option to acquire the shares held by The Xxxxxx Trust.
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