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EXHIBIT (D)(4)
SHAREHOLDER TENDER AND VOTING AGREEMENT
AGREEMENT dated as of the 27th day of April, 2000 among ASG SUB, Inc.,
a Delaware corporation ("Buyer"), and the holders (the "Shareholders") of the
shares of Common Stock, no par value (the "Shares"), of Viasoft, Inc., a
Delaware corporation (the "Company"), listed on the signature pages hereof.
In order to induce Buyer and Xxxxx Systems Group, Inc., a Delaware
Corporation ("Parent"), and the owner of 100% of the outstanding capital stock
of Buyer, to enter into an Agreement and Plan of Merger with the Company of even
date herewith (the "Merger Agreement"), Buyer has requested the Shareholders,
and the Shareholders have agreed, to enter into this Agreement. Capitalized
terms used and not defined herein have the meanings given in the Merger
Agreement.
Buyer, Parent and the Shareholders (individually referred as "Party"
and collectively, as the "Parties") hereto agree as follows:
ARTICLE I
TENDER OFFER AND MERGER
SECTION 1.1. TENDER OF SHARES.
(a) Each Shareholder hereby agrees, pursuant to the terms and subject
to the conditions set forth herein, to tender in the Offer all Shares currently
owned by such Shareholder as set forth on Schedule A hereto and any additional
Shares acquired by such Shareholder (whether by purchase or otherwise) after the
date of this Agreement (with respect to each Shareholder, the "Shareholder's
Shares" and, collectively, the "Shareholder Shares"). Buyer and Parent agree
that each of the Shareholders will, for all Shares tendered thereby in the Offer
and accepted for payment by Buyer, receive a price for each of its Shares equal
to the Offer Price.
(b) Within five business days of the commencement of the Offer and
within one business day of any acquisition by each Shareholder of any additional
Shares, each Shareholder shall deliver to the depositary (the "Depositary")
designated in the Offer (i) a letter of transmittal with respect to such
Shareholder's Shares complying with the terms of the Offer together with
instructions directing the Depositary to make payment for such Shares directly
to the Shareholder, (ii) a certificate or certificates representing such
Shareholder's Shares and (iii) all other documents or instruments required to be
delivered pursuant to the terms of the Offer (such documents in clauses (i)
through (iii) collectively being hereinafter referred to as the "Tender
Documents").
(c) Unless and until the Merger Agreement shall have been terminated
pursuant to its terms, no Shareholder shall, subject to applicable law, withdraw
any tender effected in accordance with Section 1.1(b).
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SECTION 1.2. VOTING OF SHARES. If the Offer, and Shareholder's tender
pursuant thereto, is not consummated, and the approval by the Company's
shareholders of the Merger Agreement and the Merger is sought, until termination
of the Merger Agreement pursuant to its terms, at every meeting of the
shareholders of the Company called with respect to any of the following, and at
every adjournment thereof, and on every action or approval by written consent of
the shareholders of Company with respect to any of the following, each
Shareholder shall cause all Shares owned of record or beneficially (over which
beneficially-owned Shares Shareholder exercises voting power) to be voted (i) in
favor of adoption and approval of the Merger Agreement and approval of the
Merger and (ii) against the approval of the following competing transactions
made in opposition to or in competition with consummation of the Merger: (a) any
merger (other than pursuant to the Merger Agreement), consolidation,
combination, sale of assets, reorganization, joint venture, recapitalization,
liquidation or winding up of or by the Company with any party other than the
Buyer or any of its Affiliates; (b) any amendment of the Company's certificate
of incorporation or by-laws or other proposed transaction, including any consent
solicitation to remove or elect any directors of the Company, which amendment
would in any manner impede, frustrate, prevent or nullify, or result in a breach
of any covenant, representation or warranty or any other obligation or agreement
of the Company under or with respect to, the Offer, the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement
(each of the foregoing in clause (a) or (b) above, a "Competing Transaction").
SECTION 1.3. NO TRANSFER. Until the earlier of the termination of this
Agreement or the day following the record date for the meeting at which
shareholders of the Company are asked to vote upon adoption and approval of the
Merger Agreement and approval of the Merger, except pursuant to Shareholder's
tender in the Offer, or as may be required by the foreclosure on any encumbrance
secured by such Shareholder's Shares as of the date hereof or court order, each
Shareholder severally and not jointly agrees as follows.
The Shareholder shall not, except as contemplated by the terms of this
Agreement, (i) transfer (the term "transfer" shall include, without limitation,
for the purposes of this Agreement, any sale, gift, pledge, encumbrance or other
disposition) any or all of the Shareholder's Shares or any interest therein,
(ii) enter into any contract, option or other agreement or understanding with
respect to any transfer of any or all such Shares or any interest therein, (iii)
grant any proxy, power of attorney or other authorization or consent in or with
respect to such Shares, (iv) deposit such Shares into a voting trust or enter
into a voting agreement or arrangement with respect to such Shares or (v)
subject to Section 3, 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.
SECTION 1.4. NO OPTION EXERCISE. During the period commencing with the
consummation of the Offer and ending at the Effective Time of the Merger, each
Shareholder agrees not to exercise any stock option issued by the Company, or
any other security exercisable for, or convertible into, Shares or other capital
stock of the Company.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDERS
Each of the Shareholders severally represents and warrants to Buyer
that:
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SECTION 2.1. VALID TITLE. Such Shareholder is the sole, true, lawful
and beneficial owner of, and has good and marketable title to, such number of
Shares set forth opposite the Shareholder's name in Schedule A hereto (as may be
adjusted from time to time, the "Shareholder's Shares") with no restrictions on
such Shareholder's rights of disposition pertaining thereto. Such Shareholder
has the sole right to vote such Shareholder's Shares, and none of such
Shareholder's Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of such Shareholder's
Shares, except as contemplated by this Agreement.
SECTION 2.2. AUTHORITY; NONCONTRAVENTION. Such Shareholder has the
requisite power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by such Shareholder and the consummation by such Shareholder of the
transactions contemplated by this Agreement have been duly authorized by all
necessary action (including any consultation, approval or other action by or
with any other person). This Agreement has been duly executed and delivered by
such Shareholder and constitutes a valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with its terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement 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 or to loss of a material benefit under, or result
in the creation of any lien upon any of the properties or assets of such
Shareholder under, any provision of applicable law or regulation or of any
agreement, judgment, injunction, order, decree, or other instrument binding on
such Shareholder or result in the imposition of any lien on any asset of such
Shareholder. No consent, approval, order or authorization of, or registration,
declaration or filing with or exemption by any Federal, state or local
government or any court, administrative or regulatory agency or commission or
other governmental authority or agency, domestic or foreign, is required by or
with respect to such Shareholder in connection with the execution and delivery
of this Agreement by such Shareholder or the consummation by such Shareholder of
the transactions contemplated by this Agreement, except for applicable
requirements, if any, of Sections 13 and 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder, and the filings
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended. If
this Agreement is being executed in a representative or fiduciary capacity, the
person signing this Agreement has full power and authority to enter into and
perform such Agreement. If the Shareholder is married and the Shareholder's
Shares constitute community property or otherwise need spousal or other approval
to be legal, valid and binding, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of, the
Shareholder's spouse, enforceable against such spouse in accordance with its
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally. Each Shareholder hereby grants to Buyer an
irrevocable proxy with full power of substitution which shall be deemed coupled
with an interest to vote such Shareholder's Shares as contemplated by Section
1.2.
SECTION 2.3. TOTAL SHARES. The number of Shares set forth on Schedule A
hereto are the only Shares beneficially owned by such Shareholder and, except as
set forth on such Schedule A, the beneficial owner or owners of such
Shareholder's Shares owns or own no options to purchase or rights to subscribe
for or otherwise acquire any securities of the
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Company and has or have no other interest in or voting rights with respect to
any securities of the Company.
SECTION 2.4. NO BROKERS. Except as set forth in the Merger Agreement
and the Viasoft Disclosure Letter, no investment banker, financial adviser,
broker or finder is entitled to a commission or fee from Buyer or the Company in
respect of this Agreement based upon any arrangement or agreement made by or on
behalf of such Shareholder in such Shareholder's individual capacity.
SECTION 2.5. Such Shareholder understands and acknowledges that Buyer
is entering into the Merger Agreement in reliance upon the Shareholder's
execution and delivery of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF BUYER
Buyer represents and warrants to each of the Shareholders that:
SECTION 3.1. CORPORATE POWER AND AUTHORITY. Buyer has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate action on the
part of Buyer. This Agreement has been duly executed and delivered by Buyer, and
constitutes a valid and binding obligation of Buyer, enforceable against it in
accordance with its terms.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. EXPENSES. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 4.2. CONDUCT OF SHAREHOLDERS. Such Shareholder will not (a)
take, agree or commit to take any action that would make any representation and
warranty of such Shareholder hereunder inaccurate in any material respect as of
any time prior to the termination of this Agreement or (b) omit, or agree or
commit to omit, to take any action necessary to prevent any such representation
or warranty from being inaccurate in any material respect at any such time.
SECTION 4.3. SPECIFIC PERFORMANCE. The Parties hereto agree that Buyer
may be irreparably damaged if for any reason any Shareholder failed to perform
any of the provisions of this Agreement, including but not limited to failure to
tender in the Offer. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any court
referred to in Section 4.8 of this Agreement. This provision is without
prejudice to any other rights that Buyer may have against any Shareholder for
any failure to perform its obligations under this Agreement. In any such action
for specific performance, no party will be required to post a bond.
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SECTION 4.4. FURTHER ASSURANCES. Each Shareholder shall, upon request of
Buyer, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by Buyer to be necessary or desirable to
carry out the provisions hereof.
SECTION 4.5. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery)
or by telecopy (with copies by overnight courier) to such Party at its address
set forth on Schedule A hereto or to such other address as such Party may have
furnished to the other Parties in writing in accordance herewith.
SECTION 4.6. AMENDMENTS; TERMINATION. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the Parties hereto. This Agreement,
and all rights and obligations of the Parties hereunder, shall terminate upon
the earlier of (a) the date that Shares are accepted for payment in the Offer
and are purchased and paid; or (b) the date that the Merger Agreement terminates
in accordance with its terms; PROVIDED HOWEVER, that the termination of this
Agreement shall not relieve any Party of liability for breach of this Agreement
prior to termination.
SECTION 4.7. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that Buyer may assign its rights and
obligations to any Affiliate of Buyer and provided, further, that no Shareholder
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of Buyer.
SECTION 4.8. PUBLIC ANNOUNCEMENTS. Each Shareholder will consult with
Buyer before issuing, and provide Buyer with the opportunity to review and
comment upon, any press release or other public statements with respect to the
transactions contemplated by this Agreement and the Merger Agreement, and shall
not issue any such press release or make any such public statement prior to such
consultation, except as may be required by applicable law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange.
SECTION 4.9. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
SECTION 4.10. JURISDICTION. Each of the Parties hereto (1) (A) consents
to submit itself to the personal jurisdiction of any Federal court located in
the State of Delaware or any Delaware state court in the event any dispute
arises out of this Agreement or any of the transactions contemplated by this
Agreement and (B) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
and (2) (A) agrees that any action under this Agreement may also be brought in
any Federal or state court located in the State of Florida or the State of
Arizona, and (C) agrees that it will not by motion or other action contest the
bringing of any such action in the above mentioned courts rather than in any
other venue or forum.
SECTION 4.11. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become
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effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
SECTION 4.12. SEVERABILITY. If any term, provision, covenant or
restriction herein, or the application thereof to any circumstance, shall, to
any event, be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other circumstances,
shall remain in full force and effect, shall not in any way be affected,
impaired or invalidated, and shall be enforced to the fullest extent permitted
by law.
SECTION 4.13. ENTIRE AGREEMENT. This Agreement, including the Schedule
hereto, constitutes the entire agreement between the Parties with respect to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations, representations and warranties, and discussions, whether oral or
written, among the Parties hereto, with respect to the subject matter hereof.
There are no conditions, covenants, agreements, representations, warranties or
other provisions, express or implied, collateral, statutory or other wise,
relating to the subject matter of this Agreement. No prior drafts of this
Agreements or portions thereof shall be admissible into evidence in any action,
suit or other proceeding involving this Agreement.
IN WITNESS WHEREOF, Buyer and Shareholders have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
[signature page follows]
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SHAREHOLDERS:
/s/
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Xxxx X. Xxxxx III
/s/
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Xxxxxxxxx X. Xxxx
/s/
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J. Xxxxx Xxxxxxx
/s/
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Xxxxxxx X. Xxxxxx
/s/
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Xxxxxx Xxxxxx, Jt. Tenant
/s/
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Xxxxx X. Xxxxxxxx
/s/
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Xxxxxxxxx X. Xxxxxxxx
/s/
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Xxxxx X. Xxx
/s/
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Xxxxx X. Xxxxxxx
/s/
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Xxxxxx X. Xxxxxxxx,
Individually and as Trustee*
/s/
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Xxxxxxx X. Xxxxxxxx,
Trustee*
*TRUST NAME: The Xxxxxxxx Family Trust
dated August 12, 1993
TRUSTEES: Xxxxxx X. Xxxxxxxx and
Xxxxxxx X. Xxxxxxxx
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ASG SUB, Inc., a Delaware corporation
By: /s/
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Print Name: Xxxxxx X. Xxxxx
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Title: President
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