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EXHIBIT 2.2
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AGREEMENT WITH SELLER STOCKHOLDER
OF
HUCK STORE FIXTURE COMPANY
SEPTEMBER 21, 1999
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TABLE OF CONTENTS
Page
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1. Definitions..............................................................................................2
2. Representations and Warranties of the Seller Stockholder.................................................2
(a) Authorization...................................................................................2
(b) Noncontravention................................................................................3
(c) Investment......................................................................................3
(d) Seller's Shares.................................................................................3
3. Post-Closing Covenants...................................................................................4
(a) General.........................................................................................4
(b) Litigation Support..............................................................................4
(c) Buyer Stock.....................................................................................4
4. Remedies for Breaches of This Agreement and the Asset Purchase Agreement.................................5
(a) Survival of Representations and Warranties......................................................5
(b) Indemnification Provisions for Benefit of the Buyer.............................................6
(c) Indemnification Provisions for Benefit of Seller Stockholder ...................................7
(d) Matters Involving Third Parties.................................................................8
(e) Determination of Adverse Consequences..........................................................10
(f) Setoff.........................................................................................10
(g) Other Indemnification Provisions...............................................................10
(h) Notice of Claim................................................................................11
5. Miscellaneous...........................................................................................11
(a) No Third Party Beneficiaries...................................................................11
(b) Entire Agreement...............................................................................11
(c) Succession and Assignment......................................................................11
(d) Counterparts...................................................................................12
(e) Headings.......................................................................................12
(f) Notices........................................................................................12
(g) Governing Law..................................................................................13
(h) Amendments and Waivers.........................................................................13
(i) Severability...................................................................................13
(j) Expenses.......................................................................................14
(k) Construction...................................................................................14
(l) Incorporation of Annex.........................................................................14
(m) Specific Performance...........................................................................14
ANNEX
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AGREEMENT WITH SELLER STOCKHOLDER
THIS AGREEMENT WITH SELLER STOCKHOLDER (this "Agreement") is dated and
entered into as of September 21, 1999 by and among THE SOURCE INFORMATION
MANAGEMENT COMPANY, a Missouri corporation (the "Buyer"), XXXXXX X. XXXXX
("Xxxxx") and XXXXXX X. XXXXX AS TRUSTEE OF THE XXXXXX X. XXXXX REVOCABLE TRUST
DATED JUNE 13, 1994, a stockholder (the "Trust" and, collectively with Xxxxx,
the "Seller Stockholder") of HUCK STORE FIXTURE COMPANY, an Illinois corporation
("Huck") and HUCK STORE FIXTURE COMPANY OF NEVADA, a Nevada corporation ("Huck
Nevada", and, together with Huck, the "Seller"). The Buyer and the Seller
Stockholder are referred to collectively herein as the "Parties."
The Buyer and the Seller are entering into an Asset Purchase Agreement
concurrently herewith (the "Asset Purchase Agreement"). Certain terms used
herein without definition are used herein as defined in the Asset Purchase
Agreement.
The Asset Purchase Agreement contemplates a transaction in which the
Buyer will purchase the Acquired Assets (and accept responsibility for the
Assumed Liabilities) of the Seller in return for cash and the Buyer Stock.
The Buyer and the Seller make certain representations, warranties, and
covenants in the Asset Purchase Agreement which will survive the Closing for
purposes of potential indemnification. The Buyer agrees to provide and requires,
as a condition to Closing, that the Seller Stockholder provide for post-Closing
indemnification against breaches of these representations, warranties, and
covenants and to make certain other covenants among themselves.
Now, therefore, in consideration of the premises and the mutual
promises herein made, the Buyer and the Seller Stockholder agree as follows.
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1. Definitions.
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands, injunctions,
judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs,
amounts paid in settlement, Liabilities, obligations, Taxes, liens, losses,
expenses, and fees, including court costs and attorneys' fees and expenses.
"Annex" has the meaning set forth in ss. 2 below.
"Asset Purchase Agreement" has the meaning set forth in the
preface above.
"Indemnified Party" has the meaning set forth in ss. 4(d)
below.
"Indemnifying Party" has the meaning set forth in ss. 4(d)
below.
"Party" has the meaning set forth in the preface above.
"Third Party Claim" has the meaning set forth in ss. 4(d)
below.
2. Representations and Warranties of the Seller Stockholder. The Seller
Stockholder represents and warrants to the Buyer that the statements contained
in this ss. 2 are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this ss. 2) with respect to himself, except as set forth in the Annex
attached hereto (the "Annex").
(a) Authorization. The Seller Stockholder has full power and
authority to execute and deliver this Agreement and to perform his obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of the Seller Stockholder, enforceable in accordance with its terms and
conditions.
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(b) Noncontravention. Neither the execution and the delivery
of this Agreement by the Seller Stockholder, nor the performance by the Seller
Stockholder of his obligations hereunder, will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, stipulation,
ruling, or other restriction of any government, governmental agency, or court to
which the Seller Stockholder is subject or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which the Seller Stockholder is a party or by which he is bound
or to which any of his assets is subject.
(c) Investment. Each of the Seller Stockholder, Xxxxx Xxxxxxx
as Trustee of the Xxxxxx X. Xxxxx Irrevocable 1999 Trust Agreement dated
September 13, 1999 ("Xxxxxxx") and Xxxxxxxx X. Xxxxxxx ("Xxxxxxx") (i)
understand that the shares of Buyer Stock (x) have not been, and will not be,
registered under the Securities Act, or under any state securities laws, and are
being offered and sold in reliance upon federal and state exemptions for
transactions not involving any public offering, and (y) will be subject to
restrictions on resale, including a holding period, under Rule 144 of the
Securities Act, (ii) understands that the shares of Buyer Stock to be delivered
to Seller pursuant to the Asset Purchase Agreement are subject to a lock-up
period as provided in Section 3(e) hereof, (iii) to the extent shares of Buyer
Stock are transferred to the Seller Stockholder, Xxxxxxx or Xxxxxxx, is
acquiring the Buyer Stock solely for his own account for investment purposes,
and not with a view to the distribution thereof (except to a family limited
partnership, trust or other person controlled by the Seller Stockholder, Xxxxxxx
or Xxxxxxx (a "Stockholder Controlled Entity"), (iv) has received certain
information concerning the Buyer and has had the opportunity to obtain
additional information as desired in order to evaluate the merits and the risks
inherent in holding the Buyer Stock, (v) is able to bear the economic risk and
lack of liquidity inherent in holding the Buyer Stock, and (vi) is a
sophisticated investor with knowledge and experience in business and financial
matters.
(d) Sellers' Shares. The Seller Stockholder holds of record
the number of Seller's Shares set forth next to his or its name on the Annex.
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3. Post-Closing Covenants. The Parties agree as follows with respect to
the period following the Closing.
(a) General. In case at any time after the Closing any further
action is necessary to carry out the purposes of the Asset Purchase Agreement,
Buyer and the Seller and, if necessary, the Seller Stockholder, Xxxxxxx and
Xxxxxxx, will take such further action (including the execution and delivery of
such further instruments and documents) as any other Party may reasonably
request, at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under ss.4 below). The
Parties acknowledge and agree that from and after the Closing both Parties will
be entitled to reasonable and necessary access to and copies of of all
documents, books, records (including Tax records), agreements, and financial
data of any sort relating to the other Party.
(b) Litigation Support. In the event and for so long as the
Buyer, the Seller or the Seller Stockholder actively is contesting or defending
against any action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand in connection with (i) any transaction contemplated under the
Asset Purchase Agreement or (ii) any fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction on or prior to the Closing Date involving Seller,
each of the other Parties will cooperate with the contesting or defending Party
and his or its counsel in the contest or defense, make available his or its
personnel, and provide such testimony and access to his or its books and records
as shall be necessary in connection with the contest or defense, all at the sole
cost and expense of the contesting or defending Party (unless the contesting or
defending Party is entitled to indemnification therefor under ss.4 below).
(c) Buyer Stock. Each of the Seller Stockholder, Xxxxxxx and
Xxxxxxx further agree: (i) that, except in the event of the Seller
Stockholder's, Xxxxxxx'x or Xxxxxxx' death, as the case may be, he will not
sell, pledge, hypothecate or otherwise transfer any Buyer Stock received by him
from Seller prior to December 27, 1999, except as may be otherwise provided
herein; and (ii) that no disposition of such Buyer Stock may be made unless
Buyer shall first have been provided with an opinion satisfactory to Buyer in
form and substance from counsel reasonably satisfactory to
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the Buyer to the effect that the holder may transfer the Buyer Stock as desired
without registration under the Securities Act. Notwithstanding the foregoing,
any shares of Buyer Stock received by the Seller Stockholder, Xxxxxxx or Xxxxxxx
may be transferred to a trust in which the beneficiaries are immediate family
members of the Seller Stockholder, Xxxxxxx or Xxxxxxx, as the case may be, and
the transaction is not deemed a "sale" with in the meaning of the Securities Act
of 1933, and further provided that the trustee of such trust first executes an
investment letter to the Buyer containing representations identical to those
contained in Section 3(ac) of the Asset Purchase Agreement. Each certificate for
shares of Buyer Stock will be imprinted with a legend substantially in the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN AN AGREEMENT WITH
SELLER STOCKHOLDER DATED AS OF SEPTEMBER 21, 1999 (THE
"AGREEMENT"). THE ISSUER OF THIS CERTIFICATE WILL FURNISH A
COPY OF THESE PROVISIONS TO THE HOLDER HEREOF WITHOUT CHARGE
UPON WRITTEN REQUEST.
4. Remedies for Breaches of This Agreement and the Asset Purchase
Agreement.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Buyer and the Seller contained in the
Asset Purchase Agreement and in this Agreement shall survive the Closing and
continue in full force and effect thereafter (subject to any applicable statutes
of limitations) until eighteen (18) months following the Closing Date; provided,
however, that the representation of Seller contained in ss.3(i) of the Asset
Purchase Agreement shall survive the Closing (even if the Buyer or the damaged
Party knew or had reason to know of any misrepresentation or breach of warranty
at the time of Closing) and continue in full force and effect thereafter until
the expiration of any applicable statutes of limitations.
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(b) Indemnification Provisions for Benefit of the Buyer.
(i) In the event Seller breaches (or in the event any
third party alleges facts that, if true, would mean the Seller
has breached) any of its representations, warranties, and
covenants contained in the Asset Purchase Agreement, and, if
there is an applicable survival period pursuant to ss.4(a)
above, provided that the Buyer makes a written claim for
indemnification against the Seller Stockholder pursuant to
ss.6(h) below within such survival period, then the Seller
Stockholder agrees to indemnify the Buyer from and against the
entirety of any Adverse Consequences the Buyer may suffer
through and after the date of the claim for indemnification
(including any Adverse Consequences the Buyer may suffer after
the end of any applicable survival period) resulting from,
arising out of, relating to, in the nature of, or caused by
the breach (or the alleged breach); provided, however, that
the Seller Stockholder shall not have any obligation to
indemnify the Buyer from and against any Adverse Consequences
resulting from, arising out of, relating to, in the nature of,
or caused by the breach (or alleged breach) of any
representation or warranty of Seller contained in the Asset
Purchase Agreement until the Buyer has suffered Adverse
Consequences by reason of all such breaches (or alleged
breaches) in excess of a Fifty Thousand Dollar ($50,000)
aggregate threshold (the "Basket") (at which point the Seller
Stockholder will only be obligated to indemnify the Buyer from
and against all such Adverse Consequences suffered by Buyer in
excess of such threshold).
(ii) In the event the Seller Stockholder breaches (or
in the event any third party alleges facts that, if true,
would mean the Seller Stockholder has breached) any of his
representations, warranties, and covenants contained in this
Agreement, and, if there is an applicable survival period
pursuant to ss.4(a) above, provided that the Buyer makes a
written claim for indemnification against the Seller
Stockholder pursuant to ss.6(h) below within such survival
period, then the Seller Stockholder agrees to indemnify the
Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer through and after the date
of the claim for indemnification (including any Adverse
Consequences the Buyer may suffer after the
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end of any applicable survival period) resulting from, arising
out of, relating to, in the nature of, or caused by the breach
(or the alleged breach).
(iii) Subject to the Basket, the Seller Stockholder
agrees to indemnify the Buyer from and against the entirety of
any Adverse Consequences the Buyer may suffer resulting from,
arising out of, relating to, in the nature of, or caused by
any Liability of Seller which is not an Assumed Liability
(including any Liability of Seller that becomes a Liability of
the Buyer under any bulk transfer law of any jurisdiction,
under any common law doctrine of de facto merger or successor
liability, or otherwise by operation of law).
(iv) Any indemnification by Seller Stockholder under
this ss.4 shall not exceed Two Million Two Hundred Twenty-Five
Thousand Dollars ($2,225,000.00) (the "Cap").
(v) Notwithstanding anything contained herein to the
contrary, the Seller Stockholder agrees to indemnify the Buyer
from and against the entirety of any Adverse Consequences the
Buyer may suffer resulting from, arising out of, relating to,
in the nature of, or caused by National Labor Relations Board
Case No. 14-CA- 24484 in excess of One Hundred Fifty Thousand
Dollars ($150,000.00). Such indemnification shall not be
subject to, or calculated as part of, either the Basket or the
Cap, and shall survive the Closing and continue in full force
and effect thereafter unlimited by any survival period
otherwise contained herein. The Seller Stockholder agrees to
deposit, or cause the Seller to deposit, the Escrow Funds into
the Escrow Account (as such terms are defined in the Asset
Purchase Agreement) pursuant to the terms of ss.2(r) of the
Asset Purchase Agreement.
(c) Indemnification Provisions for Benefit of the Seller
Stockholder.
(i) In the event the Buyer breaches (or in the event
any third party alleges facts that, if true, would mean the
Buyer has breached) any of its representations,
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warranties, and covenants contained in the Asset Purchase
Agreement and in this Agreement, and, if there is an
applicable survival period pursuant to ss.4(a) above, provided
that the Seller Stockholder makes a written claim for
indemnification against the Buyer pursuant to ss.6(h) below
within such survival period, then the Buyer agrees to
indemnify the Seller Stockholder from and against the entirety
of any Adverse Consequences the Seller Stockholder may suffer
through and after the date of the claim for indemnification
(including any Adverse Consequences the Seller Stockholder may
suffer after the end of any applicable survival period)
resulting from, arising out of, relating to, in the nature of,
or caused by the breach (or the alleged breach).
(ii) The Buyer agrees to indemnify the Seller
Stockholder from and against the entirety of any Adverse
Consequences the Seller Stockholder may suffer resulting from,
arising out of, relating to, in the nature of, or caused by
any Assumed Liability.
(iii) Any indemnification by Buyer under this ss.4
shall not exceed Two Million Two Hundred Twenty-Five Thousand
Dollars ($2,225,000.00); provided, however, that such
limitation shall not apply to any obligation Buyer has to
Seller to pay the Purchase Price or Earn-Out under the Asset
Purchase Agreement.
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third
Party Claim") which may give rise to a claim for
indemnification against any other Party (the "Indemnifying
Party") under this ss.4, then the Indemnified Party shall
promptly notify each Indemnifying Party thereof in writing;
provided, however, that no delay on the part of the
Indemnified Party in notifying any Indemnifying Party shall
relieve the Indemnifying Party from any obligation hereunder
unless (and then solely to the extent) the Indemnifying Party
thereby is prejudiced.
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(ii) Any Indemnifying Party will have the right to
defend the Indemnified Party against the Third Party Claim
with counsel of his/its choice reasonably satisfactory to the
Indemnified Party so long as (A) the Indemnifying Party
notifies the Indemnified Party in writing within fifteen (15)
days after the Indemnified Party has given notice of the Third
Party Claim that the Indemnifying Party will indemnify the
Indemnified Party from and against the entirety of any Adverse
Consequences the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by
the Third Party Claim, (B) the Third Party Claim involves only
money damages and does not seek an injunction or other
equitable relief, (C) settlement of, or an adverse judgment
with respect to, the Third Party Claim is not, in the good
faith judgment of the Indemnified Party, likely to establish a
precedential custom or practice adverse to the continuing
business interests of the Indemnified Party, and (D) the
Indemnifying Party conducts the defense of the Third Party
Claim actively and diligently.
(iii) So long as the Indemnifying Party is conducting
the defense of the Third Party Claim in accordance with
ss.4(d)(ii) above, (A) the Indemnified Party may retain
separate co-counsel at its sole cost and expense and
participate in the defense of the Third Party Claim, (B) the
Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the
Indemnifying Party (not to be withheld unreasonably), and (C)
the Indemnifying Party will not consent to the entry of any
judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably).
(iv) In the event any of the conditions in
ss.4(d)(ii) above is or becomes unsatisfied, however, (A) the
Indemnified Party may defend against, and consent to the entry
of any judgment or enter into any settlement with respect to,
the Third Party Claim in any manner it may deem appropriate
(and the Indemnified Party need not consult with, or obtain
any consent from, any Indemnifying Party in connection
therewith), (B) the Indemnifying Parties will reimburse the
Indemnified Party
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promptly and periodically for the costs of defending against
the Third Party Claim (including attorneys' fees and
expenses), and (C) the Indemnifying Parties will remain
responsible for any Adverse Consequences the Indemnified Party
may suffer resulting from, arising out of, relating to, in the
nature of, or caused by the Third Party Claim to the fullest
extent provided in this ss.4.
(v) The Indemnifying Party will succeed and be
subrogated to any and all rights (including, without
limitation, insurance coverage offset rights, counter claims
and rights to third party contribution and indemnification)
the Indemnified Party may have with respect to the Third Party
Claim.
(e) Determination of Adverse Consequences. The Parties shall
make appropriate adjustments for tax benefits and insurance coverage in
determining Adverse Consequences. All indemnification payments under this ss.4
shall be deemed adjustments to the Purchase Price.
(f) Setoff. Upon final resolution or determination of a claim
for indemnification under this ss.4, Buyer shall first set off the amount of the
resultant Adverse Consequences against any and all payments of funds or property
that may be or become due or owing to Seller or Seller Stockholder under the
Earn-Out, as such term is defined in the Asset Purchase Agreement, before
proceeding against the Seller Stockholder for any indemnification amounts in
excess of the Earn- Out. The exercise of such right of setoff by Buyer will not
give rise to a cause of action by Seller or Seller Stockholder against Buyer.
However, the right of setoff is Buyer's exclusive remedy up to the amount of the
Cap on its indemnification claims, to the extent of the Earn-Out. To the extent
the Earn-Out does not fully satisfy such claims up to the amount of the Cap,
Buyer may seek satisfaction from Seller Stockholder. If any claim by Buyer for
indemnification under this ss.4 is pending at the time the Earn-Out is to be
paid by Buyer to Seller (a "Pending Claim"), Buyer may setoff the amount of any
such claim against any and all payments of cash (but not Buyer Stock) that are
due and owing to the Seller or Seller Stockholder under the Earn-Out. Any
amounts setoff for a Pending Claim shall be deposited into an interest-bearing
escrow account with an independent financial institution until the Pending Claim
is resolved and shall then be distributed to the Parties entitled thereto upon
resolution of the Pending Claim. Any amounts of interest earned on the escrow
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account shall be distributed to the Parties in proportion to the escrow amounts
received by each Party upon resolution of the Pending Claim. The Seller
Stockholder hereby agrees that no transfer or assignment of any interest of
Seller or Seller Stockholder in the Earn-Out shall be made without first
obtaining from such transferee, assignee or successor in interest a written
agreement to be bound by the terms and conditions of this ss.4(f).
(g) Other Indemnification Provisions. The Seller Stockholder
hereby agrees that he will not make any claim for indemnification against the
Buyer by reason of the fact that the Seller Stockholder was a director, officer,
employee, or agent of Seller or was serving at the request of either such entity
as a partner, trustee, director, officer, employee, or agent of another entity
(whether such claim is for judgments, damages, penalties, fines, costs, amounts
paid in settlement, losses, expenses, or otherwise and whether such claim is
pursuant to any statute, charter document, bylaw, agreement, or otherwise) with
respect to any action, suit, proceeding, complaint, claim, or demand brought by
the Buyer against the Seller Stockholder (whether such action, suit, proceeding,
complaint, claim, or demand is pursuant to this Agreement, applicable law, or
otherwise).
(h) Notice of Claim. Any notice of a claim for indemnification
by a Party shall set forth, in detail, the Basis for such claim (including all
relevant facts), the estimated amount of any such claim and copies of any
documents supporting or relating to such claim.
5. Miscellaneous.
(a) No Third Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
(b) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
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(c) Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of his or its rights, interests, or obligations hereunder without the prior
written approval of the Buyer and the Seller Stockholder; provided, however,
that the Buyer may (i) assign any or all of its rights and interests hereunder
to one or more of its Affiliates and (ii) designate one or more of its
Affiliates to perform its obligations hereunder (in any or all of which cases
the Buyer nonetheless shall remain liable and responsible for the performance of
all of its obligations hereunder).
(d) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(e) Headings. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Seller Stockholder:
Xxxxxx X. Xxxxx
0000 Xxxxxx Xxxx.
Xxxx Xxxxx Xxxxx, Xxxxxxx 00000
Copy to:
Schmiedeskamp, Robertson, Neu & Xxxxxxxx
525 Jersey
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Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. XxXxxxxx, Xx., Esq.
If to the Buyer:
The Source Information Management Company
00000 Xxxxxxx Xxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: S. Xxxxxx Xxxxxx, Chairman & CEO
Copy to:
Xxxxxxxxx Xxxxxxxx LLP
Xxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Xx., Esq.
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above (using any
other means, including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with domestic laws of the State of Illinois without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Illinois or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Illinois.
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(h) Amendments and Waivers. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and signed by
the Buyer and the Seller Stockholder. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(i) Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
(j) Expenses. Each of the Parties will bear his or its own
costs and expenses (including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby (except as
otherwise provided herein).
(k) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(l) Incorporation of Annex. The Annex is incorporated herein
by reference and made a part hereof.
(m) Specific Performance. Each of the Parties acknowledges and
agrees that the other Parties would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the Parties
agrees that the other Parties shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the
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terms and provisions hereof in any action instituted in any court of the United
States or any state thereof having jurisdiction over the Parties and the matter
in addition to any other remedy to which they may be entitled, at law or in
equity.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
THE SOURCE INFORMATION MANAGEMENT COMPANY
By:
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S. Xxxxxx Xxxxxx
Chairman and Chief Executive Officer
SELLER STOCKHOLDER:
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Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, as Trustee of the Xxxxxx X. Xxxxx
Revocable Trust dated June 13, 1994
ACKNOWLEDGMENT
The undersigned, in consideration of the premises and mutual promises
herein made, hereby agree to be bound by the terms, conditions and covenants
contained in xx.xx. 2(c), 3(a) and 3(c) of this Agreement with Seller
Stockholder.
Dated as of this 21st day of September, 1999.
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Xxxxxxxx X. Xxxxxxx
15
18
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Xxxxx Xxxxxxx, as Trustee of the Xxxxxx X. Xxxxx Irrevocable
1999 Trust Agreement dated September 13, 1999
ANNEX
