EXHIBIT 99.2
AGREEMENT TO FACILITATE MERGER
THIS AGREEMENT TO FACILITATE AGREEMENT (this "Agreement") is made and entered
into as of November 2, 2002 by and among FISERV, INC., a Wisconsin corporation
("Fiserv"), FISERV MERGER SUB, INC., a Delaware corporation ("Fiserv Sub") and a
wholly-owned subsidiary of Fiserv and Xxxxx, Mayborn Company, Ltd., a Texas
Limited Partnership (the "Stockholder").
WHEREAS, as of the date hereof, the Stockholder owns beneficially and of record
or has the power to vote, or direct the vote of, 41,000 shares of common stock,
par value $0.01 per share ("Company Common Stock"), of Avidyn, Inc., a Delaware
corporation (the "Company");
WHEREAS, on the date hereof, Fiserv, Fiserv Sub, FISERV MERGER SUB, a Delaware
corporation and a wholly owned subsidiary of Fiserv Sub ("Merger Sub"), and the
Company are entering into an Agreement and Plan of Merger, dated as of even date
herewith (as the same may be amended from time to time, the "Merger Agreement";
capitalized terms used but not defined in this Agreement shall have the meanings
ascribed to them in the Merger Agreement), which provides, upon the terms and
subject to the conditions thereof, for the merger of Merger Sub with and into
the Company (the "Merger"); and
WHEREAS, as a condition to the willingness of Fiserv and Fiserv Sub to enter
into the Merger Agreement, Fiserv and Fiserv Sub have requested that the
Stockholder agree, and, in order to induce Fiserv and Fiserv Sub to enter into
the Merger Agreement, the Stockholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and in order to
induce Fiserv and Fiserv Sub to execute the Merger Agreement and to proceed as
contemplated by the Merger Agreement toward the consummation of the Merger, and
for other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
1. Vote in Favor of Merger. During the period commencing on the date
hereof and terminating upon the earlier of the effective time of the
Merger or the termination of the Merger Agreement in accordance with
its terms, Stockholder, in his or her capacity as a stockholder of the
Company or as a representative with the authority to vote shares of
Company Common Stock, agrees to vote (or cause to be voted) all shares
of Company Common Stock presently owned by Stockholder or for which
Stockholder has voting power, and all shares of Company Common Stock
with respect to which Stockholder in the future acquires ownership or
voting power, at any meeting of the Stockholders of the Company (or any
adjournment thereof), and in any action by written consent of the
Stockholders of the Company, (i) in favor of the approval, consent, and
ratification of the Merger Agreement, the Merger and the transactions
contemplated thereby, and (ii) against any action that could reasonably
be expected to impede, interfere, delay, or discourage the Merger,
facilitate an acquisition of the Company, in any manner, by a party
(other than Fiserv or a subsidiary of Fiserv), or result in any breach
of representation, warranty, covenant, or agreement of the Company
under the Merger Agreement. To the extent inconsistent with the
foregoing provisions of this Section 1,
Stockholder hereby revokes any and all previous proxies with respect to
any shares of Company Common Stock that Stockholder owns or has the
right to vote. Nothing in this Agreement shall be deemed to restrict or
limit Stockholder's right to act in his or her capacity as an officer
or director of the Company consistent with his or her fiduciary
obligations in such capacity as permitted under the Merger Agreement.
2. No Solicitation. Between the date of this Agreement and the earlier of
(i) the Effective Time or (ii) the termination of the Merger Agreement
in accordance with Article VIII thereof, the Stockholder hereby agrees
neither to (a) solicit, initiate, consider, encourage or accept any
other proposals or offers from any person or entity (A) relating to any
acquisition or purchase of all or any portion of the capital stock of
the Company or assets of the Company, (B) to enter into any business
combination with the Company or (C) to enter into any other
extraordinary business transaction involving or otherwise relating to
the Company, nor (b) to participate in any discussions, conversations,
negotiations and other communications regarding, or furnish to any
other person or entity any information with respect to, or otherwise
cooperate in any way, assist or participate in, facilitate or encourage
any effort or attempt by any other person or entity to seek to do any
of the foregoing. The Stockholder immediately shall cease all existing
discussions, conversations, negotiations and other communications with
any person or entity (other than Fiserv or a subsidiary of Fiserv)
conducted heretofore with respect to any of the foregoing.
3. Representations and Warranties of Stockholder. Stockholder represents
and warrants to Fiserv and Fiserv Sub that Stockholder has the legal
capacity to enter into and perform all of Stockholder's obligations
under this Agreement. The execution, delivery, and performance of this
Agreement by Stockholder will not violate any other agreement to which
Stockholder is a party, including, without limitation, any voting
agreement, stockholders agreement, or voting trust. This Agreement has
been duly executed and delivered by Stockholder and constitutes a
legal, valid, and binding agreement of Stockholder, enforceable against
him or her in accordance with its terms.
4. Successors and Assigns. This Agreement shall be binding upon any
permitted purchasers, donees, pledgees, and other transferees of
Company Common Stock legally or beneficially owned by Stockholder.
During the period commencing on the date hereof and terminating upon
the earlier of the effective time of the Merger or the termination of
the Merger Agreement in accordance with its terms, Stockholder agrees
not to make any sales, gifts, transfers, pledges, or other dispositions
of Company Common Stock without first (i) making any such transferee or
pledgee fully aware of the obligations under this Agreement and
obtaining such transferee's or pledgee's written agreement to comply
with the terms hereof and (ii) informing Fiserv and Fiserv Sub of such
sale, gift, transfer, pledge, or other disposition.
5. Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement is not
performed according to the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.
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6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all
of which together shall constitute one and the same document.
7. Further Assurances. Stockholder shall execute and deliver such
additional documents and take such further action as may be necessary
or desirable to consummate the transactions contemplated by this
Agreement.
8. Third-Party Beneficiaries. Nothing in this Agreement, expressed or
implied, shall be construed to give any person other than the parties
hereto any legal or equitable right, remedy, or claim under or by
reason of this Agreement or any provision contained herein.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to
contracts made and to be performed therein.
10. Jurisdiction and Venue. The parties agree that any proceeding relating
to this Agreement shall be brought in a court of Delaware. Each of the
parties consents to personal jurisdiction in any such action brought in
any such Delaware court, consents to service of process by registered
mail made upon such party and such party's agent, and waives any
objection to venue in any such Delaware court or to any claim that any
such Delaware court is an inconvenient forum.
11. Effectiveness. If this Agreement is executed by Stockholder prior to
the approval of the Merger Agreement by the Company's Board of
Directors, then this Agreement shall be subject to, and shall become
effective only upon, the approval of the Merger Agreement by the
Company's Board of Directors and the execution and delivery of the
Merger Agreement by the Company, Fiserv, Fiserv Sub and Merger Sub.
This Agreement shall terminate upon termination of the Merger Agreement
in accordance with its terms.
IN WITNESS WHEREOF, each of Fiserv and Fiserv Sub has caused this
Agreement to Facilitate Merger to be executed by its duly authorized officer,
and Stockholder has executed this Agreement, as of the date and year first above
written.
FISERV, INC. SHAREHOLDER
By /s/ XXXXXXX X. XXXXX Xxxxx, Mayborn Company, Ltd.
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President By: /s/ XXXXX X. XXXXX, XX.
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Xxxxx X. Xxxxx, Xx.
Managing General Partner
FISERV SUB, INC.
By /s/ XXXXX X. XXX
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Name: Xxxxx X. Xxx
Title: President
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