EXHIBIT 99(A)
EXECUTION COPY
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT (this "AGREEMENT") is made and
entered into as of February 23, 2001 between Aon Corporation, a Delaware
corporation ("PARENT"), Merger Subsidiary, Inc. ("MERGER SUB"), a Delaware
corporation, and the undersigned shareholders (each, a "STOCKHOLDER") of ASI
Solutions Incorporated a Delaware corporation ("COMPANY"). Capitalized terms
used and not otherwise defined herein shall have the respective meanings set
forth in the Merger Agreement described below.
RECITALS
WHEREAS, pursuant to a Merger Agreement dated as of February
23, 2001, by and among Parent, Merger Sub and Company (such agreement as it may
be amended from time to time is hereinafter referred to as the "MERGER
AGREEMENT"), the parties have agreed, subject to the terms and conditions
therein, that at the Effective Time (as defined therein) Merger Sub will merge
with and into the Company (the "MERGER") and each outstanding share of common
stock of Company (the "COMPANY SHARES") will be converted into a fraction of a
share of common stock of Parent (the "PARENT SHARES") as set forth in the Merger
Agreement;
WHEREAS, in order to induce Parent to enter into the Merger
Agreement and consummate the Merger, Company has agreed to use its reasonable
efforts to cause each shareholder of Company who is an affiliate of Company to
execute and deliver to Parent a Stockholder Agreement upon the terms set forth
herein; and
WHEREAS, each Stockholder is the registered and beneficial
owner (within the meaning of Rule 13d-3 of the Exchange Act) of the number of
shares of common stock of the Company set forth on Annex A hereto (such shares
hereinafter collectively referred to as the "SHARES").
NOW, THEREFORE, the parties agree as follows:
1. TRANSFER AND ENCUMBRANCE. Each Stockholder represents,
warrants and covenants to and with Parent and Merger Sub that such Stockholder
is the beneficial owner of the Shares, the Shares constitute the only shares of
capital stock and voting securities of the Company beneficially owned by such
Stockholder, to such Stockholder's knowledge, the Shares are, and will be at all
times up until the Expiration Date (as defined in Exhibit I hereto), free and
clear of any liens, claims, options, charges or other encumbrances and such
Stockholder's principal residence or place of business is accurately set forth
on the signature page hereto.
2. NEW SHARES. Each Stockholder agrees that any shares of
capital stock or voting securities of Company that such Stockholder purchases or
with respect to which such Stockholder otherwise acquires beneficial ownership
after the date of this Agreement and prior to the Effective Date ("NEW SHARES")
shall be subject to the terms and conditions of this Agreement
to the same extent as if they constituted Shares. Each Stockholder hereby
agrees, while this Agreement is in effect, to promptly notify Parent of the
number of any New Shares acquired by such Stockholder, if any, after the date
hereof.
3. AGREEMENT TO VOTE SHARES. From the date hereof until the
Expiration Date (the "TERM"), at any meeting of the stockholders of the Company,
each Stockholder shall vote his Shares (i) in favor of the Merger and the Merger
Agreement, as amended from time to time; (ii) against any Competing Transaction
and against any proposal for action or agreement that would result in a breach
of any covenant, representation or warranty or any other obligation or agreement
of the Company under the Merger Agreement or which is reasonably likely to
result in any of the conditions of the Company's obligations under the Merger
Agreement not being fulfilled, (iii) against any change in the directors of the
Company, any change in the present capitalization of the Company or any
amendment to the Company's Certificate of Incorporation or By-Laws, any other
material change in the Company's corporate structure or business, or any other
action, and (iv) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement which is considered at any
such meeting of stockholders, and in connection therewith to execute any
documents which are necessary or appropriate in order to effectuate the
foregoing, including any written consent or any document giving Parent, Merger
Sub or their nominees the ability to vote such Shares directly.
4. IRREVOCABLE PROXY. Each Stockholder hereby agrees to timely
deliver to Parent a duly executed proxy in the form attached hereto as Exhibit I
(the "PROXY"), such Proxy to cover the Shares and all New Shares in respect of
which such Stockholder is entitled to vote at each meeting of the stockholders
of Company (including, without limitation, each written consent in lieu of a
meeting) on the matters described in Section 3 hereof. In the event that a
Stockholder is unable to provide any such Proxy in a timely manner, each
Stockholder hereby grants Parent a power of attorney to execute and deliver such
Proxy for and on behalf of such Stockholder, such power of attorney, which being
coupled with an interest, shall survive any death, disability, bankruptcy, or
any other such impediment of such Stockholder. Upon the execution of this
Agreement by such Stockholder, such Stockholder hereby revokes any and all prior
proxies or powers of attorney given by such Stockholder with respect to the
Shares and agrees not to grant any subsequent proxies or powers of attorney with
respect to the Shares or the New Shares until after the Expiration Date. The
Proxy shall terminate on the Expiration Date (as defined in Exhibit I hereto).
5. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Each
Stockholder hereby represents, warrants and covenants to Parent and Merger Sub
as follows, except that the Xxxxxxx X. Xxxxxxxx XXX and the Xxx Xxxxx XXX do not
make the representations in paragraph (a):
(a) POWER; BINDING AGREEMENT. Such Stockholder has full power
and legal capacity to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes the valid and binding obligation of such Stockholder
enforceable against such Stockholder in accordance with its terms except as may
be limited by (i) the effect of bankruptcy, insolvency, conservatorship,
arrangement,
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moratorium or other laws affecting or relating to the rights of creditors
generally, or (ii) the rules governing the availability of specific performance,
injunctive relief or other equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(b) OWNERSHIP OF SHARES. Stockholder (or accounts or trusts
controlled or beneficially owned by Stockholder) is the owner of the Shares set
forth on Annex A hereto and has the power to vote and dispose of such Shares. To
the best of Stockholder's knowledge, such Shares are, or upon issuance will be,
validly issued, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof. Stockholder has, or upon issuance will have,
good title to the Shares, free and clear of any voting, stockholder or similar
agreement, liens, charges, security interests, adverse claims or encumbrances of
any kind whatsoever with respect to the ownership of or the right to vote such
Shares.
6. CERTAIN COVENANTS OF EACH STOCKHOLDER. Each Stockholder
covenants and agrees as follows:
(a) NO SOLICITATION. Other than with respect to the Merger or
as otherwise permitted by the Merger Agreement in the capacity as a director or
officer of the Company, neither Stockholder nor any officer, director,
affiliate, employee, representative or agent of Stockholder shall, directly or
indirectly, solicit, facilitate, participate in, or initiate any inquiries or
the making of any proposal by any person or entity (other than Parent, Merger
Sub or any other affiliate of Parent) which constitutes, or may reasonably be
expected to lead to, (a) any sale of the Shares or (b) any takeover proposal,
acquisition, or other transaction with respect to the Company or the Shares, the
consummation of which would reasonably be expected to impede, interfere with,
prevent or delay the Merger or which would reasonably be expected to adversely
affect the benefits to Parent or Merger Sub of the transactions contemplated by
the Merger Agreement. If Stockholder, or any officer, director, partner,
affiliate, employee, representative or agent of Stockholder, receives an inquiry
or proposal with respect to the sale of Shares, then Stockholder shall promptly
inform Parent of the terms and conditions, if any, of such inquiry or proposal
and the identity of the person making it.
(b) RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE.
Each Stockholder hereby agrees, while this Agreement is in effect, and except as
contemplated hereby or otherwise consented to by Parent in writing, not to (a)
sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter into
any contract, option or other arrangement or understanding with respect to the
sale, transfer, pledge, encumbrance, assignment or other disposition of, any of
the Shares or (b) grant any proxies, deposit any Shares into a voting trust or
enter into a voting agreement with respect to any Shares or (c) take any action
that would make any representation or warranty of such Stockholder contained
herein untrue or incorrect or have the effect of preventing or disabling such
Stockholder from performing his obligations under this Agreement.
(c) STOP TRANSFER ORDER. In furtherance of this Agreement,
concurrently herewith, Stockholder shall and hereby does authorize the Company's
counsel to notify the Company's transfer agent that, except as set forth herein,
there is a stop transfer order with
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respect to all of the Shares, and that this Agreement places limits on the
voting and transfer of such Shares.
7. INDEMNITY.
(a) INDEMNIFICATION OF THE COMPANY BY STOCKHOLDER. Subject to
the limitations set forth in Section 7(c), each of the Stockholders will
indemnify Parent, Merger Sub and their respective affiliates, officers,
directors, employees, agents, representatives, successors and assigns (each, a
"PARENT INDEMNITEE") and hold each Parent Indemnitee harmless from and against
any loss, liability, deficiency, damage or expense (including reasonable legal
expenses and costs and any cost or expense arising from or incurred in
connection with any action, suit, proceeding, claim or judgement relating solely
to any matter described in this Section 7), or in successfully enforcing the
indemnity provided by this Section 7) (any such amount being a "LOSS"), which
such Parent Indemnitee may suffer, sustain or become subject to, as a result of
any breach by such Stockholder of any covenant, representation or warranty set
forth in this Agreement.
(b) INDEMNIFICATION OF THE STOCKHOLDER BY PARENT. Parent will
indemnify the Stockholders and their respective agents, representatives,
successors and assigns (each, a "STOCKHOLDER INDEMNITEE") and hold each
Stockholder Indemnitee harmless from and against any Loss, which such
Stockholder Indemnitee may suffer, sustain or become subject to, as a result of
any breach by Parent or Merger Sub of any covenant, representation or warranty
set forth in this Agreement.
(c) LIMITATION. For purposes of this Agreement all
representations and warranties herein shall terminate on the Expiration Date and
shall not be affected by any examination made for or on behalf of any party, the
knowledge of any of such party's officers, directors, stockholders, employees,
or agents, or the acceptance of any certificate or opinion.
8. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate the transactions contemplated by this
Agreement, including, without limitation, to vest in Merger Sub good title to
any Shares purchased hereunder. As a clarification and not a limitation, the
Stockholders shall cause the Xxxxxxx X. Xxxxxxxx XXX and the Xxx Xxxxx XXX to
deliver a certificate containing the representations and warranties in paragraph
3(a) as soon as practicable, but in no event later than the Effective Date.
9. ADJUSTMENTS TO PREVENT DILUTION, ETC. In the event of a
stock dividend or distribution, or any change in the Company's Common Stock by
reason of any stock dividend, split-up, reclassification, recapitalization,
combination or the exchange of shares, the term "SHARES" shall be deemed to
refer to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Shares
may be changed or exchanged.
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10. TERMINATION; COMPETING TRANSACTION FEE. Except for the
agreements contained in this Section 10 and in Section 11, which agreements
shall survive, this Agreement shall terminate immediately on the Expiration
Date. The Stockholders agree that in the event the Expiration Date occurs as a
result of a termination of the Merger Agreement by the Company pursuant to
Sections 5.2(b) and 7.1(g) thereof or by Parent or Merger Sub pursuant to
Section 7.1(d) thereof and any Competing Transaction is thereafter consummated,
the Stockholders agree to pay to Parent the Competing Transaction Fee (as
defined below) in cash or immediately available funds at the closing of such
Competing Transaction. For the purposes hereof, the "COMPETING TRANSACTION FEE"
shall mean (i) the aggregate Competing Consideration (as defined below) which
the Stockholders would be entitled to receive in a Competing Transaction MINUS
(ii) the product of $17.85 multiplied by the greater of (x) the aggregate number
of Shares and New Shares owned by the Stockholders at the time of such closing
or (y) the number of Shares listed on ANNEX A hereto (including for these
purposes, Shares issuable upon the exercise of all outstanding options and
warrants held by the Stockholders). For the purposes hereof "COMPETING
CONSIDERATION" shall mean the gross value of all cash, securities and other
property payable directly or indirectly by an acquirer to holders of capital
stock of the Company in connection with a Competing Transaction (including,
without limitation, all amounts to be paid or distributed by the Company to the
holders of capital stock of the Company and all amounts to be paid, distributed
or issued to the holders of convertible securities, options, warrants, stock
appreciation rights or similar rights or securities in the Company in connection
with such Competing Transaction) or the gross value of all cash, securities and
assets to be contributed by the Company or any other parties in the case of a
Competing Transaction involving a joint venture or strategic partnership.
"COMPETING CONSIDERATION" also shall be deemed to include the aggregate
principal amount of any indebtedness for money borrowed and any unfunded pension
liabilities and guarantees of the Company or its Subsidiaries to be assumed,
directly or indirectly, whether contractually or by operation of law, in
connection with a Competing Transaction. If the consideration to be paid is
computed in any foreign currency, the value of such foreign currency for
purposes hereof shall be converted into U.S. dollars at the prevailing exchange
rate on the date of the closing of the Competing Transaction.
11. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) AMENDMENTS. 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.
(c) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery or telecopy, or
by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any courier service, such as Federal Express, providing
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proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to Stockholder: [Such Stockholder]
c/x Xxxxxxx Xxxxxxxxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxx Xxxxxxx
copy to: Xxxxxxx Xxxxxxxxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxx Xxxxxxx
If to Parent or Merger Sub: Aon Corporation
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
copy to: Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
or to such other address as the person or entity to whom notice is given may
have previously furnished to the others in writing in the manner set forth
above.
(d) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
(e) ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the parties hereto and their respective successors and assigns. Notwithstanding
the foregoing, Merger Sub shall have the right to assign its rights, interests
and obligations
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hereunder to Parent and any of its affiliates at its sole option and without the
prior written consent of the other parties hereto; provided that no such
assignment shall relieve Merger Sub of its obligations hereunder.
Notwithstanding anything contained in this Agreement to the contrary, nothing in
this Agreement, expressed or implied, is intended to confer on any person other
than the parties hereto or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
(f) SPECIFIC PERFORMANCE. Each of the parties hereto
recognizes and acknowledges that a breach by such party of any covenants or
agreements contained in this Agreement will cause the other party to sustain
damages for which it would not have an adequate remedy at law for money damages,
and therefore, each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which such party may be entitled, at
law or in equity.
(g) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but both of which
shall constitute one and the same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(i) SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
* * * * *
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
each of the parties hereto, all as of the date first above written.
AON CORPORATION
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chairman and Chief Executive Officer
MERGER SUBSIDIARY, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx - XXXX FBO
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx Charitable Trust
/s/ Xxxx Xxxxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxx Xxxxxxx, Trustee of the Xxxx X. Xxxxxxxx
Irrevocable Family Trust
/s/ Xxxx Xxxxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxx Xxxxxxx, Trustee of the Xxxxxxx X.
Xxxxxxxx Irrevocable Family Trust
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/s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx Charitable Trust
/s/ Xxx Xxxxx
------------------------------------
Xxx Xxxxx
/s/ Xxx Xxxxx
------------------------------------
[XXX XXXXX XXX]
/s/ Xxx Xxxxx
------------------------------------
Xxx Xxxxx Charitable Trust
SIGNATURE PAGE TO STOCKHOLDER AGREEMENT
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ANNEX A
NUMBER OF SHARES
STOCKHOLDER NAME OF-COMMON-STOCK
------------------------------------------------------------------- -------------------------------------------------
Xxxxxxx X. Xxxxxxxx 2,000,000
Xxxxxxx X. Xxxxxxxx -- IRRA FBO Xxxxxxx X. Xxxxxxxx 40,200
Xxxxxxx X. Xxxxxxxx Charitable Trust 10,000
Xxxx Xxxxxx Xxxxxxx, Trustee of the Xxxx X. Xxxxxxxx
Irrevocable Family Trust 154,876
Xxxx Xxxxxx Xxxxxxx, Trustee of the Xxxxxxx X. Xxxxxxxx
Irrevocable Family Trust 154,877
Xxxxxxx Xxxxx 185,478
Xxxxxxx Xxxxx Charitable Trust 10,000
Xxx Xxxxx 1,133,208
Xxx Xxxxx XXX 39,100
Xxx Xxxxx Charitable Trust 30,000
---------
TOTAL: 3,757,739
====== =========
Annex A, Page 1
EXHIBIT I
IRREVOCABLE PROXY
TO VOTE SHARES OF
ASI SOLUTIONS INCORPORATED
The undersigned stockholder of ASI Solutions Incorporated, a
Delaware corporation ("COMPANY"), hereby irrevocably (to the full extent
permitted by the Delaware General Corporation Law ("DGCL")) appoints the members
of the Board of Directors of Aon Corporation, a Delaware corporation ("PARENT"),
and each of them, or any other designee of Parent, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to attend and act for and on behalf of the undersigned at all
meetings of stockholders of Company held prior to the Expiration Date (as
defined below) on the matters described in Section 3 of that certain
Stockholders Agreement, dated February 23, 2001, among Parent, Merger Sub (as
defined below) and the individuals named therein, including the undersigned,
and, without limiting the generality of the foregoing, to vote on such matters
and exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of Company that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of Company issued or
issuable in respect thereof on or after the date hereof (collectively, the
"SHARES") in accordance with the terms of and with respect to the matters
described in this Irrevocable Proxy. Upon the undersigned's execution of this
Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the Shares until after the Expiration
Date.
This Irrevocable Proxy is irrevocable (to the extent provided
in the DGCL), is coupled with an interest and is granted in consideration of
Parent entering into that certain Merger Agreement (such agreement as it may be
amended from time to time, the "MERGER AGREEMENT") by and among Parent, Merger
Subsidiary, Inc. ("MERGER SUB") and Company, which Merger Agreement provides for
the merger of Merger Sub with and into Company on the terms and conditions set
forth therein (the "MERGER"). As used herein, the term "Expiration Date" shall
mean the earliest to occur of (i) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement,
or (ii) the date of termination of the Merger Agreement by any party thereto in
accordance with the terms thereof. The Proxy shall terminate on the Expiration
Date.
The attorneys and proxies named above, and each of them are
hereby authorized and empowered by the undersigned, at any time prior to the
Effective Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting and other similar rights of the undersigned
with respect to the Shares (including, without limitation, the power to execute
and deliver written consents pursuant to the DGCL) to the same extent and with
the same power as if the undersigned were personally present at such meeting, at
every annual, special or adjourned meeting of the stockholders of Company and in
every written consent in lieu of such
Exhibit I, Page 1
meeting in favor of approval and adoption of the Merger Agreement and of the
transactions contemplated thereby.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
stockholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or
incapacity of the undersigned and any obligation of the undersigned hereunder
shall be binding upon the heirs, personal representatives, successors and
assigns of the undersigned.
This Irrevocable Proxy is coupled with an interest as
aforesaid and is irrevocable.
Dated: ____________, 2001
___________________________
(Signature of Stockholder)
___________________________
(Print Name of Stockholder)
Shares beneficially owned:
_________ shares of Company
Common Shares
Exhibit I, Page 2
