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Exhibit 10.19
XXXXXXXX.XXX INCORPORATED
SUPPORT AGREEMENT
This Support Agreement (this "Agreement") is entered into as of October
20, 1999, by and between Xxxxxxxx.xxx Incorporated, a New York corporation
("Parent"), and Xxxxxxx X. X'Xxxxx ("Seller").
RECITALS
A. Concurrently with the execution and delivery of this Agreement,
Parent, XxxxxxxXxxx.xxx Incorporated, a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), Student Success, Inc., a Wisconsin
corporation ("Company"), Xxxxxxxx X. Xxxxx, Xxxxxxx X. X'Xxxxx and the Xxxxxxx
X. X'Xxxxx Stock Trust are entering into an Agreement and Plan of Merger of even
date herewith ("Merger Agreement"), pursuant to which Parent agrees to acquire
all outstanding shares of common stock, without par value, of the Company
("Shares"), pursuant to a statutory merger of Company with and into the Merger
Sub (the "Merger"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement.
B. As of the date hereof, Seller beneficially owns directly 351 Shares
("Owned Shares").
Now, therefore, in consideration of the covenants, promises and
representations herein and in the Merger Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO VOTE.
1.1 Voting. Seller hereby agrees that, during the time this
Agreement is in effect, at any meeting of the shareholders of the Company,
however called, or any action by written consent of the shareholders of the
Company, Seller shall (a) vote the Owned Shares in favor of the Merger; (b) vote
the owned Shares against any 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; and (c) vote the Owned
Shares against any action or agreement (other than the Merger Agreement or the
transactions contemplated thereby) that would impede, interfere with, delay,
postpone or attempt to discourage the Merger, including, but not limited to: (i)
any extraordinary corporation transaction, such as a merger, consolidation or
other business combination involving the Company or any of its subsidiaries;
(ii) a sale or transfer of a material amount of assets of the Company or any of
its subsidiaries or a reorganization, recapitalization or liquidation of the
Company and its subsidiaries; (iii) any
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change in the management or Board of Directors of the Company, except as
otherwise agreed to in writing by Parent; (iv) any material change in the
present capitalization or dividend policy of the Company; or (v) any other
material change in the Company's corporate structure or business.
1.2 Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Seller hereby irrevocably grants to, and appoints Xxxxxxx X.
Xxxxxx and Xxxxx X. High, or either of them, in their respective capacities as
officers of the Parent, and any individual who shall hereafter succeed to any
such office of Parent, and each of them individually, Seller's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of Seller, to vote the Owned Shares in favor of the Merger and
otherwise as contemplated by Section 1.1
(b) Seller represents that any proxies heretofore given in respect
of the Owned Shares are not irrevocable, and that any such proxies are hereby
revoked.
(c) Seller understands and acknowledges that Parent is entering into
the Merger Agreement in reliance, among other things, upon Seller's execution
and delivery of this Agreement. Seller hereby affirms that the irrevocable proxy
set forth in this Section 1.2 is given in connections with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Seller under this Agreement. Seller hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. Seller hereby ratifies and confirms all that
such proxies and attorneys-in-fact may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the applicable provisions of the Wisconsin Business Corporation
Law.
1.3 No Inconsistent Arrangements. Seller hereby covenants and agrees
that, except as contemplated by this Agreement and the Merger Agreement, he
shall not:
(a) transfer (which term shall include, without limitation, any
sale, gift, pledge or other disposition), or consent to any transfer of, any or
all of the Owned Shares or any interest therein; provided, however, that Seller
may transfer (i) the Owned Shares by will or intestacy, and (ii) up to ten
percent (10%) of the Owned Shares as a bona fide gift or gifts, provided that
prior to any such permitted transfer, each transferee shall agree in writing (in
a form satisfactory to the Parent) that such transferee will receive and hold
such Owned Shares subject to the provisions of this Agreement;
(b) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Owned Shares or
any interest therein;
(c) grant any proxy, power-of-attorney or other authorization in or
with respect to any or all of the Owned Shares;
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(d) deposit the Owned Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Owned Shares; or
(e) take any other action that would make any representation or
warranty of Seller hereunder untrue or incorrect.
1.4 Waiver of Appraisal Rights. Seller hereby waives any rights of
appraisal or rights to dissent from the Merger that he may have under applicable
law.
2. Expiration. This Agreement and the proxy granted pursuant to Section 1
hereof shall terminate on the termination of the Merger Agreement in accordance
with its terms.
3. Representations and Warranties. Seller hereby represents and warrants to
Parent as follows:
3.1 Title. Seller has good and valid title to the Owned Shares, free
and clear of any lien, pledge, charge, encumbrance or claim of whatever nature
and, upon consummation of the Merger, Seller will deliver good and valid title
to the Owned Shares, free and clear of any lien, charge, encumbrance or claim of
whatever nature.
3.2 Ownership of Shares. On the date hereof, the Owned Shares are owned
of record or beneficially by Seller and, on the date hereof, the Owned Shares
constitute all of the Shares owned of record or beneficially by Seller. Seller
has sole voting power and sole power of disposition with respect to all of the
Owned Shares, with no restrictions, subject to applicable federal securities
laws, on Seller's rights of disposition pertaining thereto.
3.3 Power; Binding Agreement. Seller has the legal capacity, power and
authority to enter into and perform all of his obligations under this Agreement.
The execution, delivery and performance of this Agreement by Seller will not
violate any other agreement to which Seller is a party including, without
limitation, any voting agreement, stockholders' agreement or voting trust. This
Agreement has been duly and validly executed and delivered by Seller and
constitutes a valid and binding agreement of Seller, enforceable against Seller
in accordance with its terms.
3.4 No Conflicts. No authorization, consent or approval of, or filing
with, any court or any public body or authority is necessary for the
consummation by Seller of the transactions contemplated by this Agreement. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not:
(a) constitute a material breach, violation or default (or any event
which, with notice or lapse of time or both, would constitute a default) under
any material note, bond, mortgage, indenture, deed of trust, license, lease,
agreement or other instrument to which Seller is a party or by which his
properties or assets are bound; or
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(b) result in the termination of, or accelerate the performance
required by, or result in a right of termination or acceleration under any
material note, bond, mortgage, indenture, deed of trust, license, lease,
agreement or other instrument to which Seller is a party or by which his
properties or assets are bound; or
(c) result in the creation of any lien, encumbrance, pledge, charge
or claim upon any of the properties or assets of Seller under any material note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or other
instrument to which Seller is a party or by which his properties or assets are
bound.
4. Additional Shares. Seller hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of Shares acquired by the Seller
after the date hereof.
5. Further Assurances. From time to time, at Parent's request and
without further consideration, Seller shall execute and deliver such additional
documents and take all such further action as may be reasonably necessary or
desirable to consummate and make effective the transactions contemplated by
Section 1 of this Agreement.
6. Miscellaneous.
6.1 Non-Survival. The representations and warranties made herein
shall terminate upon Seller's sale of the Owned Shares to Parent in the Merger,
other than Seller's representation and warranty in Section 3.1, which shall
survive the sale of the Owned Shares and the termination of this Agreement
following such sale.
6.2 Entire Agreement; Assignment. This Agreement (a) constitutes
the entire agreement between 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
and (b) shall not be assigned by operation of law or otherwise, provided that
Parent may assign its rights and obligations hereunder to any direct or indirect
wholly-owned subsidiary of Parent, but no such assignment shall relieve Parent
of its obligations hereunder if such assignee does not perform such obligations.
6.3 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.
6.4 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by hand delivery
or telecopy or by other courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
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if to Seller:
Xxxxxxx X. X'Xxxxx
c/o Student Success, Inc.
000 Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
with a copy to:
Xxxxxxx, Muething & Xxxxxxx, P.L.L.
1400 Provident Tower
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
if to Parent:
Xxxxxxxx.xxx Incorporated
00 Xxxxxxxxxx Xxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Chairman of the Board of Directors
with a copy to:
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
6.5 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.
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6.6 Specific Performance. Seller recognizes and acknowledges that a
breach by him of any covenants, promises or agreements contained in this
Agreement will cause the Parent to sustain damages for which it would not have
an adequate remedy at law for money damages, and therefore Seller agrees that in
the event of any such breach Parent 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 it may be entitled, at law or in
equity.
6.7 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.
6.8 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.
6.9 Severability. In the event that any part of this Agreement is
declared by any court or other judicial or administrative body to be null, void
or unenforceable, said provision shall survive to the extent it is not so
declared, and all of the other provisions of this Agreement shall remain in full
force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Support
Agreement to be duly executed as an instrument under seal as of the date first
written above.
XXXXXXXX.XXX INCORPORATED
By:/s/ Xxxxxxx X. Xxxxxx
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Name:
Title:
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Xxxxxxx X. X'Xxxxx
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IN WITNESS WHEREOF, the parties hereto have caused this Support
Agreement to be duly executed as an instrument under seal as of the date first
written above.
XXXXXXXX.XXX INCORPORATED
By:
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Name:
Title:
/s/ Xxxxxxx X. X'Xxxxx
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Xxxxxxx X. X'Xxxxx
