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EXHIBIT 10.3
XXXXX OPTION AGREEMENT
THIS OPTION AGREEMENT (the "AGREEMENT") is made and entered into as of
July 23, 1999 ("EFFECTIVE DATE") by and among infoUSA Inc., a Delaware
corporation ("PURCHASER") and First Data Corporation, a Delaware corporation
("SELLER").
RECITALS
Purchaser and Seller have entered into an Agreement and Plan of
Reorganization dated as of May 28, 1999, (the "REORGANIZATION AGREEMENT"), and
pursuant to Section 7.3 of the Reorganization Agreement, Purchaser and Seller
are entering into this Agreement.
Seller currently owns, beneficially and of record, all shares of Xxxxx
Information Services Co. (the "COMPANY") outstanding on the date hereof and
there are no securities convertible into, or subscriptions, rights, warrants or
options to acquire, or other agreements or commitments of any character
obligating it to issue any such shares or other convertible securities.
Seller desires to grant Purchaser (or, at the option of Purchaser, an
Affiliate of Purchaser) an option to acquire the Company (the "SALE"), on the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, the parties agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Reorganization Agreement.
"ANTITRUST LAWS" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
"EXERCISE NOTICE" shall have the meaning attributed to it in
Section 2(b).
"OPTION" shall have the meaning attributed to it in Section 2(a).
"OPTION EXERCISE DATE" means the date Purchaser gives the
Exercise Notice to Seller.
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"OPTION PERIOD" means the period beginning on the Effective Date
and ending at 23:59 pm on the date falling nine (9) months after the Effective
Time.
"SALE AGREEMENT" shall have the meaning attributed to it in
Section 3.
2. Option to Purchase Shares.
(a) Option. Seller hereby grants to Purchaser an exclusive and
irrevocable right, at any time during the Option Period, to acquire the Company
upon the terms and subject to the conditions set forth herein (the "Option").
(b) Exercise of Option. Purchaser may exercise the Option by
providing to Seller a written notice (an "EXERCISE NOTICE") specifying that it
wishes to exercise the Option at any time during the Option Period.
(c) Termination of the Option. The Option shall terminate if not
previously exercised at the expiration of the Option Period provided, however,
that if Purchaser has provided an Exercise Notice to Seller prior to the
expiration of the Option Period, but the Option cannot be exercised by reason of
any applicable government order or because the waiting period related to the
purchase of the Shares under the Antitrust Laws shall not have expired or been
terminated, then the Option shall not terminate until the tenth business day
after such impediment to exercise shall have been removed or shall have become
final and not subject to appeal, provided, further that in any event, the Option
shall not be exercisable after the date that is one year following the Effective
Time.
3. Sale Agreement. As soon as possible after the Option Exercise
Date, Purchaser and Seller shall in good faith enter into negotiations with
respect to, and shall use their reasonable best efforts to enter into, an
agreement setting out the terms and conditions of the Sale (the "SALE
AGREEMENT"). The Purchaser and Seller hereby agree that the Sale Agreement shall
include the following provisions: (i) the purchase, in a tax-free or taxable
transaction of all of the outstanding shares of the Company, substantially all
of the assets of the Company, a merger involving the Company or such other form
of transaction, for a price of $30 million in cash; and (ii) representations,
warranties and covenants by Seller and Purchaser, indemnities and tax sharing
provisions and conditions to close, all of which shall be mutually satisfactory
to Purchaser and Seller.
4. Covenants of the Seller. Seller agrees (except to the extent that
Purchaser shall otherwise consent in writing, which consent shall not be
unreasonably withheld) that during the Option Period and thereafter until the
Sale Agreement is entered into, the Company will carry on its business and will
not enter into any commitment which would prevent Purchaser from exercising the
Option in accordance with its terms.
5. General Provisions
5.1 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or by
commercial delivery service, or mailed by
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registered or certified mail (return receipt requested) or sent via facsimile
(with acknowledgment of complete transmission) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice.
(a) if to Purchaser, to:
infoUSA, Inc.
0000 Xxxxx 00 Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(b) if to Seller, to
First Data Corporation
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5.2 Interpretation. The words "include" "includes" and
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation." The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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5.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
5.4 Entire Agreement; Assignment. This Agreement and the
documents and instruments and other agreements among the parties hereto
referenced herein: (a) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof; (b) are not intended to confer upon any other person any
rights or remedies hereunder; and (c) shall not be assigned by operation of law
or otherwise except as otherwise specifically provided, except that Purchaser
may assign its rights and delegate its obligations hereunder to its affiliates;
provided, that notwithstanding any such assignment Purchaser agrees that it will
be obligated by the terms and conditions of any Sale Agreement (either as a
party to such agreement or as a guarantor of the obligations of its affiliate
that executes such agreement).
5.5 Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
5.6 Other Remedies. Except as otherwise provided herein, any and
all remedies herein expressly conferred upon a party will be deemed cumulative
with and not exclusive of any other remedy conferred hereby, or by law or equity
upon such party, and the exercise by a party of any one remedy will not preclude
the exercise of any other remedy.
5.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
5.8 Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
5.9 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. 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 hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
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IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to
be signed by their duly authorized respective officers, all as of the date first
written above.
INFOUSA INC.
By:
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Name:
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Title:
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FIRST DATA CORPORATION
By:
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Name:
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Title:
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[SIGNATURE PAGE TO XXXXX OPTION AGREEMENT]
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