EXHIBIT (d)(2)
FORM OF TENDER AND VOTING AGREEMENT
This Tender and Voting Agreement, dated as of December 17, 2004 (this
"AGREEMENT"), is made by and among Affiliated Computer Services, Inc., a
Delaware corporation ("PARENT"), ACS Merger Corp., a Delaware corporation and a
wholly owned subsidiary of Parent ("ACQUISITION SUB"), Superior Consultant
Holdings Corporation, a Delaware corporation (the "COMPANY"); and ____________,
a stockholder of the Company ("STOCKHOLDER").
WITNESSETH:
WHEREAS Parent, Acquisition Sub and the Company are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as it may be amended
from time to time, the "MERGER AGREEMENT"), pursuant to which (i) Acquisition
Sub shall commence a cash tender offer (as such tender offer may hereafter be
amended from time to time in accordance with the Merger Agreement, the "OFFER")
to acquire all of the issued and outstanding shares of common stock, par value
$0.01 per share, of the Company ("COMPANY COMMON STOCK") in exchange for $8.50
per share in cash (the "OFFER PRICE") in accordance with and subject to the
terms and conditions of the Merger Agreement and the Offer; and (ii) following
consummation of the Offer, Acquisition Sub shall merge with and into the Company
(the "MERGER"); and
WHEREAS, as a condition to entering into the Merger Agreement and
incurring the obligations set forth therein, including the Offer, Parent and
Acquisition Sub have required that Stockholder agree to enter into this
Agreement and certain other Company Stockholders to enter into comparable Tender
and Voting Agreements; and
WHEREAS, Stockholder wishes to induce Parent and Acquisition Sub to
enter into the Merger Agreement and, therefore, Stockholder is willing to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Definitions.
For purposes of this Agreement:
(a) Stockholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of such security.
(b) "SUBJECT SECURITIES" means: (i) all securities (as that term is
defined in Section 3(a)(10) of the Exchange Act) of the Company (including all
shares of Company Common Stock and all options, warrants, and other rights to
acquire shares of Company Common Stock) Owned by Stockholder as of the date of
this Agreement and (ii) all additional securities of the Company
(including all additional shares of Company Common Stock and all additional
options, warrants, and other rights to acquire shares of Company Common Stock)
of which Stockholder acquires Ownership during the period from the date of this
Agreement through the Termination Date.
(c) "SUBJECT SHARES" means (i) all shares of Company Common Stock Owned
by Stockholder as of the date of this Agreement; and (ii) all additional shares
of Company Common Stock of which Stockholder acquires Ownership during the
period from the date of this Agreement through the Termination Date.
ARTICLE II
TENDER OF SHARES
SECTION 2.01 Tender of Shares. Stockholder agrees (i) to promptly (and
in any event, not later than two Business Days after commencement of the Offer)
validly tender or cause to be validly tendered into the Offer, pursuant to and
in accordance with the terms of the Offer, and not withdraw or cause to be
withdrawn, all of the Subject Shares Owned by Stockholder as of the date of this
Agreement (free and clear of any Encumbrances) and (ii) if Stockholder acquires
Ownership of any additional Subject Shares after the date of this Agreement, to
promptly (and in any event not later than one Business Day after Stockholder
acquires Ownership of such additional Subject Shares) validly tender or cause to
be validly tendered into the Offer, pursuant to and in accordance with the terms
of the Offer, and not withdraw or cause to be withdrawn, all of such additional
Subject Shares Owned by Stockholder (free and clear of any Encumbrances).
Stockholder acknowledges and agrees that Acquisition Sub's obligation to accept
for payment shares of Company Common Stock in the Offer, including any Subject
Shares tendered by a Stockholder, is subject to the terms and conditions of the
Merger Agreement and the Offer.
ARTICLE III
VOTING AGREEMENT AND PROXY
SECTION 3.01 Voting Agreement. Stockholder hereby agrees that, from and
after the date hereof and until the earlier of (x) the Effective Time or (y) the
termination of the Merger Agreement pursuant to its terms (such earlier date,
the "TERMINATION DATE"), at any meeting of the Company Stockholders, however
called, and at every adjournment or postponement thereof, it will cause the
Subject Shares to be counted as present (or absent if requested by Parent or
Acquisition Sub) thereat for purposes of establishing a quorum and to vote or
consent and that at any meeting of Company Stockholders, however called, and in
any action by consent of the Company Stockholders, Stockholder shall vote (or
cause to be voted or execute a consent with respect to) all of the Subject
Securities (a) in favor the approval and adoption of the Merger Agreement and
the terms thereof, the Merger and all the transactions contemplated by the
Merger Agreement and this Agreement and otherwise in such manner as may be
necessary to consummate the Merger; (b) against any action, proposal, agreement
or transaction that would result in a breach of any covenant, obligation,
agreement, representation or warranty of the Company under the Merger Agreement
or of Stockholder contained in this Agreement; and (c) against any action,
agreement, transaction (other than the Merger Agreement or the transactions
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contemplated thereby) or proposal (including any Acquisition Proposal, other
than a Superior Proposal (as each such term is defined in the Merger Agreement))
that could reasonably be expected to result in any of the conditions to the
Offer or to the Company's obligations under the Merger Agreement not being
fulfilled or that is intended, or could reasonably be expected, to impede,
interfere, delay, discourage or adversely affect the Merger Agreement, the
Offer, the Merger or this Agreement. Any vote by Stockholder that is not in
accordance with this SECTION 3.01 shall be considered null and void.
SECTION 3.02 In furtherance of the agreements set forth in SECTION 3.01
of this Agreement and as security for such agreements, Stockholder hereby
irrevocably appoints Xxxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxxxx (the "GRANTEES"),
and each of them individually, as the sole and exclusive attorneys-in-fact and
proxies of Stockholder, for and in the name, place and stead of Stockholder,
with full power of substitution and resubstitution, to vote, grant a consent or
approval in respect of, or execute and deliver a proxy to vote the Subject
Securities (a) in favor of the various transactions contemplated by the Merger
Agreement and against any Acquisition Proposal (other than a Superior
Proposal), including, without limitation, those matters contemplated by SECTION
3.01 above or (b) in the discretion of the Grantees with respect to any
proposed postponements or adjournments of any annual or special meeting of the
Company Stockholders held in connection with any of the events described in
SECTION 3.01. Stockholder hereby affirms that the irrevocable proxy set forth
in this SECTION 3.02 (the "IRREVOCABLE PROXY") is given in connection with, and
in consideration of, the execution of the Merger Agreement by Parent and
Acquisition Sub, and that such Irrevocable Proxy is given to secure the
performance of the duties of Stockholder under this Agreement. Stockholder
hereby further confirms that the Irrevocable Proxy is coupled with an interest
and may under no circumstances be revoked, except upon the termination of this
Agreement as stated herein. Stockholder shall, at Stockholder's own expense,
perform such further acts and execute such further proxies and other documents
and instruments as may reasonably be required to vest in Parent the power to
carry out and give effect to the provisions of this Agreement. Stockholder
shall not enter into any tender, voting or other agreement, or grant a proxy or
power of attorney, with respect to any of the Subject Securities that is
inconsistent with this Agreement or otherwise take any other action with
respect to the Subject Shares that would, in any way, restrict, limit or
interfere with the performance of Stockholder's obligations hereunder or the
transactions contemplated hereby.
ARTICLE IV
WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees
to cause to be waived and to prevent the exercise of, any appraisal and any
dissenters' rights relating to the Merger that Stockholder or any other Person
may have by virtue of, or with respect to, any shares of Company Common Stock
Owned by Stockholder.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent and to Acquisition
Sub as follows:
SECTION 5.01 Organization and Authority of Stockholder. Stockholder has
full legal capacity, power and authority to execute and deliver this Agreement,
including the Irrevocable Proxy, and to perform his or her obligations
hereunder. The execution and delivery of this Agreement by Stockholder and the
performance by Stockholder of its obligations hereunder have been duly
authorized by all requisite action on the part of Stockholder. This Agreement
has been duly and validly executed and delivered by Stockholder and (assuming
due authorization, execution and delivery by Parent and Acquisition Sub),
constitutes a legal, valid and binding obligation of Stockholder enforceable
against Stockholder in accordance with its terms, except as limited by
bankruptcy, insolvency and other similar Laws or equitable principles (but not
those concerning fraudulent conveyance) generally affecting creditors' rights
and remedies.
SECTION 5.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement, including the
Irrevocable Proxy, by Stockholder does not, and the performance of this
Agreement by Stockholder will not, (i) conflict with or violate any agreement to
which Stockholder is a party, any trust agreement or any equivalent
organizational documents, as the case may be, of Stockholder, (ii) conflict with
or violate any Law applicable to Stockholder or by which any property or asset
of Stockholder is bound or affected or (iii) result in any breach of, or
constitute a default (or event that with notice or lapse of time or both would
become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of an Encumbrance on
any Subject Securities (other than pursuant to this Agreement) pursuant to, any
note, bond, mortgage, indenture, pledge, contract, agreement, lease, license,
permit, franchise or other instrument or obligation of Stockholder, except, with
respect to clauses (ii) and (iii) above, for any such conflicts, violations,
breaches, defaults or other occurrences that would not prevent or materially
delay the ability of Stockholder to carry out such its obligations under this
Agreement.
(b) The execution and delivery of this Agreement by Stockholder does
not, and the performance of this Agreement by Stockholder will not, require any
consent, approval, authorization or permit of, or filing with, or notification
to, any Governmental Body, except (i) for applicable requirements, if any, of
the Exchange Act and state securities or "blue sky" laws, and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the ability of
Stockholder to carry out Stockholder's obligations under this Agreement.
SECTION 5.03 Ownership of Shares. As of the date hereof, Stockholder
Owns, and has good, valid and marketable title to (a) the number of Subject
Shares set forth under the heading "Number of Shares of Company Common Stock
Owned" on Schedule A attached hereto and (b) the number of additional Subject
Securities set forth under the heading "Additional
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Subject Securities Owned" on Schedule A attached hereto. Except as set forth on
Schedule A, such shares are all the Subject Securities Owned by Stockholder as
of the date hereof. The Subject Shares are Owned free and clear of all
Encumbrances, other than any Encumbrances created by this Agreement. Except as
provided in this Agreement, Stockholder has not appointed or granted any proxy,
which appointment or grant is still effective, with respect to the Subject
Securities Owned by Stockholder.
SECTION 5.04 Reliance by Parent and Acquisition Sub. Stockholder
understands and acknowledges that Parent is entering into, and causing
Acquisition Sub to enter into, the Merger Agreement in reliance upon
Stockholder's execution, delivery and performance of this Agreement.
SECTION 5.05 Absence of Litigation. As of the date of this Agreement,
there is no litigation, suit, claim, action, proceeding or investigation
pending, or to the knowledge of Stockholder, threatened against Stockholder, or
any property or asset of Stockholder, before any Governmental Body that seeks to
delay or prevent the consummation of the transactions contemplated by this
Agreement or the Merger Agreement.
ARTICLE VI
COVENANTS OF STOCKHOLDER
SECTION 6.01 No Disposition or Encumbrance of Shares. Except as
contemplated by this Agreement, Stockholder shall not, directly or indirectly,
(i) sell, transfer, tender (except into the Offer), pledge, assign, enter into a
Constructive Sale with respect to, contribute to the capital of any entity,
hypothecate, give or otherwise dispose of (each a "TRANSFER") any of the Subject
Securities (or agree or consent to, or offer to do, any of the foregoing), or
(ii) grant a proxy or power of attorney with respect to (other than the
Irrevocable Proxy), deposit into any voting trust, enter into any voting
agreement or similar agreement, or create or permit to exist any Encumbrances of
any nature whatsoever (other than pursuant to this Agreement) with respect to,
any of the Subject Securities (or agree or consent to, or offer to do, any of
the foregoing). The term "CONSTRUCTIVE SALE" shall mean a short sale with
respect to such security, entering into or acquiring a derivative contract with
respect to such security, entering into a futures or forward contract to deliver
such security or entering into any transaction that has substantially the same
effect of any of the foregoing. Stockholder shall not, directly or indirectly
take any action that would make any representation or warranty of Stockholder
herein untrue or incorrect or have the effect of preventing, delaying or
disabling Stockholder from performing Stockholder's obligations hereunder.
SECTION 6.02 No Solicitation of Transactions. Stockholder shall not,
directly or indirectly, through any Representative, or otherwise, (a) solicit,
initiate, facilitate or encourage or otherwise disclose nonpublic information in
furtherance of, any inquiries relating to, or the submission of, any Acquisition
Proposal, (b) participate in or conduct any discussions or negotiations
regarding any Acquisition Proposal, or in connection with any Acquisition
Proposal, or furnish to any Person any information or data with respect to or
provide access to the properties of the Company or any of its Subsidiaries, or
take any other action to facilitate the making of any proposal that constitutes,
or may reasonably be expected to lead to, any
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Acquisition Proposal; (c) approve or recommend or propose publicly to approve or
recommend any Acquisition Proposal or (d) approve or recommend or propose to
approve or recommend or execute or enter into any letter of intent, agreement in
principle, merger agreement, acquisition agreement, option agreement or other
similar Contract or propose publicly or agree to do any of the foregoing related
to any Acquisition Proposal; provided, however, that nothing herein shall
prevent a Stockholder from acting in Stockholder's capacity as a director or
officer of the Company, or taking any action in such capacity (including without
limitation at the direction of the Company Board), but only in either such case
as and to the extent permitted by Section 5.3 of the Merger Agreement.
Stockholder shall promptly notify Parent in writing of the existence of any
proposal, discussion, negotiation or inquiry received by Stockholder regarding
any Acquisition Proposal and cooperate fully with Parent in connection with the
Offer and the Merger. Stockholder shall promptly furnish to Parent a copy of any
proposal, discussion, negotiation or inquiry that is received and a copy of any
information provided to or by the Stockholder or any third party relating
thereto.
SECTION 6.03 Cooperation. Stockholder agrees to cooperate fully with
Parent and Acquisition Sub and to execute and deliver, or cause to be executed
and delivered, such further documents, certificates, agreements, additional
Transfers, assignments, endorsements, proxies, consents and instruments and to
take such other actions as may be reasonably requested by Parent or Acquisition
Sub to evidence or reflect the transactions contemplated by this Agreement and
to carry out the intent and purposes of this Agreement.
SECTION 6.04 Information for Offer Documents and Proxy Statement;
Disclosure. Stockholder covenants and agrees that none of the information
relating to Stockholder and its Affiliates for inclusion in the Schedule 14D-9,
the Offer Documents or, if applicable, the Proxy Statement, that has been or
will be furnished to Parent by Stockholder for inclusion in such documents will
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Stockholder agrees to permit Parent and Acquisition Sub to publish
and disclose in the Offer Documents and, if applicable, the Proxy Statement and
any related filings under applicable securities Laws Stockholder's identity and
ownership of Subject Securities and the nature of its commitments, arrangements
and understandings under this Agreement.
SECTION 6.05 Exercise of Options. Without the prior written consent of
Parent, Stockholder covenants and agrees not to exercise any Company Option
prior to the Effective Time.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Termination. This Agreement shall automatically terminate
upon the Termination Date. In the event the Merger Agreement is amended to
decrease the Offer Price or change the form or mix of consideration to be paid
for the Company Common Stock in the Offer without the Stockholder's prior
consent, Stockholder may terminate this Agreement. Notwithstanding the
foregoing, ARTICLE V and ARTICLE VII shall survive the termination of
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this Agreement and shall remain in full force and effect. The termination of
this Agreement shall not relieve Stockholder from any liability for any breach
by Stockholder prior to such termination of any representation, warranty,
covenant or agreement contained in this Agreement.
SECTION 7.02 [Reserved]
SECTION 7.03 Disclosure. Except as required by applicable Law, without
the prior written Consent of Parent, Stockholder shall not issue any press
release or otherwise making any public statement with respect to this Agreement
or the Merger Agreement or the transactions contemplated hereby or thereby;
provided however, that nothing herein shall prevent a Stockholder from acting in
Stockholder's capacity as a director or officer of the Company, or taking any
action in such capacity (including without limitation at the direction of the
Company Board), but only in either such case as and to the extent permitted by
Sections 3.24 and 6.7 of the Merger Agreement.
SECTION 7.04 Adjustments.
(a) In the event (i) of any increase or decrease or other change in the
Subject Shares by reason of stock dividend, stock split, reverse stock split,
recapitalizations, combinations, exchanges of shares or the like or (ii) that
Stockholder becomes the Owner of any additional Subject Securities, then (x) the
terms of this Agreement shall apply to such additional Subject Securities
immediately following the effectiveness of the events described in clause (i),
or Stockholder becoming the Owner thereof pursuant to clause (ii), and (y) the
Per Share Amount shall be equitably adjusted to reflect the impact of any event
described in clause (i).
(b) Stockholder hereby agrees to promptly notify Parent and Acquisition
Sub of the number of any additional Subject Securities acquired by Stockholder,
if any, after the date hereof.
SECTION 7.05 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 given upon receipt) by delivery in person, by telecopy
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this
SECTION 7.05):
(a) if to Stockholder:
To the appropriate address set forth on the signature page
hereof.
(b) if to Parent or Acquisition Sub:
Affiliated Computer Services, Inc.
0000 X. Xxxxxxx Xxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxx
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with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
SECTION 7.06 Amendment. This Agreement may not be amended except by an
instrument in writing signed by all the parties hereto.
SECTION 7.07 Waiver. No failure on the part of any party to exercise
any power, right, privilege or remedy under this Agreement, and no delay on the
part of any party in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. No party shall be deemed to have waived any claim
arising out of this Agreement, or any power, right, privilege or remedy under
this Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such party; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
SECTION 7.08 Entire Agreement. This Agreement, including the
Irrevocable Proxy (together with the Schedules hereto) constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof, other
than the Merger Agreement and the other agreements contemplated thereby.
SECTION 7.09 Stop Transfer Order. In furtherance of this Agreement,
concurrently herewith, Stockholder shall, and hereby does authorize the Company
or its counsel to, notify the Company's transfer agent that there is a stop
transfer order with respect to all of the Subject Securities (and that this
Agreement places limits on the voting and the Transfer of such securities);
provided that, the stop transfer order shall not restrict or prohibit any
Transfer of the Subject Securities if such Transfer is made pursuant to the
Offer.
SECTION 7.10 Applicable Law; Jurisdiction. 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 or any other jurisdiction. In any action
between any of the parties arising out of or relating to this Agreement or any
of the transactions contemplated by this Agreement: (a) each of the parties
irrevocably and unconditionally consents and submits to the exclusive
jurisdiction and venue of the state and federal courts located in the State of
Delaware (and agrees not to commence any such action except in such courts) and
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action brought in such court has been brought in an
inconvenient forum; (b) if any such action is commenced in a state court, then,
subject to applicable law, no party shall object to the removal of such action
to any federal court located in the State of Delaware; (c) each of the parties
irrevocably waives the right to trial by jury; and (d)
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each of the parties irrevocably consents to service of process by first class
certified mail, return receipt requested, postage prepaid, to the address at
which such party is to receive notice in accordance with SECTION 7.05.
SECTION 7.11 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement,
including the Irrevocable Proxy, were not performed in accordance with the
specific terms hereof or were otherwise breached, and that the parties shall be
entitled to specific performance of the terms hereof. Stockholder agrees that,
in the event of any breach or threatened breach by Stockholder of any covenant
or obligation contained in this Agreement, including the Irrevocable Proxy,
Parent shall be entitled (in addition to any other remedy that may be available
to it, including monetary damages) to seek and obtain (a) a decree or order of
specific performance to enforce the observation and performance of such covenant
or obligation, without necessity of proof that there is no adequate remedy at
law or requirement to post any security bond and (b) an injunction restraining
such breach or threatened breach.
SECTION 7.12 Non-Exclusivity. The rights and remedies of Parent under
this Agreement are not exclusive or limited by any other rights or remedies
which it may have, whether at law, in equity, by contract or otherwise, all of
which shall be cumulative (and not alternative). Without limiting the generality
of the foregoing, the rights and remedies of Parent under this Agreement, and
the obligations and liabilities of Stockholder under this Agreement, are in
addition to their respective rights, remedies, obligations and liabilities under
common law requirements and under applicable Law.
SECTION 7.13 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 7.14 Costs and Expenses. Except as otherwise provided in the
Merger Agreement, all costs and expenses of the parties hereto, including fees
and disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Closing
shall have occurred.
SECTION 7.15 Parties in Interest; Assignability. This Agreement shall
be binding upon, and shall be enforceable by and inure solely to the benefit of,
the parties hereto and their respective successors and assigns; provided,
however, that neither this Agreement nor any of Stockholder's rights hereunder
may be assigned by Stockholder without the prior written consent of Parent, and
any attempted assignment of this Agreement or any of such rights by Stockholder
without such consent shall be void and of no effect; provided, further, that
Parent may assign this Agreement to any direct or indirect subsidiary of Parent,
but any such assignment shall not relieve Parent of any of its obligations
hereunder. Nothing in this Agreement, express or implied, is intended to or
shall confer upon any Person (other than the parties hereto) any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement. Any
assignment prohibited under this Section shall be null and void.
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SECTION 7.16 Severability. Any term or provision of this Agreement that
is held by a court of competent jurisdiction or other authority to be invalid,
void 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. If the final judgment of a court of
competent jurisdiction or other authority declares that any term or provision
hereof is invalid, void or unenforceable, the parties agree that the court
making such determination shall have the power to reduce the scope, duration,
area or applicability of the term or provision, to delete specific words or
phrases, or to replace any invalid, void or unenforceable term or provision with
a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision.
SECTION 7.17 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 7.18 Interpretation of Representations. Each representation and
warranty made in this Agreement or pursuant hereto is independent of all other
representations and warranties made by the same parties, whether or not covering
related or similar matters, and must be independently and separately satisfied.
Exceptions or qualifications to any such representation or warranty shall not be
construed as exceptions or qualifications to any other representation or
warranty.
SECTION 7.19 Construction.
(a) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall include masculine
and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(c) For purposes of this Agreement, the words "INCLUDE" and
"INCLUDING," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "WITHOUT
LIMITATION."
Remainder of page intentionally left blank.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the day and year first above written.
SUPERIOR CONSULTANT HOLDINGS CORPORATION:
By:
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Name:
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Title:
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AFFILIATED COMPUTER SERVICES, INC.:
By:
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Name:
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Title:
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ASC MERGER CORP.:
By:
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Name:
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Title:
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STOCKHOLDER:
SCHEDULE A
Number of Shares
of Company Common Stock Owned Additional Subject Securities Owned
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