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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT, dated as of January 12, 1998 (this
"Agreement"), among THE THOMSON CORPORATION, a corporation incorporated under
the laws of Ontario, Canada ("Parent"), SABRE ACQUISITION, INC., a Delaware
corporation and a wholly owned subsidiary of Parent ("Purchaser"), and the
stockholders whose names appear on the signature pages of this Agreement (each a
"Stockholder" and collectively the "Stockholders").
WHEREAS, Parent and Purchaser have entered into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"; capitalized
terms used but not otherwise defined in this Agreement have the meanings
assigned to such terms in the Merger Agreement), with Computer Language
Research, Inc., a Texas corporation (the "Company"), which provides, upon the
terms and subject to the conditions set forth therein, for the merger of
Purchaser with and into the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholders own (beneficially
or of record), in the aggregate, 10,786,812 issued and outstanding shares of
Common Stock, par value $.01 per share, of the Company ("Company Common Stock");
and
WHEREAS, as a condition to the willingness of Parent and Purchaser
to enter into the Merger Agreement, Parent and Purchaser have required that the
Stockholders agree, and in order to induce Parent and Purchaser to enter into
the Merger Agreement, the Stockholders have agreed as set forth below, to sell
to Purchaser, and Purchaser has agreed to purchase, all the issued and
outstanding shares of Company Common Stock now owned (beneficially or of record)
and which may hereafter be acquired by the Stockholders (the "Shares").
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 hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
SECTION 1.01. Purchase and Sale. Upon the terms and subject to the
conditions set forth in this Agreement, each Stockholder hereby agrees to sell
to Purchaser, and Purchaser hereby agrees to purchase from each Stockholder, all
of the Shares held by such Stockholder at a price per Share equal to $22.50 (or,
if higher, the highest price paid for any share of Company Common Stock pursuant
to the Offer) (the "Purchase Price").
SECTION 1.02. Conditions to Closing; Closing. The obligation of the
Stockholders and Purchaser to consummate the purchase and sale of the Shares
hereunder is subject to the satisfaction of the following conditions: (a) any
applicable waiting periods
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(and any extension thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended, and the rules and regulations promulgated thereunder
(the "HSR Act") with respect to the purchase and sale of the Shares hereunder
shall have expired or been terminated and (b) no preliminary or permanent
injunction or law, rule, regulation, order, decree or ruling issued by any
United States or Canadian federal, state, provincial or local court or
governmental or regulatory authority of competent jurisdiction prohibiting the
purchase and sale of the Shares hereunder shall be in effect. The obligation of
Purchaser to consummate the purchase of the Shares hereunder is further subject
to the satisfaction of the following conditions: (a) the representations and
warranties of the Company in the Merger Agreement and of the Stockholders in
this Agreement that are qualified as to materiality shall have been true and
correct and such representations and warranties that are not so qualified shall
have been true and correct in all material respects, in each case as of the date
of this Agreement, except in the case of any representation and warranty that
speaks as of a particular date, which shall be true and correct or true and
correct in all material respects, as applicable, as of such date, (b) the
Company shall have performed in all material respects its obligations, and
complied in all material respects with its covenants and agreements, under the
Merger Agreement, (c) the Stockholders shall have performed in all material
respects their obligations, and complied in all material respects with their
covenants and agreements, under this Agreement, (d) each of the Offer Conditions
shall have been satisfied or waived by Purchaser, (e) either Purchaser shall
have accepted shares of Company Common Stock for payment pursuant to the Offer
or the Offer shall have expired or been terminated without the purchase of any
shares of Company Common Stock pursuant thereto and (f) the Merger Agreement
shall not have been terminated pursuant to paragraphs (a), (b) or (c) of Section
8.01 of the Merger Agreement. The obligation of the Stockholders to consummate
the sale of the Shares hereunder is further subject to the satisfaction of the
following condition: the Merger Agreement shall not have been terminated
pursuant to Section 8.01 of the Merger Agreement. Upon the terms and subject to
the conditions set forth herein, the closing of the purchase and sale of the
Shares hereunder (the "Closing") shall take place at the offices of ▇▇▇▇▇
▇▇▇▇▇▇▇ Rain ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ immediately
following the termination or expiration of the Offer or at such other time and
place as may be agreed in writing by Purchaser and the Stockholders.
SECTION 1.03. Payment for and Delivery of Certificates. At the
Closing, (a) Purchaser shall pay the aggregate Purchase Price for the Shares by
wire transfer in immediately available funds to an account or accounts
designated by the Stockholders by written notice to Purchaser and (b) the
Stockholders shall deliver to Purchaser a certificate or certificates evidencing
the Shares, duly endorsed in blank, or with appropriate stock powers, duly
executed in blank, in proper form for transfer, with the signature of the
Stockholders thereon guaranteed, and with all applicable taxes paid or provided
for. Notwithstanding the provisions of this Section 1.03 or the last sentence of
Section 1.02, in the event Purchaser shall accept for payment and pay for shares
of Company Common Stock tendered pursuant to the Offer, then Purchaser shall
effect payment for the Shares in immediately available funds not later than the
next business day after such acceptance occurs.
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SECTION 1.04. Payment in the Event of Certain Purchases. If the
Closing shall have occurred and Parent or any of its affiliates shall, within 12
months after the Closing, acquire any shares of Company Common Stock for a per
share amount greater than the Purchase Price, then Purchaser shall promptly pay
to the Stockholders an amount in cash equal to (i) the difference between the
highest per share amount so paid and the Purchase Price multiplied by (ii) the
number of Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
Each Stockholder, as to himself, herself or itself, as the case may
be, hereby represents and warrants to Purchaser as follows:
SECTION 2.01. Due Organization, Authorization, Etc. Such
Stockholder, if it is a limited partnership, (i) is a limited partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite partnership power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and (iii) the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of such Stockholder. Such
Stockholder, if it is a trust, (i) is duly formed as a trust under the laws of
the jurisdiction of its formation and its trust agreement is valid and in full
force and effect, (ii) has all requisite power and authority under its trust
instruments to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and (iii) the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of such Stockholder. Such
Stockholder, if it is an individual, has all legal capacity to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by or on behalf of such
Stockholder and, assuming its due authorization, execution and delivery by
Purchaser, constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
SECTION 2.02. No Conflicts; Required Filings and Consents. (a) The
execution and delivery of this Agreement by such Stockholder do not, and the
performance of this Agreement by such Stockholder will not, (i) conflict with or
violate the organizational documents of such Stockholder (if any), (ii) subject
to the matters referred to in Section 2.02(b), conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to such Stockholder or by
which it or any of its, his or her properties is bound or affected, or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to another party
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or
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encumbrance on any of the property or assets of such Stockholder, including,
without limitation, the Shares, pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Stockholder is a party or by which such
Stockholder or any of its, his or her properties is bound or affected, except
for any such breaches, defaults or other occurrences that would not prevent or
delay the performance in any material respect by such Stockholder of its
obligations under this Agreement.
(b) The execution and delivery of this Agreement by such Stockholder
do not, and the performance of this Agreement by such Stockholder will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign,
except (i) for applicable requirements, if any, of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder (the "Exchange
Act"), the Securities Act of 1933, as amended, state securities laws and the HSR
Act 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 performance in any material respect by such Stockholder of
its obligations under this Agreement.
SECTION 2.03. Title to Shares. Except as set forth in Schedule A
hereto, such Stockholder is the record and beneficial owner of the Shares held
by him, her or it, as the case may be (it being understood that the
beneficiaries of Stockholders that are trusts and the partners of Stockholders
that are partnerships may be deemed the beneficial owners of Shares held by such
entities), free and clear of any pledge, lien, security interest, charge, claim,
equity, option, proxy, voting restriction, right of first refusal or other
limitation on disposition or encumbrance of any kind ("Encumbrances"), other
than (i) pursuant to this Agreement and (ii) Encumbrances that will be
terminated prior to or concurrently with the Closing. Such Stockholder has full
right, power and authority to sell, transfer and deliver such Shares pursuant to
this Agreement. Upon delivery of such Shares and payment of the Purchase Price
therefor as contemplated herein, Purchaser will receive good and valuable title
to such Shares of such Stockholder, free and clear of all Encumbrances arising
from the ownership of such Shares, or otherwise created, by such Stockholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PURCHASER
Parent and Purchaser hereby represent and warrant to the
Stockholders as follows:
SECTION 3.01. Due Organization, etc. Each of Parent and Purchaser is
a corporation duly organized, validly existing and in good standing under the
laws of the
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jurisdiction of its incorporation. Each of Parent and Purchaser has all
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of each of Parent and Purchaser. This Agreement has been duly executed and
delivered by or on behalf of each of Parent and Purchaser and, assuming its due
authorization, execution and delivery by the Stockholders, constitutes a legal,
valid and binding obligation of each of Parent and Purchaser, enforceable
against each of Parent and Purchaser in accordance with its terms.
SECTION 3.02. No Conflicts; Required Filings and Consents. (a) The
execution and delivery of this Agreement by each of Parent and Purchaser do not,
and the performance of this Agreement by each of Parent and Purchaser will not,
(i) conflict with or violate the Certificate of Incorporation or By-Laws of
Parent or Purchaser, (ii) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to Parent or Purchaser or by which it or
any of its properties is bound or affected, or (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to another party any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the property or assets of Parent or
Purchaser, pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Parent or Purchaser is a party or by which Parent or Purchaser or any
of its properties is bound or affected, except for any such breaches, defaults
or other occurrences that would not prevent or delay the performance by Parent
or Purchaser of its obligations under this Agreement.
(b) The execution and delivery of this Agreement by each of Parent
and Purchaser do not, and the performance of this Agreement by each of Parent
and Purchaser will not, require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental or regulatory authority,
domestic or foreign, except (i) for applicable requirements, if any, of the
Exchange Act and the HSR Act 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 performance by Parent or Purchaser of its
obligations under this Agreement.
SECTION 3.03. Investment Intent. The purchase of the Shares from the
Stockholders pursuant to this Agreement is for the account of Purchaser for the
purpose of investment and not with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
SECTION 3.04. Financing. Parent has, or will have available to it at
the Closing, and will make available to Purchaser, sufficient funds to permit
the Purchaser to acquire all of the Shares pursuant to this Agreement.
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ARTICLE IV
TRANSFER AND VOTING OF SHARES;
NO SOLICITATION OF TRANSACTIONS AND
NON-COMPETITION; TERMINATION
SECTION 4.01. No Disposition or Encumbrance of Shares. Except as
contemplated by Sections 1.01 and 4.04 hereof, each Stockholder hereby covenants
and agrees that, so long as this Agreement shall remain in effect, he, she or it
shall not, and shall not offer or agree to, sell, transfer, tender, assign,
hypothecate or otherwise dispose of, or create or permit to exist any
Encumbrance (other than any Encumbrance that will be terminated prior to or
concurrently with the Closing) on the Shares now owned or that may hereafter be
acquired by such Stockholder at any time.
SECTION 4.02. Voting of Shares; Further Assurances. (a) Each
Stockholder, by this Agreement, with respect to those Shares that he, she or it
owns of record, does hereby constitute and appoint Purchaser, or any nominee of
Purchaser, with full power of substitution, so long as this Agreement shall
remain in effect, as his, her or its true and lawful attorney and proxy, for and
in his, her or its name, place and stead, to vote each of the Shares as his, her
or its proxy, at every annual, special or adjourned meeting of the stockholders
of the Company, including the right to sign his, her or its name (as
stockholder) to any consent, certificate or other document relating to the
Company that the law of the State of Texas may permit or require, (i) in favor
of the approval and adoption of the Merger Agreement and approval of the Merger
and the other transactions contemplated by the Merger Agreement, (ii) against
any proposal for any recapitalization, merger, sale of assets, or other business
combination between the Company and any person or entity (other than the Merger)
or any other 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 could result in any of the conditions to the
Merger Agreement not being fulfilled or which could adversely affect the ability
of the Company to consummate the Merger and the other transactions contemplated
by the Merger Agreement, and (iii) in favor of any other matter relating to
consummation of the transactions contemplated by the Merger Agreement. THIS
PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each
Stockholder further agrees to cause the Shares owned by him, her or it
beneficially or of record to be voted in accordance with the foregoing. Each
Stockholder shall retain the right to vote the Shares in his, her or its
discretion on all matters submitted to a vote of stockholders of the Company
other than those referred to in this Section 4.02. Each Stockholder acknowledges
receipt and review of a copy of the Merger Agreement. The proxy and power of
attorney provided by this Section 4.02 shall terminate and be revoked upon any
termination of this Agreement in accordance with its terms.
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(b) If Purchaser shall purchase the Shares in accordance with the
terms of this Agreement, then without additional consideration, each of the
Stockholders shall execute and deliver further transfers, assignments,
endorsements, consents and other instruments as Purchaser may reasonably request
for the purpose of effectively carrying out the transactions contemplated by
this Agreement and to consummate the Merger, including the transfer of any and
all of the Shares to Purchaser and the release of any and all Encumbrances on
the Shares.
(c) Each Stockholder shall perform such further acts and execute
such further documents and instruments as may reasonably be required to vest in
Purchaser the power to carry out and give effect to the provisions of this
Agreement.
SECTION 4.03. No Solicitation of Transactions. Each Stockholder
shall not, directly or indirectly, through any officer, director, agent or
otherwise, so long as this Agreement shall remain in effect, solicit, initiate,
encourage the submission of or accept any proposal or offer from any individual,
corporation, partnership, limited partnership, limited liability company,
syndicate, person (including, without limitation, a "person" as defined in
Section 13(d)(3) of the Exchange Act), trust, association or entity or
government, political subdivision, agency or instrumentality of a government
(collectively other than Purchaser and any affiliate of Purchaser, a "Person")
relating to (i) any acquisition or purchase of all or any of the Shares or (ii)
any acquisition or purchase of all or (other than in the ordinary course of
business) any portion of the assets of, or any equity interest in, the Company
or any business combination with the Company or participate in any negotiations
regarding, or furnish to any Person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in or facilitate
or encourage, any effort or attempt by any Person to do or seek any of the
foregoing. Each Stockholder immediately shall cease and cause to be terminated
all existing discussions or negotiations of such Stockholder and its officers,
directors, agents or other representatives with any Person conducted heretofore
with respect to any of the foregoing. Each Stockholder shall notify Purchaser
promptly if any such proposal or offer, or any inquiry or contact with any
Person with respect thereto, is made and shall, in any such notice to Purchaser,
indicate in reasonable detail the identity of the Person making such proposal,
offer, inquiry or contact and the terms and conditions of such proposal, offer,
inquiry or contact. Notwithstanding the foregoing, the actions of any
Stockholder who is a director or officer of the Company, solely in his or her
capacity as a director or officer, shall be governed by the Merger Agreement and
not this Section 4.03.
SECTION 4.04. Agreement to Tender the Shares Pursuant to the Offer.
In order to carry out the provisions of Section 1.01 of this Agreement most
effectively, each Stockholder shall, upon the terms and subject to the
conditions hereof, as promptly as practicable validly tender pursuant to the
Offer and not withdraw all the Shares now owned or that may hereafter be
acquired by such Stockholder. Delivery of the Shares pursuant to the Offer shall
constitute delivery of Shares to Purchaser hereunder, and the acceptance of the
Shares for payment and payment for the Shares pursuant to the Offer shall
constitute the Closing hereunder. The representations, warranties and covenants
of the parties contained in
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this Agreement shall supersede any representations, warranties and covenants
contained in the letter of transmittal or similar documentation furnished by
Purchaser and employed by the Stockholders in order to tender the Shares
pursuant to the Offer.
SECTION 4.05. Non-Competition. (a) For a period four years after the
Closing (the "Restricted Period"), no Stockholder (other than Advance Capital
Partners, L.P. and Advance Capital Offshore Partners, L.P. (collectively,
"Advance Capital"), it being expressly agreed that the provisions of this
Section 4.05 shall not apply to Advance Capital) shall engage (other than on
behalf of the Surviving Corporation or the Company or their respective
subsidiaries), directly or indirectly, in the Tax and Accounting Software
Business (as defined below) anywhere in the world or, without the prior written
consent of Parent, directly or indirectly, own an interest in, manage, operate,
join, control, lend money or render financial or other assistance (other than
customary professional courtesies afforded to members of the business community)
to or participate in or be connected with, as an officer, employee, partner,
stockholder, consultant, advisor or other similar capacity, any person (other
than the Surviving Corporation or the Company or their respective subsidiaries)
that engages in the Tax and Accounting Software Business; provided, however,
that, for the purposes of this Section 4.05, ownership of securities having no
more than five percent of the outstanding voting power of any competitor which
are listed on any national securities exchange or traded actively in the
national over-the-counter market shall not be deemed to be in violation of this
Section 4.05 so long as the person owning such securities has no other
connection or relationship with such competitor that would not be permitted
hereby. For purposes hereof, "Tax and Accounting Software Business" means (x)
the business of developing, designing, publishing, marketing and distributing
(i) tax compliance software and services for tax and accounting professionals
within corporations, banks, government agencies and accounting firms; (ii)
accounting and practice management software and services marketed primarily to
accounting firms; and (iii) other tax and accounting software products and
services which are under development by the Company as of the Closing; and (y)
the business of the Company's Rent Roll, Inc. subsidiary as of the Closing.
(b) As a separate and independent covenant, each Stockholder (other
than Advance Capital) agrees with Purchaser that, during the Restricted Period
(other than on behalf of the Surviving Corporation or the Company or their
respective subsidiaries), such Stockholder will not in any way, directly or
indirectly, for the purpose of conducting or engaging in the Tax and Accounting
Software Business, call upon, solicit, advise or otherwise do, or attempt to do,
business with any customers of the Surviving Corporation, the Company or any
Subsidiary with whom the Surviving Corporation, the Company, any Subsidiary or
such Stockholder had any dealings during the two year period prior to the first
day of the Restricted Period, or take away or interfere or attempt to interfere
with any customer, trade, business or patronage of the Surviving Corporation,
the Company or any Subsidiary.
(c) As a separate and independent covenant, each Stockholder (other
than Advance Capital) agrees with Purchaser that, during the Restricted Period,
such Stockholder
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will not, in any way, directly or indirectly, hire, attempt to hire, interfere
with or attempt to interfere with any officers, employees, representatives,
consultants or agents of the Surviving Corporation, the Company or any
Subsidiary or any former officer, employee, representative, consultant or agent
of the Surviving Corporation, the Company or any Subsidiary who resigned or was
terminated within the prior six month period (other than an employee whose
employment was terminated by the Surviving Corporation, the Company or any
Subsidiary without Cause, or who resigned from his or her employment for Good
Reason, as such terms are defined in the Retention Bonus Plan), or induce or
attempt to induce any of them to leave the employ of the Surviving Corporation,
the Company or any Subsidiary or violate the terms of their contracts, or any
arrangements, with the Surviving Corporation, the Company or any Subsidiary.
(d) The Restricted Period with respect to any Stockholder (other
than Advance Capital) shall be extended by the length of any period during which
such Stockholder is in breach of the terms of this Section 4.05.
(e) Each such Stockholder (other than Advance Capital) acknowledges
that the covenants of such Stockholder set forth in this Section 4.05 are an
essential element of this Agreement and the Merger Agreement, and that, but for
the agreement of such Stockholder to comply with these covenants, Parent and
Purchaser would not have entered into the Merger Agreement or this Agreement.
Each such Stockholder acknowledges that this Section 4.05 constitutes an
independent covenant and shall not be affected by performance or nonperformance
of any other provision of this Agreement or the Merger Agreement by Parent or
Purchaser. Each Stockholder has independently consulted with his, her or its
counsel and after such consultation agrees that the covenants set forth in this
Section 4.05 are reasonable and proper.
SECTION 4.06. Performance by Purchaser. Parent shall cause Purchaser
to perform its obligations and comply with its covenants and agreements under
this Agreement and the Merger Agreement.
SECTION 4.07. Termination. This Agreement may be terminated (i) at
any time by mutual written consent of all the parties hereto or (ii) by Parent
or the Stockholders if any United States or Canadian federal, state, provincial
or local court or governmental or regulatory authority of competent jurisdiction
shall have issued an order, decree, ruling or taken any other action
restraining, enjoining or otherwise prohibiting the Merger or the purchase and
sale of the Shares hereunder and such order, decree, ruling or other action
shall have become final and nonappealable or (iii) by Parent or the Stockholders
if the Merger Agreement shall have been terminated in accordance with the
provisions of Section 8.01 of the Merger Agreement. In the event of any such
termination, there shall be no further liability on the part of any party
hereto, except (a) as set forth in Section 5.01 and (b) nothing herein shall
relieve any party from liability for any breach hereof.
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SECTION 4.08. Survival. The representations and warranties of the
parties hereto contained herein shall not survive the Closing except for the
representations and warranties contained in Sections 2.03 and 3.03, which shall
survive the Closing indefinitely. The covenants and agreements of the parties
contained herein shall survive in accordance with their respective terms.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Expenses. Except as otherwise provided herein, all
costs and expenses incurred in connection with the transactions contemplated by
this Agreement shall be paid by the party incurring such costs and expenses;
provided, that if the Closing occurs hereunder, Purchaser shall, promptly
following any request from the Stockholders, reimburse the Stockholders for up
to an aggregate of $350,000 of their reasonable fees and expenses (including
reasonable fees and expenses of counsel) incurred in connection with this
Agreement or the Merger Agreement or the transactions contemplated hereby or
thereby, including, without limitation, any employment arrangements contemplated
thereby; and provided, further, that Purchaser shall pay any stock transfer
taxes relating to the purchase and sale of the Shares pursuant to this Agreement
(including, without limitation, pursuant to the Offer or the Merger) .
SECTION 5.02. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with 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.
SECTION 5.03. Entire Agreement. This Agreement constitutes the
entire agreement among Parent, Purchaser and the Stockholders with respect to
the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, among Parent, Purchaser and the
Stockholders with respect to the subject matter hereof.
SECTION 5.04. Assignment. This Agreement shall not be assigned by
operation of law or otherwise, except that Purchaser may assign all or any of
its rights and obligations hereunder to any affiliate of Parent, provided that
no such assignment shall relieve Purchaser of its obligations hereunder if such
assignee does not perform such obligations.
SECTION 5.05. Parties in Interest. This Agreement shall be binding
upon, inure solely to the benefit of, and be enforceable by, the parties hereto
and their respective successors and assigns, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
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SECTION 5.06. Amendment; Waiver. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto. Any party
hereto may (i) extend the time for the performance of any obligation or other
act of the other party hereto, (ii) waive any inaccuracy in the representations
and warranties of the other party contained herein and (iii) waive compliance
with any agreement or condition of the other party contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed by the party to be bound thereby.
SECTION 5.07. Severability. If any term or other provision of this
Agreement is determined by a court of competent jurisdiction to be invalid,
illegal or unenforceable, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
SECTION 5.08. 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 5.08):
if to Parent or Purchaser:
The Thomson Corporation
Metro Center
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Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Shearman & Sterling
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Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
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if to the Stockholders:
c/o Computer Language Research, Inc.
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Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Chief Executive Officer
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
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Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
and
▇▇▇▇▇ ▇▇▇▇▇▇▇ Rain ▇▇▇▇▇▇▇ (A Professional Corporation)
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Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇, Esq.
and
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Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
SECTION 5.09. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware applicable
to contracts executed in and to be performed entirely within that State. All
actions and proceedings arising out of or relating to this Agreement shall be
heard and determined in any Delaware state court or in any federal court sitting
in Delaware.
SECTION 5.10. 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.
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SECTION 5.11. Counterparts. This Agreement may be executed 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 5.12. Waiver of Jury Trial. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, Parent and Purchaser have caused this Agreement
to be executed by its officer thereunto duly authorized and each of the
Stockholders have executed this Agreement or caused this Agreement to be
executed by its general partner or other person thereunto duly authorized, as of
the date first written above.
THE THOMSON CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Secretary
SABRE ACQUISITION, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
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By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇
AS JOINT TENANTS WITH A RIGHT OF
SURVIVORSHIP
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇ AS
TENANTS IN COMMON
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇ FAMILY, LP A
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Management LLC
-----------------------------------------
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Manager
▇▇▇▇ FAMILY, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, General Partner
THE ▇▇▇▇ FAMILY IRREVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
THE ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ GRANDCHILDREN'S
TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
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By: /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
TURTLE CREEK GROUP, LTD.
By: Turtle Creek Group Management L.C.
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General Partner
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Managing Member
THE ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇ ▇. ▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
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▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
-----------------------------------------
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THE ▇▇▇▇▇ ▇. ▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
THE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
THE ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
ADVANCE CAPITAL PARTNERS, L.P.
By: Advance Capital Associates, L.P.
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General Partner
By: Advance Capital Management, LLC
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General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Member
ADVANCE CAPITAL OFFSHORE
PARTNERS, L.P.
By: Advance Capital Offshore Associates, LDC
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General Partner
By: Advance Capital Management, LLC
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General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Member
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SCHEDULE A
Shares owned by Advance Capital Partners, L.P. and Advance Capital Offshore
Partners, L.P. (400,000 total) are held of record by Advance Capital Partners,
L.P.