EXHIBIT 10.3
SECURITIES REPURCHASE AGREEMENT
THIS SECURITIES REPURCHASE AGREEMENT (this "Agreement"), dated as of
June 5, 2003, is entered into by and among Cooperative Computing Holding
Company, Inc., a Delaware corporation (the "Company"), Cooperative Computing,
Inc., a Delaware corporation and wholly-owned subsidiary of the Company ("CCI"),
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇. ▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ("▇. ▇▇▇▇▇▇" and, together
with ▇. ▇▇▇▇▇▇, the "Sellers"), solely for the purpose of Sections 5.1, 5.4(b),
5.6, 5.7 and 8.2, Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Equity Fund III, L.P. and HM3
Coinvestors, L.P. (collectively, "HMTF") and, solely for the purpose of Sections
5.4(b), 5.6, 5.7, and 8.2, Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated and HMTF
Operating, L.P. (collectively, "▇▇▇▇▇ Muse").
WHEREAS, the Sellers are the record and beneficial owners of an
aggregate 16,000,000 shares (the "Shares") of common stock, par value $.000125
per share (the "Common Stock"), of the Company;
WHEREAS, the Company desires to purchase from each of the Sellers all
of the Shares owned by such Seller as set forth on Exhibit A attached hereto;
WHEREAS, the Company, the Sellers, HMTF and A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ are
parties to a Stockholders Agreement dated as of May 26, 1999 (the "Stockholders
Agreement");
WHEREAS, Section 9.7.2 of the Stockholders Agreement provides that any
provision of the Stockholders Agreement may be amended or waived if such
amendment or waiver is in writing and is signed by the Company and holders of
Common Stock who then own beneficially more than 66 2/3% of the aggregate number
of shares of Common Stock subject to the Stockholders Agreement ("Required
Holders");
WHEREAS, the Sellers and HMTF constitute Required Holders;
WHEREAS, as more particularly described herein, the Company, the
Sellers and HMTF desire to waive the applicability of any notice requirements or
other provisions of the Stockholders Agreement to the transactions contemplated
by this Agreement;
WHEREAS, following the consummation of the transactions contemplated by
this Agreement, the Sellers will no longer own any shares of Common Stock and
desire to terminate any rights or obligations they may have under the
Stockholders Agreement;
WHEREAS, ▇. ▇▇▇▇▇▇ filed suit against CCI in the case styled ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇. v. Cooperative Computing, Inc., Cause No. A-02-CA-787-JN, United
States District Court for the Western District of Texas, Austin Division (the
"Litigation");
WHEREAS, conditioned upon, and effective at, the Closing, the Sellers,
on the one hand, and CCI, the Company, HMTF and ▇▇▇▇▇ Muse on the other hand,
desire to enter into mutual releases with respect to any Claims (as hereinafter
defined) and the Litigation; and
WHEREAS, HMTF, the Sellers and each other stockholder of the Company
has concurrently herewith executed a Unanimous Written Consent of Stockholders
in the form attached hereto as Exhibit B, pursuant to which such stockholders
authorized and approved this Agreement and the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1 Commitments to Sell and Purchase. At the Closing, upon the
terms and subject to the conditions contained herein, each of the Sellers shall
sell, assign, transfer, convey and deliver to the Company, and the Company shall
purchase from each of the Sellers the Shares owned by such Seller as set forth
opposite such Seller's name on Exhibit A hereto, in each case free and clear of
all liens, claims, encumbrances, security interests or other restrictions of any
kind ("Liens").
1.2 Purchase Price; Payment of Purchase Price. The aggregate
consideration to be paid by the Company to the Sellers for the Shares shall be
$30 million, consisting of (i) $28 million in cash and (ii) unsecured promissory
notes (the "Notes") in the aggregate principal amount of $2 million, with
interest payable during the ninety (90) days immediately following the Closing
at the applicable federal rate and thereafter at ten percent (10%) per annum,
and maturing at such time as the indenture governing the CCI's 9% Senior
Subordinated Notes due 2008 (the "Existing Notes") in aggregate principal amount
of $100,000,000 and applicable Delaware law permit CCI to dividend to the
Company the funds necessary to repay the Notes (the "Purchase Price"). The
Purchase Price shall be allocated among the Sellers as set forth on Exhibit A
hereto. At the Closing, the Company shall execute and deliver the Notes and pay
to each Seller the cash portion of the Purchase Price allocable to such Seller
as set forth on Exhibit A by wire transfer of immediately available funds to
accounts designated by each of the Sellers in writing to Company not later than
two (2) business days prior to the Closing Date; provided, however, that in the
case of the $4,666,666.67 cash payment owing to ▇. ▇▇▇▇▇▇, (a) $3,666,666.67
shall be paid at the Closing and (b) $1,000,000 shall be paid on the later to
occur of the Closing Date or the date the ADEA Revocation Period (as defined in
Section 8.12) expires without ▇. ▇▇▇▇▇▇ revoking the release contained in
Section 5.4(a)(iii)(A) of this Agreement pursuant to Section 8.12 hereof, it
being understood that if ▇. ▇▇▇▇▇▇ revokes such provisions pursuant to such
Section 8.12 he will not be entitled to receive such additional $1,000,000
payment, and any amounts being held in escrow pursuant to the following sentence
shall be released to the Company. To the extent that $1,000,000 is required to
be held back from the payment to be made to ▇. ▇▇▇▇▇▇ at the Closing pursuant to
the proviso contained in the preceding sentence, the Company shall deposit such
$1,000,000 into escrow with a third party escrow agent, which $1,000,000
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shall be released to ▇. ▇▇▇▇▇▇ upon (x) notification by the Company to the
Escrow Agent that the ADEA Revocation Period has expired and (y) ▇. ▇▇▇▇▇▇'
execution and delivery to the Company of the release in the form attached hereto
as Exhibit C.
ARTICLE II
CLOSING AND TERMINATION
2.1 Closing. The purchase and sale of the Shares will take place
at a closing (the "Closing") to be held at the offices of Weil, Gotshal & ▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., Dallas
time, on the second business day after the conditions set forth in Article VI
(other than conditions with respect to actions the respective parties will take
at the Closing) have been satisfied or waived by the party entitled to do so, or
on such other date, or at such other place and time as the parties shall
mutually agree. The date on which the Closing is held is referred to as the
"Closing Date". As used herein, the phrase "effective as of the Closing Date"
means the time when all conditions to Closing set forth in Article VI have
either been satisfied or waived by the party entitled to do so (including,
without limitation, the payment of the Purchase Price by the Company in
accordance with Section 1.2).
2.2 Termination. This Agreement may be terminated prior to the
Closing as follows:
(a) by the written agreement of the Company and the
Sellers; or
(b) by either the Company or the Sellers if the Closing
shall not have occurred on or prior to the 180th day after the date of this
Agreement; provided, however, that the right to terminate this Agreement
pursuant to this Section 2.2(b) shall not be available to any party whose
conditions to Closing as set forth in Sections 6.1 and 6.2 have been satisfied
and such party has nevertheless refused to consummate the transactions
contemplated by this Agreement; or
(c) by the Sellers if on or prior to the pricing date of CCI's
pending senior notes offering, (i) the Board of Directors of CCI has not
determined that the conditions to Closing set forth in Sections 6.2(d) and (e)
can be satisfied and (ii) the Company has not waived compliance with such
conditions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller, as to himself only, makes the following
representations and warranties to the Company and CCI:
3.1 Authorization. Each Seller has all requisite power, authority
and legal capacity to execute and deliver this Agreement and to consummate the
transactions
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contemplated hereby. This Agreement has been duly and validly executed and
delivered by each Seller and (assuming the due authorization, execution and
delivery by the other parties hereto) this Agreement constitutes legal, valid
and binding obligations of each Seller, enforceable against each Seller in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3.2 Ownership and Transfer of Shares. Each Seller is the sole
record and beneficial owner of the Shares indicated as being owned by such
Seller on Exhibit A attached hereto, free and clear of any and all Liens. Each
Seller has the power and authority to sell, transfer, assign and deliver such
Shares as provided in this Agreement, and such delivery will convey to the
Company good title to such Shares, free and clear of any and all Liens. Except
for this Agreement and the Stockholders Agreement, no Seller is a party to any
voting, trust, proxy or other agreement or understanding with respect to the
voting, purchase, sale or other disposition of the Shares or any interest
therein.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND CCI
Each of the Company and CCI makes the following representations and
warranties to the Sellers:
4.1 Organization and Good Standing. Each of the Company and CCI is
validly existing and in good standing under the laws of the State of Delaware.
Each of the Company, CCI and their respective subsidiaries has the requisite
corporate power and authority to own, lease or otherwise hold the assets owned,
leased or otherwise held by it and to carry on its business as now being
conducted.
4.2 Authorization. Each of the Company and CCI has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Company and CCI, and this Agreement has been duly executed and delivered by the
Company and CCI. This Agreement constitutes the legal, valid and binding
obligation of the Company and CCI, enforceable against the Company and CCI in
accordance with its terms subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
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ARTICLE V
COVENANTS
5.1 Stockholders Agreement. In accordance with Section 9.7.2 of
the Stockholders Agreement, each of the Company, the Sellers and HMTF hereby
waive the applicability of any of the provisions of the Stockholders Agreement
to any of the transactions contemplated by this Agreement, including, without
limitation, Sections 4.2 (Tag Along Rights), 5.1 (Restrictions on Transfer) and
5.3 (Notice of Proposed Transfers). In addition, conditioned upon, and effective
at, the Closing pursuant to Section 2.1.4 of the Stockholders Agreement, the
Sellers hereby elect to terminate their rights under Article 2 of the
Stockholders Agreement with respect to the designation of directors to the
Company's and CCI's Boards of Directors. Conditioned upon, and effective at, the
Closing, each of the Sellers, the Company and HMTF acknowledges and agrees that
the Stockholders Agreement (including, without limitation, all of the
obligations set forth in Section 8.1 of the Stockholders Agreement) shall
terminate as to each of the Sellers, and that upon such termination neither of
the Sellers shall have any further rights or obligations under the Stockholders
Agreement from and after such termination.
5.2 Proprietary Information; Nonsolicitation; Covenant Not to
Compete.
(a) Each Seller acknowledges and agrees that he has had
access to and may have created or developed (either alone or with others)
Proprietary Information. For purposes of this Agreement, "Proprietary
Information" means, unless known generally to the public, specifications,
computer source codes, passwords, data bases, technical documentation, programs,
strategic or technical research data and product research and development data
of the Company, CCI and the respective subsidiaries, and any other information
previously specifically identified by the Company, CCI or their respective
subsidiaries as confidential or proprietary information of the Company, CCI, or
their respective subsidiaries.
Effective as of the Closing Date, for a period of seven years
from the Closing Date, each Seller shall hold in confidence and not directly or
indirectly disclose, use or copy or make lists of any Proprietary Information or
other confidential information of the Company, CCI or any of their respective
subsidiaries, except to the extent (i) authorized in writing by the Board of
Directors of the Company or CCI or (ii) required by any court or administrative
agency. Notwithstanding anything to the contrary contained in this Section
5.2(a), nothing in this Section 5.2(a) shall prohibit ▇. ▇▇▇▇▇▇ or ▇. ▇▇▇▇▇▇
from using any such Proprietary Information on behalf of Internet Autoparts,
Inc. ("IAP") to the extent, but only to the extent, that it is expressly
permitted to be used by IAP for the purposes permitted by the terms of that
certain Software and Data License and Service Agreement, dated as of May 31,
2000, between IAP and CCI (the "IAP License Agreement").
All Proprietary Information, other confidential information
and all records, files, documents and materials, or copies thereof, relating to
the business of the
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Company, CCI and their respective subsidiaries which such Seller has prepared,
or has used, or has come into contact with, or now has or shall have in its
possession or control (collectively, "Company Materials"), shall be and remain
the sole property of the Company, CCI or their respective subsidiaries, as the
case may be. On the Closing Date, each Seller shall promptly destroy or return
to the Company or CCI any and all computer source codes, passwords, confidential
customer or prospect lists, data bases, technical documentation and programs in
the possession or control of such Seller and in any way related to any of the
Company's or CCI's products, data or software and, to the extent any other types
of Company Materials are specifically identified in writing from time to time by
the Company to the Sellers, each Seller shall promptly destroy or return to the
Company or CCI any such Company Material in the possession or control of such
Seller and so identified by the Company. The failure of the Company to identify
specific types of Company Materials that the Company requires to be returned or
destroyed pursuant to the immediately preceding sentence shall not reduce or
diminish the obligations of the Sellers to comply with the remaining terms of
this Section 5.2(a).
(b) Effective as of the Closing Date, except with the
prior written approval of the Board of Directors of the Company or CCI, for a
period of seven years from the Closing Date, each Seller agrees that he shall
not, directly or indirectly:
(i) solicit, entice, persuade or induce any
employee of the Company, CCI or any of their respective subsidiaries
(each, a "Company Employee") to terminate his employment by the
Company, CCI or any of their respective subsidiaries or to become
employed by any person or entity other than the Company, CCI or any of
their respective subsidiaries;
(ii) solicit, induce or attempt to induce any
customer or supplier of the Company, CCI or any of their respective
subsidiaries with whom the Company, CCI or any of their respective
subsidiaries does business to cease doing business in whole or in part
or alter in any way, terminate or breach his, her or its relationship
with the Company, CCI or any of their respective subsidiaries; and
(iii) authorize or assist in the taking of such
actions by any third party.
Notwithstanding the foregoing, (A) neither Section 5.2(b)(i)
nor Section 5.2(b)(iii) shall prohibit (i) any advertisement or general
solicitation (or hiring as a result thereof) by a Seller or Seller Affiliate (as
hereinafter defined) that is not specifically targeted at the Company Employees,
(ii) the solicitation or hiring by a Seller or any Seller Affiliate of any
Company Employee who initiates employment discussions with such Seller or Seller
Affiliate or (iii) a Seller or any Seller Affiliate from writing letters of
recommendation or giving verbal recommendation for any Company Employee; and (B)
neither Section 5.2(b)(ii) nor Section 5.2(b)(iii) shall prohibit either Seller
or any Seller Affiliate from engaging in lawful competitive activities that are
not precluded by Section 5.2(c) below.
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(c) Effective as of the Closing Date, for a period of
seven years from the Closing Date, each Seller agrees that he shall not,
directly or indirectly, engage, participate, make any financial investment in,
or become employed by or render advisory or other services to or for any person
or other business enterprise which is engaged, directly or indirectly, (i) in
the business of designing, licensing or selling management information systems
and/or services or portions thereof (including business management, inventory
control, communications, estimating, database content and content delivery,
supply chain management, and business intelligence and analytics), catalog and
associated database and content management systems and services, data
warehousing systems and services, and database products and services (including
catalog, pricing, bar codes, images, labor, repair, interchange, service
specifications, service intervals, tune up specifications, tire and tire fitment
information), and of providing associated support, training, and other related
services, to the automotive aftermarket parts industry, the medium and heavy
duty truck industry, the motorcycle industry, the marine industry and the
building supply industry or (ii) in any other business that the Company, CCI, or
any of their respective current subsidiaries is engaged in as of the Closing
Date. Notwithstanding any other provisions of this Agreement to the contrary,
the foregoing covenant shall not preclude (A) ▇. ▇▇▇▇▇▇ from continuing to be
employed as the Chief Executive Officer or serving on the Board of Directors of
IAP, or either Seller from serving in any other capacity with IAP (including the
performance of all duties associated with such capacity) or maintaining an
ownership interest in IAP; provided that, in the case of the Sellers' employment
by IAP or the Sellers' rendering services to IAP in any capacity, other than as
a director, IAP does not otherwise engage in any activities that would violate
any of the provisions of Section 10.2 of the IAP License Agreement; (B) either
Seller or any Seller Affiliate from engaging in the business of designing,
licensing, managing, supporting, training, renting, leasing or selling
technology solutions to automate repair and maintenance activities (including
part lookup and ordering, service bay productivity, technician productivity, job
cost estimating, service reminders, repair and maintenance invoicing, vehicle
maintenance history, and repair and procedure profitability, accounting and
other closely related activities) to commercial enterprises engaged in the
business of repair or maintenance of automobiles and/or trucks; provided that to
the extent such commercial enterprises are involved in multiple business lines,
the foregoing clause (B) shall only permit Seller and the Seller Affiliates to
engage in the businesses specified in such clause (B) to the segment of such
commercial enterprise that is actually engaged in the business of repair or
maintenance of automobiles and/or trucks (for example if an automotive
aftermarket parts distributor acquired a service dealer chain, Seller or Seller
Affiliates will be permitted to engage in such businesses with the service
dealer chain, but not with the automotive aftermarket parts distributor). For
the avoidance of doubt, Seller and the Seller Affiliates are expressly
prohibited from developing or owning an automotive aftermarket hard parts
catalog, but are permitted to develop or own other related databases solely and
exclusively for the purpose of furthering the business described in this
subsection 5.2(c)(B); provided, that, in connection with this subsection
5.2(c)(B), either Seller or any Seller Affiliate may utilize, rent, lease,
license or sell any automotive aftermarket hard parts catalog obtained from CCI
(through a separately negotiated agreement) or any other person or entity but
may not otherwise develop or own such a catalog. In addition, notwithstanding
any other
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provisions of this Agreement to the contrary, the foregoing covenant shall not
preclude either Seller or any Seller Affiliate from making any investments in
the securities of any company, whether or not engaged in competition with the
Company, CCI or any of their respective subsidiaries, to the extent that such
securities are actively traded on a national securities exchange or in the
over-the-counter market in the United States or any foreign securities exchange
and such investment does not exceed five percent (5%) of the issued and
outstanding shares of such company or give either Seller or any Seller Affiliate
the right or power to control or participate directly in making the policy
decisions of such company. In the event that CCI believes that IAP has acted in
a manner that would violate Section 10.2 of the License Agreement, CCI shall
inform any Seller then providing services to IAP in any capacity (other than as
a director) in writing of the breach (each, a "Violation Notice"). In the event
that within thirty (30) days after receipt of a Violation Notice either (i) such
Seller resigns from all positions with IAP (other than as a director) or (ii)
IAP shall have ceased to engage in the activities identified in the Violation
Notice (and shall have compensated CCI for any damages resulting from such
competitive activities), then, in either such event, such Seller shall have no
personal liability for any violation of this Section 5.2(c) identified in the
Violation Notice.
(d) Each Seller expressly acknowledges and agrees that
the duration and scope of this Section 5.2 are reasonable in light of the
circumstances as they exist on the date of this Agreement. However, should any
court of competent jurisdiction determine that any portion of this Section 5.2
is invalid, unreasonable, or unenforceable, the remainder of this Section 5.2
shall not thereby be affected and shall be given full effect without regard to
the invalid provisions. If any court construes any of the provisions of this
Section 5.2, or any part thereof, to be unreasonable because of the duration or
scope of such provision, such court shall have the power to reduce the duration
or scope of such provision and to enforce such provision as so reduced.
(e) The parties hereto agree that (i) any breach by any
Seller of any of the provisions contained in this Section 5.2 would cause
irreparable damage to Company, CCI, and their respective subsidiaries for which
monetary damages and other remedies of law may be inadequate and (ii) the
Company or CCI will be entitled to obtain, without posting any bond whatsoever,
a restraining order, injunction, specific performance or other equitable or
extra ordinary relief from any court of competent jurisdiction to restrain any
threatened or further breach of such provisions or to require any Seller to
perform his or its obligations under this Section 5.2 at law, or in equity
(including the right to recover monetary damages).
(f) In the event either Seller violates any provision of
this Section 5.2, the running of the time period of such provision so violated
shall be automatically suspended as to such Seller upon the date of such
violation and shall resume on the date such violation ceases. Accordingly, the
term of such provision shall automatically be extended by the period during
which such violation exists.
(g) For purposes of this Agreement, the term "Seller
Affiliate" shall mean an entity, any portion of which is owned, directly or
indirectly, by either or both of
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the Sellers but shall not include IAP or any entity in which IAP or any of its
subsidiaries is a joint venture partner, investor or participant.
(h) At any time, and from time to time, during the seven
(7) year term of the covenant set forth in Section 5.2(c) (the "Noncompete
Covenant"), either of Sellers or any Seller Affiliate may make inquiry of CCI by
written notice (each a "Compliance Inquiry") as to whether a specific business
activity specifically identified in the Compliance Inquiry (the "Proposed
Activity") will violate the Noncompete Covenant. Within sixty (60) days of any
Compliance Inquiry, CCI shall respond to the same by written notice (each a
"Response Notice") as to whether the Proposed Activity will be regarded by it as
violating the Noncompete Covenant, and the basis for any determination that the
Proposed Activity would violate the Noncompete Covenant. If CCI either (i) fails
to respond on a timely basis to any Compliance Inquiry, or (ii) responds that
the Proposed Activity described in the Compliance Inquiry will not violate the
Noncompete Covenant, the Sellers and any Seller Affiliate may engage in the
Proposed Activity and the same shall not be deemed to violate the Noncompete
Covenant and, rather, shall be deemed permitted by such covenant.
5.3 Litigation Standstill. Each of ▇. ▇▇▇▇▇▇, the Company, and CCI
agree to stay all activities in the Litigation, including, without limitation,
refraining from seeking any discovery, filing any motions or amendments to
pleadings or previous motions, and to further postpone any deadlines, discovery
cut-offs, response dates, or similar matters which have not expired prior to the
date of this Agreement. ▇. ▇▇▇▇▇▇, CCI, and the Company shall cooperate in
taking all reasonable steps to ensure a stay of all activities in the Litigation
and to ensure that the Litigation, to the extent within the control of ▇.
▇▇▇▇▇▇, CCI and the Company, remains inactive. Promptly following the Closing,
▇. ▇▇▇▇▇▇ shall cause his attorneys of record to file with the court a Motion to
Dismiss with Prejudice dismissing the Litigation with prejudice. Notwithstanding
anything to the contrary contained in this Section 5.3, in the event this
Agreement is terminated in accordance with the provisions of Section 2.2, this
Section 5.3 shall be of no further force or effect.
5.4 General Release and Covenant Not to ▇▇▇ by the Sellers.
(a) Effective as of the Closing Date, each Seller, on
behalf of himself, his attorneys, heirs, executors, administrators, assigns, and
trusts, partnerships and other entities under such Seller's control (the "Seller
Parties"), hereby generally RELEASES AND FOREVER DISCHARGES the Company, CCI and
their respective predecessors, successors, assigns and subsidiaries, and each of
their respective affiliates, officers, directors, employees, agents,
representatives, employee benefit plans and fiduciaries, principals and
attorneys (the "Company Parties") from any and all claims, demands, liabilities,
suits, damages, losses, expenses, attorneys' fees, obligations or causes of
action, KNOWN OR UNKNOWN of any kind and every nature whatsoever, and whether or
not accrued or matured (collectively, "Claims"), which any of them may now have
or may in the future have arising out of or relating to any omission, acts or
facts that have occurred up and until and including the Closing Date, including,
without limitation, (i) any and all Claims relating to, arising from, or in
connection with the Litigation; (ii) any
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and all Claims for wrongful discharge of employment; fraud (including fraudulent
inducement to enter into this Agreement); misrepresentation; termination in
violation of public policy; discrimination; breach of contract, both express and
implied; breach of a covenant of good faith and fair dealing, both express and
implied; promissory estoppel; negligent or intentional infliction of emotional
distress; negligent or intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage; breach of
fiduciary duty; unfair business practices; breach of confidentiality provision,
defamation; libel; slander; negligence; personal injury; assault; battery;
invasion of privacy; false imprisonment; tortious interference, theft,
embezzlement, and conversion; and (iii) any and all Claims for violation of (A)
the Age Discrimination in Employment Act of 1967 or (B) any other federal, state
or municipal statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Family Medical Leave Act,
the Americans with Disabilities Act of 1990, the Fair Labor Standards Act, the
Employee Retirement Income Security Act of 1974, The Worker Adjustment and
Retraining Notification Act, Older Workers Benefit Protection Act, and the Texas
Commission on Human Rights Act. Notwithstanding the foregoing, this release does
not in any way release, impair, or limit (i) any obligations incurred by or
owing from the Company or CCI to the Sellers under this Agreement, the Notes or
under any of the agreements between or among any of the Company Parties, on the
one hand, and any of the Sellers, on the other hand, related to IAP (the "IAP
Agreements") or (ii) any of Company's insurers from covering the Sellers for any
conduct, acts, injuries, or actions arising from, in connection with, or related
to the time period any such Seller was employed by or serving as an officer or
director of Company of CCI. Effective as of the Closing Date, each Seller, on
behalf of such Seller and the Seller Parties, hereby covenants forever NOT TO
ASSERT, FILE, PROSECUTE, MAINTAIN, COMMENCE, INSTITUTE (or sponsor or purposely
facilitate any person in connection with the foregoing), any complaint or
lawsuit or any legal, equitable or administrative proceeding of any nature,
against any of the Company Parties in connection with any matter released in
this Section 5.4(a), including, without limitation, the Litigation, and
represents and warrants that no other person or entity has or will initiate any
such proceeding on behalf of such Seller or any Seller Party.
(b) Effective as of the Closing Date, each Seller, on
behalf of himself and the Seller Parties, hereby generally RELEASES AND FOREVER
DISCHARGES HMTF, ▇▇▇▇▇ Muse, and each of their respective predecessors,
successors, assigns, affiliates, direct or indirect shareholders, partners,
members, or other equity owners, and each of their respective officers,
directors, managers, employees, agents, representatives, principals and
attorneys (the "HMTF Parties"), from any and all Claims, which any of them may
now have or may in the future have arising out of or relating to any omission,
acts or facts that have occurred up and until and including the Closing Date
related to the Company or CCI and the Sellers' and HMTF's investment therein,
including, without limitation, (i) any and all Claims for wrongful discharge of
employment; fraud (including fraudulent inducement to enter into this
Agreement); misrepresentation; termination in violation of public policy;
discrimination; breach of contract, both express and implied; breach of a
covenant of good faith and fair dealing, both express and implied; promissory
estoppel; negligent or intentional infliction of emotional distress; negligent
or intentional misrepresentation; negligent or intentional interference with
contract or prospective
10
economic advantage; breach of fiduciary duty; unfair business practices; breach
of confidentiality provision, defamation; libel; slander; negligence; personal
injury; assault; battery; invasion of privacy; false imprisonment; tortious
interference, theft, embezzlement, and conversion; and (ii) any and all Claims
for violation of any federal, state or municipal statute. Notwithstanding the
foregoing, this release does not in any way release, impair, or limit any
obligations incurred by or owing from HMTF to the Sellers under this Agreement
or under the IAP Agreements. Effective as of the Closing Date, each Seller, on
behalf of such Seller and the Seller Parties, hereby covenants forever NOT TO
ASSERT, FILE, PROSECUTE, MAINTAIN, COMMENCE, INSTITUTE (or sponsor or purposely
facilitate any person in connection with the foregoing), any complaint or
lawsuit or any legal, equitable or administrative proceeding of any nature,
against any of the HMTF Parties in connection with any matter released in this
Section 5.4(b), and represents and warrants that no other person or entity has
or will initiate any such proceeding on behalf of such Seller or any Seller
Party.
5.5 General Release and Covenant Not to ▇▇▇ by the Company and
CCI. Effective as of the Closing Date, each of the Company and CCI, on behalf of
itself and the Company Parties under its control (collectively, the "Company
Controlled Parties"), hereby generally RELEASES AND FOREVER DISCHARGES each
Seller and the Seller Parties from any and all Claims, which any of them may now
have or may in the future have, arising out of or relating to any omission, acts
or facts that have occurred up and until and including the Closing Date,
including without limitation, the Litigation. Notwithstanding the foregoing,
this release does not in any way release, impair, or limit any obligations
incurred by or owing from any Seller to the Company or CCI under this Agreement
or the IAP Agreements. Effective as of the Closing Date, each of the Company and
CCI, on behalf of itself and the Company Controlled Parties, hereby covenants
FOREVER NOT TO ASSERT, FILE, PROSECUTE, MAINTAIN, COMMENCE, INSTITUTE (or
sponsor or purposely facilitate any person in connection with the foregoing),
any complaint or lawsuit or any legal, equitable or administrative proceeding of
any nature, against any of the Seller Parties in connection with any matter
released in Section 5.5, including, without limitation, the Litigation, and
represents and warrants that, to the extent within its control, no other person
or entity has initiated or will initiate any such proceeding on its or their
behalf.
5.6 General Release and Covenant Not to ▇▇▇ by HMTF. \ Effective
as of the Closing Date, HMTF and ▇▇▇▇▇ Muse on behalf of themselves and each of
the HMTF Parties under their control (the "HMTF Controlled Parties"), hereby
generally RELEASES AND FOREVER DISCHARGES each Seller and the Seller Parties
from any and all Claims, which any of them may now have or may in the future
have, arising out of or relating to any omission, acts or facts that have
occurred up and until and including the Closing Date related to the Company or
CCI and the Sellers' and HMTF's investment therein. Notwithstanding the
foregoing, this release does not in any way release, impair, or limit any
obligations incurred by or owing from any Seller under this Agreement or the IAP
Agreements. Effective as of the Closing Date, HMTF and ▇▇▇▇▇ Muse, on behalf of
themselves and each of the HMTF Controlled Parties, hereby covenants FOREVER NOT
TO ASSERT, FILE, PROSECUTE, MAINTAIN, COMMENCE, INSTITUTE (or sponsor or
purposely facilitate any person in connection with the foregoing), any
11
complaint or lawsuit or any legal, equitable or administrative proceeding of any
nature, against any of the Seller Parties in connection with any matter released
in this Section 5.6, and represents and warrants that, to the extent within its
control, no other person or entity has initiated or will initiate any such
proceeding on its or their behalf.
5.7 Authority to Release and Settle. Each of the Company, CCI,
HMTF, ▇▇▇▇▇ Muse and the Sellers hereby expressly represents and warrants that:
(i) it is the lawful owner of all Claims herein released by it; (ii) it has full
power and express authority to settle and release the Claims released on behalf
of itself or others as set forth in this Agreement; (iii) it has not made any
assignment or transfer of those Claims, including but not limited to assignment
or transfer by subrogation or by operation of law; (iv) it knows of no person or
entity that intends to assert any Claim by, through, under, or on behalf of such
party; (v) it is not relying upon any statements, understandings,
representations, expectations, or agreements other than those expressly set
forth in this Agreement; (vi) it is represented and has been advised by counsel
in connection with this Agreement, which such party executes wholly voluntarily
and of its own choice, volition, judgment, belief and knowledge, after
consultation with such counsel and not under coercion or duress; (vii) it has
made its own investigation of the facts and is relying solely upon its own
knowledge and the advice of its counsel; (viii) it has no expectation that the
other party will disclose facts material to this Agreement; and (ix) it
knowingly waives any Claim that this Agreement was induced by any
misrepresentation or nondisclosure and any right to rescind or avoid this
Agreement based upon presently existing facts, known or unknown. The Company,
CCI, HMTF, ▇▇▇▇▇ Muse and the Sellers agree and stipulate that each party is
relying upon these representations and warranties in entering into this
Agreement.
5.8 Intended Beneficiaries. The general releases set forth in
Sections 5.4, 5.5 and 5.6 shall be binding upon each of the parties hereto and
run to the benefit of all of the present and former predecessors, successors,
subsidiaries, affiliates, servants, attorneys, agents, employees, officers,
directors, shareholders, partners, principals, heirs, assigns, representatives,
and employee benefit plans and fiduciaries of the parties hereto and the other
persons and entities listed in this provision.
5.9 Further Assurances. Each of the Company and the Sellers shall
do and perform or cause to be done and performed all such further acts and
things and shall execute and deliver all such other agreements, certificates,
instruments, or documents as any other party shall reasonably request from time
to time in order to carry out the intent and purposes of this Agreement. Neither
the Company nor the Sellers shall voluntarily undertake any course of action
inconsistent with satisfaction of the requirements applicable to such party as
set forth in this Agreement, and each party shall promptly do all acts and take
all measures as may be appropriate or necessary to enable such party to perform,
as early as practicable, the obligations required to be performed by such party
under this Agreement.
5.10 Health Insurance. From and after the Closing Date, CCI or its
successors will provide group health insurance coverage (including through self
insurance) to the Sellers and their current spouses as of the date of this
Agreement until their death on the
12
same basis as provided from time to time to executive officers of CCI or its
successors generally; provided, however, that such coverage is secondary to any
and all other health insurance coverage or prescription plans applicable to the
Sellers and their current spouses, including, without limitation, Medicare; and
provided further that, as to each Seller, such Seller is not in breach of his
obligations under Section 5.2 of this Agreement.
5.11 Acknowledgement of Termination. Effective as of the Closing
Date, Sellers acknowledge and agree that, (i) on the last day of the last pay
period in the calendar month succeeding the Closing Date, CCI may discontinue
the employment of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and (ii) Sellers shall continue to reimburse CCI
for any payroll or other related costs incurred by CCI with respect to ▇▇▇▇▇▇▇
▇▇▇▇▇ through and including the date CCI discontinues the employment of ▇▇▇▇▇▇▇
▇▇▇▇▇.
5.12 Senior Notes Offering. CCI acknowledges and agrees that it
will not consummate its pending senior notes offering unless and until the
conditions to Closing set forth in Sections 6.2(d) and (e) have been satisfied
or waived.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 Conditions Precedent to the Sellers' Obligations. The
obligation of the Sellers to consummate the transactions contemplated by this
Agreement is subject to the fulfillment, on or prior to the Closing Date, of
each of the following conditions (any or all of which may be waived by the
Sellers in whole or in part):
(a) The representations and warranties of the Company
contained herein shall be true and correct in all material respects on and as of
the Closing Date as though made on and as of such date;
(b) There shall not be in effect any order, injunction,
judgment, decree, ruling, writ, assessment or arbitration award (an "Order") by
any governmental body of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of the transactions contemplated hereby;
and
(c) The Company shall have executed and delivered or
caused to have been executed and delivered, to the Sellers at the Closing all of
the items and documents required to be delivered by it pursuant to Section 7.1.
6.2 Conditions Precedent to the Company's Obligations. The
obligations of the Company to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, prior to or on the Closing Date, of
each of the following conditions (any or all of which may be waived by the
Company in whole or in part):
(a) The representations and warranties of the Sellers
contained herein shall be true and correct in all material respects on and as of
the Closing Date as though made on and as of such date;
13
(b) There shall not be in effect any Order by any
governmental body of competent jurisdiction restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated hereby;
(c) CCI shall have consummated its pending senior notes
offering;
(d) Each of the Company and CCI shall have, on the
Closing Date, sufficient surplus or net profits to (i) in the case of the
Company, purchase the Shares (the "Repurchase") in compliance with the Delaware
General Corporation Law and (ii) in the case of CCI, pay a dividend to the
Company in an amount necessary to purchase the Shares (the "Dividend");
(e) The Dividend and the Repurchase shall be permitted
under the Company's and its subsidiaries' (including CCI) agreements and other
documents governing their indebtedness and CCI shall have declared and paid such
Dividend to the Company;
(f) ▇. ▇▇▇▇▇▇ shall not have revoked, pursuant to Section
8.12 hereof, the release contained in Section 5.4(a)(ii)(A) of this Agreement;
(g) Neither Seller shall have materially and
intentionally breached the provisions of Section 8.1 of the Stockholders
Agreement; and
(h) The Sellers shall have executed and delivered or
caused to have been executed and delivered, to the Company at the Closing all of
the items and documents required to be delivered by them pursuant to Section
7.2.
ARTICLE VII
DOCUMENTS TO BE DELIVERED AT CLOSING
7.1 Documents to Be Delivered by the Company. At the
Closing, the Company shall deliver the following items and documents to the
Sellers:
(a) the cash portion of the Purchase Price;
(b) duly executed Notes representing the Notes portion of
the Purchase Price; and
(c) a certificate, dated the Closing Date, executed on
behalf of the Company by a duly authorized officer of the Company, certifying
that the condition specified in Section 6.1(a) has been fulfilled.
7.2 Documents to Be Delivered by the Sellers. At the Closing, the
Sellers shall deliver the following items and documents to the Company:
14
(a) the stock certificates representing the Shares, duly
endorsed in blank or accompanied by stock transfer powers in a form reasonably
acceptable to the Company;
(b) a duly executed Motion to Dismiss with Prejudice with
respect to the Litigation;
(c) duly executed letters of resignation from any and all
officer or director positions held by either of the Sellers in the Company, CCI,
or any of their respective subsidiaries; and
(d) a certificate, dated the Closing Date, executed by
each Seller, certifying that the condition specified in Section 6.2(a) has been
fulfilled.
ARTICLE VIII
MISCELLANEOUS
8.1 Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows (or at such other
address as may be substituted by notice given as herein provided); provided that
in the case of any notice required to be delivered to CCI pursuant to Section
5.2(h), notwithstanding the following, such notice shall be addressed to the
Chief Executive Officer, Chief Financial Officer, and General Counsel (with
copies to Weil, Gotshal & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇ Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated),
shall require proof of actual delivery, and shall indicate in bold type on the
face of such notice that such notice contains a sixty (60) day deemed acceptance
provision and provided, further, that in the case of any Violation Notice
delivered to either Seller in accordance with Section 5.2(c), notwithstanding
the foregoing, such notice shall require actual proof of delivery, and shall
indicate in bold type on the face of such notice that the recipient may lose
important rights if responsive action is not taken within thirty (30) days from
receipt of the notice:
If to the Company or CCI:
Cooperative Computing Holding Company, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to (which shall not constitute notice):
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
15
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Sellers:
to the addresses set forth on the signature pages hereof.
with a copy to (which shall not constitute notice):
Graves, Dougherty, ▇▇▇▇▇▇ & ▇▇▇▇▇, PC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice or communication hereunder shall be deemed to have been
given or made as of the date so delivered, if personally delivered; when receipt
is acknowledged, if telecopied; and three calendar days after mailing if sent by
registered or certified mail (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
8.2 Review by Separate Counsel. Each Seller, HMTF and ▇▇▇▇▇ Muse
acknowledges and agrees that Weil, Gotshal & ▇▇▇▇▇▇ LLP represents the Company
in connection with negotiation and preparation of this Agreement, and that each
such Seller has had the opportunity to retain separate counsel to review this
Agreement and consult with the Company and its counsel regarding the content and
legal effect of this Agreement.
8.3 Construction. Words used in the Agreement of any gender or
neuter shall be construed to include any other gender or neuter where
appropriate. Words used in this Agreement that are either singular or plural
shall be construed to include the other where appropriate. No provisions of this
Agreement will be interpreted in favor of, or against, any of the parties hereto
by reason of the extent to which any such party or its counsel participated in
the drafting thereof or by reason of the extent to which any such provisions in
inconsistent with any prior draft hereof or thereof.
8.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. EXCLUSIVE VENUE SHALL LIE IN ▇▇▇▇▇▇ COUNTY,
TEXAS.
16
8.5 Successors and Assigns. This Agreement shall be binding upon
the Company and the Purchaser and each of their respective successors and
assigns.
8.6 Duplicate Originals. All parties may sign any number of copies
of this Agreement. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
8.7 Severability and Savings Clause. Should any clause, sentence,
provision, paragraph or part of this Agreement for any reason whatsoever be
adjudged by any court of competent jurisdiction, or be held by any other
competent governmental authority having jurisdiction, to be invalid,
unenforceable, or illegal, such judgment or holding shall not affect, impair or
invalidate the remainder of this Agreement, but shall be confined in its
operation to the specific clause, sentence, provision, paragraph or part of this
Agreement directly involved, and the remainder of this Agreement, wherever
practicable, shall remain in full force and effect.
8.8 No Waivers; Amendments.
(a) No failure or delay on the part of the Company or
Sellers in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy at law or in equity or otherwise.
(b) Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the parties hereto.
8.9 Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement, and supercedes all prior agreements and
understandings, both written and oral, among the parties hereto with respect to
the subject matter hereof. Except as provided in Section 5.8, this Agreement is
not intended to confer upon any person other than the parties hereto any rights
or remedies hereunder.
8.10 Fees and Expenses. The parties hereby agree that each party
shall be solely responsible for its own attorneys' fees and costs incurred in
connection with the Litigation and the negotiations leading to the execution of
this Agreement.
8.11 Specific Performance. Each party acknowledges and agrees that
the breach of this Agreement by such party would cause irreparable damage to the
other parties to this Agreement and that such other parties will not have an
adequate remedy at law. Therefore, subject to any conditions to Closing
applicable to a party to this Agreement, the obligations of each such party
under this Agreement, including, without limitation, the obligation of the
Sellers to sell the Shares to the Company, shall be enforceable by a decree of
specific performance issued by any court of competent jurisdiction, and
appropriate injunctive relief may be applied for and granted in connection
therewith. Such remedies shall, however, be cumulative and not exclusive and
shall be in addition to any other remedies which any party may have under this
Agreement or otherwise.
17
8.12 Waiver of Age Discrimination Claim. ▇. ▇▇▇▇▇▇ ACKNOWLEDGES
THAT SECTION 5.4(a)(iii)(A) OF THIS AGREEMENT INCLUDES A WAIVER OF ANY RIGHTS
AND CLAIMS ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, AS AMENDED
(THE "ADEA RELEASE"). ▇. ▇▇▇▇▇▇ ACKNOWLEDGES THAT THE CONSIDERATION THAT HE IS
RECEIVING IN EXCHANGE FOR HIS WAIVER OF THE RIGHTS AND CLAIMS SPECIFIED HEREIN
EXCEEDS ANYTHING OF VALUE TO WHICH HE ALREADY IS ENTITLED. ▇. ▇▇▇▇▇▇
ACKNOWLEDGES THAT HE WAS ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO
EXECUTING THIS AGREEMENT. ▇. ▇▇▇▇▇▇ REPRESENTS AND AGREES THAT HE FULLY
UNDERSTANDS HIS RIGHT TO DISCUSS ALL ASPECTS OF THIS AGREEMENT WITH LEGAL
COUNSEL AND, TO THE EXTENT HE DEEMS APPROPRIATE, HE HAS FULLY AVAILED HIMSELF OF
THIS RIGHT. ▇. ▇▇▇▇▇▇ ACKNOWLEDGES THAT HE HAS ENTERED INTO THIS AGREEMENT
KNOWINGLY AND VOLUNTARILY WITH FULL UNDERSTANDING OF ITS TERMS AND AFTER HAVING
BEEN ADVISED AND HAD THE OPPORTUNITY TO SEEK AND RECEIVE ADVICE AND COUNSEL FROM
HIS ATTORNEY. ▇. ▇▇▇▇▇▇ ACKNOWLEDGES THAT HE HAS BEEN GIVEN A PERIOD OF AT LEAST
TWENTY-ONE (21) DAYS WITHIN WHICH TO CONSIDER THE RELEASE CONTAINED IN SECTION
5.4(a)(iii)(A) OF THIS AGREEMENT. ▇. ▇▇▇▇▇▇ UNDERSTANDS THAT HE MAY REVOKE SUCH
RELEASE DURING THE SEVEN (7) DAYS FOLLOWING THE EXECUTION OF THIS AGREEMENT AND
THAT SUCH PROVISION OF THIS AGREEMENT WILL NOT BECOME EFFECTIVE UNTIL THAT
SEVEN-DAY REVOCATION PERIOD HAS EXPIRED (THE "ADEA REVOCATION PERIOD"). ▇.
▇▇▇▇▇▇ AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS
AGREEMENT AND THE GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE
ORIGINAL TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
8.13 Spousal Joinder. The spouse of each Seller joins in the
execution of this Agreement for the purpose of evidencing her knowledge of its
existence, her acknowledgment that she agrees to the provisions of this
Agreement and her agreement to bind her community interest, if any, in any of
the Shares to the performance of this Agreement, and she further agrees that the
covenants in this Agreement shall be, and hereby are, accepted as binding on her
individually and upon all persons ever to claim under her as though such Shares
were held of record by her; provided, however, nothing contained in this Section
8.13 is intended to, nor shall be deemed to, confer or create any community
property interest in the Shares upon her.
8.14 Terms of Agreement Confidential. Each party to this Agreement
shall not disclose the terms of this Agreement to any third person except to
such party's directors, officers, employees, agents, legal advisors,
accountants, financial sources, financial institutions, business and/or
investment advisors or consultants (collectively "Advisors"). Except as
otherwise provided herein, each party hereto shall direct the Advisors not to
disclose to any third person any of the terms of this Agreement. Notwithstanding
the foregoing, the terms of this Agreement shall not be deemed confidential, and
a party shall
18
not be precluded from disclosing the terms of this Agreement to any third
person, if such terms were or became generally available to the public (other
than as a result of its disclosure by the Company, CCI or HMTF, on the one hand,
or the Sellers, on the other hand (in breach of this Agreement)). Nothing in
this Section 8.14 shall be deemed to prevent the disclosure of the terms of this
Agreement (i) by any person if, in the reasonable opinion of the legal counsel
to the such person, such disclosure is required to be made by law, judicial or
governmental process or order, administrative proceeding, discovery request or
similar process; provided, however, that prior to making any such disclosure,
the disclosing party shall give the other parties to this Agreement reasonable
notice of such disclosure so that such other parties may seek protective order
or (ii) by the Company, CCI or HMTF and their Advisors in connection with any
financing necessary to provide funds for the payment of the Purchase Price or
(iii) by any person at any time after the Closing.
8.15 Attorney Fees. In the event of any suit, arbitration or other
proceeding between or among any of the parties to this Agreement with respect to
this Agreement, the prevailing party or parties in connection with such
proceeding shall be entitled to recover from the non prevailing party or
parties, in addition to any other relief to which the prevailing parties are
entitled, all of the costs and expenses of such prevailing parties in connection
with such proceeding, including, without limitation, legal fees and expenses,
court costs, and expert witness fees and costs.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
COOPERATIVE COMPUTING
HOLDING COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
COOPERATIVE COMPUTING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
The undersigned hereby join in this Agreement solely with
respect to Sections 5.1. 5.4(b), 5.6, 5.7 and 8.2 of the Agreement.
HICKS, MUSE, ▇▇▇▇ & ▇▇▇▇▇ EQUITY
FUND III, L.P.
By: HM3/GP Partners III, L.P.,
its general partner
By: ▇▇▇▇▇, Muse GP Partners, L.P.,
its general partner
By: ▇▇▇▇▇, Muse Fund III, Incorporated,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Operating Officer
HM3 COINVESTORS, L.P.
By: ▇▇▇▇▇ Muse GP Partners III, L.P.,
its General Partner
By: ▇▇▇▇▇ Muse Fund III Incorporated,
its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Operating Officer
The undersigned hereby join in this Agreement solely with
respect to Sections 5.4(b), 5.6, 5.7 and 8.2 of the Agreement.
HICKS, MUSE, ▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Operating Officer
HMTF OPERATING, L.P.
By: TOH/Ranger LLC, its general
partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Operating Officer
EXHIBIT A
SHARE OWNERSHIP/ALLOCATION OF PURCHASE PRICE
PURCHASE PRICE
SHARES OWNED BY --------------
SELLER SELLERS CASH PORTION NOTE PORTION
------ ------ ------------ ------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 13,333,334 23,333,333.33 1,666,666.67
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 2,666,666 4,666,666.67 333,333.33
EXHIBIT B
FORM OF UNANIMOUS STOCKHOLDERS CONSENT
UNANIMOUS
WRITTEN CONSENT
OF THE STOCKHOLDERS
OF
COOPERATIVE COMPUTING HOLDING COMPANY, INC.
The undersigned, being all of the stockholders of Cooperative Computing
Holding Company, Inc., a Delaware corporation (the "Corporation"), hereby,
pursuant to the provisions of Section 228(a) of the General Corporation Law of
the State of Delaware, consent to and approve the following resolutions and each
and every action effected thereby:
WHEREAS, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. (collectively, the
"Sellers") are the record and beneficial owners of an aggregate 16,000,000
shares (the "Shares") of common stock, par value $.000125 per share (the "Common
Stock"), of the Corporation;
WHEREAS, the Corporation desires to purchase from the Sellers for an
aggregate purchase price of $30 million all of the Shares pursuant to a
Securities Repurchase Agreement, dated as of June 5, 2003 (the "Agreement"),
among the Corporation, Cooperative Computing, Inc., a wholly owned subsidiary of
the Corporation ("CCI"), the Sellers, Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Equity Fund III,
L.P. and HM3 Coinvestors, L.P. (collectively, "HMTF"), in the form attached
hereto as Exhibit A;
WHEREAS, the Corporation also desires to cause CCI to purchase from
HMTF its interest in ▇▇ ▇▇▇▇ LLC, which owns 1,750,000 shares of common stock of
Internet AutoParts, Inc., for an aggregate purchase price of $1,820,000 (the
"IAP Purchase"); and
WHEREAS, the undersigned stockholders believe that the purchase of the
Shares, and the consummation of the other transactions contemplated by the
Agreement, and the IAP Purchase are in the best interests of, and fair to, the
Corporation and the undersigned stockholders.
NOW, THEREFORE, BE IT RESOLVED, that the undersigned stockholders of
the Corporation hereby authorize and approve the Agreement and the transactions
contemplated thereby and the IAP Purchase.
This Unanimous Written Consent may be executed in multiple
counterparts, each of which will be deemed to be an original but all of which
when taken together will constitute one Unanimous Written Consent.
IN WITNESS WHEREOF, the undersigned stockholders have executed this
Unanimous Written Consent as of the ____ day of June, 2003.
Date: June ___, 2003 _____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date: June ___, 2003 _____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Date: June ___, 2003 _____________________________________
A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Date: June ___, 2003 HICKS, MUSE, ▇▇▇▇ & ▇▇▇▇▇ EQUITY FUND
III, L.P.
By: HM3/GP Partners III, L.P.,
as General Partner
By: ▇▇▇▇▇, Muse GP Partners,
L.P., its General Partner
By: ▇▇▇▇▇, Muse Fund III
Incorporated, its
General Partner
By: _________________________________
▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director and
Principal
Date: June __, 2003 HM3 COINVESTORS, L.P.
By: ▇▇▇▇▇ ▇▇▇▇ ▇▇ Partners III, L.P.,
its General Partner
By: ▇▇▇▇▇ Muse Fund III
Incorporated, its
General Partner
By: _________________________________
▇▇▇▇ ▇. ▇▇▇▇▇,
Managing Director and
Principal
EXHIBIT A TO CONSENT
SECURITIES REPURCHASE AGREEMENT
EXHIBIT C
RELEASE
On June 5, 2003, I executed a Securities Repurchase Agreement (the
"Agreement") by and among Cooperative Computing Holding, Inc. (the "Company"),
Cooperative Computing, Inc., Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Equity Fund III, L.P.,
HM3 Coinvestors, L.P. and me. I was advised by the Company in writing, to
consult with an attorney of my choosing, prior to executing the Agreement. More
than seven (7) calendar days have elapsed since I executed the Agreement. I have
at no time revoked my acceptance or execution of the Agreement and hereby
reaffirm my acceptance of the Agreement. Therefore, in accordance with the terms
of the Agreement, I hereby request payment of the Purchase Price in accordance
with Section 1.2 of the Agreement.
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.