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Exhibit (d)(2)
SHAREHOLDERS' AGREEMENT
AMONG
MISYS PLC,
KIRSTY, INC.,
SUNSHINE ACQUISITION CORP.
AND
The Shareholders of SUNQUEST INFORMATION SYSTEMS, INC.
listed on Schedule A attached hereto
Dated as of June 24, 2001
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SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT, dated as of June 24, 2001, among Misys PLC, a
public limited company incorporated under the laws of England ("Parent"), Kirsty
Inc., a Delaware corporation and an indirect wholly owned subsidiary of Parent
("U.S. Parent"), SUNSHINE ACQUISITION CORP., a Pennsylvania corporation and a
direct wholly owned subsidiary of U.S. Parent ("Acquisition Sub"), and the
individual and trusts listed on Schedule A attached hereto (each, a
"Shareholder" and, collectively, the "Shareholders").
WHEREAS, Parent, U.S. Parent, Acquisition Sub and SUNQUEST INFORMATION
SYSTEMS, INC., a Pennsylvania corporation (the "Company"), propose to enter into
an Agreement for Tender Offer and Merger, dated as of the date hereof (as the
same may be amended, modified or supplemented, the "Acquisition Agreement"),
providing for (i) the making of a cash tender offer (as such offer may be
amended from time to time as permitted under the Acquisition Agreement, the
"Offer") by Acquisition Sub for all of the outstanding shares of common stock,
no par value, of the Company (the "Common Stock") at a price of $24 per share
(the "Offer Price"); and (ii) Parent's and U.S. Parent's agreement to cause
Acquisition Sub to be merged with and into the Company (the "Merger") promptly
after the consummation of the Offer, upon the terms and subject to the
conditions set forth in the Acquisition Agreement (the price per share to be
received in the Merger shall hereinafter be referred to as the "Merger
Consideration"); and
WHEREAS, each Shareholder owns the number of shares of Common Stock
(and the number of options to purchase shares of Common Stock) set forth
opposite his or its name on Schedule A attached hereto (such shares of Common
Stock, together with any other shares of capital stock of the Company acquired
by such Shareholders after the date hereof and during the term of this
Agreement, including, without limitation, through the exercise, conversion or
exchange of then-outstanding options, warrants and other rights to purchase, or
other securities convertible into or exchangeable for, Company Common Stock,
including any Shares issuable pursuant to the Company's Stock Incentive Plan of
1996, as amended, being collectively referred to herein as the "Subject
Shares");
WHEREAS, as an essential condition and inducement to their willingness
to enter into the Acquisition Agreement, Parent, U.S. Parent and Acquisition Sub
have requested that each Shareholder enter into this Agreement, and each
Shareholder has agreed to do so;
WHEREAS, the Board of Directors of the Company has approved the terms
and conditions of this Agreement and the transactions contemplated herein; and
WHEREAS, capitalized terms used herein without definition shall have
the respective meanings specified therefor in the Acquisition Agreement.
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NOW, THEREFORE, to induce Parent, U.S. Parent and Acquisition Sub to
enter into, and in consideration of their entering into, the Acquisition
Agreement, and in consideration of the premises and the representations,
warranties and agreements contained herein, the parties agree as follows:
1. Representations and Warranties. (a) Of Each Shareholder. Each
Shareholder hereby, severally and not jointly, represents and warrants to
Parent, U.S. Parent and Acquisition Sub as of the date hereof in respect of
himself or itself as follows:
(i) Authority. The Shareholder has all requisite power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed
and delivered and, in the case of each Shareholder which is a trust,
validly authorized, executed and delivered, by the Shareholders and
constitutes the valid and binding obligation of such Shareholder
enforceable against such Shareholder in accordance with its terms.
Neither the execution and delivery by the Shareholder of this Agreement
nor the consummation by the Shareholder of the transactions
contemplated hereby will violate or conflict in any material respect
with, result in a breach of any material provision of or constitute a
default under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, deed of trust or any material license,
franchise, permit, lease, contract, agreement or other instrument,
commitment or obligation to which the Shareholder is a party or by
which the Shareholder is bound. No trust of which such Shareholder is a
trustee requires the consent of any beneficiary (except to the extent
that such beneficiary is also a trustee) to the execution and delivery
of this Agreement or to the consummation of the transactions
contemplated hereby.
(ii) The Subject Shares. The Shareholder is the record and
beneficial owner of, or is trustee of a trust that is the record holder
of, and whose beneficiaries are the beneficial owners of, and has good
and valid title to, the Subject Shares set forth opposite his or its
name on Schedule A attached hereto, free and clear of any claims,
liens, encumbrances and security interests whatsoever, other than
pursuant to this Agreement. The Shareholder does not own, of record or
beneficially, any shares of capital stock of the Company other than the
Subject Shares set forth opposite his or its name on Schedule A
attached hereto. The Shareholder who is an individual has the sole
right to vote the Subject Shares owned by him. Each Shareholder which
is a trust has the sole right to vote the Subject Shares owned by such
trust in accordance with the terms of the respective trust agreement.
None of the Subject Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting of
such Subject Shares, except as contemplated by this Agreement. The
Shareholder has full right, power and authority to sell, transfer and
deliver the Subject Shares to be tendered for sale pursuant to Section
2 of this Agreement.
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(b) Of Parent, U.S. Parent and Acquisition Sub. Parent, U.S. Parent and
Acquisition Sub each hereby represents and warrants to each Shareholder that it
has all requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and the Acquisition Agreement.
This Agreement has been duly and validly authorized, executed and delivered by
each of Parent, U.S. Parent and Acquisition Sub and constitutes the valid and
binding obligation of each of Parent, U.S. Parent and Acquisition Sub
enforceable against each of Parent, U.S. Parent and Acquisition Sub in
accordance with its terms. Neither the execution and delivery by each of Parent,
U.S. Parent and Acquisition Sub of this Agreement nor the consummation by each
of Parent, U.S. Parent and Acquisition Sub of the transactions contemplated
hereby will: (a) violate or conflict in any material respect with, result in a
breach of any material provision of, constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, result
in the termination or in a right of termination of, accelerate the performance
required by or benefit obtainable under, result in the vesting, triggering or
acceleration of any payment or other obligations pursuant to, or result in there
being declared void, voidable, subject to withdrawal, or without further binding
effect, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust or any material license, franchise, permit, lease,
contract, agreement or other instrument, commitment or obligation to which each
of Parent, U.S. Parent and Acquisition Sub is a party, by which each of Parent,
U.S. Parent and Acquisition Sub or any of its properties is bound, or under
which each of Parent, U.S. Parent and Acquisition Sub or any of its properties
is entitled to a benefit; (b) other than the filings required under the HSR Act
or any Securities Act or Exchange Act filings, require any consent, approval or
authorization of, or declaration, filing or registration with, any Governmental
Entity; or (c) violate in any material respect any Laws applicable to each of
Parent, U.S. Parent and Acquisition Sub.
2. Tender of Subject Shares. Each Shareholder hereby severally agrees
that such Shareholder will validly tender for sale (or cause the record owner of
such Subject Shares to validly tender for sale) (and not withdraw) pursuant to
and in accordance with the terms of the Offer all of his or its Subject Shares;
provided that such Subject Shares may be withdrawn solely to facilitate the
exercise of the Purchase Option (as defined below). Such tender of Subject
Shares shall be made no later than the fifth business day after commencement of
the Offer (or, the earlier of the expiration date of the Offer and the fifth
business day after such Subject Shares are acquired by such Shareholder if the
Shareholder acquires Subject Shares after the date hereof). Upon the purchase by
Acquisition Sub of all of such Subject Shares pursuant to the Offer in
accordance with this Section 2, this Agreement will terminate as it relates to
such Shareholder. In the event, notwithstanding the provisions of the first
sentence of this Section 2, any such Subject Shares are for any reason withdrawn
from the Offer or not purchased pursuant to the Offer, such Subject Shares will
remain subject to the terms of this Agreement. Each Shareholder acknowledges
that Acquisition Sub's obligation to accept for payment and pay for the Subject
Shares tendered in the Offer is subject to all of the terms and conditions of
the Offer.
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3. Purchase Option. (a) Each Shareholder hereby grants to Acquisition
Sub an irrevocable option (the "Purchase Option") to purchase for cash, in the
manner set forth in this Section 3, all of the Subject Shares (including Subject
Shares acquired after the date hereof by such Shareholder) beneficially owned by
such Shareholder at a price (the "Exercise Price") per share equal to the Offer
Price. At any time prior to the termination of the Purchase Option hereunder,
Acquisition Sub (or an affiliate of Acquisition Sub) may exercise the Purchase
Option if, but only if, the Acquisition Agreement is terminated pursuant to
Section 8.01(e) or 8.01(f) thereof.
(b) Acquisition Sub shall exercise the Purchase Option by giving
written notice (the "Exercise Notice") to the Shareholder within ten business
days after the Purchase Option becomes exercisable; provided that if the
Purchase Option cannot be exercised by reason of any applicable judgment,
decree, order, injunction, law or regulation, the Purchase Option shall be
exercisable for the ten business day period commencing on the date such
impediment to exercise has been removed or has become final and not subject to
appeal, but in no event shall the Purchase Option be exercisable after 45 days
following the Termination Date (as defined in the Acquisition Agreement, as
amended from time to time). The Exercise Notice shall specify the place and date
(not earlier than three nor later than ten business dates from the date of the
Exercise Notice) for closing such purchase (a "Closing"). Acquisition Sub's
obligation to purchase the Subject Shares upon the exercise of the Purchase
Option and each Shareholder's obligation to sell his, her or its Subject Shares
upon the exercise of the Purchase Option are subject to the conditions that (i)
no preliminary or permanent injunction or other order prohibiting the purchase,
sale or delivery of the Subject Shares is in effect, (ii) the applicable waiting
period required for the purchase of Subject Shares under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act of 1976 will have expired and (iii) all consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any court,
administrative agency or other governmental entity, if any, required in
connection with the purchase of the Subject Shares have been obtained or made.
(c) At the Closing, (i) each Shareholder shall deliver to Acquisition
Sub a certificate or certificates in definitive and proper form representing
such Shareholders' Subject Shares and (ii) Acquisition Sub shall deliver to each
Shareholder the aggregate Exercise Price for the Subject Shares so being
purchased by wire transfer of immediately available funds.
(d) If a Closing shall have occurred, and within six months of such
Closing Acquisition Sub (or an affiliate thereof) sells to an unaffiliated third
party some or all of the Shares acquired by Acquisition Sub at such Closing,
Acquisition Sub (or an affiliate) shall, within five business days of such sale,
pay over to the Shareholders an amount in cash equal to the Profit earned by
Acquisition Sub (or its affiliate) in such sale. Such Profit shall be paid pro
rata to those Shareholders whose Subject Shares were acquired at the Closing,
based on the number of Subject Shares acquired by Acquisition Sub from each such
Shareholder. For purposes of this Section 3(d), "Profit" means the product of
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the number of Shares sold to such unaffiliated third party and the difference
between the price per Share at which such Shares were sold and $24. This
subsection (d) and the subsections (a), (b) and (c) above will survive the
termination of this Agreement.
4. Covenants of Each Shareholder. Until the termination of this
Agreement in accordance with Section 8, each Shareholder severally and not
jointly agrees as follows:
(a) The Shareholder shall not, during the term of this
Agreement, (x) sell, transfer, give, pledge, assign or otherwise
dispose of (including by gift) (collectively, "Transfer"), consent to
any Transfer of, any or all of such Subject Shares or any interest
therein or enter into any contract, option or other arrangement
(including any profit sharing arrangement) with respect to the Transfer
of, the Subject Shares to any person other than pursuant to the terms
of the Offer or the Merger or (y) enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, in connection with,
directly or indirectly, any Acquisition Proposal and agrees not to
commit or agree to take any of the foregoing actions.
(b) Such Shareholder shall not take any action to revoke or
terminate any trust that is a Shareholder or take any other action
which would be reasonably likely to restrict, limit, impede, prevent,
nullify or frustrate in any way the transactions contemplated by this
Agreement or by the Acquisition Agreement.
5. Further Assurances. Each Shareholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as Parent may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
6. Certain Events. Each Shareholder agrees that this Agreement and the
obligations hereunder shall attach to such Shareholder's Subject Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Subject Shares shall pass, whether by operation of law or
otherwise, including without limitation such Shareholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Common Stock, or the acquisition of
additional shares of Common Stock or other voting securities of the Company by
any Shareholder, the number of Subject Shares listed in Schedule A beside the
name of such Shareholder shall be adjusted appropriately and this Agreement and
the obligations hereunder shall attach to any additional shares of Common Stock
or other voting securities of the Company issued to or acquired by such
Shareholder.
7. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties.
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8. Termination. Except as otherwise specifically provided herein and
except for Section 3 which will survive any such termination, this Agreement
will terminate upon the later of (i) the termination of the Acquisition
Agreement in accordance with its terms or (ii) the date on which the Purchase
Option may no longer be exercised as provided in Section 3. Notwithstanding the
foregoing, this Agreement will terminate with respect to any Shareholder (but
with respect only to such Shareholder) as soon as Acquisition Sub has
irrevocably purchased all of such Shareholder's Subject Shares, whether upon
consummation of the Offer, the Closing of the Purchase Option or otherwise.
9. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given if hand delivered or sent
by overnight courier (providing proof of delivery) to Parent, U.S.
Parent or Acquisition Sub in accordance with Section 9.05 of the
Acquisition Agreement and to the Shareholders at their respective
addresses set forth on Schedule A attached hereto (or at such other
address for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section to this Agreement
unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Wherever the words
"include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation."
(d) Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the
counterparts have been signed by each of the parties and delivered to
the other party, it being understood that each party need not sign the
same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the Acquisition Agreement and the other documents
and instruments referred to herein) (i) constitutes the entire
agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter
hereof and (ii) is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of
Pennsylvania without regard to principles of conflict of laws thereof.
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10. Shareholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his capacity as such director or officer.
Each Shareholder signs solely in his capacity as the record holder and
beneficial owner of, or the trustee of a trust whose beneficiaries are the
beneficial owners of, such Shareholder's Subject Shares and nothing herein shall
limit or affect any actions taken by a Shareholder in his or its capacity as an
officer or director of the Company.
11. Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the Commonwealth of Pennsylvania or in a Court of the Commonwealth of
Pennsylvania, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto (a)
consents to submit such party to the personal jurisdiction of any Federal court
located in the Commonwealth of Pennsylvania or any Court of the Commonwealth of
Pennsylvania in the event any dispute arises out of this Agreement or any of the
transactions contemplated hereby, (b) agrees that such party will not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court, (c) agrees that such party will not bring any action
relating to this Agreement or the transactions contemplated hereby in any court
other than a Federal court sitting in the Commonwealth of Pennsylvania or a
Court of the Commonwealth of Pennsylvania and (d) waives any right to trial by
jury with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
12. Public Announcements. Each Shareholder will consult with Parent
before issuing, and provide Parent with the opportunity to review and comment
upon, any press release or other public statements with respect to the
transactions contemplated by this Agreement and the Acquisition Agreement, and
shall not issue any such press release or make any such public statement prior
to such consultation, except as may be required by applicable law, court process
or by obligations pursuant to any listing agreement with any national securities
exchange (including, but not limited to, NASDAQ). Each Shareholder hereby agrees
to permit Parent, U.S. Parent and Acquisition Sub to publish and disclose in the
documents relating to the Offer his or its identity and ownership of shares of
Common Stock and the nature of his or its commitments, arrangements and
understandings under this Agreement.
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IN WITNESS WHEREOF, Parent, U.S. Parent, Acquisition Sub and
the Shareholders have caused this Agreement to be duly executed and delivered as
of the date first written above.
MISYS PLC
By:
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Name:
Title:
KIRSTY, INC.
By:
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Name:
Title:
SUNSHINE ACQUISITION CORP.
By:
----------------------
Name:
Title:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ TRUST
By:
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Trustees
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ TRUST
By: ____________________
____________________
____________________
Trustees
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST
By: ____________________
____________________
____________________
Trustees
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SCHEDULE A
Name and Address Number of Subject Shares Number of Subject Shares
of of Subject to
Shareholder Owned of Record Options
----------- --------------- -------
1. ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 6,994,860 45,000
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Trust 1,636,380 ____
c/o ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[the trustees of which are:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇]
3. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Trust 1,636,380 ____
c/o ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
the trustees of which are:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
4. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust 1,636,380 ____
c/o ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
the trustees of which are:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
(formerly ▇▇▇▇▇▇▇▇▇)
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
