STOCK TENDER AGREEMENT
STOCK TENDER AGREEMENT (this "Agreement"), dated October 19, 1998, by
and among AFFILIATED COMPUTER SERVICES, INC., a Delaware corporation
("Parent"), ACS ACQUISITION CORPORATION, a Delaware corporation and
wholly-owned subsidiary of the Parent ("Purchaser") and each of the parties
listed on the signature pages hereto (each a "Stockholder", and collectively,
the "Stockholders").
WHEREAS, each of the Stockholders is, as of the date hereof, the record
and beneficial owner of the shares of common stock, par value $.01 per share
(the "Common Stock"), of BRC HOLDINGS, INC., a Delaware corporation (the
"Company"), set forth opposite its name on Annex I hereto;
WHEREAS, Parent, Purchaser and the Company concurrently herewith are
entering into an Agreement and Plan of Merger, dated as of the date hereof
(the "Merger Agreement"), which provides, among other things, for the
acquisition of the Company by Parent by means of a cash tender offer (the
"Offer") by Purchaser for all of the outstanding shares of Common Stock and
for the subsequent merger (the "Merger") of Purchaser with and into the
Company upon the terms and subject to the conditions set forth in the Merger
Agreement; and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement, and in order to induce Parent and Purchaser
to enter into the Merger Agreement, the Stockholders have agreed to enter
into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by Parent
and Purchaser of the Merger Agreement and the mutual representations,
warranties, covenants and agreements set forth herein and therein, and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. Each of
the Stockholders hereby represents and warrants to Parent and Purchaser,
severally and not jointly, as follows:
(a) Such Stockholder is the beneficial owner of the shares of
Common Stock (as may be adjusted from time to time pursuant to Section 6
hereof, the "Shares") set forth opposite its name on Annex I to this
Agreement. Such Shares are held of record, in each case, by the custodian of
such Stockholder. On the date hereof, the Shares opposite such Stockholder's
name constitute all of the Shares owned by such Stockholder. Such
Stockholder has the exclusive right to vote or dispose of (or exercise the
voting or disposition of) such Shares.
(b) Such Stockholder has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all action necessary to authorize the execution,
delivery and performance of this Agreement.
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(c) This Agreement has been duly authorized, validly executed
and delivered by such Stockholder and constitutes the legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting enforcement of
creditors' rights generally and by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(d) The execution and delivery of this Agreement by such
Stockholder do not, and the performance by such Stockholder of its
obligations hereunder will not, require any filing by such Stockholder with,
or any permit, authorization, consent or approval of, any Governmental or
Regulatory Authority or any third party other than an amendment to Schedule
13D and Form 4 and/or Form 5. There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which such Stockholder is
a trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by such Stockholder of the transactions
contemplated hereby.
(e) The Shares and the certificates representing the Shares
owned by such Stockholder are now and at all times during the term hereof
will be held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all Liens, proxies, voting
trusts or agreements or understandings or arrangements whatsoever, except for
any such liens or proxies arising hereunder, and not subject to any
preemptive rights.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER.
Each of Parent and Purchaser hereby represents and warrants to the
Stockholders as follows:
(a) Parent and Purchaser are corporations duly organized,
validly existing and in good standing under the laws of their respective
jurisdictions of incorporation, and each of Parent and Purchaser has full
corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby and has taken all necessary corporate
action to authorize the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by each of Parent and Purchaser and constitutes the legal, valid
and binding obligation of each of Parent and Purchaser, enforceable against
each of them in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by Parent and
Purchaser do not, and the performance by Parent and Purchaser of their
obligations hereunder and the consummation of the transactions contemplated
hereby will not, (i) conflict with, result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default under,
result in or give to any person any right of termination, cancellation,
modification or acceleration of, or result in the creation or imposition of
any Lien upon any of the assets or properties of Parent or Purchaser under,
any of the terms, conditions or provisions of (A) the certificates or
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articles of incorporation or bylaws of Parent or Purchaser or (B) (x) any Law
or Order of any Governmental or Regulatory Authority applicable to Parent or
Purchaser or any of their respective assets or properties, or (y) any
Contract to which Parent or Purchaser is a party or by which Parent or
Purchaser or any of their respective assets or properties is bound, excluding
from the foregoing clauses (x) and (y) conflicts, violations, breaches,
defaults, terminations, modifications, accelerations and creations and
impositions of Liens which, individually or in the aggregate, could not be
reasonably expected to have a material adverse effect on the ability of
Parent and Purchaser to consummate the transactions contemplated by this
Agreement, or (ii) require any filing by Parent or Purchaser with, or any
permit, authorization, consent or approval of, any Governmental or Regulatory
Authority.
SECTION 3. PURCHASE AND SALE OF THE SHARES. Each of the Stockholders
hereby agrees to tender the Shares set forth opposite its name on Annex I to
this Agreement into the Offer promptly, and in any event no later than the
fifth business day following the commencement of the Offer pursuant to
Section 1.1 of the Merger Agreement and not to withdraw any Shares so
tendered unless the Offer is terminated or has expired; provided that if such
Stockholder shall thereafter acquire shares of Common Stock, then any such
Shares shall be tendered on the next succeeding business day after such
acquisition. Purchaser hereby agrees to purchase all the Shares so tendered
at a price per Share equal to $19.00 per Share or any higher price that may
be paid in the Offer; provided, however, that Purchaser's obligation to
accept for payment and pay for the Shares in the Offer is subject to all the
terms and conditions of the Offer set forth in the Merger Agreement and Annex
A thereto.
SECTION 4. TRANSFER OF THE SHARES; PROXIES AND NON-INTERFERENCE. Prior
to the termination of this Agreement, except as otherwise provided herein,
none of the Stockholders shall, directly or indirectly, (i) offer for sale,
sell, transfer, tender, pledge, encumber, assign, or otherwise dispose of,
any or all of the Shares; (ii) enter into any Contract, option or
understanding with respect to any transfer of any or all of the Shares or any
interest therein; (iii) except as provided herein, grant any proxy,
power-of-attorney or other authorization or consent in or with respect to the
Shares; (iv) deposit the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares; or (v) take any other
action that would in any way restrict, limit or interfere with the
performance of such Stockholder's obligations hereunder or the transactions
contemplated hereby.
SECTION 5. STOCKHOLDER CAPACITY. No person executing this Agreement
who is or becomes during the term hereof a director of the Company makes any
agreement or understanding herein in his or her capacity as such director.
Each Shareholder signs solely in his or her capacity as the owner of, or the
trustee of a trust whose beneficiaries are the owners of, such Shareholder
Shares.
SECTION 6. CERTAIN EVENTS. 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 securities or
rights of the Company by any Stockholder, the number of Shares shall be
adjusted appropriately, and this Agreement and the rights and obligations
hereunder shall attach to any additional shares
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of Common Stock or other securities or rights of the Company issued to or
acquired by any such Stockholder.
SECTION 7. CERTAIN OTHER AGREEMENTS. From the date of this Agreement
until the earlier of the termination of this Agreement or the Effective Time,
none of the Stockholders shall, and none of the Stockholders shall permit or
authorize any advisor or representative retained by or acting for or on
behalf of any such Stockholder to, directly or indirectly, (i) take any
action to initiate, solicit, continue, encourage or facilitate (including by
way of furnishing or disclosing non-public information) any inquiries or the
making of any offer or proposal with respect to a merger, reorganization,
share exchange, consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the Company or any
of its subsidiaries or any proposal or offer to acquire in any manner,
directly or indirectly, 15% or more of the shares of any class of voting
securities of the Company or any of its subsidiaries or a substantial portion
of the assets of the Company or any of its subsidiaries, other than the
transactions contemplated by the Merger Agreement or by this Agreement (any
of the foregoing being referred to as an "Acquisition Proposal"), or (ii)
engage in negotiations, discussions or communications regarding or disclose
any information relating to the Company or any of its subsidiaries or afford
access to the properties, books or records of the Company or any of its
subsidiaries to any person, corporation, partnership or other entity or group
(a "Potential Acquiror") that may be considering making, or has made, an
Acquisition Proposal or knowingly facilitate any effort or attempt to make or
implement an Acquisition Proposal or accept an Acquisition Proposal. The
obligations of each of the Stockholders pursuant to this Section are several
and not joint.
SECTION 8. FURTHER ASSURANCES. Each of the Stockholders shall, upon
request of Parent or Purchaser, take such further actions as may reasonably
be necessary or desirable to carry out the provisions hereof, provided that
the Stockholders shall not be required to incur any additional costs or
expenses or receive less-than the agreed price without their consent.
SECTION 9. TERMINATION. Except as otherwise provided in this
Agreement, this Agreement, and all rights and obligations of the parties
hereunder, shall terminate immediately upon the earlier of (i) the
consummation of the Offer, (ii) the termination of the Merger Agreement in
accordance with its terms or (iii) the Effective Time; provided, however,
that Sections 7 and 10 shall survive any termination of this Agreement.
SECTION 10. EXPENSES. All fees and expenses incurred by any one party
hereto shall be borne by the party incurring such fees and expenses.
SECTION 11. PUBLIC ANNOUNCEMENTS. Each of the Stockholders, Parent and
Purchaser agrees that it will not issue any press release or otherwise make
any public statement with respect to this Agreement or the transactions
contemplated hereby without the prior consent of the other party, which
consent shall not be unreasonably withheld or delayed; provided, however,
that such disclosure can be made without obtaining such prior consent if (i)
the disclosure is required by law, and (ii) the party making such disclosure
has first used its best efforts to consult with the other party about the
form and substance of such disclosure. The obligations of each of the
Stockholders pursuant to this Section are several and not joint.
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SECTION 12. DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings indicated below:
"CONTRACT" means any agreement, lease, evidence of indebtedness,
mortgage, indenture, security agreement or other contract (whether written or
oral).
"LAW" means any law, statute, rule, regulation, ordinance and other
pronouncement having the effect of law of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision or of any Governmental or Regulatory Authority.
"LIENS" means any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind, or
any conditional sale Contract, title retention Contract or other Contract to
give any of the foregoing.
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality
of the United States, any foreign country or any domestic or foreign state,
county, city or other political subdivision.
"ORDER" means any writ, judgment, decree, injunction or similar order of
any Governmental or Regulatory Authority (in each such case whether
preliminary or final).
SECTION 13. MISCELLANEOUS.
(a) All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class
postage prepaid) to the parties at the following addresses or facsimile
numbers:
(A) if to any or all the Stockholders, to:
▇▇▇▇ ▇▇▇▇▇▇▇
Capital Corp.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
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(B) if to Parent or Purchaser, to:
Affiliated Computer Services, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number
as provided in this Section, be deemed given upon receipt, and (iii) if
delivered by mail in the manner described above to the address as provided in
this Section, be deemed given upon receipt (in each case regardless of
whether such notice, request or other communication is received by any other
person to whom a copy of such notice is to be delivered pursuant to this
Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by
giving notice specifying such change to the other parties hereto.
(b) 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.
(c) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall be
considered one and the same agreement.
(d) This Agreement constitutes the entire agreement, and
supersedes all prior agreements and understandings, whether written and oral,
among the parties hereto with respect to the subject matter hereof.
(e) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas without giving effect to the
principles of conflicts of laws thereof; provided, however, that the
consummation and effectiveness of the Merger will be governed and construed
in accordance with the laws of the State of Delaware.
(f) Each party hereby irrevocably submits to the exclusive
jurisdiction of the courts in the State of Texas or the United States
District Court for the Northern District of Texas
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in any action, suit or proceeding arising in connection with this Agreement,
and agrees that any such action, suit or proceeding shall be brought only in
such court (and waives any objection based on forum non conveniens or any
other objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this paragraph (f) and
shall not be deemed to be a general submission to the jurisdiction of said
Courts or in the State of Texas other than for such purposes. Each party
hereto hereby waives any right to a trial by jury in connection with any such
action, suit or proceeding.
(g) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the
other parties, and any such purported assignment shall be null and void;
provided, however, Purchaser or Parent may, without the prior written consent
of any Stockholder assign its rights and obligations to any of its direct or
indirect wholly owned subsidiaries. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable
by, the parties and their respective successors and assigns, and the
provisions of this Agreement are not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(h) If any term, provision, covenant or restriction herein is
held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable or against its regulatory policy, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
(i) Each of the parties hereto acknowledge and agrees that in
the event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (i) will waive, in
any action for specific performance, the defense of adequacy of a remedy at
law and (ii) shall be entitled, in addition to any other remedy to which they
may be entitled at law or in equity, to compel specific performance of this
Agreement.
(j) No amendment, modification or waiver in respect to this
Agreement shall be effective unless it shall be in writing and signed by each
party hereto; provided that Annex I hereto may be supplemented by Parent by
adding the name and other relevant information concerning any stockholder of
the Company who agrees to be bound by the terms of this Agreement without the
agreement of any other party hereto, and thereafter such added stockholder
shall be treated as a "Stockholder" for all purposes of this Agreement.
[THE REMAINDER OF PAGE IS INTENTIONALLY OMITTED]
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IN WITNESS WHEREOF, each of Parent, the Purchaser and the Stockholders
have caused this Agreement to be duly executed and delivered as of the date
first written above.
AFFILIATED COMPUTER SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
ACS ACQUISITION CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
[STOCKHOLDERS]
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, individually and as
Independent Executor of the Estate of
▇.▇. ▇▇▇▇▇▇ and as Director of the
▇▇▇▇▇▇ Family Foundation, Inc.
----------------------------------------
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ANNEX I
Ownership of Company Common Stock
STOCKHOLDER NUMBER OF SHARES
----------- ----------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, individually and 2,960,890
as Independent Executor of the Estate of
▇.▇. ▇▇▇▇▇▇ and as Director of the
▇▇▇▇▇▇ Family Foundation, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ 344,246
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