Stockholders Support Agreement - Thomson Corp. and Elite Information Group Inc.
STOCKHOLDERS SUPPORT AGREEMENT
STOCKHOLDERS SUPPORT AGREEMENT, dated as of April 2, 2003
(this "Agreement"), among THE THOMSON CORPORATION, a corporation organized under
the laws of Ontario, Canada ("Parent"), GULF ACQUISITION CORP., a Delaware
corporation and a wholly owned subsidiary of Parent ("Purchaser"), and each of
the stockholders whose names appear on the signature pages of this Agreement
(each a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, as of the date hereof and except as noted on Exhibit
A hereto, each Stockholder represents and warrants to Parent that such
Stockholder owns (i) of record or through a nominee and (ii) beneficially and
has good, valid and marketable title to, free and clear of any Lien, proxy,
voting restriction, limitation on disposition, adverse claim of ownership or use
or encumbrance of any kind, other than pursuant to this Agreement, and has the
sole power to vote and full right, power and authority to sell, transfer and
deliver, the number of shares of common stock, par value $0.01 per share
("Company Common Stock"), of ELITE INFORMATION GROUP, INC., a Delaware
corporation (the "Company"), as set forth opposite such Stockholder's name on
Exhibit A hereto (all such shares of Company Common Stock and any shares of
Company Common Stock of which ownership of record or the power to vote is
hereafter acquired by the Stockholders prior to the termination of this
Agreement, including shares of Company Common Stock issuable upon the exercise
of options to purchase Company Common Stock, being referred to herein as the
"Shares"); and
WHEREAS, Parent, Purchaser and the Company propose to enter
into, simultaneously herewith, an Agreement and Plan of Merger (the "Merger
Agreement"; terms used but not defined in this Agreement shall have the meanings
ascribed to them in the Merger Agreement), a draft of which has been made
available to each Stockholder, which provides, upon the terms and subject to the
conditions thereof, for the merger of Purchaser with and into the Company (the
"Merger");
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements contained herein and in the Merger Agreement,
and intending to be legally bound hereby, the Stockholders hereby agree as
follows:
1. Tender of Shares. Promptly following the commencement
of the Offer, each Stockholder hereby agrees that such Stockholder (a) shall
tender, or cause to be tendered, to the Purchaser in the Offer, as promptly as
practicable, but in any event within five business days of such commencement,
all of such Stockholder's Shares pursuant to the terms of the Offer, and (b)
shall not withdraw, or cause to be withdrawn, such Shares.
2. Grant of Proxy. Each Stockholder, by this Agreement,
with respect to such Stockholder's Shares, hereby grants an irrevocable proxy to
Purchaser (and agrees to execute such documents or certificates evidencing such
proxy as Purchaser may reasonably request) to vote, at any meeting of the
stockholders of the Company, and in any action by written consent of the
stockholders of the Company, all of such Stockholder's Shares (a) in favor of
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approval and adoption of the Merger Agreement and approval of the Merger and all
other transactions contemplated by the Merger Agreement and this Agreement, (b)
against any action, agreement or transaction (other than the Merger Agreement or
the transactions contemplated thereby) or proposal (including any Company
Takeover Proposal) that would result in a breach of any covenant, representation
or warranty or any other obligation or agreement of the Company under the Merger
Agreement or that could result in any of the conditions to the Company's
obligations under the Merger Agreement not being fulfilled, and (c) in favor of
any other matter necessary to the consummation of the transactions contemplated
by the Merger Agreement and considered and voted upon by the stockholders of the
Company. Each Stockholder further agrees to cause such Stockholder's Shares to
be voted in accordance with the foregoing. THIS PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. Each Stockholder acknowledges receipt and review of a copy of
the Merger Agreement.
3. Transfer of Shares. Each Stockholder agrees that such
Stockholder shall not, directly or indirectly, (a) sell, assign, transfer
(including by operation of law), lien, pledge, dispose of or otherwise encumber
any of the Shares or otherwise agree to do any of the foregoing, (b) deposit any
Shares into a voting trust or enter into a voting agreement or arrangement or
grant any proxy or power of attorney with respect thereto that is inconsistent
with this Agreement, (c) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect acquisition or sale,
assignment, transfer (including by operation of law) or other disposition of any
Shares, or (d) take any action that would make any representation or warranty of
such Stockholder herein untrue or incorrect in any material respect or have the
effect of preventing or disabling the Stockholder from performing such
Stockholder's obligations hereunder.
4. Representations and Warranties of the Stockholders.
Each Stockholder hereby severally represents and warrants to Parent and
Purchaser as follows:
(a) If such Stockholder is a corporation or other legal
entity, such Stockholder is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation. Such Stockholder
has all necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by such
Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action, and no other proceedings on the part of such Stockholder are necessary
to authorize this Agreement or to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by such Stockholder
and, assuming the due authorization, execution and delivery by Parent and
Purchaser, constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except to the extent that enforcement may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium, or other laws affecting the enforcement
of creditor's rights generally and by general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity or at
law.
(b) The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder
will not, (i) if such Stockholder is a corporation or other legal entity,
conflict with or violate the Certificate of Incorporation or By-
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laws or equivalent organizational documents of such Stockholder, (ii) assuming
that all consents, approvals, authorizations and other actions described in
subsection (c) have been obtained and all filings and obligations described in
subsection (c) have been made, conflict with or violate any law applicable to
such Stockholder or by which any property or asset of such Stockholder is bound
or affected, or (iii) result in any breach of or constitute a default (or an
event which, with notice or lapse of time or both, would become a default)
under, or give to others any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien or other encumbrance on any
property or asset of such Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation, except, with respect to clauses (ii) and (iii), for
any such conflicts, violations, breaches, defaults or other occurrences as would
not, individually or in the aggregate, prevent or materially delay the
performance by such Stockholder of any of its obligations pursuant to this
Agreement.
(c) The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any Governmental Entity, except (i) for applicable
requirements, if any, of the Exchange Act and the HSR Act, and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not, individually or in the aggregate,
prevent or materially delay the performance by such Stockholder of any of such
Stockholder's obligations pursuant to this Agreement.
(d) With respect to any Stockholder who is a natural
person, the failure of the spouse, if any, of such Stockholder to be a party or
signatory to this Agreement shall not (i) prevent such Stockholder from
performing such Stockholder's obligations and consummating the transactions
contemplated hereunder, or (ii) prevent this Agreement from constituting the
legal, valid and binding obligation of such Stockholder in accordance with its
terms.
5. Representations and Warranties of Parent and
Purchaser. Each of Parent and Purchaser hereby represents and warrants to each
Stockholder as follows:
(a) Each of Parent and Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. Each of Parent and Purchaser has all necessary
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Parent and Purchaser and the
consummation by Parent and Purchaser of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action, and no
other corporate proceedings on the part of Parent and Purchaser are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Parent and
Purchaser and, assuming due authorization, execution and delivery by the
Stockholders, constitutes legal, valid and binding obligations of Parent and
Purchaser enforceable against Parent and Purchaser in accordance with its terms,
except to the extent that enforcement may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium, or other laws affecting the enforcement
of creditor's rights generally and by general principles of
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equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(b) The execution and delivery of this Agreement by
Parent and Purchaser do not, and the performance of this Agreement by Parent and
Purchaser will not, (i) conflict with or violate the organizational documents of
Parent or Purchaser, (ii) assuming that all consents, approvals, authorizations
and other actions described in subsection (c) have been obtained and all filings
and obligations described in subsection (c) have been made, conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to
Parent or Purchaser or by which any property or asset of Parent or Purchaser is
bound or affected, or (iii) result in any breach of, or constitute a default (or
an event that, with notice or lapse of time or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien or other encumbrance on any
property or asset of Parent or Purchaser pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Parent or Purchaser is a party or by which
Parent or Purchaser or any property or asset of Parent or Purchaser is bound or
affected, except, with respect to clauses (ii) and (iii), for any such
conflicts, violations, breaches, defaults or other occurrences as would not,
individually or in the aggregate, prevent or materially delay the performance by
Parent and Purchaser of any of their obligations pursuant to this Agreement.
(c) The execution and delivery of this Agreement by
Parent and Purchaser do not, and the performance of this Agreement by Parent and
Purchaser will not, require any consent, approval, authorization or permit of,
or filing with or notification to, any Governmental Entity, except (i) for
applicable requirements, if any, of the Exchange Act and the HSR Act, and (ii)
where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications, would not, individually or in the
aggregate, prevent or materially delay the performance by Parent and Purchaser
of any of their obligations pursuant to this Agreement.
6. No Solicitation of Transactions. None of the
Stockholders shall, directly or indirectly, through any officer, director, agent
or otherwise, (a) solicit, initiate or encourage the submission of, any Company
Takeover Proposal, or (b) participate in any discussions or negotiations
regarding, or furnish to any person, any information with respect to, or
otherwise cooperate in any way with respect to, or assist or participate in,
facilitate or encourage, any unsolicited proposal that constitutes, or may
reasonably be expected to lead to, a Company Superior Proposal; provided,
however, that nothing in this Section 6 shall prevent the Stockholder, in such
Stockholder's capacity as a director or executive officer of the Company from
engaging in any activity permitted pursuant to Section 5.04 of the Merger
Agreement. Each Stockholder shall, and shall direct or cause such Stockholder's
representatives and agents to, immediately cease and cause to be terminated any
discussions or negotiations with any parties that may be ongoing with respect to
any Company Takeover Proposal.
7. Information for Offer Documents and Proxy Statement;
Disclosure. Each Stockholder represents and warrants to Parent and Purchaser
that none of the information relating to such Stockholder and such Stockholder's
affiliates provided in writing by or on behalf of such Stockholder or such
Stockholder's affiliates for inclusion in the Schedule TO, Schedule
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14D-9, Offer Documents, or Proxy Statement will, at the respective times the
Schedule TO, Schedule 14D-9, Offer Documents, or Proxy Statement are filed with
the SEC or are first published, sent or given to the stockholders of the
Company, contain any untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Each Stockholder authorizes and agrees to permit Parent and
Purchaser to publish and disclose in the Offer Documents and the Proxy Statement
and related filings under the securities laws such Stockholder's identity and
ownership of Shares and the nature of such Stockholder's commitments,
arrangements and understandings under this Agreement and any other information
required by applicable Law.
8. Termination. The obligations of the Stockholders
under this Agreement shall terminate upon the earliest of (a) the Effective
Time, (b) any amendment to the Merger Agreement which adversely affects any
Stockholder and (c) termination of the Merger Agreement in accordance with its
terms. Nothing in this Section 8 shall relieve any party of liability for any
breach of this Agreement.
9. Miscellaneous. Except as otherwise provided herein,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses, whether or not the transactions contemplated hereby are
consummated; all notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by overnight courier, by
facsimile or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at their addresses as specified on the
signature pages of this Agreement; if any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party; this Agreement and the Merger Agreement
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof; this Agreement shall not be assigned (whether pursuant to a merger, by
operation of law or otherwise), except that Parent or Purchaser may assign all
or any of its rights and obligations hereunder to any affiliate of Parent,
provided, however, that no such assignment shall relieve the assigning party of
its obligations hereunder if such assignee does not perform such obligations;
this Agreement shall be binding upon and inure solely to the benefit of each
party hereto, and nothing in this Agreement, express or implied, is intended to
or shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement; the parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity; this Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed in that State; this Agreement may be executed
and delivered (including by facsimile transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
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constitute one and the same agreement; from time to time, at the request of
Parent, in the case of any Stockholder, or at the request of the Stockholders,
in the case of Parent and Purchaser, and without further consideration, each
party shall execute and deliver or cause to be executed and delivered such
additional documents and instruments and take all such further action as may be
reasonably necessary or desirable to consummate the transactions contemplated by
this Agreement; EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE THOMSON CORPORATION
/s/ Deirdre Stanley
--------------------------
Name: Deirdre Stanley
Title: Senior Vice President
Address: One Metro Center
Stamford, CT 06902
GULF ACQUISITION CORP.
/s/ Michael E. Wilens
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Name: Michael E. Wilens
Title: President
Address: 610 Opperman Drive
Eagan, MN 55123
S-1
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STOCKHOLDERS
PAR Investment Partners, L.P.
By: PAR Group, L.P., General Partner
By: PAR Capital Management, Inc.,
General Partner
By: /s/ Arthur G. Epker III
---------------------------------
Name: Arthur G. Epker III
Title: Vice President, PAR
Capital Management, Inc.
/s/ Arthur G. Epker, III
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Name: Arthur G. Epker, III
/s/ Christopher K. Poole
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Name: Christopher K. Poole
/s/ David A. Finley
-------------------------------------
Name: David A. Finley
/s/ Roger Noall
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Name: Roger Noall
S-2
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/s/ Alan Rich
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Name: Alan Rich
/s/ William G. Seymour
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Name: William G. Seymour
S-3
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EXHIBIT A
LIST OF STOCKHOLDERS
Number of Shares Issuable
Number of Shares of Pursuant to Options Exercisable
Name of Stockholder Company Common Stock Within 60 Days of April 2, 2003
------------------- -------------------- -------------------------------
PAR Capital Management 1,220,300 0
Arthur G. Epker III 0 11,000
Christopher K. Poole 9,583 232,666
David A. Finley 0 87,666
Roger Noall 34,100 11,000
Alan Rich 0 11,000
William G. Seymour 434,622 11,000