Page 3 of 4 – SEC Filing SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
July 1, 2016
————————————–
(Date)
RGM Capital, LLC
By: /s/ Robert G. Moses
————————————–
Robert G. Moses, Managing Member
/s/ Robert G. Moses
————————————–
Robert G. Moses
EXHIBIT INDEX
Exhibit 1. Joint Acquisition Statement Pursuant to Section 240.13d-1(k)
Exhibit 2. Voting Agreement
EXHIBIT 1 to Amendment No. 1 to SCHEDULE 13D
JOINT ACQUISITION STATEMENT
PURSUANT TO SECTION 240.13d-1(k)
The undersigned acknowledge and agree that the foregoing statement
on Amendment No. 1 to Schedule 13D is filed on behalf of each of the
undersigned and that all subsequent amendments to this statement on
the Amendment No. 1 to Schedule 13D shall be filed on behalf of each of the
undersigned without the necessity of filing additional joint acquisition
statements. The undersigned acknowledge that each shall be responsible for
the timely filing of such amendments, and for the completeness and accuracy
of the information concerning him, her or it contained therein, but shall
not be responsible for the completeness and accuracy of the information
concerning the other entities or persons, except to the extent that he, she
or it knows or has reason to believe that such information is inaccurate.
Dated: July 1, 2016
RGM Capital, LLC
By: /s/ Robert G. Moses
————————————–
Robert G. Moses, Managing Member
/s/ Robert G. Moses
————————————–
Robert G. Moses
EXHIBIT 2 to Amendment No. 1 to SCHEDULE 13D
VOTING AGREEMENT
This VOTING AGREEMENT (this “Agreement”) is entered into as of May 30,
2016, by and between AKKR Green Parent, LLC, a Delaware limited liability
company (“Parent”), and RGM Capital, LLC (“Stockholder”). Terms not otherwise
defined herein shall have the respective meanings ascribed to them in the
Merger Agreement (as defined below).
RECITALS
A. WHEREAS, the execution and delivery of this Agreement by
Stockholder is a material inducement to the willingness of Parent to enter
into that certain Agreement and Plan of Merger, dated of even date herewith
(as amended, supplemented or otherwise modified from time to time, the
“Merger Agreement”), by and among Parent, Company and AKKR Green Merger Sub,
Inc., a Delaware corporation (“Merger Sub”), pursuant to which Merger Sub will
be merged with and into the Company (the “Merger”) with the Company surviving
the Merger as a wholly-owned subsidiary of Parent.
B. WHEREAS, Stockholder is the investment manager to certain private
limited partnerships and managed accounts that are stockholders of SciQuest,
Inc., a Delaware corporation (the “Company”) and is the beneficial owner (as
defined in Section 1(d) below) of the shares owned by such private limited
partnerships and managed accounts.
C. WHEREAS, Stockholder understands and acknowledges that Parent is
entitled to rely on (i) the truth and accuracy of Stockholder’s
representations and warranties contained herein and (ii) Stockholder’s
performance of the obligations set forth herein.
NOW, THEREFORE, in consideration of the promises and the covenants
and agreements set forth in the Merger Agreement and in this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Restrictions on Shares.
(a) Stockholder shall cause the Shares (as defined in Section 3 below)
not to, directly or indirectly, be Transferred (as defined in this Section
1(a)), and shall cause that no offer shall be made or agreement entered into
providing for a Transfer of the Shares, or commit to do any of the foregoing,
at any time prior to the later of the day following the record date for the
Stockholders Meeting and the 41st day following the day hereof without the
prior written consent of Parent, except for Permitted Transfers (as defined in
this Section 1(a)); provided, that the obligations set forth in this Section
1(a) shall terminate if the Merger Agreement has been terminated and Parent
and its Affiliates cease to own any shares of common stock of the Company. As
used herein, “Transfer” means (a) any direct or indirect offer, sale, lease,
assignment, encumbrance, pledge, hypothecation, disposition or other transfer
(by operation of law or otherwise), either voluntary or involuntary, or entry
into any contract, option or other arrangement or understanding with respect
to any offer, sale, lease, assignment, encumbrance, pledge, hypothecation,
disposition or other transfer (by operation of law or otherwise), of any
capital stock or interest in any capital stock, in whole or in part, or (b) in
respect of any capital stock or interest in any capital stock, to enter into
any swap or any other agreement, transaction or series of transactions that
hedges or transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of such capital stock or interest in capital stock,
whether any such swap, agreement, transaction or series of transaction is to
be settled by delivery of securities, in cash or otherwise. As used herein,
“Permitted Transfer” means (i) a Transfer to any person who prior to, and as
a condition of, any such Transfer, enters into and delivers to Parent a voting
agreement in favor of Parent substantially in the form of this Agreement with
respect to the Shares transferred to such person, (ii) from and after the
public disclosure of this Agreement and the Merger Agreement and prior to the
41st day following the date hereof, one or more Transfers to any person(s)
that in the aggregate represent no more than 25% of the number of Shares set
forth on the signature page hereto, and (iii) from and after the 41st day
following the date hereof, one or more Transfers to any person(s) that in the
aggregate, when taken together with any Transfers made pursuant to clause (ii),
represent less than 50% of the number of Shares set forth on the signature page
hereto.
(b) At any time on or after the date of this Agreement and prior to the
earliest of: (i) the Effective Time; (ii) the valid termination of the Merger
Agreement in accordance with its terms pursuant to Section 8.1 thereof; (iii)
the 6-month anniversary of the valid termination of the Merger Agreement in
accordance with its terms (other than pursuant to Section 8.1); (iv) the
entering into of any amendment by the parties to, or the waiver by the Company
of any provision of, the Merger Agreement that reduces the amount of
consideration payable by Parent and/or Merger Sub pursuant to the Merger
Agreement, without the prior written consent of Stockholder; or (v) such date
and time designated by Parent in a written notice to Stockholder (such earliest
time, the “Expiration Time”), Stockholder shall not, directly or indirectly,
grant (or cause or permit to be granted) any proxies or powers of attorney with
respect to any of the Shares in a manner inconsistent with Section 2, deposit
(or cause or permit to be deposited) any of the Shares into a voting trust, or
enter into (or cause or permit to be entered into) a voting agreement or
similar arrangement or commitment or grant (or cause or permit to be granted)
any option or warrant with respect to any of the Shares or commit to do any of
the foregoing.
(c) In the event of a stock split, reverse stock split, stock dividend
or distribution, or any change in the Company’s common stock by reason of any
recapitalization, combination, reclassification, exchange of shares or similar
transaction, the term “Shares” shall be deemed to refer to and include all such
stock dividends and distributions and any securities into which or for which
any or all of such shares may be changed or exchanged or which are received
in such transaction.
(d) Any attempted Transfer in violation of this Agreement, or the
taking of any other action in violation of this Section 1, shall be null
and void ab initio. If any involuntary Transfer of any or all of the Shares
shall occur (including, if applicable, a sale by such Stockholder’s trustee
in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale),
or any other involuntary action in violation of this Section 1 shall occur
resulting in any person having beneficial ownership (as defined in this Section
1(d)) over any or all of the Shares or otherwise having the power to exercise,
in whole or in part, any control over any or all of the Shares with respect
to any of the matters contemplated by this Agreement, then the transferee
(which term, as used herein, shall include any and all transferees and
subsequent transferees of the initial transferee) or such other person shall
take and hold the Shares subject to all of the restrictions, liabilities and
rights under this Agreement, which shall continue in full force and effect
until valid termination of this Agreement. For purposes of this Agreement,
‘beneficial ownership’ (and correlative terms) shall have the meaning set
forth in, and be interpreted in accordance with, Rule 13d-3 under the Exchange
Act; provided that a person shall be deemed to have beneficial ownership over
any securities which may be acquired by such person pursuant to any contract,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise (irrespective of whether
the right to acquire such securities is exercisable immediately or only after
the passage of time, including the passage of time in excess of 60 days,
the satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing.
2. Agreement to Vote Shares; Waiver of Appraisal Rights.
(a) Prior to the Expiration Time, at every meeting of the stockholders
of the Company called with respect to any of the following matters, and at
every adjournment or postponement thereof, and on every action or approval by
written consent or resolution of the stockholders of Company with respect to
any of the following matters, unless otherwise directed in writing by Parent,
Stockholder shall:
(i) appear (in person or by proxy) at such meeting (or any
adjournment or postponement thereof);
(ii) cause the Shares to be counted as present thereat for purposes
of calculating a quorum; and
(iii) cause the Shares to be voted (A) in favor of approval of the
adoption of the Merger Agreement and the approval of the Merger, (B) in favor
of any proposal to adjourn the meeting to solicit additional proxies in favor
of the adoption of the Merger Agreement and the approval of the Merger if (but
only if) there are not sufficient votes to adopt the Merger Agreement on the
date on which such meeting is held, (C) against any Acquisition Proposal
(including any Superior Proposal) and (D) against any action, proposal,
transaction or agreement that could result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or of the Stockholder under this Agreement or that
could (x) prevent, delay, impair, discourage, adversely affect or inhibit the
timely consummation of the Merger or the satisfaction of Parent’s, the
Company’s or Merger Sub’s conditions under the Merger Agreement (including,
for the avoidance of doubt, any adjournment or postponement of the
Stockholders Meeting (except as contemplated by clause (iii)(B) above)) or (y)
change in any manner the voting rights of any class of shares of the Company
(including any amendments to the Charter).
(b) Notwithstanding the foregoing, nothing in this Agreement shall
limit or restrict Stockholder from, subject to Section 2(d) below, voting in
Stockholder’s sole discretion on any matter other than matters referred to in
Section 2(a) hereof, to the extent applicable.
(c) Prior to the Expiration Time, Stockholder shall not (and shall
cause its affiliates and its and their respective partners, members, officers,
directors, employees, attorneys, accountants, agents, advisors and
representatives to not), directly or indirectly, (i) initiate, solicit or
knowingly encourage any inquiries or the making of any proposal or offer that
constitutes or that could lead to an Acquisition Proposal, (ii) engage in or
otherwise participate in any discussions or negotiations with any Person
regarding, or that could lead to the making of, any Acquisition Proposal
(except to notify such Person as to the existence of this Section 2(c)),
(iii) otherwise knowingly facilitate any effort or attempt to make an
Acquisition Proposal, (iv) or alone or with any other Person, make an
Acquisition Proposal. Stockholder shall promptly inform Parent if it receives
any inquiry or proposal relating to an Acquisition Proposal and the details
thereof.
(d) Stockholder shall not (and shall cause its affiliates and its and
their respective partners, members, officers, directors, employees, attorneys,
accountants, agents, advisors and representatives to not) take or agree to
take or commit to take any action with the intent of, or for the purpose of,
in each case in whole or in part, preventing or delaying the consummation of
the transactions contemplated by the Merger Agreement.
(e) The obligations set forth in this Section 2 shall apply whether or
not the adoption of the Merger Agreement, the approval of the Merger or any
other action described above is or continues to be recommended by the Board of
Directors of the Company (and, for the avoidance of doubt, such obligations
shall apply despite the occurrence of any Change of Recommendation) or the
termination of the Merger Agreement.
(f) The Stockholder hereby waives (on behalf of itself and such
private limited partnerships and clients of the managed accounts), and agrees
not to assert or perfect (and agrees to cause not to be asserted and
perfected), any appraisal or dissenters’ rights with respect to any of the
Shares in connection with the Merger.
3. Representations, Warranties and Covenants of Stockholder.
Stockholder hereby represents, warrants and covenants to Parent as follows as
of the date hereof:
(a) Stockholder is the beneficial or record owner of, or exercises
voting power over, that number of shares of capital stock set forth on the
signature page hereto (all such shares owned beneficially or of record by
Stockholder, or over which Stockholder exercises voting power, on the date
hereof, collectively, the “Shares”). The Shares constitute the entire
interest in the outstanding shares of capital stock of the Company over which
Stockholder has voting power and neither Stockholder nor any of its affiliates
is the beneficial or record owner of, nor exercises voting power over, any
other outstanding shares of capital stock of the Company or any options,
restricted stock units, warrants or other rights to acquire or that are
exchangeable or exercisable for, or convertible into, directly or indirectly,
shares of capital stock or other voting interests of the Company. No person
not signatory to this Agreement has a right to acquire or vote any of the
Shares. The Shares (to the extent not Transferred in accordance with this
Agreement) are and will be at all times up until the Expiration Time free and
clear of any Liens that would adversely affect the exercise or fulfillment of
the rights and obligations of Stockholder under this Agreement. As of the
date hereof, the Shares represent 9.63% of the voting power or outstanding
common stock, par value $0.001 per share, of the Company based on the number
of outstanding shares of the Company as set forth in its most recent
Quarterly Report on Form 10-Q for the period ended March 31, 2016.
(b) Stockholder has all requisite power, capacity and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Stockholder and the
consummation by Stockholder of the transactions contemplated hereby have been
duly authorized by all necessary action, if any, on the part of Stockholder
(or its general partner or similar governing body, as applicable), and no
other actions or proceedings on the part of the Stockholder are necessary to
authorize the execution and delivery by the Stockholder of this Agreement
and the consummation by the Stockholder of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Stockholder
and, assuming the due authorization, execution and delivery of this Agreement
by Parent, constitutes a valid and binding obligation of Stockholder,
enforceable against Stockholder in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies
generally and to general principles of equity.
(c) The execution and delivery of this Agreement does not, and the
performance by Stockholder of its agreements and obligations hereunder will
not, conflict with, result in a breach or violation of or default under (with
or without notice or lapse of time or both), or require notice to or the
consent of any person under, any provisions of the organizational documents
of Stockholder (if applicable), or any binding agreement, law, rule,
regulation, judgment, order or decree to which Stockholder is a party or by
which Stockholder is, or any of its assets are, bound, except for such
conflicts, breaches, violations or defaults that would not, individually or
in the aggregate, prevent or materially delay Stockholder from performing its
obligations under this Agreement.
(d) Neither Stockholder nor any of its affiliates has any agreement
with the Company or any other Person with respect to the Company or the
voting, holding or disposition of the Shares, other than this Agreement.
(e) The Stockholder understands and acknowledges that Parent and
Merger Sub are entering into the Merger Agreement and consummating the
transactions contemplated thereby in reliance upon such Shareholder’s
execution and delivery of this Agreement.
4. Representations and Warranties of Parent. Parent hereby represents
and warrants to Stockholder as follows: (i) Parent has full power and
authority to make, enter into and carry out the terms of this Agreement;
(ii) this Agreement has been duly and validly executed and delivered by Parent
and constitutes a valid and binding agreement of Parent enforceable against
Parent in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar
laws affecting creditors’ rights and remedies generally and to general
principles of equity; and (iii) the execution and delivery of this Agreement
does not, and the performance by Parent of its agreements and obligations
hereunder will not, conflict with, result in a breach or violation of or
default under (with or without notice or lapse of time or both), or require
notice to or the consent of any person under, any provisions of the
organizational documents of Parent, or any law, rule, regulation, judgment,
order or decree to which Parent is a party or by which Parent is, or any of
its assets are, bound, except for such conflicts, breaches, violations or
defaults that would not, individually or in the aggregate, prevent or
materially delay Parent’s ability to perform its obligations under this
Agreement. Parent has not entered into any voting agreement with any
stockholder of the Company with respect to the Merger.
5. Confidentiality. Except to the extent required by applicable law
(including, without limitation, any disclosure that Stockholder may be required
to make pursuant to the Exchange Act), Stockholder shall hold any information
regarding this Agreement (including the existence or terms hereof) and the
Merger in strict confidence and shall not divulge any such information to any
third person; provided, however, that Stockholder may disclose any such
information to Stockholder’s directors, officers, members, employees, agents,
attorneys, advisors and other representatives solely for the purpose of
evaluating the Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement. Neither the Stockholder, nor any of
its affiliates, shall issue or cause the publication of any press release or
other public announcement with respect to this Agreement, the Merger, the
Merger Agreement or the other transactions contemplated hereby or thereby
without the prior written consent of the Parent, except to the extent
required by applicable law (including, without limitation, any disclosure that
Stockholder may be required to make pursuant to the Exchange Act). In the
event any disclosure subject to this Section 5 is required pursuant to
applicable law (including, without limitation, any disclosure that Stockholder
may be required to make pursuant to the Exchange Act), the Stockholder
promptly inform Parent thereof and shall use reasonable efforts to consult
with the Parent to the extent practicable regarding such disclosure and
consider in good faith any comments Parent may have to such disclosure.
6. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given on (i) the date of delivery, if delivered
personally or by commercial delivery service, or (ii) on the date of
confirmation of receipt (or the next Business Day, if the date of confirmation
of receipt is not a Business Day), if sent via facsimile (with confirmation of
receipt), to the parties hereto at the following address (or at such other
address for a party as shall be specified by like notice):
(i) if to Parent, to:
c/o Accel-KKR
2500 Sand Hill Road, Suite 300
Menlo Park, CA 94025
Attention: Dean Jacobson
Tel: (650) 289-2460
Fax: (650) 289-2461
with a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Tel: (312) 862-2000
Fax: (312) 862-2200
Attention: Jeffrey Seifman, P.C.; Shelly M. Hirschtritt, P.C.;
Douglas A. Ryder, P.C.
(ii) if to Stockholder, to the address set forth for the Stockholder
on the signature page hereof, with a copy
(which shall not constitute notice) to:
Richards Kibbe & Orbe LLP
200 Liberty Street
New York, NY 10281-1003
Tel: (212) 530-1915
Fax: (917) 344-8915
Attention: Scott Budlong
(b) Interpretation. When a reference is made in this Agreement to
sections or exhibits, such reference shall be to a section of or an exhibit 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. The words “include”, “includes”
and “including” when used herein shall be deemed in each case to be followed by
the words “without limitation.” The phrases “the date of this Agreement”, “the
date hereof”, and terms of similar import, unless the context otherwise
requires, shall be deemed to refer to the date first above written. Unless
the context of this Agreement otherwise requires: (i) words of any gender
include each other gender; (ii) words using the singular or plural number also
include the plural or singular number, respectively; and (iii) the terms
“hereof,” “herein,” “hereunder” and derivative or similar words refer to
this entire Agreement.
(c) Specific Performance; Injunctive Relief. The parties agree that
irreparable damage for which monetary damages, even if available, would not be
an adequate remedy, would occur in the event that the parties hereto do not
perform the provisions of this Agreement (including failing to take such
actions as are required of it hereunder in order to consummate this Agreement)
in accordance with its specified terms or otherwise breach such provisions.
The parties acknowledge and agree that the parties shall be entitled to seek
an injunction, specific performance and other equitable relief to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which they are entitled
at Law or in equity. Each of the parties agrees that it will not oppose the
granting of an injunction, specific performance and other equitable relief on
the basis that (x) the other party has an adequate remedy at law or (y) an
award of specific performance is not an appropriate remedy for any reason at
law or equity. Any party seeking an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement shall not be required to provide any bond or other security
in connection with any such order or injunction.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, including via faxed or electronically submitted pdf, each such
counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute one and the same agreement. Delivery
of an executed counterpart signature page is as effective as executing and
delivering this Agreement in the presence of the other parties to this
Agreement.
(e) Entire Agreement; Nonassignability; Parties in Interest. This
Agreement and the documents and instruments and other agreements specifically
referred to herein or delivered pursuant hereto (i) constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof and (ii) are not intended
to confer, and shall not be construed as conferring, upon any person other than
the parties hereto any rights or remedies hereunder. Except as provided in
Section 1(a), neither this Agreement nor any of the rights, interests, or
obligations under this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise, by Stockholder without the prior
written consent of Parent, and any such assignment or delegation that is not
consented to shall be null and void. This Agreement, together with any rights,
interests or obligations of Parent hereunder, may be assigned or delegated in
whole or in part by Parent to any affiliate of Parent without the consent of or
any action by Stockholder upon notice by Parent to Stockholder as herein
provided. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the parties hereto and
their respective successors and assigns.
(f) Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may
be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or
the application thereof, in any other jurisdiction.
(g) Remedies Cumulative. Except as otherwise provided herein, any
and all remedies herein expressly conferred upon a party shall be deemed
cumulative with and not exclusive of any other remedy conferred hereby, or by
law or equity upon such party, and the exercise by a party of any one remedy
shall not preclude the exercise of any other remedy.
(h) Governing Law; Jurisdiction. THIS AGREEMENT AND ALL CLAIMS OR
CAUSES OF ACTION (WHETHER AT LAW, IN CONTRACT, IN TORT OR OTHERWISE) THAT MAY
BE BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OR THE NEGOTIATION, EXECUTION OR
PERFORMANCE HEREOF, SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL
BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF
THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF. The parties hereby irrevocably submit to the personal jurisdiction
of the Court of Chancery of the State of Delaware, or to the extent such court
does not have subject matter jurisdiction, the Superior Court of the State of
Delaware (the “Chosen Courts”) solely in respect of the interpretation and
enforcement of the provisions of this Agreement and of the documents referred
to in this Agreement, and in respect of the transactions contemplated hereby,
or the negotiation, execution or performance hereof, and hereby waive, and
agree not to assert, as a defense in any Proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such Proceeding may not be brought or is not maintainable in the Chosen
Courts or that the Chosen Courts are an inconvenient forum or that the venue
thereof may not be appropriate, or that this Agreement or any such document
may not be enforced in or by such Chosen Courts, and the parties hereto
irrevocably agree that all Proceedings or other causes of action (whether
at law, in contract, in tort or otherwise) that may be based upon,
arising out of or relating to this Agreement or any of the transactions
contemplated by this Agreement, or the negotiation, execution or performance
hereof, shall be heard and determined exclusively in the Chosen Courts. The
parties hereby consent to and grant any such Chosen Court jurisdiction over the
person of such parties and, to the extent permitted by law, over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such Proceeding in the manner provided in Section 6(a) or
in such other manner as may be permitted by law shall be valid, effective and
sufficient service thereof.
(i) WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF SUCH PROCEEDING, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6(i).
(j) Termination. This Agreement shall terminate automatically without
any action on the part of the parties hereto and shall have no further force
or effect from and after the Expiration Time, and thereafter there shall be no
liability or obligation on the part of the Stockholder; provided, that no such
termination shall relieve any party from liability for any breach of this
Agreement prior to such termination.
(k) Amendment. Any provision of this Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by each of the parties hereto, or in the case of a
waiver, by the party against which the waiver is to be effective.
Notwithstanding the foregoing, no failure or delay by any party hereto in
exercising any right hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
of any right hereunder.
(l) No Ownership Interest; No Joint Venture; No Fiduciary Duties.
Nothing contained in this Agreement shall be deemed to vest in Parent or any
of its affiliates any direct or indirect ownership or incidence of ownership
of or with respect to any Shares. All rights, ownership and economic benefits
of or relating to the Shares shall remain vested in and belong to Stockholder,
and Parent and its affiliates shall have no authority to manage, direct,
superintend, restrict, regulate, govern or administer any of the policies or
operations of Company, except as otherwise provided in the Merger Agreement
or exercise any power or authority of the Stockholder in the voting of any of
the Shares. Nothing in this Agreement shall be interpreted as creating or
forming a “group” between Stockholder and Parent for purposes of Rule
13d-5(b)(1) under the Exchange Act or any other similar provision of applicable
law. This Agreement is not intended to, and does not, create any agency,
partnership, fiduciary or joint venture relationship between or among any
of the parties hereto or any of their Affiliates with respect to the Merger
Agreement or any of the transactions contemplated thereby and neither this
Agreement nor any other document or agreement entered into by any party hereto
relating to the subject matter hereof shall be construed to suggest otherwise.
Parent acknowledges and agrees that Stockholder owes no fiduciary duties to
Parent or any of its Affiliates as a result of, or in connection with, this
Agreement, the Merger Agreement or the transactions contemplated thereby.
Stockholder is entering into this Agreement solely in its capacity as the
holder of the Shares indicated on the signature page hereof, and nothing
herein shall limit or affect any actions taken by, or otherwise obligate,
Stockholder or its affiliates in any other capacity.
(m) Most Favored Nation. In the event that Parent or any of its
affiliates enters into any voting agreement with any other stockholder of the
Company with respect to the Merger that contains termination or liquidity
provisions that are more favorable in any material respect, or any other
provisions that are more favorable in the aggregate in any material respect,
to such stockholder than those applicable to Stockholder under this Agreement,
Parent shall promptly offer to amend this Agreement in such a way so that
this Agreement is more favorable in such respects.
(n) No MNPI. Parent agrees that, so long as Stockholder owns any
Shares, it will not (and will cause its affiliates, employees, agents,
attorneys, advisors and other representatives to not) disclose to Stockholder
any material non-public information regarding the Company, other than the
existence and terms of this Agreement and the Merger Agreement as of the
date hereof.
(o) Rules of Construction. The parties hereto agree that they have
been represented by counsel during the negotiation, preparation and execution
of this Agreement and, therefore, waive the application of any law, regulation,
holding or rule of construction providing that ambiguities in an agreement
or other document shall be construed against the party drafting such
agreement or document.
(p) Additional Documents, Etc. Stockholder shall execute and
deliver any additional documents reasonably necessary to carry out the purpose
and intent of this Agreement. The Stockholder shall give Parent prompt
written notice of (i) the occurrence of any fact, event or circumstance that
causes any representation or warranty of the Stockholder set forth in this
Agreement to be untrue or inaccurate in any material respect and (ii) any
failure of the Stockholder to comply with or satisfy in any material respect
any covenant or agreement to be complied with or satisfied by it under this
Agreement.
(q) Covenant Not to Sue. Stockholder agrees not to commence, join in,
facilitate, assist or encourage, and agrees to take all actions necessary to
opt out of any class in any class action with respect to, any claim, derivative
or otherwise, against the Company, Merger Sub, Parent or any of their
respective successors or directors (a) challenging the validity of, or seeking
to enjoin the operation of, any provision of this Agreement or (b) alleging a
breach of any fiduciary duty of any person in connection with the evaluation,
negotiation or entry into the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement
to be executed as of the date first above written.
AKKR GREEN PARENT, LLC
By: /s/ Dean Jacobson
Name:
Title:
STOCKHOLDER:
RGM CAPITAL, LLC
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
July 1, 2016
————————————–
(Date)
RGM Capital, LLC
By: /s/ Robert G. Moses
————————————–
Robert G. Moses, Managing Member
/s/ Robert G. Moses
————————————–
Robert G. Moses
EXHIBIT INDEX
Exhibit 1. Joint Acquisition Statement Pursuant to Section 240.13d-1(k)
Exhibit 2. Voting Agreement
EXHIBIT 1 to Amendment No. 1 to SCHEDULE 13D
JOINT ACQUISITION STATEMENT
PURSUANT TO SECTION 240.13d-1(k)
The undersigned acknowledge and agree that the foregoing statement
on Amendment No. 1 to Schedule 13D is filed on behalf of each of the
undersigned and that all subsequent amendments to this statement on
the Amendment No. 1 to Schedule 13D shall be filed on behalf of each of the
undersigned without the necessity of filing additional joint acquisition
statements. The undersigned acknowledge that each shall be responsible for
the timely filing of such amendments, and for the completeness and accuracy
of the information concerning him, her or it contained therein, but shall
not be responsible for the completeness and accuracy of the information
concerning the other entities or persons, except to the extent that he, she
or it knows or has reason to believe that such information is inaccurate.
Dated: July 1, 2016
RGM Capital, LLC
By: /s/ Robert G. Moses
————————————–
Robert G. Moses, Managing Member
/s/ Robert G. Moses
————————————–
Robert G. Moses
EXHIBIT 2 to Amendment No. 1 to SCHEDULE 13D
VOTING AGREEMENT
This VOTING AGREEMENT (this “Agreement”) is entered into as of May 30,
2016, by and between AKKR Green Parent, LLC, a Delaware limited liability
company (“Parent”), and RGM Capital, LLC (“Stockholder”). Terms not otherwise
defined herein shall have the respective meanings ascribed to them in the
Merger Agreement (as defined below).
RECITALS
A. WHEREAS, the execution and delivery of this Agreement by
Stockholder is a material inducement to the willingness of Parent to enter
into that certain Agreement and Plan of Merger, dated of even date herewith
(as amended, supplemented or otherwise modified from time to time, the
“Merger Agreement”), by and among Parent, Company and AKKR Green Merger Sub,
Inc., a Delaware corporation (“Merger Sub”), pursuant to which Merger Sub will
be merged with and into the Company (the “Merger”) with the Company surviving
the Merger as a wholly-owned subsidiary of Parent.
B. WHEREAS, Stockholder is the investment manager to certain private
limited partnerships and managed accounts that are stockholders of SciQuest,
Inc., a Delaware corporation (the “Company”) and is the beneficial owner (as
defined in Section 1(d) below) of the shares owned by such private limited
partnerships and managed accounts.
C. WHEREAS, Stockholder understands and acknowledges that Parent is
entitled to rely on (i) the truth and accuracy of Stockholder’s
representations and warranties contained herein and (ii) Stockholder’s
performance of the obligations set forth herein.
NOW, THEREFORE, in consideration of the promises and the covenants
and agreements set forth in the Merger Agreement and in this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Restrictions on Shares.
(a) Stockholder shall cause the Shares (as defined in Section 3 below)
not to, directly or indirectly, be Transferred (as defined in this Section
1(a)), and shall cause that no offer shall be made or agreement entered into
providing for a Transfer of the Shares, or commit to do any of the foregoing,
at any time prior to the later of the day following the record date for the
Stockholders Meeting and the 41st day following the day hereof without the
prior written consent of Parent, except for Permitted Transfers (as defined in
this Section 1(a)); provided, that the obligations set forth in this Section
1(a) shall terminate if the Merger Agreement has been terminated and Parent
and its Affiliates cease to own any shares of common stock of the Company. As
used herein, “Transfer” means (a) any direct or indirect offer, sale, lease,
assignment, encumbrance, pledge, hypothecation, disposition or other transfer
(by operation of law or otherwise), either voluntary or involuntary, or entry
into any contract, option or other arrangement or understanding with respect
to any offer, sale, lease, assignment, encumbrance, pledge, hypothecation,
disposition or other transfer (by operation of law or otherwise), of any
capital stock or interest in any capital stock, in whole or in part, or (b) in
respect of any capital stock or interest in any capital stock, to enter into
any swap or any other agreement, transaction or series of transactions that
hedges or transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of such capital stock or interest in capital stock,
whether any such swap, agreement, transaction or series of transaction is to
be settled by delivery of securities, in cash or otherwise. As used herein,
“Permitted Transfer” means (i) a Transfer to any person who prior to, and as
a condition of, any such Transfer, enters into and delivers to Parent a voting
agreement in favor of Parent substantially in the form of this Agreement with
respect to the Shares transferred to such person, (ii) from and after the
public disclosure of this Agreement and the Merger Agreement and prior to the
41st day following the date hereof, one or more Transfers to any person(s)
that in the aggregate represent no more than 25% of the number of Shares set
forth on the signature page hereto, and (iii) from and after the 41st day
following the date hereof, one or more Transfers to any person(s) that in the
aggregate, when taken together with any Transfers made pursuant to clause (ii),
represent less than 50% of the number of Shares set forth on the signature page
hereto.
(b) At any time on or after the date of this Agreement and prior to the
earliest of: (i) the Effective Time; (ii) the valid termination of the Merger
Agreement in accordance with its terms pursuant to Section 8.1 thereof; (iii)
the 6-month anniversary of the valid termination of the Merger Agreement in
accordance with its terms (other than pursuant to Section 8.1); (iv) the
entering into of any amendment by the parties to, or the waiver by the Company
of any provision of, the Merger Agreement that reduces the amount of
consideration payable by Parent and/or Merger Sub pursuant to the Merger
Agreement, without the prior written consent of Stockholder; or (v) such date
and time designated by Parent in a written notice to Stockholder (such earliest
time, the “Expiration Time”), Stockholder shall not, directly or indirectly,
grant (or cause or permit to be granted) any proxies or powers of attorney with
respect to any of the Shares in a manner inconsistent with Section 2, deposit
(or cause or permit to be deposited) any of the Shares into a voting trust, or
enter into (or cause or permit to be entered into) a voting agreement or
similar arrangement or commitment or grant (or cause or permit to be granted)
any option or warrant with respect to any of the Shares or commit to do any of
the foregoing.
(c) In the event of a stock split, reverse stock split, stock dividend
or distribution, or any change in the Company’s common stock by reason of any
recapitalization, combination, reclassification, exchange of shares or similar
transaction, the term “Shares” shall be deemed to refer to and include all such
stock dividends and distributions and any securities into which or for which
any or all of such shares may be changed or exchanged or which are received
in such transaction.
(d) Any attempted Transfer in violation of this Agreement, or the
taking of any other action in violation of this Section 1, shall be null
and void ab initio. If any involuntary Transfer of any or all of the Shares
shall occur (including, if applicable, a sale by such Stockholder’s trustee
in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale),
or any other involuntary action in violation of this Section 1 shall occur
resulting in any person having beneficial ownership (as defined in this Section
1(d)) over any or all of the Shares or otherwise having the power to exercise,
in whole or in part, any control over any or all of the Shares with respect
to any of the matters contemplated by this Agreement, then the transferee
(which term, as used herein, shall include any and all transferees and
subsequent transferees of the initial transferee) or such other person shall
take and hold the Shares subject to all of the restrictions, liabilities and
rights under this Agreement, which shall continue in full force and effect
until valid termination of this Agreement. For purposes of this Agreement,
‘beneficial ownership’ (and correlative terms) shall have the meaning set
forth in, and be interpreted in accordance with, Rule 13d-3 under the Exchange
Act; provided that a person shall be deemed to have beneficial ownership over
any securities which may be acquired by such person pursuant to any contract,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise (irrespective of whether
the right to acquire such securities is exercisable immediately or only after
the passage of time, including the passage of time in excess of 60 days,
the satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing.
2. Agreement to Vote Shares; Waiver of Appraisal Rights.
(a) Prior to the Expiration Time, at every meeting of the stockholders
of the Company called with respect to any of the following matters, and at
every adjournment or postponement thereof, and on every action or approval by
written consent or resolution of the stockholders of Company with respect to
any of the following matters, unless otherwise directed in writing by Parent,
Stockholder shall:
(i) appear (in person or by proxy) at such meeting (or any
adjournment or postponement thereof);
(ii) cause the Shares to be counted as present thereat for purposes
of calculating a quorum; and
(iii) cause the Shares to be voted (A) in favor of approval of the
adoption of the Merger Agreement and the approval of the Merger, (B) in favor
of any proposal to adjourn the meeting to solicit additional proxies in favor
of the adoption of the Merger Agreement and the approval of the Merger if (but
only if) there are not sufficient votes to adopt the Merger Agreement on the
date on which such meeting is held, (C) against any Acquisition Proposal
(including any Superior Proposal) and (D) against any action, proposal,
transaction or agreement that could result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or of the Stockholder under this Agreement or that
could (x) prevent, delay, impair, discourage, adversely affect or inhibit the
timely consummation of the Merger or the satisfaction of Parent’s, the
Company’s or Merger Sub’s conditions under the Merger Agreement (including,
for the avoidance of doubt, any adjournment or postponement of the
Stockholders Meeting (except as contemplated by clause (iii)(B) above)) or (y)
change in any manner the voting rights of any class of shares of the Company
(including any amendments to the Charter).
(b) Notwithstanding the foregoing, nothing in this Agreement shall
limit or restrict Stockholder from, subject to Section 2(d) below, voting in
Stockholder’s sole discretion on any matter other than matters referred to in
Section 2(a) hereof, to the extent applicable.
(c) Prior to the Expiration Time, Stockholder shall not (and shall
cause its affiliates and its and their respective partners, members, officers,
directors, employees, attorneys, accountants, agents, advisors and
representatives to not), directly or indirectly, (i) initiate, solicit or
knowingly encourage any inquiries or the making of any proposal or offer that
constitutes or that could lead to an Acquisition Proposal, (ii) engage in or
otherwise participate in any discussions or negotiations with any Person
regarding, or that could lead to the making of, any Acquisition Proposal
(except to notify such Person as to the existence of this Section 2(c)),
(iii) otherwise knowingly facilitate any effort or attempt to make an
Acquisition Proposal, (iv) or alone or with any other Person, make an
Acquisition Proposal. Stockholder shall promptly inform Parent if it receives
any inquiry or proposal relating to an Acquisition Proposal and the details
thereof.
(d) Stockholder shall not (and shall cause its affiliates and its and
their respective partners, members, officers, directors, employees, attorneys,
accountants, agents, advisors and representatives to not) take or agree to
take or commit to take any action with the intent of, or for the purpose of,
in each case in whole or in part, preventing or delaying the consummation of
the transactions contemplated by the Merger Agreement.
(e) The obligations set forth in this Section 2 shall apply whether or
not the adoption of the Merger Agreement, the approval of the Merger or any
other action described above is or continues to be recommended by the Board of
Directors of the Company (and, for the avoidance of doubt, such obligations
shall apply despite the occurrence of any Change of Recommendation) or the
termination of the Merger Agreement.
(f) The Stockholder hereby waives (on behalf of itself and such
private limited partnerships and clients of the managed accounts), and agrees
not to assert or perfect (and agrees to cause not to be asserted and
perfected), any appraisal or dissenters’ rights with respect to any of the
Shares in connection with the Merger.
3. Representations, Warranties and Covenants of Stockholder.
Stockholder hereby represents, warrants and covenants to Parent as follows as
of the date hereof:
(a) Stockholder is the beneficial or record owner of, or exercises
voting power over, that number of shares of capital stock set forth on the
signature page hereto (all such shares owned beneficially or of record by
Stockholder, or over which Stockholder exercises voting power, on the date
hereof, collectively, the “Shares”). The Shares constitute the entire
interest in the outstanding shares of capital stock of the Company over which
Stockholder has voting power and neither Stockholder nor any of its affiliates
is the beneficial or record owner of, nor exercises voting power over, any
other outstanding shares of capital stock of the Company or any options,
restricted stock units, warrants or other rights to acquire or that are
exchangeable or exercisable for, or convertible into, directly or indirectly,
shares of capital stock or other voting interests of the Company. No person
not signatory to this Agreement has a right to acquire or vote any of the
Shares. The Shares (to the extent not Transferred in accordance with this
Agreement) are and will be at all times up until the Expiration Time free and
clear of any Liens that would adversely affect the exercise or fulfillment of
the rights and obligations of Stockholder under this Agreement. As of the
date hereof, the Shares represent 9.63% of the voting power or outstanding
common stock, par value $0.001 per share, of the Company based on the number
of outstanding shares of the Company as set forth in its most recent
Quarterly Report on Form 10-Q for the period ended March 31, 2016.
(b) Stockholder has all requisite power, capacity and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Stockholder and the
consummation by Stockholder of the transactions contemplated hereby have been
duly authorized by all necessary action, if any, on the part of Stockholder
(or its general partner or similar governing body, as applicable), and no
other actions or proceedings on the part of the Stockholder are necessary to
authorize the execution and delivery by the Stockholder of this Agreement
and the consummation by the Stockholder of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Stockholder
and, assuming the due authorization, execution and delivery of this Agreement
by Parent, constitutes a valid and binding obligation of Stockholder,
enforceable against Stockholder in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies
generally and to general principles of equity.
(c) The execution and delivery of this Agreement does not, and the
performance by Stockholder of its agreements and obligations hereunder will
not, conflict with, result in a breach or violation of or default under (with
or without notice or lapse of time or both), or require notice to or the
consent of any person under, any provisions of the organizational documents
of Stockholder (if applicable), or any binding agreement, law, rule,
regulation, judgment, order or decree to which Stockholder is a party or by
which Stockholder is, or any of its assets are, bound, except for such
conflicts, breaches, violations or defaults that would not, individually or
in the aggregate, prevent or materially delay Stockholder from performing its
obligations under this Agreement.
(d) Neither Stockholder nor any of its affiliates has any agreement
with the Company or any other Person with respect to the Company or the
voting, holding or disposition of the Shares, other than this Agreement.
(e) The Stockholder understands and acknowledges that Parent and
Merger Sub are entering into the Merger Agreement and consummating the
transactions contemplated thereby in reliance upon such Shareholder’s
execution and delivery of this Agreement.
4. Representations and Warranties of Parent. Parent hereby represents
and warrants to Stockholder as follows: (i) Parent has full power and
authority to make, enter into and carry out the terms of this Agreement;
(ii) this Agreement has been duly and validly executed and delivered by Parent
and constitutes a valid and binding agreement of Parent enforceable against
Parent in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar
laws affecting creditors’ rights and remedies generally and to general
principles of equity; and (iii) the execution and delivery of this Agreement
does not, and the performance by Parent of its agreements and obligations
hereunder will not, conflict with, result in a breach or violation of or
default under (with or without notice or lapse of time or both), or require
notice to or the consent of any person under, any provisions of the
organizational documents of Parent, or any law, rule, regulation, judgment,
order or decree to which Parent is a party or by which Parent is, or any of
its assets are, bound, except for such conflicts, breaches, violations or
defaults that would not, individually or in the aggregate, prevent or
materially delay Parent’s ability to perform its obligations under this
Agreement. Parent has not entered into any voting agreement with any
stockholder of the Company with respect to the Merger.
5. Confidentiality. Except to the extent required by applicable law
(including, without limitation, any disclosure that Stockholder may be required
to make pursuant to the Exchange Act), Stockholder shall hold any information
regarding this Agreement (including the existence or terms hereof) and the
Merger in strict confidence and shall not divulge any such information to any
third person; provided, however, that Stockholder may disclose any such
information to Stockholder’s directors, officers, members, employees, agents,
attorneys, advisors and other representatives solely for the purpose of
evaluating the Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement. Neither the Stockholder, nor any of
its affiliates, shall issue or cause the publication of any press release or
other public announcement with respect to this Agreement, the Merger, the
Merger Agreement or the other transactions contemplated hereby or thereby
without the prior written consent of the Parent, except to the extent
required by applicable law (including, without limitation, any disclosure that
Stockholder may be required to make pursuant to the Exchange Act). In the
event any disclosure subject to this Section 5 is required pursuant to
applicable law (including, without limitation, any disclosure that Stockholder
may be required to make pursuant to the Exchange Act), the Stockholder
promptly inform Parent thereof and shall use reasonable efforts to consult
with the Parent to the extent practicable regarding such disclosure and
consider in good faith any comments Parent may have to such disclosure.
6. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given on (i) the date of delivery, if delivered
personally or by commercial delivery service, or (ii) on the date of
confirmation of receipt (or the next Business Day, if the date of confirmation
of receipt is not a Business Day), if sent via facsimile (with confirmation of
receipt), to the parties hereto at the following address (or at such other
address for a party as shall be specified by like notice):
(i) if to Parent, to:
c/o Accel-KKR
2500 Sand Hill Road, Suite 300
Menlo Park, CA 94025
Attention: Dean Jacobson
Tel: (650) 289-2460
Fax: (650) 289-2461
with a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Tel: (312) 862-2000
Fax: (312) 862-2200
Attention: Jeffrey Seifman, P.C.; Shelly M. Hirschtritt, P.C.;
Douglas A. Ryder, P.C.
(ii) if to Stockholder, to the address set forth for the Stockholder
on the signature page hereof, with a copy
(which shall not constitute notice) to:
Richards Kibbe & Orbe LLP
200 Liberty Street
New York, NY 10281-1003
Tel: (212) 530-1915
Fax: (917) 344-8915
Attention: Scott Budlong
(b) Interpretation. When a reference is made in this Agreement to
sections or exhibits, such reference shall be to a section of or an exhibit 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. The words “include”, “includes”
and “including” when used herein shall be deemed in each case to be followed by
the words “without limitation.” The phrases “the date of this Agreement”, “the
date hereof”, and terms of similar import, unless the context otherwise
requires, shall be deemed to refer to the date first above written. Unless
the context of this Agreement otherwise requires: (i) words of any gender
include each other gender; (ii) words using the singular or plural number also
include the plural or singular number, respectively; and (iii) the terms
“hereof,” “herein,” “hereunder” and derivative or similar words refer to
this entire Agreement.
(c) Specific Performance; Injunctive Relief. The parties agree that
irreparable damage for which monetary damages, even if available, would not be
an adequate remedy, would occur in the event that the parties hereto do not
perform the provisions of this Agreement (including failing to take such
actions as are required of it hereunder in order to consummate this Agreement)
in accordance with its specified terms or otherwise breach such provisions.
The parties acknowledge and agree that the parties shall be entitled to seek
an injunction, specific performance and other equitable relief to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which they are entitled
at Law or in equity. Each of the parties agrees that it will not oppose the
granting of an injunction, specific performance and other equitable relief on
the basis that (x) the other party has an adequate remedy at law or (y) an
award of specific performance is not an appropriate remedy for any reason at
law or equity. Any party seeking an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement shall not be required to provide any bond or other security
in connection with any such order or injunction.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, including via faxed or electronically submitted pdf, each such
counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute one and the same agreement. Delivery
of an executed counterpart signature page is as effective as executing and
delivering this Agreement in the presence of the other parties to this
Agreement.
(e) Entire Agreement; Nonassignability; Parties in Interest. This
Agreement and the documents and instruments and other agreements specifically
referred to herein or delivered pursuant hereto (i) constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof and (ii) are not intended
to confer, and shall not be construed as conferring, upon any person other than
the parties hereto any rights or remedies hereunder. Except as provided in
Section 1(a), neither this Agreement nor any of the rights, interests, or
obligations under this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise, by Stockholder without the prior
written consent of Parent, and any such assignment or delegation that is not
consented to shall be null and void. This Agreement, together with any rights,
interests or obligations of Parent hereunder, may be assigned or delegated in
whole or in part by Parent to any affiliate of Parent without the consent of or
any action by Stockholder upon notice by Parent to Stockholder as herein
provided. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the parties hereto and
their respective successors and assigns.
(f) Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may
be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or
the application thereof, in any other jurisdiction.
(g) Remedies Cumulative. Except as otherwise provided herein, any
and all remedies herein expressly conferred upon a party shall be deemed
cumulative with and not exclusive of any other remedy conferred hereby, or by
law or equity upon such party, and the exercise by a party of any one remedy
shall not preclude the exercise of any other remedy.
(h) Governing Law; Jurisdiction. THIS AGREEMENT AND ALL CLAIMS OR
CAUSES OF ACTION (WHETHER AT LAW, IN CONTRACT, IN TORT OR OTHERWISE) THAT MAY
BE BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OR THE NEGOTIATION, EXECUTION OR
PERFORMANCE HEREOF, SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL
BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF
THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF. The parties hereby irrevocably submit to the personal jurisdiction
of the Court of Chancery of the State of Delaware, or to the extent such court
does not have subject matter jurisdiction, the Superior Court of the State of
Delaware (the “Chosen Courts”) solely in respect of the interpretation and
enforcement of the provisions of this Agreement and of the documents referred
to in this Agreement, and in respect of the transactions contemplated hereby,
or the negotiation, execution or performance hereof, and hereby waive, and
agree not to assert, as a defense in any Proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such Proceeding may not be brought or is not maintainable in the Chosen
Courts or that the Chosen Courts are an inconvenient forum or that the venue
thereof may not be appropriate, or that this Agreement or any such document
may not be enforced in or by such Chosen Courts, and the parties hereto
irrevocably agree that all Proceedings or other causes of action (whether
at law, in contract, in tort or otherwise) that may be based upon,
arising out of or relating to this Agreement or any of the transactions
contemplated by this Agreement, or the negotiation, execution or performance
hereof, shall be heard and determined exclusively in the Chosen Courts. The
parties hereby consent to and grant any such Chosen Court jurisdiction over the
person of such parties and, to the extent permitted by law, over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such Proceeding in the manner provided in Section 6(a) or
in such other manner as may be permitted by law shall be valid, effective and
sufficient service thereof.
(i) WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF SUCH PROCEEDING, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6(i).
(j) Termination. This Agreement shall terminate automatically without
any action on the part of the parties hereto and shall have no further force
or effect from and after the Expiration Time, and thereafter there shall be no
liability or obligation on the part of the Stockholder; provided, that no such
termination shall relieve any party from liability for any breach of this
Agreement prior to such termination.
(k) Amendment. Any provision of this Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by each of the parties hereto, or in the case of a
waiver, by the party against which the waiver is to be effective.
Notwithstanding the foregoing, no failure or delay by any party hereto in
exercising any right hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
of any right hereunder.
(l) No Ownership Interest; No Joint Venture; No Fiduciary Duties.
Nothing contained in this Agreement shall be deemed to vest in Parent or any
of its affiliates any direct or indirect ownership or incidence of ownership
of or with respect to any Shares. All rights, ownership and economic benefits
of or relating to the Shares shall remain vested in and belong to Stockholder,
and Parent and its affiliates shall have no authority to manage, direct,
superintend, restrict, regulate, govern or administer any of the policies or
operations of Company, except as otherwise provided in the Merger Agreement
or exercise any power or authority of the Stockholder in the voting of any of
the Shares. Nothing in this Agreement shall be interpreted as creating or
forming a “group” between Stockholder and Parent for purposes of Rule
13d-5(b)(1) under the Exchange Act or any other similar provision of applicable
law. This Agreement is not intended to, and does not, create any agency,
partnership, fiduciary or joint venture relationship between or among any
of the parties hereto or any of their Affiliates with respect to the Merger
Agreement or any of the transactions contemplated thereby and neither this
Agreement nor any other document or agreement entered into by any party hereto
relating to the subject matter hereof shall be construed to suggest otherwise.
Parent acknowledges and agrees that Stockholder owes no fiduciary duties to
Parent or any of its Affiliates as a result of, or in connection with, this
Agreement, the Merger Agreement or the transactions contemplated thereby.
Stockholder is entering into this Agreement solely in its capacity as the
holder of the Shares indicated on the signature page hereof, and nothing
herein shall limit or affect any actions taken by, or otherwise obligate,
Stockholder or its affiliates in any other capacity.
(m) Most Favored Nation. In the event that Parent or any of its
affiliates enters into any voting agreement with any other stockholder of the
Company with respect to the Merger that contains termination or liquidity
provisions that are more favorable in any material respect, or any other
provisions that are more favorable in the aggregate in any material respect,
to such stockholder than those applicable to Stockholder under this Agreement,
Parent shall promptly offer to amend this Agreement in such a way so that
this Agreement is more favorable in such respects.
(n) No MNPI. Parent agrees that, so long as Stockholder owns any
Shares, it will not (and will cause its affiliates, employees, agents,
attorneys, advisors and other representatives to not) disclose to Stockholder
any material non-public information regarding the Company, other than the
existence and terms of this Agreement and the Merger Agreement as of the
date hereof.
(o) Rules of Construction. The parties hereto agree that they have
been represented by counsel during the negotiation, preparation and execution
of this Agreement and, therefore, waive the application of any law, regulation,
holding or rule of construction providing that ambiguities in an agreement
or other document shall be construed against the party drafting such
agreement or document.
(p) Additional Documents, Etc. Stockholder shall execute and
deliver any additional documents reasonably necessary to carry out the purpose
and intent of this Agreement. The Stockholder shall give Parent prompt
written notice of (i) the occurrence of any fact, event or circumstance that
causes any representation or warranty of the Stockholder set forth in this
Agreement to be untrue or inaccurate in any material respect and (ii) any
failure of the Stockholder to comply with or satisfy in any material respect
any covenant or agreement to be complied with or satisfied by it under this
Agreement.
(q) Covenant Not to Sue. Stockholder agrees not to commence, join in,
facilitate, assist or encourage, and agrees to take all actions necessary to
opt out of any class in any class action with respect to, any claim, derivative
or otherwise, against the Company, Merger Sub, Parent or any of their
respective successors or directors (a) challenging the validity of, or seeking
to enjoin the operation of, any provision of this Agreement or (b) alleging a
breach of any fiduciary duty of any person in connection with the evaluation,
negotiation or entry into the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement
to be executed as of the date first above written.
AKKR GREEN PARENT, LLC
By: /s/ Dean Jacobson
Name:
Title:
STOCKHOLDER:
RGM CAPITAL, LLC
