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Exhibit
10.1
Execution
Version
MUTUAL TERMINATION AGREEMENT
AND RELEASE
This MUTUAL TERMINATION
AGREEMENT AND RELEASE dated as of October 1, 2007 (this
“ Agreement ”) is made and entered into by and
among Axio Holdings LLC, a Delaware limited liability company
(“ Newco ”), Axio Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Newco (“
Merger Sub ”), Acxiom Corporation, a Delaware
corporation (“ Company ”), ValueAct Capital
Master Fund, L.P., a British Virgin Islands limited partnership
(“ ValueAct ”), Silver Lake Partners II, L.P., a
Delaware limited partnership (“ SLP II ”),
Silver Lake Partners III, L.P., a Delaware limited partnership
(“ SLP III ”, and together with SLP II, “
Silver Lake ”), and UBS Loan Finance LLC, UBS
Securities LLC, Morgan Stanley Senior Funding, Inc. and Morgan
Stanley & Co. Incorporated (the “ Bank
Parties ”). Each of the foregoing are collectively
referred to herein as the “Parties” and each
individually as a “Party.” Unless defined herein,
capitalized terms have the meaning given them in the Merger
Agreement (as defined below).
WHEREAS, the Company, Newco
and Merger Sub entered into an Agreement and Plan of Merger dated
as of May 16, 2007 (the “ Merger Agreement
”) pursuant to which, subject to the terms and conditions
stated therein, Merger Sub was to merge with and into Company and
Company was to continue as the surviving corporation and a
wholly-owned subsidiary of Newco (the “ Merger
”);
WHEREAS,
(a) contemporaneously with the execution of the Merger
Agreement, (i) the Company and ValueAct entered into the
Voting Agreement, (ii) each of Silver Lake and ValueAct
entered into a Guarantee, (iii) each of SLP II and ValueAct
entered into an Equity Commitment Letter, and (iv) each of
Newco, the Bank Parties and Bank of America, N.A. and Banc of
America Securities LLC entered into (A) a Bank Facilities
Commitment Letter, as amended and restated as of June 19, 2007
(the “ Commitment Letter ”) and (B) a Bank
Facilities Fee Letter, as amended and restated as of June 19,
2007 (such Agreements listed in (i) through (iv), the “
Ancillary Agreements ”) and (b) on
September 5, 2007, SLP II and SLP III entered into a letter
agreement whereby SLP III formalized its prior agreement with SLP
II to assume 85% of SLP II’s obligations under its Equity
Commitment Letter, which letter agreement for the avoidance of
doubt shall not be affected by this Agreement and shall remain in
place between SLP II and SLP III;
WHEREAS, Section 8.1(a)
of the Merger Agreement provides that the Merger Agreement may be
terminated at any time prior to the Effective Time by mutual
written consent of Newco and Company; and
WHEREAS, each of Newco and
Company have agreed to terminate the Merger Agreement, and each of
the parties to each of the Ancillary Agreements have agreed to
terminate such agreements, in each case, as and to the extent
provided herein and release each other from all duties, rights,
claims, obligations and liabilities arising from, in connection
with, or relating to, the Merger Agreement and the Ancillary
Agreements, all as and to the extent provided herein.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth in
this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound, agree as
follows:
1. Termination of Merger
Agreement and Other Agreements .
(a) In consideration of the
agreements made by the Company under this Agreement, Silver Lake
and ValueAct, shall pay, or cause to be paid, to the Company an
aggregate amount of $65,000,000.00 (collectively, the “
Payment ”) no later than 5:00 p.m. Central Daylight
Time on October 31, 2007 (the “ Payment Time
”), with Silver Lake paying, or causing to be paid
$32,500,000.00 and ValueAct paying, or causing to be paid
$32,500,000.00. As evidence of such payment, Silver Lake shall,
concurrently with the execution of this Agreement, enter into a
promissory note in the form attached hereto as Annex A (the
“ Silver Lake Promissory Note ”), which
promissory note is in the principal amount of $32,500,000.00 and
ValueAct shall, concurrently with the execution of this Agreement,
enter into a promissory note in the form attached hereto as
Annex B (the “ ValueAct Promissory Note ”
and together with the Silver Lake Promissory Note, the “
Promissory Notes ”), which promissory note is in the
principal amount of $32,500,000.00 (such that the aggregate payment
to the Company by Silver Lake and ValueAct pursuant to the terms of
the Promissory Notes shall equal the amount of the Payment plus
accrued interest thereon, if any). No later than the Payment Time,
Silver Lake and ValueAct shall, in accordance with the terms of the
Promissory Note, pay, or cause to be paid, the Payment to the
Company by wire transfer of immediately available funds to an
account specified in writing by the Company.
(b) The parties agree that,
effective immediately, (a) the Merger Agreement is hereby
terminated pursuant to Section 8.1(a) of the Merger Agreement
and (b) the Ancillary Agreements (other than those provisions
of the Commitment Letter which by their terms survive the
termination of the Commitment Letter) are hereby terminated, and
none of such agreements (other than those provisions of the
Commitment Letter which by their terms survive the termination of
the Commitment Letter) will be of any further force or effect as of
the date hereof, including, without limitation, with respect to the
provisions (other than such provisions of the Commitment Letter) of
those agreements which by their terms would otherwise have survived
the termination of such agreements.
(c) The Parties acknowledge
that the Company and ValueAct previously executed a letter
agreement dated April 24, 2007 (the “ Confidentiality
Agreement ”) and that Silver Lake Management Company,
L.L.C. executed a joinder agreement to the Confidentiality
Agreement dated May 1, 2007 (together, the “
Confidentiality Documents ”). Notwithstanding the
termination of the Merger Agreement, the Confidentiality Documents
will continue in full force and effect in accordance with their
terms, except that such Confidentiality Documents are hereby deemed
to be amended to provide that both Silver Lake and ValueAct can and
shall place, in escrow with their respective outside legal counsel,
(i) all Proprietary Information (as defined in the
Confidentiality Documents) received by it or any Related Parties
(as defined below) from the Company, (ii) all analyses,
compilations, summaries, studies and other materials prepared by it
based in whole or in part on, or otherwise containing or reflecting
any of the Proprietary Information, and (iii) all third party
reports that came into possession of, that were purchased by or
that were otherwise obtained by Silver Lake and ValueAct in
connection with the transactions
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contemplated by the Merger Agreement;
provided , however , that with respect to any third
party report referred to above, Silver Lake and ValueAct shall
transfer to the Company all ownership rights in and to such third
party report (subject to the receipt of any third party consent
necessary to transfer such ownership rights). Each of Silver Lake
and ValueAct agree to use their reasonable best efforts to obtain
any third party consent necessary for such Party to transfer the
ownership rights referred to in the foregoing sentence;
provided that neither Silver Lake nor ValueAct shall be
required to pay any fees to any third party to obtain any such
third party consent. Silver Lake and ValueAct further agree that
with respect to the foregoing, any documents and information placed
in escrow shall only be released from escrow if requested pursuant
to, or required by, applicable law or regulation, or by legal or
regulatory process (a “ Regulatory Request ”)
and in such event, Silver Lake and ValueAct shall provide
reasonable advance notice to the Company prior to any such release;
provided , that in the event that any documents or
information placed in escrow are released therefrom pursuant to a
Regulatory Request, any and all released documents or information
shall be accompanied by a written notice delivered to the receiving
party informing such party that the documents and information are
subject to the Confidentiality Documents; and provided
further , that each of Silver Lake and ValueAct shall
cooperate with the Company in any attempt by the Company to seek
relief to keep such documents and information
confidential.
(d) The Company and ValueAct
acknowledge that the Company and VA Partners, LLC, ValueAct Capital
Master Fund, L.P., ValueAct Capital Management, L.P. and ValueAct
Capital Management, LLC, previously executed an Agreement, dated
August 5, 2006, as amended by Amendment No. 1 and
Amendment No. 2 (the “ Standstill Agreement
”). Notwithstanding the termination of the Merger Agreement,
the Standstill Agreement will continue in full force and effect in
accordance with its terms.
(e) The Company and ValueAct
acknowledge that the Company and Jeffrey W. Ubben previously
executed an Indemnity Agreement, dated August 5, 2006 (the
“ Indemnity Agreement ”). Notwithstanding the
termination of the Merger Agreement, the Indemnity Agreement will
continue in full force and effect in accordance with its
terms.
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2. Mutual Release
.
(a) Each Party, for and on
behalf of itself and its Related Parties (other than its agents,
representatives, advisors and shareholders unless such agent,
representative, advisor or shareholder falls within another
category of a Related Party), does hereby unequivocally release and
discharge, and hold harmless, each other Party and any of their
respective former, current or future officers, directors, agents,
advisors, representatives, managers, members, partners,
shareholders, employees, Subsidiaries, Affiliates (including,
without limitation, controlling persons), employees of Affiliates,
principals, and any heirs, executors, administrators, successors or
assigns of any said person or entity (the “ Related
Parties ”), from any and all actions, causes of action,
choses in action, cases, claims, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances,
trespasses, injuries, harms, damages, judgments, remedies, extents,
executions, demands, liens and liabilities whatsoever, in law,
equity or otherwise, whether made directly or derivatively
(collectively, “ Actions ”), that in any way
arises from or out of, are based upon, or are in connection with or
relate to: the Merger Agreement or the Ancillary Agreements or the
transactions contemplated thereby; any breach, non-performance,
action or failure to act under the Merger Agreement, the Ancillary
Agreements or in connection therewith; the events leading to the
abandonment of the Merger and the termination of the Merger
Agreement and the Ancillary Agreements; any transaction or
potential transaction involving the sale of the Company; or any
press release, public disclosure or private communication relating
to the Merger Agreement or the Ancillary Agreements or the
transactions contemplated thereby that has been released, disclosed
or communicated in the past or is to be released, disclosed or
communicated in connection with the execution of this Agreement,
including but not limited to the press release described in
Annex C hereto, or in connection with any such press
release, public disclosure or private communication that is
released, disclosed or communicated in the future provided it is
done in compliance with Sections 4 and 5 of this Agreement, in each
case, which have been asserted against a Party or any of its
Related Parties or which, whether currently known or unknown, such
Party or its Related Parties, or any successors or assigns of any
said Persons, ever could have asserted or ever could assert, in any
capacity, against the other Parties or their respective Related
Parties, in any capacity, relating to any claims, or any
transactions and occurrences from any time in connection with the
foregoing (collectively, the “ Released Claims
”); provided , however , (i) no Party
shall be released from any breach of this Agreement and no Party
shall be released from its obligations under the Promissory Note
executed by such Party, (ii) unless otherwise provided
hereunder, no party to the Confidentiality Documents shall be
released from any Actions which may arise thereunder, (iii) no
party to the Standstill Agreement shall be released from any
Actions which may arise thereunder, and (iv) no party to the
Indemnity Agreement shall be released from any Action which may
arise thereunder; provided further , that any Actions
which may arise in accordance with preceding clauses (i), (ii),
(iii) and (iv) are explicitly excluded from the
definition of Released Claims.
(b) It is understood and
agreed that the preceding parag
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