Exhibit (d)(2)
STOCKHOLDER TENDER AND VOTING AGREEMENT
Among
REUTERS GROUP PLC
PROTON ACQUISITION CORPORATION
and
THE INDIVIDUALS LISTED ON THE SIGNATURE PAGES HEREOF
Dated as of February 17, 2003
TABLE OF CONTENTS
ARTICLE I
TENDER OF SHARES; VOTING; EXPIRATION
Section 1.1 Tender of Shares........................................... 1
Section 1.2 Voting..................................................... 2
Section 1.3 Proxy...................................................... 2
Section 1.4 Expiration................................................. 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
Section 2.1 Valid Title................................................ 2
Section 2.2 Authority; Noncontravention................................ 2
Section 2.3 Total Shares............................................... 3
Section 2.4 Finder's Fees.............................................. 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Section 3.1 Corporate Power and Authority.............................. 3
ARTICLE IV
COVENANTS OF THE STOCKHOLDER
Section 4.1 Covenants of the Stockholder............................... 4
Section 4.2 Further Assurances......................................... 4
ARTICLE V
MISCELLANEOUS
Section 5.1 Expenses................................................... 5
Section 5.2 Specific Performance....................................... 5
Section 5.3 Notices.................................................... 5
Section 5.4 Amendments................................................. 6
Section 5.5 Assignment................................................. 6
Section 5.6 Governing Law.............................................. 6
Section 5.7 Counterparts............................................... 6
Section 5.8 Interpretation............................................. 7
Section 5.9 Stop Transfer Restriction.................................. 7
Section 5.10 Entire Agreement; No Third Party Beneficiaries............. 7
Section 5.11 Stockholder Capacity....................................... 7
Section 5.12 Validity................................................... 7
Section 5.13 Nonsurvival of Representations and Warranties.............. 8
Section 5.14 Jurisdiction............................................... 8
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STOCKHOLDER TENDER AND VOTING AGREEMENT
STOCKHOLDER TENDER AND VOTING AGREEMENT dated as of February 17,
2003 (as the same may be amended from time to time, this "Agreement") among
Reuters Group PLC, a public limited company organized under the laws of England
and Wales ("Parent"), Proton Acquisition Corporation, a Delaware corporation and
an indirect wholly owned subsidiary of Parent ("Purchaser"), and each individual
listed on the signature pages of this Agreement (each, a "Stockholder" and
collectively, the "Stockholders"), each a beneficial owner of Company Common
Stock of Xxxxxx.xxx, Inc., a Delaware corporation (the "Company").
WHEREAS, in order to induce Parent and Purchaser to enter into the
Agreement and Plan of Merger dated as of the date hereof with the Company (the
"Merger Agreement"), Parent and Purchaser have requested that each Stockholder,
and each Stockholder has agreed, to enter into this Agreement;
WHEREAS, each Stockholder, Parent and Purchaser desire to make
certain representations, warranties, covenants and agreements in connection with
this Agreement; and
WHEREAS, capitalized terms used but not defined herein shall have
the respective meanings ascribed to such terms in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE I
TENDER OF SHARES; VOTING; EXPIRATION
Section 1.1 Tender of Shares. Promptly, but in any event no later
than fifteen (15) business days following the commencement of the Offer, each
Stockholder shall tender (or cause the relevant record holder(s) to tender) in
the Offer, and, to the extent consistent with applicable law, not withdraw or
cause to be withdrawn, any or all shares of Company Common Stock currently
beneficially owned by that Stockholder and any additional shares of Company
Common Stock with respect to which that Stockholder becomes the beneficial owner
(including, without limitation, whether by purchase, by the exercise of Options
or otherwise) after the date of this Agreement (collectively, but excluding any
shares that are disposed of in compliance with Section 4.1(a), the "Subject
Shares"), provided, however that (i) the Stockholder shall not be required for
purposes of this Agreement to exercise any unexercised Options held by that
Stockholder; and (ii) a Stockholder shall not have any obligation under this
Section 1.1 to tender his Subject Shares into the Offer if that tender would
cause him to incur liability under Section 16(b) of the Exchange Act.
Section 1.2 Voting. If his Subject Shares have not been previously
accepted for payment and paid for by Purchaser pursuant to the Offer, then each
Stockholder hereby agrees that at any meeting of the stockholders of the
Company, however called, or in any written consent in lieu thereof, he shall, or
shall cause the record holder(s) of his Subject Shares, to vote his Subject
Shares (i) in favor of the Merger and (ii) against any action or agreement that
would impede, interfere with, delay, postpone, discourage or adversely affect
the Merger or the Offer, including, but not limited to any agreement or
arrangement related to a Takeover Proposal.
Section 1.3 Proxy. Each Stockholder hereby grants to Purchaser, and
to each officer of the Parent, a proxy to vote his Subject Shares as indicated
in Section 1.2. Each Stockholder intends this proxy to be, and this proxy is,
irrevocable and coupled with an interest and each Stockholder will immediately
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy and hereby revokes any proxy previously
granted by him with respect to his Subject Shares.
Section 1.4 Expiration. This Agreement and the rights and
obligations of the respective parties hereto under this Agreement shall
terminate, and be of no further force or effect, on the earliest to occur of (A)
the Effective Time, (B) the termination of this Agreement by written notice from
the Parent to the Stockholder and (C) the termination of the Merger Agreement in
accordance with its terms; provided that Sections 5.1, 5.3, 5.6, 5.8, 5.10,
5.11, 5.12, 5.13 and 5.14 shall survive any such termination.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
Each Stockholder represents and warrants to Parent and Purchaser as
to himself, severally and not jointly, as follows:
Section 2.1 Valid Title. He is the sole, true, lawful and beneficial
owner of his Subject Shares with no restrictions on his rights of disposition
pertaining thereto, except for any applicable restrictions on transfer under the
Securities Act.
Section 2.2 Authority; Non-Contravention. He has the requisite power
and authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement by
him and the consummation by him of the transactions contemplated by this
Agreement have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person). This
Agreement has been duly executed and delivered by that Stockholder and
constitutes a valid and binding obligation of such Stockholder, enforceable
against him in accordance with its terms, subject, as to enforcement, to
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and
similar laws relating to creditors' rights and to general principles of equity.
The execution and delivery of this Agreement by that Stockholder does not, and
the consummation of the transactions contemplated of him by this Agreement and
compliance by him with the provisions of this Agreement will not, conflict with
or result in any violation of, or default (with or without
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notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under, or result in the creation of any lien upon any of his properties
or assets under, any provision of applicable law or regulation or of any
agreement, judgment, injunction, order, decree or other instrument binding on
the Stockholder. No consent, approval, order or authorization of, or
registration, declaration or filing with or exemption by any Governmental Entity
is required by or with respect to him in connection with his execution and
delivery of this Agreement or the consummation by him of the transactions
contemplated by this Agreement, except for applicable requirements, if any,
under the Exchange Act and the rules and regulations thereunder.
Section 2.3 Total Shares. Except to the extent of any Subject Shares
acquired after the date hereof (which shall become Subject Shares upon that
acquisition), the number of shares of Company Common Stock set forth on the
signature page hereto opposite the name of that Stockholder are the only shares
of Company Common Stock beneficially owned by him, on the date of this
Agreement. Other than the Subject Shares set forth on the signature page and on
Schedule 2.3, he does not own any shares or options to purchase or rights to
subscribe for or otherwise acquire any securities of the Company and has no
other interest in or voting rights with respect to any securities of the
Company.
Section 2.4 Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Parent, Purchaser, the Company or any of
their respective affiliates in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of the Stockholder, other than
Bear, Xxxxxxx & Co., Inc. whose fees and expenses will be paid by the Company.
Section 2.5 Proxy. None of the Subject Shares are subject to any
voting agreement or proxy on the date of this Agreement, except pursuant to this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PARENT AND PURCHASER
Parent and Purchaser represent and warrant to each Stockholder that:
Section 3.1 Corporate Power and Authority. Parent and Purchaser each
have all requisite corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated by this Agreement. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of each of Parent and Purchaser. This Agreement has
been duly executed and delivered by each of Parent and Purchaser and constitutes
a valid and binding obligation of each of Parent and Purchaser, respectively,
enforceable against each of them in accordance with its terms, subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance and similar laws relating to creditors' rights and to general
principles of equity.
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ARTICLE IV
COVENANTS OF THE STOCKHOLDER
Section 4.1 Covenants of the Stockholder. Each Stockholder agrees as
to himself, severally and not jointly, as follows:
(a) Except as contemplated by the terms of this Agreement, he shall
not:
(i) sell, transfer, pledge, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, assignment
or other disposition of, his Subject Shares to any person, other
than Purchaser or Purchaser's designee; provided, however, that (A)
the restrictions contained in this Section 4.1(a)(i) shall terminate
on May 17, 2003 with respect to each Stockholder (except Xxxxx
Xxxxxx) and (B) three months prior to the expiration of any Option
in accordance with its terms, the Stockholder who is the holder of
that Option may sell, transfer, pledge, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, assignment
or other disposition of, any Subject Shares in connection with the
exercise (cashless or otherwise) of that Option in an amount that is
sufficient to satisfy the payment of any transaction costs and any
tax liability incurred by the Stockholder in connection with such
exercise. Any attempted transfer or other disposition in violation
of this Section 4.1(a)(i) shall be null and void;
(ii) enter into, or otherwise subject his Subject Shares
to, any voting arrangement, whether by proxy, voting agreement,
voting trust, power-of-attorney or otherwise, with respect to his
Subject Shares; or
(iii) take any other action that would in any way
restrict, limit or interfere with the performance of his obligations
hereunder or the transactions contemplated to be performed by him
hereunder.
(b) He hereby irrevocably and unconditionally waives, and agrees to
prevent the exercise of, any rights of appraisal or rights to dissent in
connection with the Merger that he may have with respect to his Subject Shares.
Section 4.2 Further Assurances. Each Stockholder will, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further transfers, assignments, endorsements, consents and other
instruments as Parent or Purchaser may reasonably request for the purpose of
effectively carrying out the transactions contemplated by this Agreement and to
vest the power to vote his Subject Shares as contemplated by Section 1.3. Parent
and Purchaser jointly and severally agree to use reasonable best efforts to
take, or cause to be taken, all actions necessary to comply promptly with all
legal requirements that may be imposed with respect to the transactions
contemplated by this Agreement.
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ARTICLE V
MISCELLANEOUS
Section 5.1 Expenses. All costs and expenses incurred by any party
in connection with this Agreement shall be paid by the party incurring such cost
or expense.
Section 5.2 Specific Performance. The parties hereto agree that if
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached, irreparable damage would occur,
no adequate remedy at law would exist and damages would be difficult to
determine, and that the parties will be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or equity.
Section 5.3 Notices. All notices and other communications hereunder
will be in writing and will be deemed given if delivered personally, telecopied
(which is confirmed) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as is specified by like notice):
(a) if to Purchaser or Parent to:
Proton Acquisition Corporation
c/o Reuters America, Inc.
3 Times Square - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Attention: General Counsel
Telecopy No.: 000-000-0000
Reuters Group PLC
0xx Xxxxx
00 Xxxxx Xxxxxx
Xxxxxx
Xxxxxx Xxxxxxx
Attention: General Counsel
Telecopy No.: 011-44-207-542-5896
with copies to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxxx
Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
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(b) if to any given Stockholder, to the relevant Stockholder at his
address on the books of the Company.:
with copies to:
Xxxxx, Polk & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopy No.: (000) 000-0000
or to any other address or facsimile number as that party may hereafter specify
for this purpose by notice to the other parties. All such notices, requests and
other communications shall be deemed received on the date of receipt by the
recipient thereof if received before 5 p.m. on a business day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding business day in the place of
receipt.
Section 5.4 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
Section 5.5 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder will be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of each of the other parties and any such purported assignment
without such prior written consent shall be null and void; provided, however,
that Purchaser and Parent may assign this Agreement and any of their respective
rights, interests and obligations hereunder to any of their respective direct or
indirect Subsidiaries without such prior written consent, but no such assignment
shall relieve either such party of its obligations under this Agreement. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns. Each Stockholder agrees as to himself, severally and not jointly, that
this Agreement and his obligations hereunder shall attach to his Subject Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of such Subject Shares shall pass, whether by operation of law or
otherwise, including each Stockholder's heirs, guardians, administrators or
successors.
Section 5.6 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE, EXECUTED, DELIVERED AND PERFORMED WHOLLY WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO ANY APPLICABLE PRINCIPLES OF CONFLICTS OF LAW, EXCEPT AS
OTHERWISE REQUIRED BY THE DGCL.
Section 5.7 Counterparts. This Agreement may be executed in two or
more counterparts, all of which will be considered one and the same agreement
and will
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become effective when two or more counterparts have been signed by each of the
parties and delivered to the other parties, it being understood that all parties
need not sign the same counterpart.
Section 5.8 Interpretation. When a reference is made in this
Agreement to a Section, such reference will be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement they will be deemed to be followed by the
words "without limitation". References to the "Company" include the Subsidiaries
of the Company unless the context clearly requires otherwise. The phrases "the
date of this Agreement", "the date hereof" and terms of similar import, unless
the context otherwise requires, will be deemed to refer to February 17, 2003. As
used in this Agreement, the term "affiliate" shall have the meaning set forth in
Rule 12b-2 of the Exchange Act; provided that in no event will Parent or
Purchaser, on the one hand, or the Company or any of its Subsidiaries, on the
other, be considered an affiliate of the other such party(ies).
Section 5.9 Stop Transfer Restriction. In furtherance of this
Agreement, each Stockholder shall and hereby does authorize Purchaser's counsel
to notify the Company's transfer agent that there is a stop transfer restriction
with respect to all of his Subject Shares (and that this Agreement places limits
on the voting and transfer of his shares); provided, however, that (a) each such
notification to the Company's transfer agent in accordance with this Section 5.9
shall provide that the relevant stop transfer restriction shall not limit the
exercise by that Stockholder of his Options, or the transfer of his Subject
Shares in compliance with Section 4.1, and (b) any such stop transfer
restrictions shall, with respect to each Stockholder (except Xxxxx Xxxxxx),
terminate and be of no further force or effect on and after May 17, 2003.
Section 5.10 Entire Agreement; No Third Party Beneficiaries. This
Agreement (i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
Section 5.11 Stockholder Capacity. By executing and delivering this
Agreement, each Stockholder makes no agreement or understanding herein in his
capacity or actions as a director, officer or employee of the Company or any
subsidiary of the Company. Each Stockholder is signing and entering into this
Agreement solely in his capacity as the beneficial owner of his Subject Shares,
and nothing herein shall limit or affect in any way any actions that may be
hereafter taken by him in his capacity as an employee, officer or director of
the Company or any Subsidiary of the Company.
Section 5.12 Validity. The invalidity or unenforceability of any
provision of this Agreement will not affect the validity or enforceability of
any other provisions
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hereof, which will remain in full force and effect. Upon any determination that
any term or other provision is invalid or incapable of being enforced, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in order that the
transactions contemplated by this Agreement may be consummated as originally
contemplated to the fullest extent possible.
Section 5.13 Nonsurvival of Representations and Warranties. None of
the representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement will survive the Effective Time or any
termination of this Agreement. This Section 5.13 shall not limit any covenant or
agreement of a party that by its terms expressly contemplates performance after
the Effective Time.
Section 5.14 Jurisdiction. Each of Parent, Purchaser and each
Stockholder as to himself hereby expressly and irrevocably submits to the
non-exclusive personal jurisdiction of the United States District Court for the
District of Delaware and to the jurisdiction of any other competent court of the
State of Delaware (collectively, the "Delaware Courts"), preserving, however,
all rights of removal to such federal court under 28 U.S.C. Section 1441, in
connection with all disputes arising out of or in connection with this Agreement
or the transactions contemplated hereby and agrees not to commence any
litigation relating thereto except in such courts. Each such party hereby waives
the right to any other jurisdiction or venue for any litigation arising out of
or in connection with this Agreement or the transactions contemplated hereby to
which any of them may be entitled by reason of its present or future domicile.
Notwithstanding the foregoing, each such party agrees that each of the other
parties shall have the right to bring any action or proceeding for enforcement
of a judgment entered by the Delaware Courts in any other court or jurisdiction.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, Parent, Purchaser and each Stockholder have
caused this Agreement to be signed, in the case of Parent and Purchaser, by
their respective officers thereunto duly authorized, as of the date first
written above.
REUTERS GROUP PLC
By: /s/ Xxxxxxxxxxx Xxxxxx
-------------------------------
Name: XXXXXXXXXXX XXXXXX
Title: ATTORNEY-IN-FACT
PROTON ACQUISITION CORPORATION
By: /s/ Xxxxxxxxxxx Xxxxxx
-------------------------------
Name: XXXXXXXXXXX XXXXXX
Title: PRESIDENT
Class of Stock Shares Owned
-------------- ------------
Common Stock 950,771 XXXXX XXXXXX
By: /s/ I. Karaev
------------------
Class of Stock Shares Owned
-------------- ------------
Common Stock 183,829 XXXX X. XXXXXXX
By: /s/ Xxxx X. Xxxxxxx
------------------------
Name: Xxxx X. Xxxxxxx
Title: CTO-SVP Xxxxxx.xxx, Inc.
Class of Stock Shares Owned
-------------- ------------
Common Stock 31,804 XXXXXXX XXXXXXXX
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: SVP, Product Development
Class of Stock Shares Owned
-------------- ------------
Common Stock 18,445 XXXXX X. XXXXXXXX
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: EVP, Corporate Development
Class of Stock Shares Owned
-------------- ------------
Common 11,002 XXXXXXXXXXX X. XXXXXX
By: /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------
Class of Stock Shares Owned
-------------- ------------
Common 9,083 XXXXXXX X. XXXXXXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
--------------------------------
Class of Stock Shares Owned
-------------- ------------
Restricted Common Stock 4,974 XXXXXX XXXX
By: /s/ Xxxxxx Xxxx
------------------
