EXHIBIT 2
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT (this "Agreement") is made and entered into
as of June 23, 1999 between Xxxxxx.xxx, Inc., a Delaware corporation ("Parent"),
and the undersigned stockholder ("Stockholder") of Market Guide Inc., a New York
corporation ("Company"). Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in the Reorganization Agreement
described below.
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger and
Reorganization dated as of June 23, 1999 by and among Parent, Merengue
Acquisition Corp., a New York corporation and a wholly owned subsidiary of
Parent ("Merger Sub") and Company (such agreement as it may be amended is
hereinafter referred to as the "Reorganization Agreement"), Parent has agreed to
acquire the outstanding securities of Company pursuant to a statutory merger of
Merger Sub with and into Company (the "Merger") in which each outstanding share
of capital stock of Company (the "Company Capital Stock") will be converted into
shares of common stock of Parent (the "Parent Shares") at the exchange rate set
forth in the Reorganization Agreement (the "Transaction");
WHEREAS, in order to induce Parent to enter into the Reorganization
Agreement and consummate the Transaction, Company has agreed to use its
reasonable best efforts to cause each stockholder of Company who is an affiliate
of Company to execute and deliver to Parent a Stockholder Agreement upon the
terms set forth herein; and
WHEREAS, Stockholder is the registered and beneficial owner of such
number of shares of the outstanding capital stock of Company as is indicated on
the signature page of this Agreement (the "Shares").
NOW, THEREFORE, the parties agree as follows:
1. Agreement to Retain Shares.
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1.1 Transfer and Encumbrance.
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(a) Stockholder represents and warrants to Parent that (w)
Stockholder is the beneficial owner of the Shares; (x) the Shares constitute
Stockholder's entire interest in the outstanding capital stock and voting
securities of Company; (y) the Shares are, and will be at all times up until the
Expiration Date, free and clear of any liens, claims, options, charges or other
encumbrances; and (z) Stockholder's principal residence or place of business is
accurately set forth on the signature page hereto.
(b) Stockholder agrees not to transfer (except as may be specifically
required by court order or by operation of law, in which case any such
transferee shall agree to be bound hereby), sell, exchange, pledge or otherwise
dispose of or encumber any Shares or any New Shares (as defined below), or to
make any offer or agreement relating thereto, at any time prior to the
Expiration Date. As used herein, the term "Expiration Date" shall mean the
earlier to
occur of (i) the Effective Time (as defined in the Reorganization Agreement) or
(ii) termination of the Reorganization Agreement in accordance with the terms
thereof.
1.2 New Shares. Stockholder agrees that any shares of capital stock
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or voting securities of Company that Stockholder purchases or with respect to
which Stockholder otherwise acquires beneficial ownership after the date of this
Agreement and prior to the Expiration Date ("New Shares") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. Agreement to Vote Shares. Prior to the Expiration Date, at
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every meeting of the stockholders of Company at which any of the following is
considered or voted upon, and at every adjournment thereof, and on every action
or approval by written resolution of the stockholders of Company with respect to
any of the following, Stockholder shall vote the Shares and any New Shares,
subject to the absence of a preliminary or permanent injunction or other final
order by any United States federal, state or foreign court barring such action,
in favor of approval and adoption of the Reorganization Agreement and of the
Transaction and against any transaction that may prevent or materially impede
the Transaction. Notwithstanding the foregoing, nothing in this Agreement shall
limit or restrict Stockholder from acting in his capacity as a director or
officer of Company, to the extent applicable, it being understood that this
Agreement shall apply to Stockholder solely in his capacity as a stockholder of
Company.
3. Irrevocable Proxy. Stockholder hereby agrees to timely deliver
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to Parent a duly executed proxy in the form attached hereto as Annex A (the
"Proxy"), such Proxy to cover the Shares and all New Shares in respect of which
Stockholder is entitled to vote at each meeting of the stockholders of Company
(including, without limitation, each written consent in lieu of a meeting) prior
to the Expiration Date. In the event that Stockholder is unable to provide any
such Proxy in a timely manner, Stockholder hereby grants Parent a power of
attorney up to and through the Expiration Date to execute and deliver such Proxy
for and on behalf of Stockholder, such power of attorney, which being coupled
with an interest, shall survive any death, disability, bankruptcy, or any other
such impediment of Stockholder. Upon the execution of this Agreement by
Stockholder, Stockholder hereby revokes any and all prior proxies or powers of
attorney given by Stockholder with respect to the Shares and agrees not to grant
any subsequent proxies or powers of attorney with respect to the Shares until
after the Expiration Date.
4. Representations, Warranties and Covenants of Stockholder.
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Stockholder hereby represents, warrants and covenants to Parent as follows:
(a) Stockholder has full power and legal capacity to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes the valid and binding
obligation of Stockholder, enforceable against Stockholder in accordance with
its terms. Except as may be limited by (i) the effect of bankruptcy, insolvency,
conservatorship, arrangement, moratorium or other laws affecting or relating to
the rights of creditors generally, or (ii) the rules governing the availability
of specific performance, injunctive relief or other equitable remedies and
general principles of equity, regardless of whether considered in a proceeding
in equity or at law, the execution and delivery of this Agreement by Stockholder
does not, and the performance of Stockholder's obligations
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hereunder will not, result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any right to terminate, amend, accelerate or cancel any right or
obligation under, or result in the creation of any lien or encumbrance on any
Shares or New Shares pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Stockholder is a party or by which Stockholder or the Shares or New
Shares are or will be bound or affected.
(b) Until the Expiration Date, Stockholder will not (and will use
Stockholder's reasonable best efforts to cause Company, its affiliates,
officers, directors and employees and any investment banker, attorney,
accountant or other agent retained by Stockholder, Company or any of the same,
not to): (i) initiate or solicit, directly or indirectly, any proposal, plan or
offer to acquire all or any material part of the business or properties or
capital stock of Company, whether by merger, purchase of assets, tender offer or
otherwise, or to liquidate Company or otherwise distribute to the stockholders
of Company all or any substantial part of the business, properties or capital
stock of Company (each, an "Acquisition Proposal"); (ii) initiate, directly or
indirectly, any contact with any person in an effort to or with a view towards
soliciting any Acquisition Proposal; (iii) furnish information concerning
Company's business, properties or assets to any corporation, partnership, person
or other entity or group (other than Parent, or any associate, agent or
representative of Parent) under any circumstances that could reasonably be
expected to relate to an actual or potential Acquisition Proposal; or (iv)
negotiate or enter into discussions or an agreement, directly or indirectly,
with any entity or group with respect of any potential Acquisition Proposal. In
the event Stockholder shall receive or become aware of any Acquisition Proposal
subsequent to the date hereof, Stockholder shall promptly inform Parent as to
any such matter and the details thereof to the extent possible without breaching
any other agreement to which such Stockholder is a party or violating its
fiduciary duties.
(c) Stockholder understands and agrees that if Stockholder attempts
to transfer, vote or provide any other person with the authority to vote any of
the Shares other than in compliance with this Agreement, Company shall not, and
Stockholder hereby unconditionally and irrevocably instructs Company to not,
permit any such transfer on its books and records, issue a new certificate
representing any of the Shares or record such vote unless and until Stockholder
shall have complied with the terms of this Agreement.
5. Additional Documents. Stockholder hereby covenants and agrees
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to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent, to carry out the purpose and intent of this
Agreement.
6. Consent and Waiver. Stockholder hereby gives any consents or
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waivers that are reasonably required for the consummation of the Transaction
under the terms of any agreement to which Stockholder is a party or pursuant to
any rights Stockholder may have.
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7. Termination. This Agreement and the Proxy delivered in
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connection herewith shall terminate and shall have no further force or effect as
of the Expiration Date or the termination of the Reorganization Agreement in
accordance with its terms.
8. Confidentiality. Stockholder agrees (i) to hold any
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information regarding this Agreement and the Transaction in strict confidence,
and (ii) not to divulge any such information to any third person, except to the
extent any of the same is hereafter publicly disclosed by Parent and to the
Stockholder's agents or advisors in connection with the execution and
performance of this Agreement.
9. Miscellaneous.
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9.1 Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
9.2 Binding Effect and Assignment. This Agreement and all of the
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provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without the prior written consent of the other. This Agreement is
intended to bind Stockholder solely as a securityholder of Company only with
respect to the specific matters set forth herein.
9.3 Amendment and Modification. This Agreement may not be modified,
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amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
9.4 Specific Performance; Injunctive Relief. The parties hereto
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acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity and Stockholder hereby waives any and all defenses which could
exist in its favor in connection with such enforcement and waives any
requirement for the security or posting of any bond in connection with such
enforcement.
9.5 Notices. All notices, requests, demands or other communications
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that are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed to have been duly given if delivered by hand
or mailed by registered or certified mail, postage prepaid, or sent by facsimile
transmission, as follows:
(a) If to Stockholder, at the address set forth below Stockholder's
signature at the end hereof.
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(b) if to Parent, to:
Xxxxxx.xxx, Inc.
00 Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile No: (000) 000-0000
Telephone No: (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
9.6 Governing Law. This Agreement shall be governed by, construed
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and enforced in accordance with the internal laws of the State of New York
without giving effect to the principles of conflicts of law thereof.
9.7 Entire Agreement. This Agreement and the Proxy contain the
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entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
9.8 Counterpart. This Agreement may be executed in several
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counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9.9 Effect of Headings. The section headings herein are for
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convenience only and shall not affect the construction or interpretation of this
Agreement.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties have caused this Stockholder Agreement
to be executed as of the date first above written.
XXXXXX.XXX, INC. STOCKHOLDER
By:________________________________ ___________________________________
(Signature)
Name:______________________________
Title:_____________________________
___________________________________
(Signature of Spouse)
___________________________________
(Print Name of Stockholder)
___________________________________
(Print Xxxxxx Xxxxxxx)
___________________________________
(Print City, State and Zip)
___________________________________
(Print Telephone Number)
___________________________________
(Social Security or Tax I.D. Number)
Total Number of Shares of Company Common Stock owned on the date hereof:
Common Stock: ___________________________
State of Residence: ___________________________
SIGNATURE PAGE TO STOCKHOLDER AGREEMENT
ANNEX A
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IRREVOCABLE PROXY
TO VOTE STOCK OF
MARKET GUIDE INC.
The undersigned stockholder of Market Guide Inc., a New York
corporation ("Company"), hereby irrevocably appoints the members of the Board of
Directors of Xxxxxx.xxx, Inc., a Delaware corporation ("Parent"), and each of
them, or any other designee of Parent, up to and through the Expiration Date, as
the sole and exclusive attorneys and proxies of the undersigned, with full power
of substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Irrevocable Proxy. The Shares beneficially owned by the undersigned
stockholder of Company as of the date of this Irrevocable Proxy are listed on
the final page of this Irrevocable Proxy. Upon the undersigned's execution of
this Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the Shares until after the Expiration
Date (as defined below).
This Irrevocable Proxy is irrevocable, is coupled with an interest,
including, but not limited to, that certain Company Affiliate Agreement dated as
of even date herewith by and among Parent, and the undersigned, and is granted
in consideration of Parent entering into that certain Agreement and Plan of
Merger and Reorganization (the "Reorganization Agreement") by and among Parent
and Merengue Acquisition Corp., a New York corporation and a wholly owned
subsidiary of Parent ("Merger Sub"), and Company which Reorganization Agreement
provides for the merger of Merger Sub with and into Company (the "Merger"). As
used herein, the term "Expiration Date" shall mean the earlier to occur of (i)
such date and time as the Merger shall become effective in accordance with the
terms and provisions of the Reorganization Agreement, and (ii) the date of
termination of the Reorganization Agreement.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares as
indicated in Section 2 of the Stockholders Agreement, and to exercise all voting
rights of the undersigned with respect to the Shares (including, without
limitation, the power to execute and deliver written consents), at every annual,
special or adjourned meeting of the stockholders of Company and in every written
consent in lieu of such meeting in favor of approval and adoption of the
Reorganization Agreement and of the transactions contemplated thereby.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
stockholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
(Signature Page Follows)
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: June ____, 1999
_____________________________________
(Signature of Stockholder)
_____________________________________
(Print Name of Stockholder)
Shares beneficially owned:
_______________________ shares of
Company Common Stock
SIGNATURE PAGE TO IRREVOCABLE PROXY
