Exhibit 99.1
EXECUTION COPY
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SHAREHOLDER'S AGREEMENT
This Shareholder's Agreement (this "Agreement") is made and entered into as
of August 20, 2001, by and among Xxxxx, Inc., a Massachusetts corporation
("Xxxxx"), Veritas Acquisition Corp., a Virginia corporation and a wholly owned
subsidiary of Xxxxx (the "Transitory Subsidiary"), and the undersigned holder
(the "Shareholder") of the shares of voting Common Stock, $0.01 par value per
share, of Metro Information Services, Inc., a Virginia corporation ("Metro"),
set forth on the signature page hereto (such number of shares, together with any
additional shares that become subject to this Agreement in accordance with
Section 1.4(b) hereof, the "Shares").
RECITALS
A. Concurrently with the execution of this Agreement, Xxxxx, Metro and the
Transitory Subsidiary have entered into an Agreement and Plan of Merger (the
"Merger Agreement") that provides for the merger (the "Merger") of the
Transitory Subsidiary with and into Metro. Pursuant to the Merger, shares of
capital stock of Metro will be converted into the right to receive shares of
common stock, $0.10 par value per share, of Xxxxx ("Xxxxx Common Stock") and
cash in lieu of fractional shares as described in the Merger Agreement.
B. The Shareholder is the record holder and beneficial owner of the Shares,
representing at least 40% of the outstanding shares of Metro Common Stock. For
purposes of this Agreement, "beneficial ownership" shall have the meaning given
to such term in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
X. Xxxxx desires the Shareholder to agree, and the Shareholder is willing to
agree, (i) not to transfer or otherwise dispose of any of the Shares prior to
the Expiration Date (as defined in Section 1.1 below) and (ii) to vote the
Shares so as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Retain and Vote Shares.
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1.1 Transfer and Encumbrance. The Shareholder agrees not to transfer (except
as may be specifically required by court order), sell, exchange, pledge or
otherwise dispose of or encumber any of the Shares 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: (a) such
date and time as the Merger shall become effective in accordance with the terms
and provisions of the Merger Agreement (provided that nothing contained herein
shall release the Shareholder from any of his obligations set forth under the
Affiliate Agreement (as defined in the Merger Agreement)) and (b) such date as
the Merger Agreement is terminated pursuant to Section 8.1 thereof.
1.2 Agreement to Vote Shares. From the date hereof until the Expiration Date,
at every meeting of the shareholders of Metro called with respect to the Merger
Agreement and the Plan of Merger (as defined in the Merger Agreement) and/or the
Merger, and at every adjournment or postponement thereof, and on every action or
approval by unanimous written consent of the shareholders of Metro with respect
to the Merger Agreement, the Plan of Merger and/or the Merger, the Shareholder
shall vote the Shares in favor of adoption and approval of the Merger Agreement,
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the Plan of Merger and any matter that could reasonably be expected to
facilitate the Merger. The Shareholder agrees not to take any actions contrary
to his obligations under this Agreement.
1.3 Irrevocable Proxy. Concurrently with the execution of this Agreement, the
Shareholder agrees to deliver to Xxxxx a proxy in the form attached hereto as
Exhibit A (the "Proxy"), which shall be coupled with an interest and
irrevocable, with the number of shares of capital stock of Metro beneficially
owned by the Shareholder and subject to the Proxy set forth therein.
1.4 Representations, Warranties and Covenants of the Shareholder. The
Shareholder hereby represents, warrants and covenants to Xxxxx as follows:
(a) Ownership of Shares; Authority. The Shareholder (i) is the record
and beneficial owner of the Shares, which at the date hereof and at all times
up until the Expiration Date will be free and clear of any liens, claims,
options, charges or other encumbrances; and (ii) has full power and authority
to make, enter into and carry out the terms of this Agreement and the Proxy.
In addition, in the case of a Shareholder that is a trust, the trustees of
such Shareholder have full power and authority to make, enter into and carry
out the terms of this Agreement and the Proxy.
(b) Ownership Percentage. The Shareholder represents and warrants that
the Shares represent 40% of the outstanding shares of Metro Common Stock as
of the date of this Agreement. The Shareholder further acknowledges and
agrees that if at any time and from time to time from the date of this
Agreement until the Expiration Date, the Shares represent less than 40% of
the outstanding shares of Metro Common Stock, this Agreement shall be deemed
to be amended as of such time such that the number of Shares subject to this
Agreement shall be increased to the number of shares of Metro Common Stock
constituting 40% of the outstanding shares of Metro Common Stock.
(c) No Conflicts or Consents. The execution and delivery of this
Agreement and the Proxy by the Shareholder do not, and the performance by the
Shareholder of his obligations under this Agreement and the Proxy will not:
(i) conflict with or violate any law, rule, regulation, order, decree or
judgment applicable to the Shareholder or by which its properties are bound
or affected; (ii) in the case of a Shareholder that is a trust, conflict with
or violate any trust document applicable to the Shareholder or by which its
properties are bound or affected; or (iii) result in or constitute any breach
or default under, or give any person or entity rights of termination,
amendment or acceleration in, the creation of an encumbrance or restriction
applicable to any of the Shares.
(d) Governmental Filings. The Shareholder agrees to cooperate and to
use his commercially reasonable efforts to obtain any governmental clearances
or approvals for the consummation of the Merger under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and any other federal, state
or foreign law or regulation or decree designed to prohibit, restrict or
regulate actions for the purpose or effect of monopolization or restraint of
trade and to respond to any government requests for information relating to
such antitrust laws.
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(e) Transfer of Voting Rights. The Shareholder agrees that, until the
Expiration Date, the Shareholder shall ensure that: (i) none of the Shares
are deposited into a voting trust and (ii) no proxy is granted, and no voting
agreement or similar agreement is entered into, with respect to the Shares.
(f) No Proxy Solicitations. From the date of this Agreement until the
Expiration Date, the Shareholder, in his capacity as a shareholder of Metro,
will not, and will not permit any individual or entity under the
Shareholder's control to: (i) solicit proxies with respect to (A) an approval
of any proposal made in opposition to or competition with consummation of the
Merger, (B) the adoption of any merger agreement or approval of any merger,
consolidation, sale of assets, reorganization or recapitalization with any
party other than with Xxxxx and Xxxxx'x affiliates (as defined in Rule 405 of
the Securities Act of 1933, as amended) ("Affiliates") or (C) any liquidation
or winding up of Metro (each of the foregoing is hereinafter referred to as
an "Opposing Proposal"); (ii) encourage or assist any party in taking or
planning any action that would compete with, restrain or otherwise serve to
interfere with or inhibit the timely consummation of the Merger in accordance
with the terms of the Merger Agreement; (iii) initiate a shareholders' vote
or action by consent of Metro shareholders with respect to an Opposing
Proposal; or (iv) become a member of a "group" (as such term is used in
Section 13(d) of the Exchange Act) with respect to any voting securities of
Metro with respect to an Opposing Proposal.
(g) Additional Documents. The Shareholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Xxxxx, to carry out the intent of this Section 1.
1.5 Consent and Waiver. The Shareholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreements to which the Shareholder is a party as a shareholder or
pursuant to any rights the Shareholder may have as a shareholder.
1.6 Fiduciary Duty as Director of Metro. The parties hereto acknowledge and
agree that the Shareholder's obligations under this Section 1 are solely in his
capacity as a shareholder of Metro, and that none of the provisions in this
Section 1 shall be deemed to restrict or limit any fiduciary duty that the
Shareholder or any of his Affiliates may have as a member of the Board of
Directors of Metro; provided that no such duty shall excuse the Shareholder from
his obligations as a shareholder of Metro to vote the Shares as herein provided
and to otherwise comply with the terms and conditions of this Agreement.
1.7 Lock-Up Agreement. The Shareholder shall not, during any 90 day period
commencing on the Closing Date (as defined in the Merger Agreement), transfer,
or permit any of his Affiliates to transfer, shares of Xxxxx Common Stock or
other Xxxxx securities held by the Shareholder and such Affiliates
representing, in the aggregate, more than 1% of the then outstanding shares of
Xxxxx Common Stock. Xxxxx may impose stop-transfer instructions with respect to
shares of Xxxxx Common Stock or other securities subject to the foregoing
restriction.
1.8 Finder's Fees. No investment banker, broker or finder is entitled to a
commission or fee from Xxxxx, Transitory Subsidiary or Metro in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Shareholder.
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2. Representations and Warranties of Xxxxx. Xxxxx represents and warrants to
the Shareholder that Xxxxx has all requisite corporate power and authority to
enter into this Agreement and to perform its obligations hereunder. The
execution, delivery and performance by Xxxxx of this Agreement and the
consummation by Xxxxx of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Xxxxx, and no other corporate action on
the part of Xxxxx is necessary to authorize the execution, delivery or
performance by Xxxxx of this Agreement and the consummation by Xxxxx of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Xxxxx and is a valid and binding agreement of Xxxxx, enforceable
against it in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights generally.
3. Nomination of the Shareholder to the Xxxxx Board of Directors.
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3.1 Nomination Right. Prior to or at the Effective Time, the Shareholder shall
have the right to be nominated to the Xxxxx Board of Directors (the "Xxxxx
Board") effective as of the Effective Time and at each meeting of stockholders
of Xxxxx, as the case may be, at which directors are to be elected. The Xxxxx
Board shall, subject to its fiduciary duties under applicable law, cause the
Shareholder to be nominated and recommended for election to the Xxxxx Board at
the Effective Time and at all meetings of stockholders of Xxxxx at which
directors are to be elected following the Effective Time.
3.2 Number of Directors. Subject to its fiduciary duties under applicable law,
the Xxxxx Board shall not, in connection with its nomination of individuals to
be submitted to Xxxxx'x stockholders for election to the Xxxxx Board, cause the
total number of director seats on the Xxxxx Board to be considered and filled by
Xxxxx stockholders to be decreased to a number less than that equal to the
number of director nominees nominated and recommended for election by the Xxxxx
Board. For the avoidance of doubt, the Xxxxx Board need not take into account
any director nominees proposed by Xxxxx'x stockholders when determining the
number of director seats on the Xxxxx Board.
3.3 Termination. The rights granted to the Shareholder and the obligations of
Xxxxx pursuant to this Section 3 shall terminate on the date on which the
Shareholder, together with his Affiliates, ceases, following the Effective Time,
to beneficially own 4% or more of the outstanding shares of Xxxxx Common Stock.
4. Miscellaneous.
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4.1 Severability. If any term, provision, covenant or restriction of 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.
4.2 Binding Effect and Assignment. This Agreement and all of the 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 Shareholder may be assigned by the Shareholder
without prior written consent of Xxxxx.
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4.3 Expenses. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
4.4 Specific Performance; Injunctive Relief. The parties hereto acknowledge
that Xxxxx will be irreparably harmed and that there will be no adequate remedy
at law for a violation of any of the covenants or agreement of the Shareholder
set forth herein. Therefore, it is agreed that, in addition to any other
remedies that may be available to Xxxxx upon any such violation, Xxxxx shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Xxxxx at law or in equity.
The Shareholder agrees not to seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with Xxxxx seeking or obtaining such
equitable relief.
4.5 Notices. All notices, requests, claims, demands and other communications
hereunder shall be deemed duly delivered: (a) four business days after being
sent by registered or certified mail, return receipt requested, postage prepaid
or (b) one business day after being sent for next business day delivery, fees
prepaid, via a reputable nationwide overnight courier service to the intended
recipient as set forth below.
If to Keane: Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
With a copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Shareholder: To the address for notice set forth on the last
page hereof.
with a copy to: Williams, Mullen, Xxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000-0000
Attention: Xxxx X. Paris, Jr., Esq.
Telecopy: (000) 000-0000
Any party to this Agreement may give any notice or other communication hereunder
using any other means (including personal delivery, messenger service, telecopy,
or ordinary mail), but no such notice or other communication shall be deemed to
have been duly given unless and until it actually is received by the party for
whom it is intended. Any party to this Agreement may change the address to
which notices and other communications hereunder are to be delivered by giving
the other party to this Agreement notice in the manner herein set forth.
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4.6 Amendments; Termination; Expiration. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties hereto. This Agreement may be
terminated by Xxxxx and Transitory Subsidiary upon written notice to the
Shareholder. This Agreement and the Shareholder's obligations hereunder shall
expire on the first to occur of (a) the Effective Time and (b) the date of the
termination of the Merger Agreement in accordance with its terms; provided,
however, that (i) each party shall remain liable for any breach of this
Agreement by such party occurring prior to such termination and (ii) in the
event that the Effective Time shall occur, the provisions of Sections 1.7 and 3
shall survive any termination of this Agreement.
4.7 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the Commonwealth of Virginia
without giving effect to any choice or conflict of law provision or rule
(whether of the Commonwealth of Virginia or any other jurisdiction) that would
cause the application of laws of any jurisdiction other than those of the
Commonwealth of Virginia.
4.8 Entire Agreement. This Agreement contains the entire understanding of the
parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
4.9 Counterparts. This Agreement may be executed in several counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same agreement.
4.10 Effect of Headings. The section headings herein are for convenience only
and shall not affect the construction or interpretation of this Agreement.
4.11 Further Assurances. Except as otherwise provided in the Merger Agreement,
the Shareholder will execute and deliver or cause to be executed and delivered
all further documents and instruments and use his best efforts to secure such
consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby or to enable Xxxxx and
any assignee to exercise and enjoy all benefits and rights of the Shareholder
with respect to the Shares.
4.12 Additional Agreements. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations and
which may be required under any agreements, contracts, commitments, instruments,
understandings, arrangements or restrictions of any kind to which such party is
a party or by which such party is governed or bound, to consummate and make
effective the transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date and year first above written.
XXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
VERITAS ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
SHAREHOLDER
By: /s/ Xxxx X. Xxxx
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Print
Name: Xxxx X. Xxxx
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Shareholder's Address for Notice:
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Shares of Metro Common Stock
subject to this Agreement: 6,135,104
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EXHIBIT A
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IRREVOCABLE PROXY
The undersigned shareholder of Metro Information Services, Inc., a Virginia
corporation ("Metro"), hereby irrevocably appoints Xxxxx X. Xxxxx and Xxxx X.
Xxxxx of Xxxxx, Inc., a Massachusetts corporation ("Keane"), and Keane and each
of them, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to shares of Common Stock of Metro
beneficially owned by the undersigned and representing 40% of the outstanding
shares of Metro Common Stock (the "Shares"), until the Expiration Date (as
defined below). As used herein, the term "Expiration Date" shall mean the
earlier to occur of: (A) such date and time as the merger of Veritas
Acquisition Corp., a Virginia corporation and a wholly owned subsidiary of Xxxxx
("Transitory Subsidiary"), with and into Metro (the "Merger") contemplated by
that certain Agreement and Plan of Merger dated as of August 20, 2001, among
Xxxxx, Transitory Subsidiary and Metro (the "Merger Agreement") shall become
effective and (B) such date and time as the Merger Agreement is terminated
pursuant to Section 8.1 thereof. Upon the execution hereof, all prior proxies
given by the undersigned with respect to the Shares are hereby revoked and no
subsequent proxies will be given.
This proxy is coupled with an interest and irrevocable, is granted in order
to secure the obligations under the Shareholder's Agreement dated as of August
20, 2001 between Xxxxx and the undersigned shareholder, and is granted in
consideration of Xxxxx entering into the Merger Agreement. The attorneys and
proxies named above will be empowered at any time prior to the Expiration Date
to exercise all voting and other rights (including, without limitation, the
power to execute and deliver written consents with respect to the Shares) of the
undersigned at every annual, special or adjourned meeting of Metro shareholders,
and in every written consent in lieu of such a meeting, or otherwise, in favor
of approval and adoption of the Merger Agreement, the Plan of Merger (as defined
in the Merger Agreement) and any matter that could reasonably be expected to
facilitate the Merger.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to the Expiration Date at every
annual, special or adjourned meeting of the shareholders of Metro and in every
written consent in lieu of such meeting, (i) in favor of approval and adoption
of the Merger Agreement, the Plan of Merger and any matter that could reasonably
be expected to facilitate the Merger, and (ii) against any action or agreement
that would (A) result in a breach of any representation, warranty or covenant of
Metro in the Merger Agreement or (B) cause any provision contained in Articles
V, VI or VII of the Merger Agreement to not be satisfied. The undersigned
shareholder may vote the Shares on all other matters.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: August 20, 2001
Signature of Shareholder: /s/ Xxxx X. Xxxx
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Print Name of Shareholder: Xxxx X. Xxxx
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Shares beneficially owned as of the date hereof:
6,304,251 shares of Common Stock
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Shares subject to this Irrevocable Proxy:
6,135,104 shares of Common Stock
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