EXHIBIT 2
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT dated as of November 13, 1997, among the person whose
name appears on Schedule 1 (the "STOCKHOLDER"), Xpedite Systems, Inc., a
Delaware corporation (the "COMPANY"), and Premiere Technologies, Inc., a Georgia
corporation ("PARENT").
WHEREAS, Parent proposes to enter into a Merger Agreement dated as of the
date hereof (as amended from time to time, the "MERGER AGREEMENT"; capitalized
terms used but not defined herein shall have the meanings set forth in the
Merger Agreement, whether or not such Merger Agreement shall be in effect from
time to time) with the Company which provides, among other things, that Nets
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent, will merge with and into the Company pursuant to the merger contemplated
by the Merger Agreement (the "MERGER");
WHEREAS, as of the date hereof, the Stockholder beneficially owns the
number of shares of common stock, par value $.01 per share, of the Company
("COMPANY COMMON STOCK") set forth on Schedule 1; and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has requested that the Stockholder agree, and in order
to induce Parent to enter into the Merger Agreement, the Stockholder has agreed,
to enter into this Agreement with respect to all the shares of Company Common
Stock now beneficially owned and of which the Stockholder may hereafter acquire
beneficial ownership (the "SHARES") and any other securities, if any, which the
Stockholder is entitled to vote at any meeting of stockholders of the Company
(the "OTHER SECURITIES").
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.01 VOTING AGREEMENT. The Stockholder hereby agrees that,
subject to Schedule 1, at any meeting of the stockholders of the Company,
however called, or in connection with any written consent of the holders of
shares of Company Common Stock, the Stockholder shall vote (or cause to be
voted) the Shares and the Other Securities in favor of the Merger, the execution
and delivery by the Company of the Merger Agreement and the approval of the
terms thereof and each of the other actions contemplated by the Merger Agreement
and this Agreement and any actions required in furtherance thereof and hereof.
The Stockholder agrees that the Stockholder shall not enter into any agreement
or understanding with any person or entity the
effect of which would be to violate the provisions and agreements contained in
this Section 1.01. The Stockholder acknowledges receipt and review of a copy of
the Merger Agreement.
SECTION 1.02 IRREVOCABLE PROXY. The Stockholder hereby irrevocably
appoints Parent and each of its officers, as the Stockholder's attorney and
proxy pursuant to the provisions of Section 212(c) of the General Corporation
Law of the State of Delaware, with full power of substitution, to vote and
otherwise act (by written consent or otherwise) with respect to the Shares and
the Other Securities, which the Stockholder is entitled to vote at any meeting
of stockholders of the Company (whether annual or special and whether or not an
adjourned or postponed meeting) or consent in lieu of any such meeting or
otherwise, on the matters and in the manner specified in Section 1.01. THIS
PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. The
Stockholder hereby revokes all other proxies and powers of attorney with respect
to the Shares and the Other Securities that the Stockholder may have heretofore
appointed or granted, and no subsequent proxy or power of attorney shall be
given or written consent executed (and if given or executed, shall not be
effective) by the Stockholder with respect thereto. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of the
Stockholder and any obligation of the Stockholder under this Agreement shall be
binding upon the heirs, personal representatives, successors and assigns of the
Stockholder. The Shareholder hereby affirms that the irrevocable proxy set
forth in this SECTION 1.02 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder represents and warrants to Parent as follows:
(a) This Agreement has been duly executed and delivered by the Stockholder
and is a legal, valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of which
Stockholder is trustee whose consent is required for the execution and delivery
of this Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.
(b) The execution and delivery of this Agreement by the Stockholder do not,
and the performance of this Agreement by the Stockholder will not, (i) conflict
with or violate any federal, state, local or foreign law, statute, ordinance,
rule, regulation, permit, injunction, writ, judgment, decree or order
(collectively, "LAWS") of any domestic or foreign administrative, governmental
or regulatory agency or other governing body (each, a "GOVERNMENTAL ENTITY")
applicable to the Stockholder or by which any of the Stockholder's assets are
bound, or
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(ii) conflict with, 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 rights of termination, amendment, acceleration or
cancellation of, or require payment under, or result in the creation of any
Encumbrance (as hereinafter defined) on any of the assets of the Stockholder
pursuant to, any contract or other instrument to which the Stockholder is a
party or by which the Stockholder or any of the Stockholder's assets are bound,
except for any thereof that could not reasonably be expected to materially
impair the ability of the Stockholder to perform the Stockholder's obligations
hereunder or to consummate the transactions contemplated hereby and except for
any Encumbrances created hereby.
(c) The execution and delivery of this Agreement by the Stockholder do not,
and the performance of this Agreement by the Stockholder will not, require the
Stockholder to obtain any consent, approval, authorization or permit of, or to
make any filing with or notification to, any Governmental Entity based on any
Laws of any Governmental Entity, except (i) the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Securities and Exchange
Commission (the "COMMISSION") thereunder (the "EXCHANGE ACT"), and the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (the "SECURITIES ACT"); and (ii) where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, could not reasonably be expected to materially impair
the ability of the Stockholder to perform its obligations hereunder or to
consummate the transactions contemplated hereby.
(d) There is no suit, action, investigation or proceeding pending or, to
the knowledge of the Stockholder, threatened against the Stockholder at law or
in equity before or by any Governmental Entity that could reasonably be expected
to materially impair the ability of the Stockholder to perform the Stockholder's
obligations hereunder or to consummate the transactions contemplated hereby, and
there is no judgment, decree, injunction, rule, order or writ of any
Governmental Entity to which the Stockholder or the Stockholder's assets are
subject that could reasonably be expected to materially impair the ability of
the Stockholder to perform the Stockholder's obligations hereunder or to
consummate the transactions contemplated hereby.
(e) The Stockholder owns beneficially and of record the number of shares of
Company Common Stock (the "EXISTING SHARES") set forth on Schedule 1. The
Existing Shares constitute all the shares of Company Common Stock owned of
record or beneficially by the Stockholder. The Stockholder has sole voting
power, sole power of disposition and all other stockholder rights with respect
to all the Existing Shares, with no restrictions, other than pursuant to
applicable securities laws, on the Stockholder's rights of disposition
pertaining thereto. The Stockholder has good and valid title to all the
Existing Shares, free and clear of all Encumbrances (other than any Encumbrance
created by this Agreement).
(f) The Stockholder understands and acknowledges that Parent is entering
into, and causing Acquisition Sub to enter into, the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this Agreement. The
Stockholder acknowledges that the irrevocable proxy set forth in SECTION 1.02 is
granted in consideration for the execution and delivery of the Merger Agreement
by Parent and Acquisition Sub.
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SECTION 2.02 REPRESENTATIONS AND WARRANTIES OF PARENT. Parent represents
and warrants to the Stockholder that Parent is a corporation duly organized,
validly existing and in good standing under the laws of the State of Georgia.
Parent has the requisite corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by Parent's Board of Directors and (except as
otherwise set forth in the Merger Agreement) no other corporate proceedings on
the part of Parent are necessary to authorize this Agreement and the
consummation of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Parent and is a legal, valid and binding
obligation of Parent, enforceable against Parent in accordance with its terms.
ARTICLE III
COVENANTS OF THE STOCKHOLDER
SECTION 3.01 CONFIDENTIALITY OF AGREEMENT. Each party hereto agrees that,
without the prior written consent of the other party, it will not disclose this
Agreement, or the contents hereof, to any person or entity, except (a) such
party's directors, employees, agents, advisors and affiliates, in each case on a
confidential and need-to-know basis, (b) filings of, or filings of amendment(s)
to, Schedule 13D, or (c) as is required, in the opinion of its counsel, by
applicable law or pursuant to applicable requirements of any listing agreement
with or the rules of any securities exchange or the NASDAQ National Market,
provided that if any party hereto proposes to make any disclosure based upon the
opinion of its counsel such party will, if practicable, advise and consult with
the other party at least one business day prior to such disclosure concerning
the information such party proposes to disclose.
SECTION 3.02 FURTHER ASSURANCES. The Stockholder agrees to use the
Stockholder's reasonable best efforts to take, or cause to be taken, all
appropriate action, and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement. If any further action
is necessary or desirable to carry out the purposes of this Agreement, the
Stockholder shall use the Stockholder's reasonable best efforts to take all such
action as promptly as practicable.
ARTICLE IV
TERMINATION
SECTION 4.01 TERMINATION. This Agreement shall terminate upon the earlier
of (a) the termination of the Merger Agreement for any reason whatsoever and (b)
the Effective
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Time of the Merger and, except as set forth below, the parties hereto shall have
no further rights or obligations with respect thereto, except as a result of any
prior breach thereof.
ARTICLE V
DEFINITIONS
SECTION 5.01 DEFINITIONS. For purposes of this Agreement:
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing;
(b) "PERSON" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
(c) "ENCUMBRANCE" means any pledge, security interest, lien, claim,
encumbrance, mortgage, charge, hypothecation, option, right of first refusal or
offer, community property right, other marital right, preemptive right, voting
agreement, voting trust, proxy, power of attorney, escrow, option, forfeiture,
penalty, action at law or in equity, security agreement, stockholder agreement
or other agreement, arrangement, contract, commitment, understanding or
obligation, or any other restriction, qualification or limitation on the use,
transfer, right to vote, right to dissent and seek appraisal, receipt of income
or other exercise of any attribute of ownership.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
SECTION 6.02 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior
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agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
SECTION 6.03 COUNTERPARTS. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same instrument.
SECTION 6.04 ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties, provided that Parent may assign its rights hereunder to any of its
affiliates, but no such assignment shall relieve Parent of its obligations
hereunder.
SECTION 6.05 AMENDMENTS. This Agreement may not be amended, supplemented,
waived or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by the parties hereto.
SECTION 6.06 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, facsimile
transmission, mail (registered or certified mail, postage prepaid, return
receipt requested), or courier service providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses:
If to Stockholder, to the address set forth on Schedule 1
If to the Company or Parent, to their respective addresses set forth in the
Merger Agreement, with copies delivered as provided therein
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
SECTION 6.07 NO THIRD PARTY BENEFICIARIES. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by, any person or entity
not a party hereto.
SECTION 6.08 SPECIFIC PERFORMANCE. Each of the parties hereto
acknowledges that a breach by it of any agreement contained in this Agreement
will cause the other parties to sustain damage for which they would not have an
adequate remedy at law for money damages, and therefore each of the parties
hereto agrees that in the event of any such breach the aggrieved parties shall
be entitled to the remedy of specific performance of such agreement and
injunctive and other equitable relief in addition to any other remedy to which
they may be entitled, at law or in equity.
SECTION 6.09 REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be
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cumulative and not alternative, and the exercise of any thereof by any party
shall not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
SECTION 6.10 NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon strict compliance by any
other party hereto with its obligations hereunder, and any custom or practice of
the parties at variance with the terms hereof, shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy or
to demand such compliance.
SECTION 6.11 GOVERNING LAW.
(a) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware, without giving effect to the principles of
conflicts of law thereof.
(b) Each party hereby irrevocably submits to the exclusive jurisdiction of
the Court of Chancery in the State of Delaware in any action, suit or proceeding
arising in connection with this Agreement, and agrees that any such action, suit
or proceeding shall be brought only in such court (and waives any objection
based on FORUM NON CONVENIENS or any other objection to venue therein);
PROVIDED, HOWEVER, that such consent to jurisdiction is solely for the purpose
referred to in this subsection (b) and shall not be deemed to be a general
submission to the jurisdiction of such court or in the State of Delaware other
than for such purposes.
SECTION 6.12 WAIVER OF JURY TRIAL. EACH OF PARENT, THE COMPANY AND THE
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, THE
COMPANY OR THE STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT THEREOF.
SECTION 6.13 DESCRIPTIVE HEADINGS. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
/s/ Xxx X. Xxxxxxxx, Xx.
------------------------------
Name:
XPEDITE SYSTEMS, INC.
By: /s/
---------------------------
Name:
Title:
PREMIERE TECHNOLOGIES, INC.
By: /s/
---------------------------
Name:
Title:
*Schedule 1 hereto setting forth the Stockholder's name, the number of shares
owned and the number of currently exercisable options has been omitted. The
reporting person agrees to furnish supplementally a copy of the omitted schedule
to the Securities and Exchange Commission upon request.
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SCHEDULE TO EXHIBIT 2 TO SCHEDULE 13D
Premiere Technologies, Inc. has entered into agreements substantially
identical to Exhibit 2 as follows:
1. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and Xxxxxx Xxxxxxx.
2. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and Xxxxxxx X. Xxxxxxxx.
3. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and Xxxxx Xxxxxxx.
4. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and Xxxxxx Xxxxxxx.
5. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and Xxxx X. Xxxxx.
6. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and Xxxxxx X. Xxxxxx.
7. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and Xxx X. Xxxxxx.
8. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and Xxxxxx Xxxxxxxx.
9. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and Xxxxxxx XxXxxx.
10. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and APA Excelsior III, L.P.
11. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and APA Exelsior III, Offshore, L.P.
12. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and APA Fostin Pennsylvania.
13. Stockholder Agreement dated as of November 13, 1997 among Premiere
Technologies, Inc., Xpedite Systems, Inc. and CIN Venture Nominees, Ltd.
