SHAREHOLDER SUPPORT AGREEMENT
Exhibit 2.3
This SHAREHOLDER SUPPORT AGREEMENT (this “Agreement”) is entered into as of June
28, 2007, by and between infoUSA Inc., a Delaware corporation (“Parent”), Xxxxxxxxxxxxx
Acquisition Corp., a New York corporation and a direct wholly-owned subsidiary of Parent
(“Merger Sub”) and Xxxxx Xxxxx (“Shareholder”).
RECITALS
In order to induce Parent and Merger Sub to enter into that certain Agreement and Plan of
Merger, dated as of even date herewith, by and among Parent, Merger Sub and Guideline, Inc., a New
York corporation (“Company”) (as amended from time to time, the “Merger
Agreement”), Merger Sub has requested that Shareholder, and Shareholder has agreed to, enter
into this Agreement.
As of the date hereof, Shareholder is the holder of the shares of Company capital stock and
options to purchase shares of Company capital stock listed opposite Shareholder’s name on
Exhibit A.
Capitalized terms used but not separately defined herein shall have the meanings ascribed to
them in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Agreement to Tender
Agreement to Tender
Section 1.01 Agreement to Tender. Shareholder hereby agrees to validly tender or
cause to be validly tendered pursuant to and in accordance with the terms of the Offer all of the
shares of Company capital stock that Shareholder owns as of the date hereof, as well as any
additional shares of Company capital stock that Shareholder may own, whether acquired by purchase,
exercise of Options or otherwise, at any time after the date hereof (the “Shareholder
Shares”), but excluding, however, for purposes of this Section 1.01 only, up to an aggregate of
211,111 shares of Company common stock previously issued or issuable upon exercise of two warrants,
each dated November 21, 2001, issued by the Company to Xxxxx Associates, Inc. Within ten (10)
business days after the commencement of the Offer (or within ten (10) business days after any
Shareholder Shares are acquired by Shareholder during pendency of the Offer, if later), Shareholder
shall deliver to the depositary designated in the Offer (i) a completed and executed letter of
transmittal relating to the Shareholder Shares, which shall comply with the terms of the Offer,
(ii) certificates representing all of the Shareholder Shares, and (iii) all other documents or
instruments required to be delivered pursuant to the terms of the Offer. Shareholder agrees that,
once its Shareholder Shares are tendered, Shareholder will not withdraw any of such Shareholder
Shares from the Offer, unless and until (i) the Offer shall have been terminated by Merger Sub in
accordance with the terms of the Merger Agreement or (ii) this Agreement shall have been terminated
in accordance with Section 7.01 hereof.
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ARTICLE 2
Voting Agreement; Grant of Proxy
Voting Agreement; Grant of Proxy
Section 2.01 Voting Agreement.
(a) Until the Termination Date (as defined in Section 7.01 hereof), Shareholder hereby
irrevocably and unconditionally agrees to vote or cause to be voted all Shareholder Shares that
Shareholder is entitled to vote at the time of any vote of the shareholders of Company where such
matters arise (i) in favor of the approval and adoption of the Merger Agreement and the Merger,
(ii) against any proposal or transaction which could prevent or delay the consummation of the
Merger, and (iii) against any corporate action which would frustrate the purposes of, or prevent or
delay the consummation of, the Merger.
(b) If any shareholder vote in respect of the Merger Agreement or the Merger is taken by
written consent, the provisions of this Agreement imposing obligations in respect of or in
connection with any vote of shareholders shall apply thereto.
(c) Shareholder shall retain at all times the right to vote his Shareholder Shares in such
Shareholders’ sole discretion and without any other limitation on those matters other than those
set forth in this Section 2.01 that are at any time or from time to time presented for
consideration to the Company’s shareholders generally.
Section 2.02 Proxy. Shareholder hereby revokes any and all previous proxies granted
with respect to the Shareholder Shares. By entering into this Agreement, Shareholder hereby grants
a limited irrevocable proxy, within the meaning of the NYBCL, appointing Merger Sub as
Shareholder’s attorney-in-fact and proxy, with full power of substitution, for and in Shareholder’s
name, to vote, express consent or dissent, or otherwise to utilize such voting power in such manner
and upon and limited to only those matters described in Section 2.01 above, as Merger Sub or its
proxy or substitute shall, in Merger Sub’s sole discretion, deem proper with respect to the
Shareholder Shares. The proxy granted by Shareholder pursuant to this Section 2.02 is irrevocable
and is granted in consideration of Merger Sub’s entering into the Merger Agreement, and such
irrevocable proxy shall remain in effect until the Termination Date, notwithstanding the death or
incapacity of Shareholder. Such proxy shall be revoked on the Termination Date. Shareholder
intends this limited proxy to be irrevocable and will take such further action and execute such
other instruments as may be necessary to effectuate the intent of such proxy, including, without
limitation, filing written notice thereof with the secretary of the Company or permitting Merger
Sub, as Shareholder’s attorney-in-fact, to file a copy of this Agreement with the secretary of the
Company.
Section 2.03 Capacity. Shareholder is only obligating himself in his capacity as a
shareholder of Company and not agreeing to take any action or forego taking any action in his
capacity as an officer or director of the Company. Nothing contained in this Agreement, including,
but not limited to, Section 3.01 hereof, shall be construed to prohibit Shareholder, solely in
Shareholder’s capacity as an officer or director of the Company, from discharging Shareholder’s
obligations as an officer or director, including, but not limited to, the exercise of fiduciary
duties under applicable law and all actions permitted under Section 5.10 of the Merger Agreement.
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ARTICLE 3
Cooperation; Non-Solicitation
Cooperation; Non-Solicitation
Section 3.01 Cooperation. Shareholder hereby agrees to use reasonable efforts in
accordance with his fiduciary obligations to the Company to facilitate the consummation of the
transactions contemplated by the Merger Agreement, which efforts will include (but are not limited
to) the following, if and when requested by Parent: (i) recommending to other Company shareholders
that they validly tender pursuant to and in accordance with the terms of the Offer all of the
shares of Company capital stock owned by such shareholders, and (ii) using reasonable efforts to
obtain the cooperation, agreement or consent of, or other action by, any other Company shareholder
or third party reasonably necessary or desirable in furtherance of the consummation of the
transactions contemplated by the Merger Agreement.
Section 3.02 Non-Solicitation. From and after the date of this Agreement until the
Termination Date, Shareholder shall not, directly or indirectly, through any agent, representative
or otherwise (i) solicit, initiate or encourage, or take any other action intended to facilitate or
with the reasonably foreseeable effect of facilitating, any inquiry in connection with, or the
making of any proposal by any party that constitutes, an Acquisition Proposal (other than the Offer
and the Merger), (ii) participate in any discussions or negotiations with any party (other than
Parent, Purchaser or the Parent Representatives) regarding an Acquisition Proposal, (iii) furnish
to any party (other than Parent, Purchaser or the Parent Representatives) any information intended
to facilitate, or with the reasonably foreseeable effect of facilitating, an Acquisition Proposal,
or (iv) enter into any agreement, arrangement or understanding with respect to, or otherwise
endorse, any Acquisition Proposal.
ARTICLE 4
Representations and Warranties of Shareholder
Representations and Warranties of Shareholder
Shareholder represents and warrants to Merger Sub that:
Section 4.01 Valid Title. Shareholder is the beneficial owner of the Shareholder
Shares with no restrictions on Shareholder’s voting rights or rights of disposition pertaining
thereto, except securities Law requirements. None of the Shareholder Shares are subject to any
voting trust or other agreement or arrangement with respect to the voting of the Shareholder Shares
(other than this Agreement).
Section 4.02 Binding Effect. This Agreement is the valid and binding agreement of
Shareholder, enforceable against Shareholder in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, moratorium or other similar laws relating to creditors’
rights generally. The execution and delivery by Shareholder of this Agreement does not, and the
performance by Shareholder of Shareholder’s obligations under this Agreement will not, require any
consent, approval, authorization or permit of, or filing with or notification to, any Governmental
Authority.
Section 4.03 Ownership of Company Securities. The shares of Company capital stock and
options to purchase shares of Company capital stock set forth on Exhibit A hereto are the
only securities of Company beneficially owned by Shareholder.
Section 4.04 Information Provided by Shareholder. None of the information relating to
Shareholder and provided by or on behalf of Shareholder in writing for inclusion in the Schedule
TO, Proxy Statement and offer Documents will, at the respective times the Schedule TO, Proxy
Statement are filed with the SEC or are first published, sent or given to shareholders of the
Company, contain any untrue statement of material fact or omit to state any material fact required
to be stated therein or
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necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Shareholder hereby consents to the publication and disclosure by
Parent and Merger Sub in the Offer Documents and, if approval of the Merger by Company shareholders
is required under applicable Law, the Proxy Statement, of Shareholder’s identity, ownership of
Company capital stock and options to purchase Company capital stock and the nature of Shareholder’s
obligations pursuant to this Agreement.
Section 4.05 Power and Authority. Shareholder has the full legal right and capacity
to execute and deliver this Agreement, perform Shareholder’s obligations hereunder and consummate
the transactions contemplated under this Agreement.
Section 4.06 Conflicting Obligations. The execution and delivery of this Agreement
and the performance of Shareholder’s obligations under this Agreement do not (i) conflict with or
violate any law, rule, regulation, order, judgment, writ, injunction, notice or decree applicable
to Shareholder or by which any property or asset of Shareholder is bound or affected, (ii) result
in any breach of or constitute a default (or an event which, with notice or lapse of time or both,
would become a default) under, or give to others any right of termination, amendment, acceleration
or cancellation under, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, loan or credit agreement, franchise or other instrument or obligation, which may reasonably
be expected to result in a transfer of ownership or voting control of the Shareholder Shares, (iii)
result in the creation of a lien or other encumbrance on the Shareholder Shares, or (iv) violate
any applicable Law.
ARTICLE 5
Representations and Warranties of Parent and Merger Sub
Representations and Warranties of Parent and Merger Sub
Parent and Merger Sub jointly and severally represent and warrant to Shareholder that:
Section 5.01 Corporate Power and Authority. Each of Parent and Merger Sub has all
requisite corporate power and authority to enter into this Agreement and to perform its obligations
hereunder. The execution, delivery and performance by each of Parent and Merger Sub of this
Agreement and the performance hereof have been duly authorized by the board of directors of each of
Parent and Merger Sub and no other corporate action on the part of either Parent or Merger Sub is
necessary to authorize the execution, delivery or performance by Parent or Merger Sub of this
Agreement. This Agreement has been duly executed and delivered by each of Parent and Merger Sub and
is a valid and binding Agreement of each of Parent and Merger Sub, enforceable against each of them
in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors’ rights generally.
ARTICLE 6
Covenants of Shareholder
Covenants of Shareholder
Shareholder hereby covenants and agrees that:
Section 6.01 No Proxies for, Sale of or Encumbrances on Shareholder Shares. Except
pursuant to the terms of this Agreement, prior to the Termination Date, Shareholder shall not,
without the prior written consent of Merger Sub, directly or indirectly, (a) grant any proxies or
enter into any voting trust or other agreement or arrangement with respect to the voting of any
Shareholder Shares, or (b) sell, assign, transfer, encumber or otherwise dispose of, or enter into
any contract, option or other arrangement
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or understanding with respect to the sale, assignment, transfer, encumbrance or other
disposition of, any Shareholder Shares during the term of this Agreement. Shareholder shall not
seek or solicit any such sale, assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or understanding and agrees to notify Merger Sub promptly and
to provide all details requested by Merger Sub if Shareholder shall be approached or solicited by
any person with respect to any of the foregoing.
ARTICLE 7
Miscellaneous
Miscellaneous
Section 7.01 Termination. This Agreement shall terminate automatically, without any
notice or other action by any party, upon the earliest to occur of: (x) tender and acceptance of a
total of sixty-six and two-thirds percent (66 2/3%) or more of the
outstanding shares of capital stock of the Company, including the Shareholder Shares, pursuant to
the Offer; (y) the consummation of the Merger; or (z) the termination of the Merger Agreement.
Shareholder shall also have the right to terminate this Agreement immediately following: (i) any
change in the nature of the consideration payable in the Offer or the Merger; (ii) any decrease in
consideration payable in the Offer or the Merger; or (iii) any increase in the consideration
payable to holders of Shareholder Shares that is not made equally available to holders of all
shares of Company capital stock of the same class or series. The date of any termination of this
Agreement in accordance with this section 7.01 shall be referred to herein as the “Termination
Date”. Notwithstanding the foregoing, nothing set forth in this Section 7.01 or elsewhere in this
Agreement shall relieve any party hereto from liability, or otherwise limit the liability of any
party hereto, for any breach of this Agreement.
Section 7.02 Expenses. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
Section 7.03 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 to
effectuate the intent of this Agreement.
Section 7.04 Specific Performance. The parties hereto agree that Merger Sub would
suffer irreparable damage if for any reason Shareholder failed to perform any of Shareholder’s
obligations under this Agreement, and that Merger Sub would not have an adequate remedy at law in
such event. Accordingly, Merger Sub shall be entitled to specific performance and injunctive and
other equitable relief to enforce the performance of this Agreement by Shareholder. This provision
is without prejudice to any other rights that Merger Sub may have against Shareholder for any
failure to perform Shareholder’s obligations under this Agreement.
Section 7.05 Notices. All notices, requests, claims, demands and other communications
hereunder shall be deemed to have been duly given when delivered in person, by cable, telegram or
telex, or by registered or certified mail (postage prepaid, return receipt requested) to such party
at its address set forth on the signature page hereto.
Section 7.06 Amendments. 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.
Section 7.07 Successors and Assigns. The provisions of this Agreement shall be
binding upon
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and inure to the benefit of the parties hereto and their respective successors and assigns;
provided, however, that no party may assign, delegate or otherwise transfer any of
its rights or obligations under this Agreement without the consent of the other parties hereto;
provided, further, that Merger Sub may assign its rights and obligations to any
affiliate of Merger Sub without any such consent.
Section 7.08 Governing Law. This Agreement shall be construed in accordance with and
governed by the law of the State of Delaware without giving effect to the principles of conflicts
of laws thereof.
Section 7.09 Counterparts/Electronic Transmission. This Agreement may be executed in
one or more counterparts, any of which may be executed and transmitted by facsimile or other
electronic method, and each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[Balance of page intentionally left blank. Signatures follow].
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
| PARENT: | ||||||
| infoUSA Inc. | ||||||
| By: | /s/ XXXX XXXXXX | |||||
| Name: | Xxxx Xxxxxx | |||||
| Title: | Chief Administrative Officer | |||||
| MERGER SUB: | ||||||
| Xxxxxxxxxxxxx Acquisition Corp. | ||||||
| By: | /s/ XXXX XXXXXX | |||||
| Name: | Xxxx Xxxxxx | |||||
| Title: | Chief Administrative Officer | |||||
| SHAREHOLDER: | ||||||
| /s/ XXXXX XXXXX | ||||||
| Xxxxx Xxxxx | ||||||
[Signature page to Shareholder support agreement]
