EXHIBIT 99.2
VOTING AGREEMENT
VOTING AGREEMENT (the "Agreement"), dated as of May 17, 1997, between
Metromail Corporation, a Delaware corporation ("Parent"), and CVM Equity Fund
IV, Ltd., in its capacity as shareholder ("Shareholder") of Atlantes
Corporation, a Colorado corporation (the "Company").
WHEREAS, concurrently herewith, Parent, MML Merging Company, a Colorado
corporation and a wholly-owned subsidiary of Parent ("Mergerco"), and the
Company are entering into an Agreement and Plan of Merger (the "Merger
Agreement");
WHEREAS, under the terms of the Merger Agreement, Mergerco would be merged
with and into the Company with the Company surviving such merger (the "Merger");
WHEREAS, Shareholder, as of the date hereof, is the beneficial owner of
certain shares of common stock of the Company, no par value per share (the
"Common Stock"), with the Shareholder beneficially owning 46,625 such shares of
Common Stock (the "Shares");
WHEREAS, approval of the Merger Agreement by the Company's shareholders is
a condition to the consummation of the Merger and in connection therewith, the
Company has agreed to call a special meeting of the shareholders to vote on the
Merger Agreement (the "Company Shareholder Meeting");
WHEREAS, as a condition to its entering into the Merger Agreement, Parent
has required that Shareholder agree, and Shareholder has agreed, to enter into
this Agreement; and
WHEREAS, Shareholder has been informed that the Board of Directors of the
Company has approved the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
Section 1. Agreement to Vote, Restrictions on Dispositions, Etc.
a. Shareholder hereby agrees to attend the Company Shareholder
Meeting, in person or by proxy, and to vote (or cause to be voted) all
Shares, and any other voting securities of the Company owned by
Shareholder, whether issued heretofore or hereafter, that such person owns
or has the right to vote, for approval of the Merger Agreement (as amended
from time to time), and the transactions contemplated by the Merger
Agreement (including, without limitation, any payments or benefits to
Company employees that would, in the absence of shareholder approval,
constitute "excess parachute payments," as such term is defined in Section
280G of the Internal Revenue Code of 1986, as amended), such agreement to
vote to apply also to any shareholder meeting following the adjournment of
the Company Shareholder Meeting at which the shareholders of the Company
are voting to approve the Merger Agreement or the transactions contemplated
thereby. Shareholder agrees not to grant any proxies or enter into any
voting agreement or arrangement inconsistent with this Agreement or the
Limited Irrevocable Proxy of even date herewith executed by Shareholder in
favor of Parent ("Irrevocable Proxy").
b. Shareholder hereby agrees that, without the prior written
consent of Parent, Shareholder shall not, directly or indirectly, sell,
offer to sell, grant any option for the sale of or otherwise transfer or
dispose of, or enter into any agreement to sell, any Shares, any warrants
to purchase shares of Common Stock and any other voting securities of the
Company that Shareholder owns beneficially or otherwise. Shareholder
agrees that Parent may instruct the Company to enter stop transfer orders
with the transfer agent and the registrar of the Company Common Stock
against the transfer of Shares and any other voting securities of the
Company that Shareholder owns beneficially or otherwise. If requested by
Parent, Shareholder agrees to surrender the certificate or certificates
representing the Shares to the transfer agent and registrar of the Company
Common Stock in exchange for certificates representing Company Common Stock
containing a legend to the effect of the following:
The shares represented by this certificate are subject to
restrictions on transfer and disposition as set forth in the Voting
Agreement dated as of May 17, 1997 among Metromail Corporation, a
Delaware corporation, and CVM Equity Fund IV, Ltd. A copy of such
agreement may be obtained from the Secretary of the Company.
Upon the termination of this Agreement pursuant to Section 6,
Shareholder shall have the right to unilaterally instruct the transfer
agent and registrar of the Company Common Stock to deliver to the
Shareholder certificates representing Company Common Stock registered in
the name of the Shareholder and not bearing the foregoing legend in
exchange for certificates representing Company Common Stock registered in
the name of the Shareholder and bearing such legend.
c. Shareholder agrees to vote (or cause to be voted) all Shares,
and any other voting securities of the Company owned by Shareholder,
whether issued heretofore or
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hereafter, that such person owns or has the right to vote, against (i) any
recapitalization, merger, consolidation, sale of assets or other business
combination or similar transaction involving the Company, securities or
assets which is not endorsed in writing by Parent and (ii) any other action
or agreement that would result in a breach of any covenant, representation
or warranty or any other obligation or agreement of the Company or Parent
under the Merger Agreement or which could result in any of the conditions
to the Company's or the Parent's obligations under the Merger Agreement not
being fulfilled.
d. Shareholder agrees not to directly or indirectly solicit, or
authorize any person to solicit, any inquiries or proposals from any person
other than Parent relating to the merger or consolidation of the Company
with any person other than Parent or its Subsidiaries, or the acquisition
of the Company's voting securities by, or the direct or indirect
acquisition or disposition of a significant amount of assets of the Company
otherwise than in the ordinary course of business of the Company from or to
any person other than Parent or its Subsidiaries, or directly or indirectly
enter into or continue any discussions, negotiations or agreements relating
to, or vote (or cause to be voted) in favor of, any such transaction.
e. Shareholder agrees to promptly notify Parent in writing of
the nature and amount of any acquisition by Shareholder after the date
hereof of any voting securities of the Company.
Section 2. Securities Act Covenants, Representations and Warranties.
Shareholder hereby agrees, represents and warrants to Parent as follows:
a. Shareholder will not make any sale, transfer or other
disposition of Parent common stock, par value $.01 per share ("Parent
Common Stock"), received by Shareholder in the Merger in violation of the
Securities Act of 1933, as amended (the "Securities Act").
b. Shareholder has been advised that the offering, sale and
delivery of shares of Parent Common Stock pursuant to the Merger will be
registered under the Securities Act on a registration statement on Form S-
4. Shareholder has also been advised, however, that to the extent
Shareholder is considered an affiliate of the Company at the time the
Merger Agreement is submitted for a vote of the shareholders of the
Company, any public offering or sale by Shareholder of any shares of Parent
Common Stock received by Shareholder in the Merger will, under current law,
require either (i) the further registration under the
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Securities Act of any shares of Parent Common Stock to be sold by
Shareholder, (ii) compliance with Rule 145 promulgated by the Securities
and Exchange Commission under the Securities Act or (iii) the availability
of another exemption from such registration under the Securities Act.
c. Shareholder understands that stop transfer instructions will
be given to Parent's transfer agent with respect to Parent Common Stock and
that a legend will be placed on the certificates for the shares of Parent
Common Stock issued to Shareholder, or any substitutions therefor, to the
extent Shareholder is considered an affiliate of the Company at the time
the Merger Agreement is submitted for a vote of the shareholders of the
Company.
d. Shareholder has read this Agreement and the Merger Agreement
and has discussed their requirements to the extent Shareholder believed
necessary with Shareholder's counsel or counsel for the Company.
Section 3. Additional Representations and Warranties of Shareholder.
Shareholder represents and warrants to Parent as follows: Shareholder has all
necessary capacity to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Shareholder. Assuming the
due authorization, execution and delivery of this Agreement by Parent, this
Agreement constitutes the valid and binding agreement of Shareholder enforceable
against Shareholder in accordance with its terms, except to the extent
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally or general equitable Shareholder does not
(a) conflict with or violate any agreement, law, rule, regulation, order,
judgment or decision or other instrument binding upon Shareholder, nor require
any consent, notification, regulatory filing or approval or (b) 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 result in the
creation of a lien or encumbrance on any of the Shares owned by Shareholder
pursuant to any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument
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or obligation to which Shareholder is a party or by which Shareholder or the
Shares owned by Shareholder are bound or affected.
Section 4. Further Assurances. Each party shall execute and deliver
such additional instruments and other documents and shall take such further
actions (including, without limitation, in the case of Shareholder, any
amendments to this Agreement which Parent may reasonably request) as may be
reasonably necessary or appropriate to effectuate, carry out and comply with all
of their obligations under this Agreement. Without limiting the generality of
the foregoing, neither of the parties hereto shall enter into any agreement or
arrangement (or alter, amend or terminate any existing agreement or arrangement)
if such action would materially impair the ability of either party to
effectuate, carry out or comply with all the terms of this Agreement; provided,
however, that Parent shall have the right to exercise any of its rights
according to the terms of the Merger Agreement.
Section 5. Representations and Warranties of Parent. Parent
represents and warrants to Shareholder as follows: Each of this Agreement and
the Merger Agreement has been approved by a duly authorized committee of the
Board of Directors of Parent. Each of this Agreement and the Merger Agreement
has been duly executed and delivered by a duly authorized officer of Parent.
Assuming the due capacity, execution and delivery of this Agreement by
Shareholder and the due authorization, execution and delivery of the Merger
Agreement by the Company, each of this Agreement and the Merger Agreement
constitutes a valid and binding agreement of Parent, enforceable against Parent
in accordance with its terms, except to the extent enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general equitable principles.
Section 6. Effectiveness and Termination. It is a condition
precedent to the effectiveness of this Agreement that the Merger Agreement shall
have been executed and delivered and be in full force and effect. This
Agreement shall automatically terminate and be of no further force or effect:
(i) upon the close of business on August 31, 1997, if the Merger shall not have
been effected by such time, or (ii) upon the earlier termination of the Merger
Agreement in accordance with its terms. Upon any termination of this Agreement,
except for any rights either party may have in respect of any breach by either
party of its obligations hereunder, none of the parties hereto shall have any
further obligation or liability hereunder. The provisions of Section 1 of this
Agreement shall terminate and be of no further force or effect from and after
the Effective Time of the Merger.
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Section 7. Covenants of Shareholder Not to Enter Into Inconsistent
Agreements. Shareholder hereby agrees that, except as contemplated by this
Agreement, the Irrevocable Proxy and the Merger Agreement, Shareholder shall not
enter into any voting agreement or grant an irrevocable proxy or power of
attorney with respect to the Shares which is inconsistent with this Agreement.
Section 8. Miscellaneous.
a. Notices, Etc. All notices, requests, demands or other
communications required by or otherwise given with respect to this Agreement
shall be in writing and shall be deemed to have been duly given to either party
when delivered personally (by courier service or otherwise), when delivered by
telecopy and confirmed by return telecopy, or seven days after being mailed by
registered or certified mail, postage prepaid in each case to the applicable
addresses set forth below:
If to Parent:
Metromail Corporation
000 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President and General Counsel
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
If to Shareholder:
CVM Equity Fund IV, Ltd.
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
with a copy to:
Holland & Xxxx, LLP
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx Arkell
or to such other address as such party shall have designated by notice so given
to each other party.
b. Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified
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or terminated except by an instrument in writing signed by Parent and
Shareholder.
c. Successors and Assigns. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by operation of law
or otherwise by any of the parties hereto without the prior written consent of
each of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, heirs, personal representatives, legal representatives
and permitted assigns.
d. Entire Agreement. This Agreement and the Irrevocable Proxy
embodies the entire agreement and understanding among the parties relating to
the subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter. There are no representations, warranties or
covenants by the parties hereto relating to such subject matter other than those
expressly set forth in this Agreement or the Irrevocable Proxy.
e. Severability. If any term of this Agreement or the application
thereof to either party to a particular circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such term to the other parties or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by applicable law;
provided that in such event the parties shall negotiate in good faith in an
attempt to agree to another provision (in lieu of the term or application held
to be invalid or unenforceable) that will be valid and enforceable and will
carry out the parties' intentions hereunder.
f. Specific Performance. The parties acknowledge that money damages
are not an adequate remedy for violations of this Agreement and that either
party may, in its sole discretion, apply to a court of competent jurisdiction
for specific performance or injunction or such other relief as such court may
deem just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
g. Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by either party shall not preclude the simultaneous
or later exercise of any other such rights, power or remedy by such party.
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h. No Waiver. The failure of either 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 compliance by the 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.
i. 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 who
or which is not a party hereto.
j. Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Courts of the State of Colorado 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 system
(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 paragraph (j) and shall not be deemed to be
in general submission to the jurisdiction of said court or in the State of
Colorado other than for such purposes. Each party hereto waives any right to a
trial by jury in connection with any such action, suit or proceeding.
k. Governing Law. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the internal laws of
the State of Colorado without regard to principles of conflicts of law.
l. Name, Captions, Gender. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof. Whenever the context may
require, any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms.
m. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
n. Expenses. Each party shall bear its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
METROMAIL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and CEO
CVM EQUITY FUND IV
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: General Partner
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LIMITED IRREVOCABLE PROXY
The undersigned shareholder of Atlantes Corporation, a Colorado
corporation (the "Company"), hereby irrevocably appoints Metromail Corporation,
a Delaware corporation ("Parent"), the attorney-in-fact and proxy of the
undersigned, within the limitations of this Proxy, with respect to shares of
Common Stock, no par value per share, of the Company owned of record or
beneficially by the undersigned (the "Shares"). 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 irrevocable (to
the extent permitted under Colorado law), and coupled with an interest and is
granted in consideration of the Company and Parent entering into the Agreement
and Plan of Merger dated May 17, 1997 among Parent, MML Merging Company and the
Company (the "Merger Agreement"). The attorney and proxy named above will be
empowered at any time prior to the earliest of (i) the effectiveness of the
Merger as defined in the Merger Agreement, (ii) August 31, 1997; (iii) receiving
notice from Parent that Parent elects to terminate this Proxy or (iv) the
termination of the voting agreement dated as of May 17, 1997 between Metromail
and CVM Equity Fund IV, Ltd. (the "Voting Agreement") in accordance with its
terms, to exercise all voting and other rights to the extent specified in the
succeeding paragraph. Upon the occurrence of the earliest of the foregoing
events described in clauses (i), (ii), (iii) or (iv) above, this Proxy shall
expire and be of no further force or effect.
The attorney and proxy named above may only exercise this proxy to
vote the Shares subject hereto in favor of approval of the Merger Agreement and
the Merger at any annual, special or other meeting of the holders of capital
stock of the Company and any adjournments thereof (including, without
limitation, the power to execute and deliver written consents with respect to
the Shares) or for the purpose of voting against a business combination of the
Company with any party other than Parent or any of its subsidiaries and
affiliates and may not exercise this Proxy on any other matters. The
undersigned shareholder may vote the Shares on all other matters. The
undersigned will, upon
request, execute and deliver any additional documents deemed by the above-named
attorney-in-fact and proxy to be reasonably necessary or desirable to effect the
limited irrevocable proxy created hereby.
CVM EQUITY FUND IV
/s/ Xxxx Xxxxxxx
------------------------------
Shares of Company Common Stock
Owned: 46,625
Dated: May 16, 1997
