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EXHIBIT 1
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is entered into by and between
S. Xxxxxx Xxxxxx ("Xxxxxx") and Xxxxxxxx X. Xxxxxxx ("Ledecky") as of January 7,
1999.
RECITALS
WHEREAS, Xxxxxx is the CEO & Chairman and the owner of certain shares
of the common stock, $.01 par value per share (the "Common Stock"), of The
Source Information Management Company, a Missouri corporation (the
"Corporation"), and
WHEREAS, as of the date hereof, the Corporation has effectuated a
merger of U.S. Marketing Services, Inc., a Delaware corporation ("Target"), with
and into Source - U.S. Marketing Co., a Missouri corporation and a wholly-owned
subsidiary of the Corporation ("S-US"), pursuant to an Agreement and Plan of
Merger among the Corporation, Target, S-US, Ledecky, Xxxxx X. Xxxxxx and Xxxxx
Xxxxxx dated as of January 7, 1999 (the "Merger Agreement"); and
WHEREAS, in connection with the Merger Agreement, the Corporation
issued 1,779,383 shares of Common Stock and 1,360,617 shares of Series A
Convertible Preferred Stock, $.01 par value per share (the "Preferred Stock") to
Ledecky; and
WHEREAS, the Merger Agreement requires Xxxxxx and Ledecky to enter into
an agreement pursuant to which Ledecky will vote his Common Stock in the same
manner as Xxxxxx on certain matters.
NOW, THEREFORE, in consideration of the foregoing and the terms and
conditions set forth herein, the receipt and sufficiency of which are
acknowledged by the parties hereto, the parties agree to the following.
1. Voting Agreement.
(a) Ledecky agrees to vote any and all of his shares of
Common Stock, whether now owned or hereafter acquired, in the same manner as
Xxxxxx on matters pertaining to the election of directors of the Corporation;
the ratification of the Corporation's auditors; composition of senior
management; financings; stock bonus, option or incentive plans or programs for
employees and consultants of the Corporation and amendments thereto; the
amendment of the Articles of Incorporation of the Corporation to increase the
authorized capital of the Corporation; and similar matters pertaining to the
day-to-day operations of the Corporation.
(b). Such agreement specifically excludes matters pertaining
to fundamental changes in the Corporation, including, but not limited to,
mergers, acquisitions requiring
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shareholder approval, tender offers, sales of all or substantially all of the
assets of the Corporation, changes in control of the Corporation, and the
issuance of capital stock of the Corporation requiring shareholder approval.
2. Irrevocable Proxy. In order to insure the voting of Ledecky in
accordance with this Agreement, Ledecky agrees to execute an irrevocable proxy,
at or prior to each meeting of shareholders called for the purpose of
considering the matters specified in ss.1(a) hereof, in the form of Exhibit A
attached hereto and made a part hereof granting to Xxxxxx the right to vote, or
to execute and deliver stockholder written consents, in respect of all of the
Common Stock now owned or hereafter acquired (including Common Stock received
upon the conversion of the Preferred Stock) by Ledecky.
3. Changes in Common Stock. In the event that subsequent to the
date of this Agreement any shares or other securities of the Corporation are
issued on, or in exchange for, the Common Stock of the Corporation held by
Ledecky by reason of any stock dividend, stock split, consolidation of shares or
reclassification, such Common Stock or securities shall be deemed to be covered
by the terms of this Agreement.
4. Representations of Ledecky. Ledecky hereby represents and
warrants to Xxxxxx that (a) he was the record owner as of the date hereof of the
Common Stock and the Preferred stock stated in the recitals above and has the
right to vote the number of shares of Common Stock stated in the recitals above,
(b) he has full power to enter into this Agreement and has not, prior to the
date of this Agreement, executed or delivered any proxy or entered into any
other voting agreement or similar arrangement other than one which has expired
or terminated prior to the date hereof or which is superseded by this
Irrevocable Proxy, and (c) he will not take any action inconsistent with the
purpose and provisions of this Agreement.
5. Enforceability. Ledecky expressly agrees that this Agreement
shall be specifically enforceable in any court of competent jurisdiction in
accordance with its terms.
6. Termination. This Agreement shall terminate and be void and of
no effect upon the earliest of the following to occur: (a) the second
anniversary of this Agreement, (b) Ledecky and his permitted transferees under
Registration Rights Agreement by and among the Corporation, Ledecky, Xxxxx X.
Xxxxxx and Xxxxx Xxxxxx of even date hereof beneficially owning less than ten
percent of the issued and outstanding capital stock of the Corporation, or (c)
the removal or resignation of Xxxxxx from either of his positions as Chief
Executive Officer and as Chairman of the Board of Directors of the Corporation.
7. Proxy Holder. Xxxxxx hereby agrees to act as proxy for Ledecky
subject to the terms and conditions set forth herein.
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8. General Provisions.
(a) All of the covenants and agreements contained in this
Agreement shall be binding upon, and enure to the benefit of, the respective
parties and their successors, assigns, heirs, executors, administrators and
other legal representatives, as the case may be.
(b) This Agreement and the rights of the parties hereto,
shall be governed by and construed in accordance with the laws of the State of
Missouri.
(c) This Agreement may be executed in one or more
counterparts (including by facsimile transmission), each of which will be deemed
an original but all of which together shall constitute one and the same
instrument.
(d) If any provision of this Agreement shall be declared
void or unenforceable by any court or administrative board of competent
jurisdiction, such provision shall be deemed to have been severed from the
remainder of this Agreement and this Agreement shall continue in all respects to
be valid and enforceable.
(e) No waivers of any breach of this Agreement extended by
any party hereto to any other party shall be construed as a waiver of any rights
or remedies of any other party hereto or with respect to any subsequent breach.
(f) Whenever the context of this Agreement shall so
require, the use of the singular number shall include the plural and the use of
any gender shall include all genders.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
/s/ Xxxxxxxx X. Xxxxxxx /s/ S. Xxxxxx Xxxxxx
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Xxxxxxxx X. Xxxxxxx S. Xxxxxx Xxxxxx
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