Exhibit D
VOTING AND STANDSTILL AGREEMENT, dated as of November 14, 1999 (this
"AGREEMENT") by and between Interactive Data Corporation, a Delaware corporation
("LYNX"), and AFT/FGT Family Partners Ltd and Xxxxxxx Family Limited Partnership
(each a "STOCKHOLDER", collectively, the "STOCKHOLDERS"). Capitalized terms used
but not defined herein shall have the meanings set forth in the Agreement and
Plan of Merger, dated the date hereof (as such agreement may be amended from
time to time, the "MERGER AGREEMENT").
WHEREAS, concurrently herewith, Lynx, Xxxxxxx Longman, Inc., a Delaware
corporation, Detective Merger-Sub, Inc., a Delaware corporation ("ACQUISITION
SUB") and Data Broadcasting Corporation, a Delaware corporation ("DETECTIVE"),
are entering into the Merger Agreement, which provides for, among other things,
the merger of Acquisition Sub with and into Lynx.
WHEREAS, as a condition to Lynx's entering into the Merger Agreement,
the Stockholders have agreed to enter into this Agreement with Lynx.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual agreements contained herein, the parties hereby
agree as follows:
Section 1. CERTAIN DEFINITIONS. The following terms, when used in this
Agreement, shall have the following meanings (such definitions to be equally
applicable to both singular and plural terms of the terms defined):
"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. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" as described
in Section 13(d)(3) of the Exchange Act.
"DETECTIVE" has the meaning ascribed thereto in the recitals of this
Agreement.
"EXISTING SHARES" has the meaning ascribed thereto in Section 2(a)(i).
"LYNX" has the meaning ascribed thereto in the introductory paragraph
of this Agreement.
"MERGER AGREEMENT" has the meaning ascribed thereto in the introductory
paragraph of this Agreement.
"PERMITTED TRANSFEREE" means (a) a spouse or lineal descendent
(including by adoption and stepchildren), heir, executor, testamentary trustee
or legatee of a Stockholder or (b) any trust or estate the beneficiaries of
which, or any corporation, limited liability company or partnership,
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the stockholders, members or partners of which, include only the Stockholder and
the Persons described in clause (a) above.
"SHARES" means the Existing Shares, together with any shares of
Detective Common Stock acquired of record or beneficially by the Stockholder in
any capacity after the date hereof and prior to the termination hereof, whether
upon exercise of options, conversion of convertible securities, purchase,
exchange or otherwise; PROVIDED, however, that in the event of a stock dividend
or distribution, or any change in the Detective Common Stock by reason of any
stock dividend, split-up, recapitalization, combination, exchange of shares or
the like, the term AShares" shall be deemed to refer to and include the Shares
as well as all such stock dividends and distributions and any shares into which
or for which any or all of the Shares may be changed or exchanged.
"STOCKHOLDER" and "STOCKHOLDERS" have the meaning ascribed thereto in
the introductory paragraph to this Agreement.
"TERMINATION DATE" has the meaning ascribed thereto in Section 9 of
this Agreement.
"TRUSTEE" has the meaning ascribed thereto in Section 2(a)(i) of this
Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. The
Stockholders hereby represent and warrant to Lynx as follows:
(a) (i) Each Stockholder is either (A) the record holder or
beneficial owner of the number of, or (B) trustee ("TRUSTEE")
of a trust that is the record holder or beneficial owner of,
and whose beneficiaries are the beneficial owners of the
shares of Detective Common Stock set forth opposite the
Stockholder's name on SCHEDULE I hereto (the "EXISTING
SHARES").
(ii) On the date hereof, the Existing Shares constitute
all of the outstanding shares of Detective Common Stock owned
of record or beneficially by each Stockholder.
(iii) Each Stockholder has sole power of disposition and
sole voting power with respect to the matters set forth in
Section 4 hereof and sole power to demand dissenter's or
appraisal rights, in each case with respect to all of the
Existing Shares, with no restrictions on such rights, subject
to applicable securities laws and the terms of this Agreement.
(iv) Each Stockholder will have sole power of disposition
and will have sole voting power with respect to the matters
set forth in Section 4 hereof and sole power to demand
dissenter's or appraisal rights, in each case with respect to
all Shares other than Existing Shares, if any, which become
beneficially owned by
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the Stockholder, with no restrictions on such rights, subject
to applicable securities laws and the terms of this Agreement.
(b) Each Stockholder has the legal capacity, power and
authority to enter into and perform all of such Stockholder's
obligations under this Agreement. The execution, delivery and
performance of this Agreement by each Stockholder will not violate any
other Contract to which such Stockholder is a party or by which such
Stockholder is bound including, without limitation, any trust
agreement, voting agreement, stockholders agreement, voting trust,
partnership or other agreement. This Agreement has been duly and
validly executed and delivered by the Stockholders and (assuming due
authorization, execution and delivery by Lynx) constitutes a legal,
valid and binding agreement of the Stockholders, enforceable against
the Stockholders in accordance with its terms. All necessary consents
of any beneficiary of or holder of interest in any trust of which
either Stockholder is Trustee to the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been obtained. If a Stockholder is married and such Stockholder's
Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and
binding agreement of, such Stockholder's spouse, enforceable against
such person in accordance with its terms.
(c) Except for filings under the HSR Act, if applicable, (i)
no filing with, and no permit, authorization, consent or approval of,
any state or federal public body or authority is necessary for the
execution of this Agreement by the Stockholders and the consummation by
the Stockholders of the transactions contemplated hereby and (ii)
neither the execution and delivery of this Agreement by the
Stockholders nor the consummation by the Stockholders of the
transactions contemplated hereby nor compliance by the Stockholders
with the provisions hereof shall (x) conflict with or result in any
breach of any applicable trust, partnership agreement or other
Contracts or organizational documents applicable to the Stockholders,
(y) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any right
of termination, cancellation, material modification or acceleration),
under any of the terms, conditions or provisions of any Contract to
which either Stockholder is a party or by which the Stockholders or any
of the Stockholders' properties or assets may be bound or (z) violate
any Governmental Order applicable to the Stockholders or any of the
Stockholders' properties or assets.
(d) Except for the shares of Detective Common Stock identified
in SCHEDULE II hereto (the "PLEDGED SHARES"), the Stockholder's Shares
and the certificates representing such Shares are now and at all times
during the term hereof will be held by the Stockholders, or by a
nominee or custodian for the benefit of the Stockholders, free and
clear of all Liens, proxies, voting trusts or arrangements or any other
encumbrances whatsoever, except for any of the same arising hereunder.
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(e) No broker, investment banker, financial adviser or other
Person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
either Stockholder in his or her capacity as such.
(f) Each Stockholder understands and acknowledges that Lynx is
entering into the Merger Agreement in reliance upon such Stockholders'
execution and delivery of this Agreement with Lynx.
Section 3. REPRESENTATIONS AND WARRANTIES OF LYNX. Lynx hereby
represents and warrants to each Stockholder as follows:
(a) Lynx is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) Lynx has all necessary corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by Lynx of
this Agreement and the consummation by Lynx of the transactions
contemplated hereby have been duly and validly authorized and approved
by all required corporate action. This Agreement has been duly executed
and delivered by Lynx, and (assuming due authorization, execution and
delivery by the Stockholders) constitutes a legal, valid and binding
obligation of Lynx, enforceable against it in accordance with its
terms.
(c) Except for filings under the HSR Act, if applicable, (i)
no filing with and no permit, authorization, consent or approval of,
any state or federal public body or authority is necessary for the
execution of this Agreement by Lynx and the consummation by Lynx of the
transactions contemplated hereby and (ii) neither the execution and
delivery of this Agreement by Lynx nor the consummation by Lynx of the
transactions contemplated hereby nor compliance by Lynx with the
provisions hereof shall (x) conflict with or result in any breach of
any applicable trust, partnership agreement or other Contracts or
organizational documents applicable to Lynx, (y) result in a violation
or breach of, or constitute (with or without notice or lapse of time or
both) a default (or give rise to any right of termination,
cancellation, material modification or acceleration) under any of the
terms, conditions or provisions of any Contract to which Lynx is a
party or by which Lynx or any of Lynx's properties or assets may be
bound or (z) violate any Governmental Order applicable to Lynx or any
of Lynx's properties or assets.
Section 4. AGREEMENT TO VOTE; PROXY
(a) Each Stockholder hereby agrees that, until the Termination
Date (as defined in Section 9), at any meeting of the stockholders of
Detective, however called, or
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in connection with any action by written consent of the stockholders of
Detective, such Stockholder shall vote (or cause to be voted) or act by
written consent with respect to the Shares (i) in favor of the Merger,
the Amended Charter and the election of the Post-Closing Directors, the
execution and delivery by Detective of the Merger Agreement and the
Ancillary Agreements 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 hereof and thereof;
(ii) against any action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or
agreement of Detective under the Merger Agreement, the Ancillary
Agreements or this Agreement; and (iii) against the following actions
(other than the Merger and the transactions contemplated by the Merger
Agreement or any such actions identified in writing by Lynx in
advance): (A) any extraordinary corporate transaction, including,
without limitation, a merger, consolidation or other business
combination involving Detective or any of its Subsidiaries; (B) a sale,
lease or transfer of a material amount of assets of Detective or any of
its Subsidiaries or a reorganization, recapitalization, dissolution or
liquidation of Detective or any of its Subsidiaries; (C) any change in
the majority of the board of directors of Detective; (D) any change in
the present capitalization of Detective or any amendment of Detective's
Certificate of Incorporation or by-laws (other than as contemplated by
the Amended Charter); (E) any other change in Detective's corporate
structure or business; or (F) any other action which is intended, or
could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or materially adversely affect the Merger or the
transactions contemplated by the Merger Agreement, the Ancillary
Agreements or this Agreement. No Stockholder shall enter into any
Contract or understanding with any Person to vote or give instructions
in any manner inconsistent with the terms of this Agreement.
(b) EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, LYNX AND
ANY DESIGNEE OF LYNX, EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDER'S
IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY AND ATTORNEY-IN-FACT
(WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES AS SET FORTH IN
SECTION 4(a) ABOVE. EACH STOCKHOLDER INTENDS THIS PROXY TO BE
IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED WITH AN INTEREST
AND WILL TAKE SUCH FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS
MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY
REVOKES ANY PROXY PREVIOUSLY GRANTED BY SUCH STOCKHOLDER WITH RESPECT
TO SUCH SHARES.
Section 5. CERTAIN COVENANTS OF THE STOCKHOLDERS. Except in accordance
with the terms of this Agreement, the Stockholders hereby covenant and agree as
follows:
(a) Prior to the Termination Date, a Stockholder shall not, in
its capacity as such, directly or indirectly (including through
advisors, agents or other intermediaries),
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solicit, initiate or encourage (including by way of furnishing
information) or respond to (or take any other action designed to
facilitate) any inquiries or the making of any proposal by any Person
(other than Lynx or any Affiliate thereof) with respect to Detective
that constitutes or could reasonably be expected to lead to a Detective
Takeover Proposal or engage in any discussions or negotiations with
regard to any Detective Takeover Proposal.
(b) Prior to the Termination Date, a Stockholder shall not,
directly or indirectly (i) except pursuant to the terms of the Merger
Agreement or this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, enforce or permit the
execution of the provisions of any redemption agreement with Detective,
enter into any Contract, Option or other arrangement or understanding
with respect to, or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, or
exercise any discretionary powers to distribute, any or all of the
Shares or any interest therein, including any trust income or
principal, except in each case to a Permitted Transferee who is or
agrees to become bound by this Agreement; (ii) except as contemplated
hereby, grant any proxies or powers of attorney with respect to any
Shares, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that
would make any representation or warranty of such Stockholder contained
herein untrue or incorrect or have the effect of preventing or
disabling such Stockholder from performing any of such Stockholder's
obligations under this Agreement.
(c) Each Stockholder hereby waives any rights of appraisal or
rights to dissent from the Merger that such Stockholder may have. Each
Trustee represents that no beneficiary who is a beneficial owner of
Shares under any trust has any right of appraisal or right to dissent
from the Merger which has not been so waived.
(d) Unless, in connection therewith, the Shares held by any
trust which is presently subject to the terms of this Agreement are
transferred to one or more Permitted Transferees who upon receipt of
such Shares become signatories to this Agreement, the Stockholder
acting as a Trustee shall not take any action to terminate, close or
liquidate any such trust and shall take all steps necessary to maintain
the existence thereof at least until the Termination Date.
Section 6. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
Section 7. CERTAIN EVENTS. The Stockholders agree that this Agreement
and the obligations hereunder shall attach to the Shares and shall be binding
upon any person or entity to
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which legal or beneficial ownership of such Shares shall pass, whether by
operation of law or otherwise, including without limitation the Stockholders'
heirs, guardians, administrators or successors or as a result of any divorce.
Section 8. STOP TRANSFER. The Stockholders agree with, and covenant to,
Lynx that the Stockholders shall not request that Detective register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Shares, unless such transfer is made in compliance with
this Agreement.
Section 9. TERMINATION. The obligations of the Stockholders and the
irrevocable proxy contained in Section 4(b) of this Agreement shall terminate
upon the first to occur of (a) the Effective Time and (b) the date the Merger
Agreement is terminated in accordance with its terms (unless such termination is
being contested in good faith by Lynx in a court of competent jurisdiction, in
which event this Agreement shall remain in full force and effect until the
resolution of such action from which there is no further right of appeal) (the
ATERMINATION DATE"); provided that the provisions of Sections 2, 3 and 10 and
any claim for breach of any representation, warranty, covenant or other
agreement under this Agreement shall survive the Termination Date.
Section 10. MISCELLANEOUS.
(a) All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by overnight courier service, by cable, by
facsimile, by telegram, by telex or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties
at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section
10(a)):
If to the Stockholders:
Xxxxxxx Family FMC, LLC
0000 Xxxxx Xxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
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If to Lynx:
c/o Pearson Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President
Telecopier: (000) 000-0000
with a copy to Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Gold, Esq.
Telecopier: (000) 000-0000
(b) At any time prior to the Termination Date, any party
hereto may, with respect to any other party hereto, (i) extend the time
for the performance of any of the obligations or other acts, (ii) waive
any inaccuracies in the representations and warranties contained herein
or in any document delivered pursuant hereto or (iii) waive compliance
with any of the agreements or conditions contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in
writing signed by the party or parties to be bound thereby.
(c) The headings contained in this Agreement are for the
convenience of reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
(d) 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 the transactions contemplated hereby is
not affected in any manner 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 transactions contemplated hereby be consummated as
originally contemplated to the greatest extent possible.
(e) This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersede
all prior agreements and undertakings, both written and oral with
respect to the subject matter hereof and thereof and except as
otherwise expressly provided herein.
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(f) This Agreement shall not be assigned by operation of Law
or otherwise, except that Lynx may assign all or any of its rights and
obligations hereunder to any of its Affiliates, PROVIDED, HOWEVER, that
no such assignment shall relieve the assigning party of its obligations
hereunder.
(g) The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms. It is
accordingly agreed that the parties hereto (i) will waive, in any
action for specific performance, the defense of adequacy of remedy at
law and (ii) shall be entitled to specific performance of the terms
hereof, this being in addition to any other remedy to which they are
entitled at law or in equity.
(h) No failure or delay on the part of any party hereto in the
exercise of any right hereunder shall impair such right or be construed
to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
(i) Notwithstanding anything herein to the contrary, no Person
executing this Agreement who is, or becomes during the term hereof, a
director of Detective makes any agreement or understanding herein in
his or her capacity as such director, and the agreements set forth
herein shall in no way restrict any director in the exercise of his or
her fiduciary duties as a director of Detective in his or her capacity
as a director of Detective. Each Stockholder has executed this
Agreement solely in his or her capacity as the record or beneficial
holder of the Shares or as the trustee of a trust whose beneficiaries
are the beneficial owners of the Shares.
(j) Each party agrees to bear its own expenses in connection
with the transactions contemplated hereby.
(k) This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of Delaware. All actions and
proceedings arising out of or relating to this Agreement shall be heard
and determined in a Delaware state or federal court sitting in the
State of Delaware, and the parties hereto hereby irrevocable submit to
the exclusive jurisdiction of such courts in any such action or
proceeding and irrevocably waive the defense of an inconvenient forum
to the maintenance of any such action or proceeding.
(l) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT.
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(m) This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
INTERACTIVE DATA CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Person
AFT/FGT FAMILY PARTNERS LTD.
By: Xxxxxxx Family FMC, LLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
XXXXXXX FAMILY LIMITED PARTNERSHIP
By: Xxxxxxx Family FMC, LLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
[Signature page to Voting and Standstill Agreement]
SCHEDULE I
EXISTING SHARES
Stockholder No. of Existing Shares
----------- ----------------------
AFT/FGT Family Partners Ltd. 984,559
Xxxxxxx Family Limited Partnership 545,000
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SCHEDULE II
PLEDGED SHARES
Number of Pledged Shares Pledgee
------------------------ -------
None
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