EXHIBIT 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of January ____,
2002, is made among the shareholders listed on the signature pages hereto
(collectively, the "Shareholders" and each individually, a "Shareholder") and
Visual Data Corporation, a Florida corporation ("Parent").
RECITALS
A. The Shareholders collectively own of record and beneficially shares
of capital stock of Media On Xxxxxx.Xxx, Inc., a Delaware corporation (the
"Company"), as set forth on EXHIBIT A (such shares, or any other voting or
equity securities of the Company hereafter acquired by any Shareholder prior to
the termination of this Agreement, being referred to collectively as the
"Shares").
B. Concurrently with the execution of this Agreement, the Company and
Parent are entering into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), pursuant to which Company will merge with a
wholly-owned subsidiary (the "Sub") of the Parent (the "Merger").
C. As a condition to the willingness of Parent and Sub to enter into
the Merger Agreement, and to induce Parent and Sub to enter into the Merger
Agreement, the Shareholders agree to vote in favor of approving the Merger
Agreement and the Merger, upon the terms and subject to the conditions set forth
in this Agreement.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree as follows:
SECTION 1. DEFINITIONS. For purposes of this Agreement:
(a) As used in this Agreement, "Acquisition Proposal" shall
mean any proposal or offer made by any Person (as defined in the Exchange Act
(as defined in Section 1(b))) other than Parent, Sub or any subsidiary of Parent
or Sub for (i) any merger, consolidation, share exchange, recapitalization,
business combination or other similar transaction; (ii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition of twenty percent
(20%) or more of the assets of the Company, in a single transaction or series of
transactions; (iii) any offer for, or the acquisition (or right to acquire) of
"beneficial ownership" by any person, "group" or entity of twenty percent (20%)
or more of the outstanding shares of capital stock of the Company or the filing
of a registration statement under the Securities Act of 1933, as amended, in
connection therewith; or (iv) any public announcement by the Company of a
proposal, plan or intention to do any of the foregoing or any agreement to
engage in any of the foregoing.
(1) "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 Securities Exchange Act of 1934,
as amended (the "Exchange Act")), including pursuant to any agreement,
arrangement or understanding, whether or not in writing; provided that such
beneficial ownership shall be limited to securities (not including those that
the Person has a right to acquire within 60 days unless so acquired) over which
such Person has sole or shared voting power. 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" within the meaning of Section 13(d)(3) of the
Exchange Act and over which such Person has sole or shared voting power.
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SECTION 2. VOTING OF SHARES. Each Shareholder covenants and agrees that
until the Termination Date (as defined below), at the meeting of the Company's
shareholders or adjournment thereof to consider the Merger Agreement and the
Merger or any other meeting of the shareholders of the Company, however called,
and in any action by written consent of the shareholders of the Company, such
Shareholder will, including by initiating a written consent solicitation if
requested by Parent, vote, or cause to be voted, all of his respective Shares
(i) in favor of adoption of the Merger Agreement and approval of the Merger
contemplated by the Merger Agreement, as the Merger Agreement may be modified or
amended from time to time or the Merger as contemplated by the Merger Agreement
prior to any such amendment, and (ii) against any other Acquisition Proposal or
any amendment of the Company's Certificate of Incorporation or By-laws or other
proposal or transaction involving the Company or its subsidiaries, which
amendment or other proposal would in any manner, impede, frustrate, prevent or
nullify the Merger or the Merger Agreement or any of the transactions
contemplated by the Merger or the Merger Agreement.
SECTION 1. TRANSFER OF SHARES. Each Shareholder covenants and agrees
that until the Termination Date, such Shareholder will not directly or
indirectly, (a) sell, assign, transfer (including by purchase, interspousal
disposition pursuant to a domestic relations proceeding or otherwise by
operation of law), pledge, encumber or otherwise dispose of any of the Shares,
(b) deposit any of the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares or grant any proxy or power
of attorney with respect thereto which is inconsistent with this Agreement, or
(c) enter into any contract, option or other arrangement or undertaking with
respect to the direct or indirect sale, assignment, transfer (including by
purchase, interspousal disposition pursuant to a domestic relations proceeding
or otherwise by operation of law) or other disposition of any Shares except for
Permitted Transfers provided that the transferee (i) enters into an agreement
with Parent containing provisions substantially similar to this Agreement and
(ii) notifies the Parent of such transfer. Permitted Transfers shall mean any
Transfer of Shares by a Shareholder (a) to any other Shareholder; (b) to a
grandparent, parent, sibling, child of a sibling, grandchild of a sibling,
spouse and/or descendant of such Shareholder; (c) to a trust, including, without
limitation, an Irrevocable Intangible Tax Trust, established solely for the
benefit of such Shareholder and/or persons set forth in (a) or (b); (d) to a
company whose shareholders consist solely of such Shareholder and/or persons set
forth in (a) or (b); (e) to a partnership or limited liability company whose
partners or members consist solely of such Shareholder and/or persons set forth
in (a) or (b); (f) to the guardian or conservator of such Shareholder and/or
persons set forth in (a) or (b); (g) if the Shareholder is a company, to the
shareholders of such company; (h) if the Shareholder is a partnership or limited
liability company, to the partners or members of such partnership or limited
liability company; (i) by will or the laws of descent and distribution; or (j)
to any other Person approved by the Board, PROVIDED, HOWEVER, THAT, any
transferee first agrees in writing prior to such transfer to become a party to
and abide by the terms and conditions of this Agreement and to hold the Shares
so transferred subject to the terms and conditions of this Agreement (and any
amendments hereto).
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
Shareholder represents and warrants to Parent and Sub as follows:
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(a) OWNERSHIP OF SHARES. On the date hereof, such Shareholder
is the record and Beneficial Owner of his Shares set forth next to his name on
EXHIBIT A. Such Shareholder has sole voting power, without restrictions, with
respect to all of his Shares.
(1) POWER, BINDING AGREEMENT. Such Shareholder has the legal
capacity, power and authority to enter into and perform all of such
Shareholder's obligations, under this Agreement. This Agreement has been duly
and validly executed and delivered by such Shareholder and constitutes a valid
and binding obligation of such Shareholder, enforceable against such Shareholder
in accordance with its terms, except as may be otherwise provided by applicable
bankruptcy, fraudulent conveyance or other similar laws relating to creditors'
rights. Such Shareholder has had the opportunity to review the Merger Agreement
and this Agreement, has had the opportunity to review the Merger Agreement and
this Agreement with legal counsel of his choosing, and is entering into this
Agreement knowingly and voluntarily.
(2) NO CONFLICTS. The execution and delivery of this Agreement
do not, and the consummation of the transactions contemplated hereby will not,
conflict with or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, any provision of any loan or credit agreement, note, bond, mortgage,
indenture, lease, or other agreement, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to such Shareholder or any of his properties or assets, other than
such conflicts, violations or defaults or terminations, cancellations or
accelerations which individually or in the aggregate do not impair the ability
of such Shareholder to perform his obligations under this Agreement.
(d) Any Shareholder who is also an officer of or director of
the Company does not make any agreement or understanding herein in the
Shareholder's capacity as a director or officer of the Company. The Shareholder
executes this Agreement solely in his capacity as a record owner and/or
Beneficial Owner of the Shares and nothing herein shall limit or affect any
actions taken by the Shareholder or any designee of the Shareholder in their
capacity as an officer or director of the Company.
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SECTION 3. NO SOLICITATION. Subject to the terms of the Merger
Agreement and until the Termination Date, each Shareholder agrees that (a) such
Shareholder will not, nor will he authorize or knowingly permit any of his
employees, agents and representatives to, directly or indirectly, (i) initiate,
solicit or encourage any inquiries or the making of any Acquisition Proposal,
(ii) enter into any agreement with respect to any Acquisition Proposal, or (iii)
participate in any discussions or negotiations regarding, or furnish to any
Person any information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any Acquisition Proposal, and (b) he will notify Parent
and Sub as soon as possible if any such inquiries or proposals are received by,
any information or documents is requested from, or any negotiations or
discussions are sought to be initiated or continued with, him or any of his
affiliates in its individual capacity.
SECTION 3. TERMINATION. This Agreement shall terminate upon the earlier
to occur of (a) the Effective Time (as that term is defined in the Merger
Agreement) of the Merger; or (b) any termination of the Merger Agreement in
accordance with the terms thereof.
SECTION 4. FURTHER ASSURANCES. Each Shareholder will execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use its best efforts to take, or cause to be taken, all actions
necessary, proper or advisable under applicable law to consummate and make
effective the transactions contemplated by this Agreement and to vest the power
to vote such Shareholders' Shares as contemplated by this Agreement.
SECTION 5. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 6. REPRESENTATIONS AND OBLIGATIONS OF THE PARENT. The Parent
requests, warrants and covenants to the Shareholders, as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization, with full corporate power and authority to
own its properties and carry on its business as presently conducted. Parent has
the corporate power and authority to enter into and perform all of its
obligations under this Agreement and to consummate the transactions contemplated
hereby.
(1) NO CONFLICTS. 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 Parent and the
consummation by Parent of the transactions contemplated hereby, except where the
failure to obtain such consent, permit, authorization, approval or filing would
not interfere with its ability to perform its obligations hereunder, and none of
the execution and delivery of this Agreement by Parent, the consummation by
Parent of the transactions contemplated hereby or compliance by Parent with any
of the provisions hereof shall (A) conflict with or result in any breach of any
applicable organizational documents applicable to Parent, (B) result in a
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violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Parent is a party or by which Parent or any
of Parent's properties or assets may be bound, (C) require any consent,
approval, authorization or permit of, registration, declaration or filing
(except for filings under the Exchange Act) with, or notification to, any
government entity, (D) require any material consent, authorization or approval
of any person other than a governmental entity, or (E) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable to
Parent or any of Parent's properties or assets, in each such case except to the
extent that any conflict, breach, default or violation would not interfere with
the ability of Parent to perform its obligations hereunder.
(2) EXECUTION, DELIVERY AND PERFORMANCE BY PARENT . The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of Parent, and Parent has taken all other actions
required by law, its Amended and Restated Articles of Incorporation and its
Bylaws to consummate the transactions contemplated by this Agreement. This
Agreement constitutes the valid and binding obligations of Parent and is
enforceable in accordance with its terms, except as enforceability may be
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally.
SECTION 4. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect thereto. This Agreement may not be amended,
modified or rescinded except by an instrument in writing signed by each of the
parties hereto.
(1) 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. 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 to the fullest
extent permitted by applicable law in a mutually acceptable manner in order that
the terms of this Agreement remain as originally contemplated to the fullest
extent possible.
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(2) DESCRIPTIVE HEADINGS; WORD USAGE. The headings in this
Agreement are inserted for convenience only, and shall not constitute a part of
this Agreement or be used to construe or interpret any of its provisions. The
word "include" or "including" means include or including, without limitation.
The use of a particular pronoun herein will not be restrictive as to gender or
number but will be interpreted in all cases as the context may require.
(3) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware, without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
(4) ATTORNEYS FEES AND COSTS. If any legal action or any other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default, or misrepresentation in connection with any
provision of this Agreement, the prevailing party or parties shall be entitled
to recover reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be entitled.
(5) COUNTERPARTS. This Agreement may be executed in two or
more original or facsimile counterparts, each of which shall be deemed an
original and all of which together shall constitute but one and the same
instrument.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed individually or by its respective duly authorized officer
as of the date first written above.
VISUAL DATA CORPORATION
By:
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Name: Xxxxx X. Xxxxxx
Title: CEO
SHAREHOLDERS:
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