Rollover and Voting Commitment Letter
Exhibit (d)(2)
EXECUTION COPY
March 22, 2007
To: Velo Holdings, Inc.
Re: Acquisition of Vertrue Incorporated
Ladies and Gentlemen:
Reference is made to (i) an Agreement and Plan of Merger, dated as of March 22, 2007 (as
amended, amended and restated, supplemented or otherwise modified
from time to time, the “Merger Agreement”), by and among Velo Holdings Inc. (“Buyer”), Velo Acquisition Inc. (“Merger Sub”), and
Vertrue Incorporated (the “Company”), and (ii) the Equity Commitment Letters dated the date hereof
(“Equity Commitment Letters”), from each of One Equity Partners II, L.P., Oak Investment Partners
XII, L.P., Rho Ventures V, L.P. and Rho Ventures V, Affiliates, L.L.C. (and/or its affiliates) (the
“Sponsors”). Capitalized terms used but not defined herein have the meanings ascribed to them in
the Merger Agreement. This letter (this “Rollover and Voting Commitment Letter”) is being delivered
to the addressee in connection with the execution of the Merger Agreement today by ▇▇▇▇▇, Merger
Sub, and the Company.
This Rollover and Voting Commitment Letter confirms the commitment of the undersigned (the
“Rollover Investor”) to, immediately prior to the Merger, deliver and contribute to Buyer that
number of shares of common stock, par value $0.01 per share of the Company (the “Company Common
Stock”) as is set forth opposite such Rollover Investor’s name under the heading Rollover Shares on
Schedule 1 (the “Rollover Shares”, and such overall purchase, the “Rollover”), valuing each
Rollover Share so contributed to Buyer at $48.50 per share (i.e., an amount equal to the Merger
Consideration) (such aggregate value, the “Rollover Investment”) in exchange and full payment for
newly issued Buyer securities (such Buyer securities, the “Shares”), equivalent in number and type
to the Buyer securities purchased by the Sponsors for an amount of cash equal to the Rollover
Investment. In the event that the Sponsors shall purchase more that one type of Buyer securities,
the Rollover Investor shall receive the same types of Buyer securities in the same proportion as
the Sponsors. Buyer will cooperate with the Rollover Investor to facilitate a Rollover structure
that is as tax efficient to the Rollover Investor, and economically neutral to Buyer, as is
reasonably possible consistent with the Rollover Investor’s obligations under this Rollover and
Voting Commitment Letter.
This Rollover and Voting Commitment Letter also confirms the commitment of the Rollover
Investor (a) to vote or execute consents in respect of each share of Company Common Stock with
respect to which he has voting power at the time of the applicable record date for such shareholder
meeting or request for consent, (x) in favor of the Merger Agreement, the Merger and the other
transactions contemplated by the Merger Agreement and (y) against any action that would or is
designed to delay, prevent or
frustrate the Merger and the other
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transactions contemplated by the Merger Agreement (provided, that except as set forth in this
paragraph, the Rollover Investor shall not be restricted from voting in favor of, against or
abstaining with respect to any matter presented to the stockholders of the Company); (b) to waive
any and all appraisal, dissenters and similar rights that the Rollover Investor may have with
respect of the Merger and the other transactions contemplated by the Merger Agreement; and (c)
except as otherwise provided herein, without the prior written consent of Buyer, to not make any
transfer, sale, assignment, pledge, hypothecation or other disposition (including by operation of
law), whether directly or indirectly pursuant to the creation of a derivative security, the grant
of an option or other right or the imposition of a restriction on disposition or voting (in each
case, a “Transfer”), of any of his Company Common Stock, except, solely with respect to shares of
Company Common Stock that are not the Rollover Shares, (i) in connection with bona fide estate,
financial or tax planning purposes, or a bona fide gift, after providing three (3) Business Days
notice to Buyer, provided that any transferee executes and delivers to Buyer an instrument
satisfactory to Buyer agreeing that such transferee will be bound by this Agreement as if such
transferee was the Rollover Investor and (ii) in connection with the conversion, exercise or
exchange of any securities convertible into Company Common Stock in which event such shares of
Company Common Stock shall be subject to the terms and conditions of this letter.
▇▇▇▇▇ acknowledges that the Rollover Investor does not make any agreement or understanding
hereunder in such Rollover Investor’s capacity (if applicable) as a director or officer of the
Company. The Rollover Investor executes this letter solely in his capacity as a stockholder of the
Company and nothing herein shall limit or affect any actions taken by the Rollover Investor in his
capacity as an officer or director of the Company. The Rollover Investor shall have no liability to
Buyer or its affiliates under this letter as a result of any action or inaction by the Rollover
Investor in his capacity as a director or officer of the Company.
The Rollover Investor represents and warrants that: (a) he has, and will have as of the
Rollover, good and valid title to all of the Rollover Shares and the requisite power and authority
to perform his obligations hereunder and to deliver the Rollover Shares free of all liens or
encumbrances; (b) he is purchasing the Shares hereunder for investment for such Rollover Investor’s
own account and not with a view to, or for sale in connection with, any distribution thereof; (c)
his financial situation is such that such Rollover Investor can afford to bear the economic risk of
holding the Shares being purchased by such Rollover Investor hereunder for an indefinite period of
time, and such Rollover Investor can afford to suffer the complete loss of such Rollover Investor’s
investment in the Shares; (d) his knowledge and experience in financial and business matters are
such that such Rollover Investor is capable of evaluating the merits and risks of such Rollover
Investor’s investment in the Shares or such Rollover Investor has been advised by a representative
possessing such knowledge and experience; (e) he understands that the Shares acquired hereunder are
a speculative investment which involves a high degree of risk of loss of the entire investment
therein, that there will be substantial restrictions on the transferability of the Shares and that
following the date hereof there will be no public
market for the Shares and that, accordingly, it may not be possible for such Rollover Investor
to sell or pledge the Shares, or any interest in the Shares, in case of emergency or otherwise; (f)
he and his representatives, including, to the extent such Rollover Investor deems appropriate, such
Rollover
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Investor’s legal, professional, financial, tax and other advisors, have reviewed all documents
provided to them in connection with such Rollover Investor’s investment in the Shares, and such
Rollover Investor understands and is aware of the risks related to such investment; (g) he and his
representatives have been given the opportunity to examine all documents and to ask questions of,
and to receive answers from, Buyer, Company and their respective representatives concerning Buyer,
Company, the terms and conditions of such Rollover Investor’s acquisition of the Shares and related
matters and to obtain all additional information which such Rollover Investor or such Rollover
Investor’s representatives deem necessary; and (h) he is an “accredited investor” as such term is
defined in Regulation D.
The rights and obligations under this letter will terminate (without any further obligation of
Rollover Investor hereunder) upon the first to occur of (a) the termination of the Merger Agreement
in accordance with its terms, and (b) the Effective Time.
Upon consummation of the Merger the Rollover Investor shall enter into an employment agreement
with Buyer substantially on the terms set forth in Exhibit A hereto, and such other customary terms
that are not in conflict with such terms. All of the Rollover Investor’s rights and obligations
under this letter will terminate if an employment agreement on substantially the terms set forth in
Exhibit A is not offered by Buyer at least 5 business days preceding the Stockholders Meeting at
which the vote on the adoption of the Merger Agreement is taken, or is thereafter withdrawn by
Buyer.
The rights and obligations under this letter may not be assigned and any attempted assignment
shall be null and void and of no force or effect. This letter may not be amended, and no provision
hereof waived or modified, except by an instrument in writing signed by ▇▇▇▇▇ and the Rollover
Investor. This letter constitutes the sole agreement, and supersedes all prior agreements,
understandings and statements, written or oral, between the Rollover Investor, on the one hand, and
any other person, on the other, with respect to the matters contemplated hereby.
This letter shall be binding on the Rollover Investor solely for the benefit of the addressee,
and nothing set forth in this letter shall be construed to confer upon or give to any person other
than the addressee any benefits, rights or remedies under or by reason of, or any rights to enforce
or cause such addressee to enforce, the commitments hereunder or any provisions of this letter.
Notwithstanding anything that may be expressed or implied in this letter, the addressee, by its
acceptance of the benefits of this letter, covenant, agree and acknowledge that no person other
than the undersigned shall have any obligation hereunder. Nothing in this letter, express or
implied, is intended to or shall confer upon any person, other than Buyer or the Rollover Investor,
any right, benefit or remedy of any nature whatsoever under or by reason of this letter.
This letter shall be governed by, and construed and interpreted in accordance with, the laws
of the State of New York applicable to contracts executed in and to be performed in that State. The
parties hereto hereby (a) submit to the personal jurisdiction of any state or federal court located
in the State of New York, New York County, and (b) waive any claim of improper
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venue or any claim that those courts are an inconvenient forum. The parties hereto agree that
mailing of process or other papers in connection with any action or proceeding in the manner
provided in Section 9.6 of the Merger Agreement or in such other manner as may be permitted by
applicable laws, will be valid and sufficient service thereof.
EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS LETTER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
This letter may be executed in counterparts and by facsimile, each of which, when so executed,
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.
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Very
truly yours,
/s/ ▇▇▇▇
▇. ▇▇▇▇▇▇▇ by ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇.▇.▇.
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Accepted and Acknowledged:
Velo Holdings Inc.
By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: President |
[Rollover Commitment Letter (Class A Common Stock) Signature Page]
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SCHEDULE I
| Rollover Shares | |||
| Rollover Investors: | |||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Number of shares to be | |||
| equal in value to not less | |||
| c/o Vertrue Incorporated | than $20,000,000 | ||
| ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | reduced at the Rollover | ||
| Norwalk, CT 06850 | Investor’s election, by | ||
| Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ | the value of shares rolled | ||
| Fax: (▇▇▇) ▇▇▇-▇▇▇▇ | into the Company’s | ||
| incentive equity. | |||
| with a copy to: | |||
| ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP | |||
| ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Philadelphia, PA 19103 | |||
| Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ | |||
| Fax: (▇▇▇) ▇▇▇ ▇▇▇▇ | |||