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EXHIBIT B-1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of April 26, 2001 (this "Agreement"), by
and among WorldPages Merger Subsidiary, Inc., a Delaware corporation ("Merger
Sub"), and XxxxxXxxxx.xxx, Inc., a Delaware corporation (the "Company"), and
each of the officers and directors of the Company listed on Schedule 2(c)
attached hereto (each, a "Stockholder" and collectively, the "Stockholders").
RECITALS
Merger Sub, TransWestern Publishing Company, LLC, a Delaware limited
liability company ("Parent"), and the Company propose to enter into an Agreement
and Plan of Merger, dated as of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement"), providing for the merger of Merger Sub
with and into the Company, in which the Company will be the surviving entity,
upon the terms and subject to the conditions set forth in the Merger Agreement.
Capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement as entered into on the date hereof.
As of the date hereof, the Stockholders are the record and
beneficial owners of an aggregate of 5,241,632 shares of Company Common Stock
(the "Existing Shares" and, together with any shares of Company Common Stock
acquired by the Stockholder after the date hereof, whether upon the exercise of
warrants, options or rights, the conversion or exchange of any Existing Shares
or convertible or exchangeable securities or by means of purchase, dividend,
distribution or otherwise, the "Subject Shares"). As of the date hereof, the
Existing Shares represent 11.8% of the Company Common Stock.
As an inducement and a condition to entering into the Merger
Agreement, Merger Sub has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement.
The Stockholders and Merger Sub desire to set forth their agreement
with respect to the voting of the Subject Shares in connection with the Merger
Agreement and the transactions contemplated hereby and thereby (the
"Transactions") upon the terms and subject to the conditions set forth herein.
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AGREEMENT
To implement the foregoing and in consideration of the mutual agreements
contained herein, the parties agree as follows:
1. Covenants of the Stockholders. Until the termination of this
Agreement in accordance with Section 5, the Stockholders agree as follows:
(a) Agreement to Vote. At any meeting of stockholders of the Company
called for the approval of the Merger Agreement or the Transactions, however
called, or at any adjournment thereof, or in connection with any written consent
of the holders of shares of Company Common Stock, or in any other circumstances
in which any Stockholder is entitled to vote, consent or give any other approval
with respect to the Merger Agreement or the Transactions, such Stockholder shall
vote (or cause to be voted) the Subject Shares, to the extent they are voting
shares, under his or its control in the manner directed by Merger Sub at its
sole discretion with respect to adoption and approval of the Merger Agreement or
the Transactions and the approval of the terms thereof and each of the other
actions contemplated by this Agreement or the Merger Agreement and any
amendments hereto or thereto; and
At any meeting of stockholders of the Company, however called, or at any
adjournment thereof, or in connection with any written consent of the holders of
shares of Company Common Stock or in any other circumstances in which any
Stockholder is entitled to vote, consent or give any other approval in its
capacity as stockholder, except as otherwise agreed to in writing in advance by
Merger Sub, such Stockholder shall vote (or cause to be voted), to the extent
they are voting shares, the Subject Shares against the following actions:
(i) any action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or of the Stockholders hereunder; or
(ii) any action or agreement that could reasonably be expected to
impede, interfere with, delay, postpone or attempt to discourage the Merger
and/or the other Transactions, including, but not limited to (and whether in one
transaction or series of transactions): (A) the adoption by the Company of a
proposal regarding (1) any Acquisition Proposal, (2) any other acquisition of
the Company by merger, tender offer, recapitalization or otherwise by any person
other than Merger Sub or any designee thereof (a "Third Party"), or any other
merger, combination or similar transaction with any Third Party; (3) any other
acquisition by a Third Party of 1% or more of the assets of the Company and its
subsidiaries, taken as a whole (whether by the acquisition of assets or
securities of, or any merger, consolidation or other business combination
involving, the Company or any of its subsidiaries); (4) any other acquisition by
a Third
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Party of 1% or more of the outstanding shares of Company Common Stock, or (5)
any other repurchase by the Company and/or any of its subsidiaries of 1% or more
of the outstanding shares of Company Common Stock; (B) any amendment of the
Company's Articles of Incorporation or By-laws or other proposal or transaction
involving the Company or any of its subsidiaries, which amendment or other
proposal or transaction could in any manner reasonably be expected to impede,
prevent or nullify the Merger, the Merger Agreement or the Transactions, or
change in any manner the rights and privileges, including, without limitation,
voting rights of any class of the Company's capital stock; (C) any change in the
management or board of directors of the Company that could in any manner
reasonably be expected to impede, prevent or nullify the Merger, the Merger
Agreement or the Transactions; (D) any change in the present capitalization or
dividend policy of the Company; or (E) any other change in the Company's
corporate structure or business. Each Stockholder, in its capacity as a
stockholder of the Company, further agrees not to commit or agree to take any
action inconsistent with the foregoing agreements.
(b) PROXIES. AS SECURITY FOR THE AGREEMENTS OF THE STOCKHOLDERS PROVIDED
FOR HEREIN, EACH STOCKHOLDER HEREBY GRANTS TO MERGER SUB AN IRREVOCABLE PROXY
(EACH, A "PROXY", AND COLLECTIVELY, THE "PROXIES") IN THE FORM OF EXHIBIT A
ATTACHED HERETO.
(c) Transfer Restrictions. Each Stockholder agrees not to (i) sell,
transfer, tender pursuant to a tender offer, pledge, encumber, assign or
otherwise dispose of or hypothecate (including by gift or by contribution or
distribution to any trust or similar instrument or to any beneficiaries of such
Stockholder), other than the pledges existing as of the date hereof and
described on Schedule 1(c) ("Permitted Pledges"), (collectively, "Transfer"), or
enter into any contract, option or other arrangement or understanding (including
any profit sharing arrangement) with respect to the Transfer of any of the
Subject Shares other than pursuant to Merger Agreement, (ii) enter into any
voting arrangement or understanding with respect to the Subject Shares, whether
by proxy, voting agreement or otherwise, or (iii) take any action that could
reasonably be expected to make any of such Stockholder's representations or
warranties contained herein untrue or incorrect or could reasonably be expected
to have the effect of preventing or disabling such Stockholder from performing
any of its obligations hereunder.
(d) Stop Transfer. Each Stockholder hereby authorizes and requests the
Company and its counsel to notify the Company's transfer agent that there is a
stop transfer order with respect to all of the Subject Shares (and that this
Agreement places limits on the voting of the Subject Shares). Each Stockholder
agrees with, and covenants to, Merger Sub that such Stockholder shall not
request that the Company register the Transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Subject Shares,
unless such Transfer is made in compliance with this Agreement and the Merger
Agreement. In the event of a stock dividend or distribution, or any change in
the shares
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of Company Common Stock by reason of any stock dividend or distribution, or any
change in the shares of Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Subject Shares" shall be deemed to refer to and include the Subject Shares
as well as all such stock dividends and distributions and any shares into which
or for which any or all of the Subject Shares may be changed or exchanged.
(e) Out of the Money Options. Each Stockholder acknowledges and consents
to the termination and cancellation as of the Effective Date of the Merger of
all "Out of the Money Options" held by such Stockholder or its Affiliates.
(f) Appraisal Rights. EACH STOCKHOLDER HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHTS WHICH THEY MAY HAVE AS TO APPRAISAL, DISSENT OR ANY SIMILAR OR
RELATED MATTER WITH RESPECT TO THE MERGER OR THE OTHER TRANSACTIONS.
2. Representations and Warranties of Each Stockholder. Each Stockholder
hereby represents and warrants to Merger Sub as of the date hereof as follows:
(a) Authorization and Non-Contravention. Such Stockholder has the right,
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement and the Proxy by such Stockholder and the consummation of the
transactions contemplated by this Agreement have been duly authorized by all
necessary action on the part of such Stockholder. This Agreement and the Proxy
have each been duly executed and delivered by such Stockholder and each
constitutes a valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms, subject to general
principles of equity and as may be limited by bankruptcy, insolvency,
moratorium, or similar laws affecting creditors' rights generally. The execution
and delivery of this Agreement by such Stockholder does not, and the
consummation by such Stockholder of the transactions contemplated hereby will
not result in a violation or any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such Stockholder is a
party, except for any such breaches or defaults which would not materially
impair the ability of such Stockholder to consummate the transactions
contemplated hereby.
(b) Required Filings and Consents. The execution and delivery of this
Agreement by such Stockholder does not, and the consummation by such Stockholder
of the transactions contemplated hereby will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any government or
subdivision thereof, or any administrative, governmental or regulatory
authority, agency,
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commission, tribunal or body, domestic, foreign or supranational, except for
applicable requirements, if any, of federal and state securities laws.
(c) Shares. The Existing Shares of such Stockholder are, and the Subject
Shares of such Stockholder as of the Effective Time will be, owned beneficially
and of record by such Stockholder. The Existing Shares and all warrants, options
or other rights to acquire any shares of Company Common Stock (including the
applicable exercise price) owned, of record or beneficially, by such Stockholder
are set forth opposite such Stockholder's name on Schedule 2(c) attached hereto.
The Existing Shares of such Stockholder constitute all of the shares of Company
Common Stock owned of record or beneficially by such Stockholder as of the date
hereof. All of the Existing Shares of such Stockholder are issued and
outstanding and, except as set forth on Schedule 2(c) attached hereto, such
Stockholder does not own, of record or beneficially, any warrants, options or
other rights to acquire any shares of Company Common Stock. Such Stockholder has
sole voting power, sole power of disposition, sole power to issue instructions
with respect to the matters set forth in Section 1 hereof (subject to the terms
of the Permitted Pledges), sole power to demand appraisal rights (to the extent
such rights are available) and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the Existing Shares
of such Stockholder, and will have sole voting power, sole power of disposition
(subject to the Permitted Pledges), sole power to issue instructions with
respect to the matters set forth in Section 1 hereof, sole power to demand
appraisal rights (to the extent such rights are available) and sole power to
agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Subject Shares, to the extent they are voting shares, of
such Stockholder as of the Effective Time, in each case with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement. Such Stockholder has good and
valid title to the Existing Shares of such Stockholder and at all times during
the term hereof and on the Effective Time will have good and valid title to the
Subject Shares of such Stockholder, in each case, free and clear of all Liens,
subject to the terms of the Permitted Pledges, except pursuant to this
Agreement.
(d) No Finder's Fees. No broker, investment banker, financial advisor or
other person is entitled to any broker's finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Stockholder.
3. Further Assurances. From time to time prior to the Effective Time, at
Merger Sub's request and cost and without further consideration, each
Stockholder shall execute and deliver such additional documents and take all
such further lawful action of a ministerial nature as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
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4. Additional Covenants of the Stockholders.
(a) Filings. Each Stockholder shall furnish to Merger Sub for no
additional consideration and the Merger Sub's cost all information required for
any application or other filing to be made pursuant to the rules and regulations
of any applicable Law in connection with the transactions contemplated by the
Merger Agreement.
(b) Public Announcements. Each Stockholder shall consult with Merger Sub
before issuing (and give one another a reasonable opportunity to comment on) any
press release or otherwise making any public statements with respect to this
Agreement, the Merger Agreement or any of the Transactions. Prior to the
Closing, no Stockholder shall issue any such press release or make any such
public statement without the prior consent of Merger Sub, except as may be
required by Law and, in such case, shall use reasonable efforts to consult with
Merger Sub prior to such release or statement being issued.
(c) No Additional Shares. Each Stockholder covenants that, except for
shares of Company Common Stock issuable upon conversion or exercise of warrants,
options or other rights to acquire shares of Company Common Stock as set forth
on Schedule 2(c) attached hereto, after the date hereof, such stockholder shall
not purchase or acquire from, or otherwise vote to approve the issuance by, the
Company of any additional shares of Company Common Stock.
(d) General Release. As an inducement to and in consideration of Merger
Sub and Parent entering into the Merger Agreement, each Stockholder hereby
releases and forever discharges each of the Company, its directors, officers,
agents, representatives and employees (each, a "Released Person") from any and
all claims, suits, demands, causes of action, contracts, covenants, obligations,
debts, costs, expenses, attorneys' fees, liabilities of whatever kind or nature
in law or equity, by statute or otherwise whether now known or unknown, vested
or contingent, suspected or unsuspected, which have existed or may have existed,
or which do exist or may exist in the future ("Claims"), of any kind, except the
Claims released hereunder shall not include (x) Claims to the extent arising out
of actions taken or omissions made fraudulently or in bad faith by such Released
Person which may arise or have arisen for any reason whatsoever, including but
not limited to any Claim arising in connection with any transaction contemplated
under the Merger Agreement and any related documents thereto and (y) any Claim
the undersigned is permitted to make for indemnification pursuant to Section 7.7
of the Merger Agreement. By consenting to this Agreement, each Stockholder
hereby acknowledges that it intends that this Agreement shall be an effective
bar to each and every one of the Claims herein mentioned or implied above. Each
Stockholder expressly consents that this Agreement shall be given full force and
effect according to each and all of its express terms and provisions, including
those relating to unknown and unsuspected Claims (notwithstanding any state
statute that expressly limits the effectiveness of a general release of unknown,
unsuspected and
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unanticipated Claims), if any, as well as those relating to any other Claims
herein mentioned or implied above. Further, each Stockholder agrees that in the
event that it should bring a Claim in which it seeks damages against the Company
(or, its stockholders and/or directors as the case may be), or in the event that
it seeks to recover against the Company (or its stockholders and/or directors as
the case may be), in any Claim brought by a governmental agency on your behalf,
this Agreement shall serve as a complete defense to such Claims.
5. Termination. This Agreement (other than Section 6 hereof) shall
terminate, and no party shall have any rights or obligations hereunder and this
Agreement shall become null and void and have no further effect upon the
earliest to occur of (a) the Effective Time, (b) Parent or Merger Sub's
termination of the Merger Agreement pursuant to Section 9.1 thereof, (c) Parent
or Merger Sub's consent in writing to the termination of this Agreement, (d)
upon termination of the Merger Agreement by WPZ pursuant to Section 9.1(i), if
but only if WPZ has made the payments to Parent and Merger Sub required to be
made by Sections 9.3 and 10.9 thereof in connection therewith, (e) upon
termination of the Merger Agreement by WPZ under Sections 9.1(b), (c), (d)(ii),
(g) or (h), if but only if WPZ has made the payments to Parent and Merger Sub to
the extent required to be made by Sections 9.3 and 10.9 thereof in connection
therewith. Nothing in this Section 5 shall relieve any party of liability for
breach of this Agreement or (f) in the event that the Merger Consideration is
less than $3.00 per share.
6. General Provisions.
(a) Amendment. This Agreement may not be amended except by an instrument
in writing signed by the party to be charged therewith.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice):
(i) if to Merger Sub:
WorldPages Merger Subsidiary, Inc.
c/o TransWestern Publishing Company, LLC
0000 Xxxxxxxxxx Xxxx Xxxx.
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx
Xxxxxxx Xxxxxx
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with copies (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, P.C.
(ii) if to any Stockholder to the address set forth for such
Stockholder on Schedule 2(c), with a copy (which shall not constitute notice)
to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
(c) Interpretation. Whenever the words "include," "includes" or
"including" are used in this Agreement they shall be deemed to be followed by
the words "without limitation." The phrases "the date of this Agreement," "the
date hereof," and terms of similar import, unless the context otherwise
requires, shall be deemed to refer to the date first written above.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(e) Entire Agreement; No Third Party Beneficiaries. This Agreement and
other Agreements executed as of the date hereof by Merger Sub constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof,
and is not intended to confer upon any person other than the parties hereto any
rights or remedies hereunder.
(f) 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 so long as the economic or legal substance of
the
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transactions contemplated hereby is not affected in any manner materially
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 may be consummated as originally
contemplated to the fullest extent possible. Notwithstanding any provisions
herein which may be construed to the contrary, any action by one Stockholder
shall not prejudice the rights or obligations of any other Stockholder
hereunder.
(g) Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties, except that Merger Sub may assign, in Merger Sub's sole discretion, any
or all of its rights, interests and obligations hereunder to any affiliate of
Merger Sub. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors, heirs, agents, representatives, trust beneficiaries,
attorneys, affiliates and associates and all of their respective predecessors,
successors, permitted assigns, heirs, executors and administrators.
(h) Enforcement; Governing Law; Waiver of Jury Trial.
(i) The parties hereto agree that irreparable damage would occur in
the event any provision of this Agreement was not performed in accordance with
the terms hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to specific performance of
the terms hereof, in addition to any other remedy at law or in equity.
(ii) The provisions of this Agreement shall be governed by and
construed in accordance with the laws of the State of New York (excluding any
conflict of law rule or principle that would refer to the laws of another
jurisdiction). EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.
* * * * *
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EXHIBIT A
IRREVOCABLE PROXY
By its execution hereof, and in order to secure its obligations
under the Voting Agreement (the "Agreement") of even date herewith among the
undersigned, the other stockholders of XxxxxXxxxx.xxx, Inc. (the "Company")
party to the Agreement and WorldPages Merger Subsidiary, Inc., a Delaware
corporation ("Merger Sub"), the undersigned hereby irrevocably constitutes and
appoints Merger Sub and its successors and assigns, with full power of
substitution and resubstitution, from the date hereof to the termination of the
Agreement, as the undersigned's true and lawful attorney and proxy (its
"Proxy"), for and in the undersigned's name, place and stead, to vote each of
the shares of capital stock of the Company of the undersigned as undersigned's
Proxy at every annual, special or adjourned meeting of stockholders of the
Company, and to sign on behalf of the undersigned (as a stockholder of the
Company) any ballot, proxy, consent, certificate or other document relating to
the Company that law permits or requires, in a manner consistent with the
Agreement. This Proxy is coupled with an interest, and the undersigned intends
this Proxy to be irrevocable to the fullest extent permitted by law. The
undersigned hereby revokes any proxy previously granted by the undersigned with
respect to any shares of capital stock of the Company. The undersigned shall
perform such further acts and execute such further documents and instruments as
may reasonably be required to vest in Merger Sub, or any of its nominees, the
power to carry out and give effect to the provisions of this Proxy.
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable
Proxy this ____ day of _____________, 2001.
[STOCKHOLDER]1
By: ______________________________
Its: ____________________________
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1 An identical form to be prepared for each stockholder party to the
Voting Agreement.
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SCHEDULE 1(c)
Xxxxx X. Xxxxxxxx has pledged 180,429 shares of his XxxxxXxxxx.xxx, Inc. common
stock to American Bank of Texas, N.A.
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SCHEDULE 2(c)
Existing Shares Options/Warrants
Owned By Owned by Exercise Price of
Name of Stockholder Stockholder Stockholder Options/Warrants
------------------- ----------- ----------- ----------------
Xxxxxx Xxxxxxxx 16,000 90,000
Xxxxxx Xxxxx 20,000
Xxxxx X. Xxxxxxxx 186,144 20,000
Xxxxxxx X'Xxxx 5,039,488 957,059
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