VOTING AGREEMENT
Exhibit 99.2
This VOTING AGREEMENT (the “Agreement”), dated as of May 31, 2006, is made by and among
Xxxx X. Xxxx and Xxxx X. Xxxx (each individually, a “Stockholder” and, collectively, the
“Stockholders”), and Omaha Acquisition Corp., a Delaware corporation (“Newco”).
Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to
such terms in the Merger Agreement (as defined below).
WHEREAS, concurrently herewith, Newco and West Corporation, a Delaware corporation (the
“Company”), are entering into an Agreement and Plan of Merger, dated as of the date hereof
(the “Merger Agreement”), providing for the merger of Newco with and into the Company, with
the Company as the surviving corporation (the “Merger”), upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, the Stockholders beneficially own, or have, individually or
together, complete investment authority over, and have, individually or together (or upon exercise
or exchange of a convertible security will have) the power to vote and dispose of the number of
shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”) set
forth opposite their name on Schedule A attached hereto (the “Owned Shares” and, together
with any securities issued or exchanged with respect to such shares of Common Stock upon any
recapitalization, reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, split-up or combination of the securities of the Company or any other
change in the Company’s capital structure or securities of which such Stockholder acquires
beneficial ownership after the date hereof and prior to the termination hereof, whether by
purchase, acquisition or upon exercise of options, warrants, conversion of other convertible
securities or otherwise, but excluding any securities sold under the terms of the Sales Plan (as
defined in Section 4.2) prior to termination thereof in accordance with the provisions of such
Section, collectively referred to herein as, the “Covered Shares”); and
WHEREAS, as a condition to the willingness of Newco to enter into the Merger Agreement, Newco
has required that the Stockholders agree, and in order to induce Newco to enter into the Merger
Agreement, the Stockholders have agreed, to enter into this Agreement with respect to (a) the
Covered Shares and (b) certain other matters as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
contained herein, and intending co be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I.
VOTING AGREEMENT
VOTING AGREEMENT
Section 1.1 Voting Agreement. The Stockholders hereby agree that during the Voting
Period (as defined below), at any meeting of the stockholders of the Company, however called, or at
any adjournment thereof or in any other circumstances upon which a vote or other approval is
sought, the Stockholders shall (i) when a meeting is held, appear at such meeting or otherwise
cause the Covered Shares to be counted as present thereat for the purpose of
establishing a quorum and (ii) vote (or cause to be voted) in person or by proxy the Covered
Shares in favor of the Merger, the adoption of the Merger Agreement and the transactions
contemplated by the Merger Agreement and (iii) vote (or cause to be voted) the Covered Shares
against any extraordinary corporate transaction (other than the Merger), such as a merger,
consolidation, business combination, tender or exchange offer, reorganization, recapitalization,
liquidation, sale or transfer of all or substantially all of the assets or securities of the
Company and any of its subsidiaries (other than pursuant to the Merger) or any other Takeover
Proposal. For the purposes of this Agreement, “Voting Period” shall mean the period commencing on
the date hereof and ending immediately prior to any termination of this Agreement pursuant to
Section 5.1 hereof. The Stockholders agree that, during the Voting Period, they will not, in their
capacity as stockholders of the Company, act by written consent on any matter.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF NEWCO
REPRESENTATIONS AND WARRANTIES OF NEWCO
Newco hereby represents and warrants to each Stockholder as follows:
Section 2.1 Valid Existence. Newco is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the requisite corporate power
and authority to carry on its business as it is now being conducted.
Section 2.2 Authority Relative to This Agreement. Newco has all necessary corporate
power and authority to execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by Newco and, assuming the due authorization, execution and
delivery by the other parties hereto, constitutes a legal, valid and binding obligation of Newco,
enforceable against Newco in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to creditors rights generally and
by general equitable principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Section 2.3 No Conflicts. Except for the applicable requirements of the Securities
Exchange Act of 1934, as amended, no filing with, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary on the part of Newco for the execution and delivery of
this Agreement by Newco and the consummation by Newco of the transaction contemplated hereby.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Newco as follows:
Section 3.1 Authority Relative To This Agreement. Such Stockholder has the capacity to
execute and deliver this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly executed and delivered
by such Stockholder and, assuming the due authorization, execution and delivery by the other
parties hereto and, subject to any applicable provisions of state law,
constitutes a legal, valid and binding obligation of such Stockholder, enforceable against
such
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Stockholder in accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors rights generally and by general
equitable principles (regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 3.2 No Conflict.
(a) The execution and delivery of this Agreement by such Stockholder do not, and the
performance of its obligations under this Agreement by such Stockholder and the consummation by
such Stockholder of the transactions contemplated hereby will not, (i) conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to such Stockholder or (ii) result in
any breach of or constitute a default (or an event that with notice or lapse of time or both would
become a default) under any contract to which such Stockholder is a party; except for violations,
breaches or defaults that would not impair the ability of such Stockholder to perform its
obligations hereunder.
(b) The execution and delivery of this Agreement by such Stockholder do not, and the
performance of its obligations under this Agreement will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any court or arbitrator or any
governmental entity, agency or official except for applicable requirements of the Securities and
Exchange Act of 1934, as amended, and except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not impair the ability
of such Stockholder to perform its obligations hereunder.
Section 3.3 Ownership Of Shares. As of the date hereof, except as set forth in
Schedule A hereto, such Stockholder has good and marketable title to and is the record or
beneficial owner of the Owned Shares set forth opposite such Stockholder’s name on Schedule A
hereto free and clear of all pledges, liens, proxies, claims, charges, security interests,
preemptive rights, voting trusts, voting agreements, options, rights of first offer or refusal and
any other encumbrances or arrangements whatsoever with respect to the ownership, transfer or other
voting of the Owned Shares. As of the date hereof, no proceedings are pending which, if adversely
determined, will have a material adverse effect on any ability to vote or dispose of any of the
Covered Shares.
Section 3.4 Stockholder Has Adequate Information. Such Stockholder is a sophisticated
investor with respect to the Covered Shares and has independently and without reliance upon Newco
and based on such information as such Stockholder has deemed appropriate, made its own analysis and
decision to enter into this Agreement. Such Stockholder acknowledges that Newco has not made nor
makes any representation or warranty, whether express or implied, of any kind or character except
as expressly set forth in this Agreement.
Section 3.5 No Setoff. To the knowledge of such Stockholder, there are no legal or
equitable defenses or counterclaims that have been or may be asserted by or on behalf of the
Company, as applicable, to reduce the amount of the Covered Shares or affect the validity or
enforceability of the Covered Shares.
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Section 3.6 No Other Representations or Warranties. Except for the representations and
warranties expressly contained in this Article III, such Stockholder makes no express or implied
representation or warranty with respect to such Stockholder, the Covered Shares, or otherwise.
ARTICLE IV.
COVENANTS OF THE STOCKHOLDERS
COVENANTS OF THE STOCKHOLDERS
Each Stockholder hereby covenants and agrees as follows:
Section 4.1 No Transfer. Other than pursuant to the terms of this Agreement or the
Merger Agreement, without the prior written consent of Newco or as otherwise provided in this
Agreement, during the term of this Agreement, such Stockholder hereby agrees to not, directly or
indirectly, (i) grant any proxies or enter into any voting trust or other agreement or arrangement
with respect to the voting of any Covered Shares or (ii) sell, pledge, assign, transfer, encumber
or otherwise dispose of (including by merger, consolidation or otherwise by operation of law), or
enter into any contract, option or other arrangement or understanding with respect to the direct or
indirect assignment, transfer, encumbrance or other disposition of (including by merger,
consolidation or otherwise by operation of law), any Covered Shares. Promptly following the date
hereof, Stockholder and Newco shall deliver joint written instructions to the Company and to the
Company’s transfer agent stating that the Owned Shares may not be sold, transferred, pledged,
assigned, hypothecated, tendered or otherwise disposed of in any manner without the prior written
consent of Newco or except in accordance with the terms and conditions of this Agreement. If any
Covered Shares are acquired after the date hereof by a Stockholder, the foregoing instructions
shall be delivered upon acquisition of such Covered Shares. Notwithstanding anything to the
contrary in this Section 4.1, the parties hereby agree that any sales of securities pursuant to the
Sales Plan the Stockholders entered into with Xxxxxxx, Xxxxx & Co. on November 29, 2005 (the “Sales
Plan”) prior to the termination of such Sales Plan in accordance with the terms of Section 4.2
shall be permissible under the terms hereof.
Section 4.2 Termination of Sales Plan. The Selling Stockholders hereby agree to
terminate the Sales Plan promptly after the date hereof, and in any event within five (5) business
days following the date hereof.
Section 4.3 Public Announcement. Each Stockholder shall consult with Newco before
issuing any press releases or otherwise making any public statements with respect to the
transactions contemplated herein, in its capacity as a stockholder of the Company, except as may be
required by law.
Section 4.4 Additional Shares. Stockholder shall as promptly as practicable notify
Newco of the number of any new Covered Shares acquired by the Stockholder, if any, after the date
hereof. Any such shares shall be subject to the terms of this Agreement as though owned by the
Stockholder on the date hereof.
Section 4.5 No Restraint on Officer or Director Action; Etc. Notwithstanding anything
to the contrary herein, Newco hereby acknowledges and agrees that no provision in this
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Agreement shall limit or otherwise restrict any Stockholder with respect to any act or
omission that such Stockholder may undertake or authorize in his or her capacity as a director or
officer of the Company or any subsidiary thereof, including any vote that such individual may make
as a director of the Company with respect to any matter presented to the Board of the Company. The
agreements set forth herein shall in no way restrict any such director or officer in the exercise
of his or her duties as a director or officer of the Company or any subsidiary thereof. Each
Stockholder has executed this Agreement solely in his or her capacity as the record and/or
beneficial owner of his or her Covered Shares and no action taken by such Stockholder in his or her
capacity as a director or officer of the Company or any subsidiary thereof shall be deemed to
constitute a breach of any provision of this Agreement.
ARTICLE V.
MISCELLANEOUS
MISCELLANEOUS
Section 5.1 Termination. This Agreement and all of its provisions shall terminate upon
the earlier of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance
with its terms, (iii) the Board of Directors of the Company or a committee thereof making an
Adverse Recommendation Change (as such term is defined in the Merger Agreement) or resolving or
publicly proposing to make any such change, or (iv) written notice of termination of this Agreement
by Newco to Stockholders (such date of termination, the “Termination Date”); except that the
provisions of Article V shall survive any such termination.
Section 5.2 Survival of Representations and Warranties. The respective representations
and warranties of the Stockholders and Newco contained herein shall not be deemed waived or
otherwise affected by any investigation made by the other party hereto. The representations and
warranties contained herein shall expire with, and be terminated and extinguished upon,
consummation of the Merger or termination of this Agreement pursuant to Section 5.1, and thereafter
no party hereto shall be under any liability whatsoever with respect to any such representation or
warranty.
Section 5.3 Fees And Expenses. Except as otherwise provided herein or as set forth in
the Merger Agreement, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs and expenses.
Section 5.4 Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (a) on the date of delivery if delivered
personally, (b) on the first business day following the date of dispatch if delivered by a
nationally recognized next-day courier service, (c) on the fifth business day following the date of
mailing if delivered by registered or certified mail (postage prepaid, return receipt requested) or
(d) if sent by facsimile transmission, when transmitted and receipt is confirmed. All notices
hereunder shall be delivered 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 5.4):
if to Newco:
Omaha Acquisition Corp.
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c/o Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Telephone:
Facsimile:
Attn:
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Telephone:
Facsimile:
Attn:
with copies to:
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
if to the Stockholders:
with copies to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxx, Esq.
Additionally, any notice delivered to any party hereto shall also be given to the Company in
accordance with this Section 5.4 at:
Attn: Xxxxxx X. Xxxxxx
with copies to:
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Xxxxxx Xxxxxx LLP
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxxxx X. Xxxxxxxx,
Esq
Xxxx X. Xxxx, Esq.
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxxxx X. Xxxxxxxx,
Esq
Xxxx X. Xxxx, Esq.
and
Potter Xxxxxxxx & Xxxxxxx LLP
Hercules Plaza
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx,
Esq.
Hercules Plaza
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx,
Esq.
Section 5.5 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 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 be consummated
as originally contemplated to the fullest extent possible.
Section 5.6 Entire Agreement; Assignment. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and supersede all
prior agreements and undertakings, both written and oral, among the parties hereto, or any of them,
with respect to the subject matter hereof. This Agreement shall not be assigned (whether pursuant
to a merger, by operation of law or otherwise), except that Newco may assign all or any of its
rights and obligations hereunder to an Affiliate, provided, however, that no such assignment shall
relieve the assigning party of its obligations hereunder if such assignee does not perform such
obligations.
Section 5.7 Amendment. This Agreement may be amended by the parties at any time prior
to the Effective Time. This Agreement may not be amended except by an instrument in writing signed
by each of the parties hereto.
Section 5.8 Waiver. At any time prior to the Effective Time, any party hereto may (a)
extend the time for the performance of any obligation or other act of any other party hereto, (b)
waive any inaccuracy in the representations and warranties of any other party contained herein or
in any document delivered pursuant hereto and (c) waive compliance with any agreement of any other
party or any condition to its own obligations contained herein. Any such extension or waiver shall
be valid if set forth in an instrument in writing signed by the party
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or parties to be bound thereby. The failure of any party to assert any of its rights under
this Agreement or otherwise shall not constitute a waiver of those rights.
Section 5.9 Parties in Interest. This Agreement shall be binding upon and inure solely
to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended
to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement. However, if after the execution hereof and before the
Termination Date the Stockholders should die or become incapacitated, this Agreement shall be
binding on the Stockholders’ estate or other legal representative.
Section 5.10 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
Section 5.11 Specific Performance; Submission To Jurisdiction. (a) The parties 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 or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement
in the Delaware Court of Chancery (unless such court shall lack subject matter jurisdiction, in
which case, in any state or federal court located in Delaware), this being in addition to any other
remedy to which the parties are entitled at law or in equity under this Agreement.
(b) The parties hereby irrevocably submit to the jurisdiction of the Delaware Court of
Chancery (unless such court shall lack subject matter jurisdiction, in which case, in any state or
federal court located in Delaware) solely in respect of the interpretation and enforcement of the
provisions of this Agreement and of the documents referred to in this Agreement, and in respect of
the transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in
any action, suit or proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said court or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such court, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding shall be heard and
determined in such court. The parties hereby consent to and grant any such court jurisdiction over
the person of such parties and agree that mailing of process or other papers in connection with any
such action or proceeding in the manner provided in Section 5.4 or in such other manner as may be
permitted by applicable law shall be valid and sufficient service thereof.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR
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ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO IT THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER
VOLUNTARILY AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.11(c).
Section 5.12 Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 5.13 Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission) 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.
Section 5.14 Further Assurances. From time to time, at the request of another party
and without further consideration, each party hereto shall take such reasonable further action as
may reasonably be necessary or desirable to consummate and make effective the transactions
contemplated by this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Newco and the Stockholders have caused this Agreement to be duly executed
on the date hereof.
| OMAHA ACQUISITION CORP. | ||||
| By: | /s/ Xxxxxxx XxXxxx | |||
| Name: Xxxxxxx XxXxxx Title: Vice President |
||||
STOCKHOLDERS: |
||
XXXX X. XXXX |
||
/s/ Xxxx X. Xxxx |
||
XXXX X. XXXX |
||
/s/ Xxxx X. Xxxx |
||
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Schedule A
| Warrant to Purchase | ||||||||||||
| Shares of | Options to Purchase | (x) Shares of | ||||||||||
| Stockholder | Common Stock | Common Stock | Common Stock | |||||||||
XXXX X. XXXX AND
XXXX X. XXXX |
39,312,363 | 1 | — | — | ||||||||
XXXX X. XXXX |
200,000 | — | — | |||||||||
XXXX X. XXXX |
200,000 | — | — | |||||||||
| 1 | Shares held in joint tenancy with right of survivorship. Includes 4,800,000 shares registered to Xxxxxxx, Sachs & Co. under the terms of a pledge, and 1,725,000 shares pledged to Xxxxx Fargo, in each case, in which the Stockholders retain the voting rights of such shares. Xxxx X. Xxxx and Xxxx X. Xxxx also own 20,756.77 Stock Units. |
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