VOTING AGREEMENT
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
----------------
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
---------------------------------------
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
-------------------
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
-----------------------------
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
-------------
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:
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.
if to the Stockholders:
Xxxx X. Xxxx and Xxxx X. Xxxx
c/o West Corporation
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
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.
Additionally, any notice delivered to any party hereto shall also be given to
the Company in accordance with this Section 5.4 at:
West Corporation
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
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.
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.
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]
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
--------------------------------------------
Schedule A
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STOCKHOLDER SHARES OF COMMON OPTIONS TO PURCHASE COMMON WARRANT TO PURCHASE (X) SHARES
STOCK STOCK OF COMMON STOCK
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XXXX X. XXXX AND XXXX X. XXXX 39,312,363(1) - -
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XXXX X. XXXX 200,000 - -
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XXXX X. XXXX 200,000 - -
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(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.
