VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
October 8, 2002 by and among The Tail Wind Fund Ltd. ("STOCKHOLDER"), infoUSA
Inc., a Delaware corporation ("INFOUSA"), and ClickAction Inc., a Delaware
corporation (the "COMPANY").
RECITALS
A. Stockholder is the registered and/or beneficial owner of such number
of shares of the Company's common stock (the "COMMON STOCK") and shares of the
Company's preferred stock ("PREFERRED STOCK") as is indicated on Exhibit A to
this Agreement.
B. Kapalua Acquisition Sub, Inc., a wholly-owned subsidiary of infoUSA
(the "MERGER SUB"), and the Company are entering into the Agreement and Plan of
Merger ("MERGER AGREEMENT"), dated as of the date hereof, pursuant to which the
Merger Sub will merge with and into the Company upon the terms and conditions
set forth in the Merger Agreement (the "MERGER"). Capitalized terms not defined
in this Agreement have the meanings ascribed to them in the Merger Agreement.
C. The Company and Stockholder are entering into a Settlement Agreement
("SETTLEMENT AGREEMENT"), dated as of the date hereof, pursuant to which
Stockholder will agree to, among other things, enter into this Agreement.
D. The parties wish to provide for the voting arrangements set forth in
this Agreement.
In consideration of the mutual covenants and agreements set forth
herein, the Company's willingness to enter into the Merger Agreement and the
Settlement Agreement, and such other valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. VOTING AGREEMENT. Subject to Section 3 below, Stockholder hereby
irrevocably agrees to vote (or cause to be voted) all of its shares of Common
Stock and Preferred Stock as is indicated on Exhibit A and all other shares of
Common Stock and Preferred Stock now owned or hereafter acquired, or which
Stockholder may be empowered to vote (the "SHARES"), from time to time and at
all times, whether at an annual or special meeting of the Company's
stockholders, or upon an action by written consent, (a) in favor of the approval
and adoption of the Merger Agreement and the consummation of the transactions
contemplated therein, including the Merger, (b) against any action or agreement
that would result in a breach in any material respect of the Company and infoUSA
under the Merger Agreement, and (c) except as otherwise agreed to in writing in
advance by the Company (other than the Merger and the other transactions
contemplated by the Merger Agreement), against: (i) any Acquisition Proposal,
(ii) any change in the board of directors of the Company other than in
connection with the Merger, (iii) any amendment of the Company's certificate of
incorporation other than in connection with the Merger, or (iv) any other action
which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, discourage or materially and adversely affect
the contemplated benefits to the Company of the Merger and the other
transactions contemplated by the Merger Agreement. Any vote of Preferred Stock
with respect to the foregoing matters shall be together with the Common Stock as
a single class and/or, to the extent required under applicable law or the
Company's certificate of incorporation, including the certificate of
designations with respect to the Preferred Stock, as a separate class vote of
such Preferred Stock. Stockholder shall not enter into any agreement or
understanding, whether oral or written, with any person or entity prior to the
termination of this Agreement to vote thereafter in a manner inconsistent with
this Section 1.
2. IRREVOCABLE PROXY. Contemporaneously with the execution of this
Agreement, Stockholder has executed and delivered to infoUSA a duly executed
proxy in the form attached hereto as Exhibit B (the "PROXY") with respect to
each meeting of stockholders of Company, such Proxy to cover the total number of
Shares for which Stockholder is entitled to vote at any such meeting. Upon the
execution of this Agreement by Stockholder, Stockholder hereby revokes any and
all prior proxies given by Stockholder with respect to the Shares and agrees not
to grant any subsequent proxies with respect to the Shares until on or after the
Expiration Date (as defined below). infoUSA shall (i) vote for each proposal or
give its consent, as applicable, with respect to any matter described in Section
1(a) and (ii) vote against or withhold its consent, as applicable, with respect
to (A) any matter described in Section 1(b) and (B) unless agreed to in writing
in advance by the Company and infoUSA, any matter described in Section 1(c).
3. TERM. This Agreement shall be effective as of the date hereof and
shall continue in effect until the earlier to occur of (i) the Effective Time of
the Merger, (ii) termination of the Merger Agreement in accordance with its
terms, (iii) any material breach by the Company of this Agreement or the
Settlement Agreement, or (iv) the Termination Date (as defined in the Settlement
Agreement) (the "EXPIRATION DATE").
4. SOLICITATION. Prior to the Expiration Date, Stockholder shall not,
directly or indirectly: (i) solicit, initiate or encourage (including by way of
furnishing nonpublic information) inquiries or proposals concerning any
Acquisition Proposal or have discussions or negotiations with any third party
(other than infoUSA or Merger Sub) regarding any Acquisition Proposal (other
than the Merger); or (ii) induce or encourage any other stockholder of the
Company to vote against, or fail to vote in favor of, the Merger Agreement and
the Merger. Stockholder shall notify infoUSA of any written inquiries or
proposals it receives relating to any Acquisition Proposal.
5. SPECIFIC ENFORCEMENT. The parties acknowledge and agree that the
parties hereto would be irreparably damaged in the event any of the provisions
of this Agreement were not performed by the parties in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that
infoUSA and the Company shall be entitled to an injunction to prevent breaches
of this Agreement and to specifically enforce this Agreement and the terms and
provisions hereof in any action instituted in any court of the United States or
any state thereof having subject matter jurisdiction, in addition to any other
remedy to which the parties may be entitled at law or in equity. Each party
consents to personal jurisdiction in any such action
brought in the United States District Court for the Northern District of
California or in any court of the State of California having subject matter
jurisdiction.
6. AGREEMENT TO RETAIN SHARES. Stockholder agrees not to transfer
(except as may be specifically required by court order or by operation of law),
sell, exchange, pledge or otherwise dispose of or encumber the Shares, or to
make any offer or agreement relating thereto, at any time prior to the
Expiration Date, unless each person or entity to which any of such Shares are or
may be transferred shall have: (a) executed a counterpart of this Agreement and
a Proxy (with such modifications as infoUSA may reasonably request); and (b)
agreed in writing to hold such Shares subject to all of the terms and provisions
of this Agreement.
7. LEGEND REQUIREMENT. All certificates evidencing the Shares shall,
during the term of this Agreement, bear such restrictive legends as infoUSA and
its counsel deem necessary or advisable under applicable law or pursuant to this
Agreement, and the Company agrees to so legend such Shares. Such legend may
include, without limitation, the following:
"THE SECURITIES REPRESENTED HEREBY ARE SUBJECT
TO CERTAIN VOTING RESTRICTIONS PURSUANT TO A
VOTING AGREEMENT RELATING TO SUCH SECURITIES,
AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE TERMS OF SUCH
AGREEMENT."
8. REPRESENTATIONS AND WARRANTIES.
8.1 OWNERSHIP OF SHARES. Stockholder represents and warrants that it has
good title to and is the sole record owner of the Shares and it does not own
beneficially or of record any other capital stock of the Company. The Company
represents and warrants that the Shares are validly issued, fully paid and
nonassessable, and the Stockholder represents and warrants that, except for the
encumbrances and restrictions arising hereunder, it has no knowledge of the
Shares that are owned by Stockholder being subject to any pledges, liens,
security interests, adverse claims, assessments, proxies, participations,
options, equities, charges or encumbrances of any nature whatsoever with respect
to the ownership of or right to vote or dispose of such Shares, except for
applicable securities laws and the transactions documents under which they were
issued.
8.2 AUTHORITY; DUE EXECUTION; ENFORCEABILITY. Each party hereto
represents and warrants that it has the full right, power, capacity and
authority to enter into this Agreement and Stockholder, together with its
investment manager, has sole voting power and sole power of disposition with
respect to the Shares with no restrictions on Stockholder's voting rights or
rights of disposition pertaining thereto. Each party hereto represents and
warrants that this Agreement has been duly and validly executed and delivered by
such party and constitutes a legal, valid and binding obligation of such party
enforceable against such party in accordance with its terms, except as
enforcement thereof may be limited against such party by (a) bankruptcy,
insolvency, reorganization, moratorium and similar laws, both state and federal,
affecting the enforcement of creditors' rights or remedies in general as from
time to time in effect or (b) the exercise by courts
of equity powers (the "ENFORCEABILITY EXCEPTIONS"). The Proxy, when duly
executed and delivered by the Stockholder, will constitute the legal, valid and
binding obligation of the Stockholder, enforceable against Stockholder in
accordance with its terms, except as enforcement thereof may be limited against
Stockholder by the Enforceability Exceptions. If Stockholder is married and the
Shares constitute community property, this Agreement has been duly executed and
delivered by, and constitutes the legal, valid and binding obligation of, the
Stockholder's spouse, enforceable against the Stockholder's spouse in accordance
with its terms, subject to laws of general application relating to bankruptcy,
fraudulent conveyance, insolvency and the relief of debtors, and rules of law
governing specific performance, injunctive relief and other equitable remedies.1
8.3 NO CONFLICTS OR CONSENTS. Each party hereto represents and warrants
that the execution and delivery of this Agreement do not, and the consummation
of the transactions contemplated hereby will not, with or without giving of
notice or the passage of time, (a) violate any judgment, award, decree,
injunction or order of any court, arbitrator or governmental agency applicable
to such party or its property or assets or any federal or state law, statute or
regulation, (b) conflict with, result in the breach of any provision of or
constitute a violation of or default under any agreement or instrument to which
such party is a party or by which such party or such party's property or assets
may be bound, or (c) require any consent or approval of any person.
8.4 TITLE TO SECURITIES. As of the date of this Agreement: (a)
Stockholder either (i) holds of record or (ii) beneficially owns with the right
to vote (in the case of clause (i) and (ii), free and clear of any liens,
claims, options, rights of first refusal, co-sale rights, charges or other
encumbrances (collectively, "LIENS")), other than a right of repurchase in favor
of the Company, the number of outstanding shares of Common Stock and Preferred
Stock set forth on Exhibit A hereof; and (b) Stockholder holds (free and clear
of any Liens) the options and other rights to acquire shares of Company Common
Stock set forth under the caption "Options and Other Rights to Purchase Common
Stock" on Exhibit A hereof; and (c) Stockholder does not directly or indirectly
own any shares of capital stock or other securities of the Company, or any
option, warrant or other right to acquire (by purchase, conversion or otherwise)
any shares of capital stock or other securities of the Company, other than the
shares and options and other rights specified on Exhibit A hereof.
8.5 RELIANCE BY INFOUSA AND MERGER SUB. Stockholder understands and
acknowledges that infoUSA and Merger Sub are entering into the Merger Agreement
in reliance, in part, upon the Stockholder's execution and delivery of this
Agreement. Stockholder has sole voting power with respect to the Shares.
8.6 OTHER VOTING AGREEMENTS. The Company and Merger Sub each represents
and warrants that each officer and director of the Company beneficially owning
any shares of Common Stock has entered into a voting agreement in the form
attached hereto as Exhibit C.
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(1) This sentence is to be included only in agreements executeds by individuals.
9. COVENANTS OF STOCKHOLDER. Stockholder hereby covenants and agrees
that during the term hereof it shall not enter into any transaction, take any
action or by inaction permit any event to occur, that would result in any of the
representations or warranties of Stockholder herein contained not being true and
correct. Stockholder hereby waives any rights of appraisal or rights to dissent
from the Merger that Stockholder may have under Section 262 of the Delaware
General Corporate Law or otherwise.
10. CONFIDENTIALITY. Stockholder agrees, except as otherwise required by
legal process, (i) to hold any information regarding this Agreement and the
Merger in strict confidence, and (ii) not to divulge any such information to any
third person, until such time as infoUSA or the Company has disclosed publicly
the Merger or the Expiration Date occurs or such information becomes public not
through disclosure by the Stockholder.
11. MISCELLANEOUS.
11.1 ASSIGNMENT; TRANSFER OF RIGHTS. This Agreement shall inure to the
benefit of and be binding upon the respective executors, administrators, heirs,
successors, and assigns of the parties. The Shares may be transferred or
assigned by Stockholder; provided, however, that (i) infoUSA and the Company
must receive written notice prior to the time of said transfer or assignment,
stating the name and address of said transferee or assignee, and (ii) such
transferee or assignee must agree in writing (which writing shall be in a form
acceptable to the Company) to be bound by the terms and conditions of this
Agreement.
11.2 FURTHER ASSURANCES. Stockholder shall cooperate with the Company
and execute and deliver any additional documents necessary or desirable, in the
opinion of the Company or its counsel, to evidence the irrevocable proxy granted
herein with respect to the Shares and to carry into effect the intent and
purposes of this Agreement.
11.3 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, excluding those laws that
direct the application of the laws of another jurisdiction.
11.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.5 NOTICES. Any notice required or permitted hereunder shall be given
in writing and shall be conclusively deemed effectively given upon personal
delivery or delivery by courier, or on the first business day after transmission
if sent by confirmed facsimile transmission, or five days after deposit in the
United States mail, by registered or certified mail, postage prepaid, addressed
to the party at the address set forth below such party's name on the signature
page of this Agreement, or at a new address as such party may designate by 10
days' advance written notice to the other parties hereto.
11.6 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
11.7 COSTS OF ENFORCEMENT. If any party to this Agreement seeks to
enforce its rights under this Agreement by legal proceedings, the non-prevailing
party shall pay all costs and expenses incurred by the prevailing party,
including, without limitation, all reasonable attorneys' fees.
11.8 ENTIRE AGREEMENT; AMENDMENT. This Agreement may be amended or
modified only by a written instrument executed by each of the parties hereto.
This Agreement, the Proxy, the Merger Agreement and the Settlement Agreement
constitute and contain the entire agreement of the parties with regard to the
subject matter hereof and thereof and supersede any and all prior negotiations,
correspondence, understandings and agreements between the parties regarding the
subject matter hereof or thereof.
11.9 EFFECT OF EXPIRATION DATE; CLARIFICATION. For clarification
purposes, notwithstanding anything to the contrary contained herein, (a) if the
Expiration Date occurs without completion of the Merger in accordance with the
Merger Agreement and Settlement Agreement, then all proxies granted hereunder
shall be deemed revoked, and (b) nothing herein shall prohibit Stockholder from
exercising its rights and enforcing others' obligations under the Merger
Agreement, Settlement Agreement or this Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as
of the date first above written.
STOCKHOLDER: THE TAIL WIND FUND LTD.
By: TAIL WIND ADVISORY AND
MANAGEMENT LTD., as investment
manager
By: /s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx
CEO
Address: Attn: Xxxxx Xxxxx
c/o Tail Wind Advisory &
Management Ltd.
0xx Xxxxx, Xx. 0 Xxxxxx Xxxxxx
Xxxxxx, XX0X 0XX UK
Facsimile: 000-000-0000
INFOUSA: INFOUSA INC.
By: /s/ Xxxxx Xxxxx
--------------------------------------
Xxxxx Xxxxx
Chairman
Address: 0000 Xxxxx 00xx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
COMPANY: CLICKACTION INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Xxxxxx Xxxxx, President
Address: 0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO THE VOTING AGREEMENT
Exhibit B
IRREVOCABLE PROXY TO VOTE STOCK OF CLICKACTION INC.
The undersigned stockholder of ClickAction Inc., a Delaware corporation
("Company"), hereby irrevocably (to the full extent permitted by Section 212 of
the Delaware General Corporation Law and subject to the Voting Agreement
executed by the undersigned with the Company and infoUSA ("Voting Agreement"))
appoints the members of the Board of Directors of infoUSA Inc., a Delaware
corporation ("infoUSA"), and each of them, or any other designee of infoUSA, as
the sole and exclusive attorneys and proxies of the undersigned, with full
power of substitution and resubstitution, to vote and exercise all voting and
related rights (to the full extent that the undersigned is entitled to do so)
with respect to all of the shares of capital stock of Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Proxy. The Shares beneficially owned by the undersigned stockholder of
Company as of the date of this Proxy are listed on the final page of this
Proxy.
Upon the undersigned's execution of this Proxy, any and all prior
proxies given by the undersigned with respect to any Shares are hereby revoked
and the undersigned agrees not to grant any subsequent proxies with respect to
the Shares until after the Expiration Date (as defined in the Voting
Agreement).
This Proxy is irrevocable (to the extent provided in Section 212 of
the Delaware General Corporation Law and subject to the Voting Agreement) and
is granted in consideration of infoUSA entering into that certain Agreement and
Plan of Merger among Company, Kapalua Acquisition Sub, Inc., a Delaware
corporation and a wholly-owned subsidiary of infoUSA ("Merger Sub"), and
infoUSA (such agreement as it may be amended or restated is hereinafter
referred to as the "Merger Agreement"). The Merger Agreement provides for the
merger of Merger Sub with and into Company (the "Merger").
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the
Expiration Date and subject to the Voting Agreement, to act as the
undersigned's attorney and proxy to vote the Shares, and to exercise all voting
and other rights of the undersigned with respect to the Shares (including,
without limitation, the power to execute and deliver written consents pursuant
to Section 228 of the Delaware General Corporation Law), at every annual,
special or adjourned meeting of the stockholders of Company and in every
written consent in lieu of such meeting as follows:
(a) in favor of approval and adoption of the Merger, the Merger
Agreement andtransactions contemplated therein and any matter that could
reasonably be expected to facilitate the Merger,
(b) against any action or agreement that would result in a breach in any
material respect of the Company under the Merger Agreement;
(c) except as otherwise agreed to in writing in advance by the Company
and infoUSA (other than the Merger and the other transactions contemplated by
the Merger Agreement), against:
(i) any Acquisition Proposal (as defined in the Merger Agreement);
(ii) any change in the board of directors of the Company other than in
connection with the Merger;
(iii) any amendment of the Company's certificate of incorporation other
than in connection with the Merger, or
(iv) any other action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage or materially
and adversely affect the contemplated benefits to the Company of the Merger and
the other transactions contemplated by the Merger Agreement.
The attorneys and proxies named above may not exercise this Proxy on any other
matter except as provided above. The undersigned stockholder may vote the
Shares on all other matters.
All authority herein conferred shall survive the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Proxy is coupled with an interest and is irrevocable, subject to
the Voting Agreement.
Dated: October __, 2002
______________________________________
(Signature of Stockholder)
_____________________________________
(Print Name of Stockholder)
Shares beneficially owned:
_________ shares of common stock of the Company
_________ shares of preferred stock of the Company
