Brencourt Advisors, LLC New York, NY 10022
Exhibit
99.3
Brencourt
Advisors, LLC
000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, XX 00000
June
20,
2007
Xxxxxx
X.
Xxxxx
Xxxxx
X.
Xxxxxxxxxxx
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Gentlemen:
This
Letter Agreement confirms the (i) agreement by Brencourt Advisors, LLC
(“Brencourt”) to purchase for the account and on behalf of one or more funds
managed by Brencourt (collectively, the “Purchasers”) an aggregate of 1,807,021
shares (the “Shares”) of common stock, par value $.01 per share (the “Common
Stock”) of Vertrue Incorporated, a Delaware corporation (the “Company”) (CUSIP #
00000X000) from you and certain accounts managed by you (collectively, the
“Sellers”) for a fixed price of $48.90 per Share (subject
to adjustment as provided below), resulting in an aggregate purchase
price of $88,363,326.90, and (ii) the agreement by you to sell for the account
and on behalf of Sellers the Shares to the Purchasers for such price, in each
case subject to the terms and conditions hereof. Such purchase price
per Share shall be adjusted so that, for each day that the Closing occurs prior
to July 10, 2007, the price per Share shall be reduced by $0.007, and for each
day that the Closing occurs after July 10, 2007, the price per Share shall
be
increased by $0.007 (for example, a closing on July 6, 2007 would
result in a purchase price per Share of $48.872; and a closing on July 11,
2007
would result in a purchase price per Share of $48.907.
1. Closing. The
closing of such purchase and sale (the “Closing”) shall occur on the second
business day after receipt by Brencourt and/or the Purchasers of notice of
the
termination of the applicable waiting period under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976 (the “HSR Act”), or the expiration of the
waiting period thereunder. The aggregate purchase price for the
Shares shall be paid by wire transfer by the Purchasers on the date of the
closing to such accounts as you shall have specified in writing.
2. Representations
and Warranties.
(a) Brencourt
represents and warrants to you, and you represent and warrant to Brencourt,
that
such party is duly authorized to execute, deliver and perform its obligations
hereunder and that such execution, delivery and performance do not and will
not
conflict with or constitute a breach of any law, regulation or contract binding
on such party. Brencourt represents and warrants that it has all
necessary power and authority to act on behalf of and to bind the Purchasers
to
purchase the Shares and fulfill all the obligations of Purchasers contemplated
by this Agreement, and that the Purchasers presently have and will have at
the
time of Closing sufficient funds to pay the full cash aggregate purchase
price. You represent and warrant
that you have all necessary power and authority to act on behalf of and to
bind
the Sellers to sell the Shares and fulfill all the obligations of Sellers
contemplated by this Agreement.
(b) You
represent that the Sellers own all of the Shares free and clear of any lien,
claim or other encumbrance, except for any that will be released or satisfied
upon the sale to the Purchasers hereunder.
3. Voting
Agreement.
(a) Agreement
to Vote. Subject to Section 7 of this Agreement, effective on the
date hereof, you agree that at any meeting of the stockholders of the Company
(a
“Company Stockholders’ Meeting”), for which a Seller is a record holder
of any of the Shares and at every adjournment or postponement thereof, or in
any
other circumstances upon which a vote, consent, or other approval (including
by
written consent) is sought, the Sellers shall—
(i) when
a
meeting is held, appear at such meeting or otherwise cause the Shares to be
counted as present thereat for purposes of establishing a quorum,
(ii) vote,
or
execute consents in respect of the Shares, or cause the Shares to be voted,
or
consents to be executed in respect thereof, in respect of the Agreement and
Plan
of Merger (the “Merger Agreement”) between the Company and Velo Holdings Inc.
and Velo Acquisition Inc. (including any revised or amended Merger Agreement
approved by the board of directors of the Company), as Brencourt may direct
in
writing, and
(iii) vote,
or
execute consents in respect of the Shares to be voted, or consents to be
executed in respect thereof, as Brencourt may direct in writing, in respect
of
(A) any agreement or transaction relating to an Acquisition Proposal (as defined
in the Merger Agreement) or transaction or occurrence that if proposed and
offered to the Company or its stockholders (or any of them) would constitute
an
Acquisition Proposal or (B) any extraordinary corporate transaction (other
than
the Merger), or any amendment of the Company’s Certificate of Incorporation or
Bylaws or other proposal, action or transaction involving the Company or any
of
the Company Subsidiaries or any of its stockholders, and
(iv) vote,
or
execute consents in respect of the Shares to be voted, or consents to be
executed in respect thereof, as Brencourt may direct in writing, in respect
of
any other matter that may be presented to the stockholders of the Company for
which the Sellers are the record holders of the Shares.
(b) Appointment
of Proxy. Subject to Section 7 of this Agreement, you hereby
irrevocably (to the fullest extent permitted by law) constitute and appoint
Xxxx
Xxxxxxxxxxx and Xxxxxxx Xxxxxxx, each of them individually, as the Sellers’
proxy and attorney-in-fact, with full power of substitution and resubstitution,
to cause the Shares to be counted as present at any such Company Stockholders’
Meetings and to vote the Shares at any Company Stockholders’ Meeting, however
called, and to execute consents in respect of the Shares as and to the extent
provided in Section (a) hereof.
(c) Revocation
of Other Proxies. You represent that any proxies heretofore given
in respect of the Shares, if any, are revocable, and hereby revoke all other
proxies and powers of attorney with respect to the Shares that the Sellers
may
have heretofore appointed or granted, and no subsequent proxy or power of
attorney shall be granted.
(d) Proxy
Irrevocable. You acknowledge that Purchasers are relying on this
Agreement in purchasing the Shares. ACCORDINGLY, SUBJECT TO SECTION 7
OF THIS AGREEMENT, THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE(TO THE
FULLEST EXTENT PERMITTED BY LAW) AND COUPLED WITH AN INTEREST. Except
as otherwise required by law in the case of Shares beneficially owned by Sellers
who are natural persons (other than yourselves), this irrevocable proxy shall
not be terminated by any act of the Sellers (subject to Section 7 of this
Agreement) or by operation of law, whether by the death or incapacity of the
Sellers or by the occurrence of any other event or events (including, without
limiting the foregoing, the termination of any trust or estate for which either
of you is acting as a fiduciary or fiduciaries or the dissolution or liquidation
of any corporation or partnership). If after the execution hereof any
Seller should be dissolved or liquidated, actions taken by the Purchasers
hereunder shall be as valid as if such dissolution, liquidation or other event
or events had not occurred, regardless of whether or not the Purchasers have
received any notice of such dissolution, liquidation or other
event.
(e) No
Transfer of
Rights. Except as otherwise
provided in Section 5 of this Agreement with respect to the Merger, the Sellers
shall not: (i) enter into any tender, voting, or other such agreement, or grant
any proxy, power-of-attorney or other authorization or consent with respect
to
any of the Shares; or (ii) take any other action that would in any way restrict,
limit or interfere with the performance of its obligations hereunder or the
transactions contemplated hereby or make any representation or warranty of
the
Sellers untrue or incorrect. Except as contemplated by this
Agreement, the Sellers will not enter into any voting or other agreement or
grant any power of attorney with respect to the Shares, or take any action
that
is inconsistent with this Agreement.
4. HSR
Filing. Brencourt and Purchasers shall use their best efforts to
prepare and file a Notification and Report Form with the United States Federal
Trade Commission and the Antitrust Division of the United States Department
of
Justice no later than two business days after the date of this Agreement, and
to
take all further actions as may be required to obtain the early termination
of
the waiting period under the HSR Act or the earliest possible expiration of
the
waiting period thereunder. Brencourt and Purchasers shall be solely
responsible for all applicable costs and expenses, including the filing
fee.
5. Additional
Purchasers’ Obligations. If, for any reason other than as a
result of a material breach by you under this Agreement, the Closing of the
purchase and sale of the Shares under this Agreement does not occur prior to
the
closing of the Merger (as defined in the Merger Agreement and any amendments
to
the Merger Agreement), the Purchasers shall be obligated to pay you the amount
of $0.25 per Share, or an aggregate payment of $451,755.25, which payment shall
be made by wire transfer by the Purchasers to such accounts as you shall have
specified in writing and shall be paid no later than two business days after
the
closing of the Merger. In such case where the Closing of the purchase
and sale of the Shares under this Agreement does not occur prior to the closing
of the Merger, Sellers shall retain all rights that they have with respect
to
their Shares under the Merger Agreement, and the parties shall have no further
obligations under this Agreement other than Purchasers’ obligation to make the
payment of $451,755.25.
6. Miscellaneous. Brencourt’s
and Purchasers’ obligations under this Agreement shall not be excused if, for
any reason, you are unable to perform your obligations with respect to all
of
the Shares, provided that you perform your obligations with respect to a minimum
of 1,500,000 Shares. In any such case, neither you nor any Seller
shall have any liability under this Agreement, and the parties shall enter
into
an appropriate amendment to this Agreement so that
the
provisions of this Agreement only shall apply to the Shares for which and the
Sellers for whom you are able to perform the obligations under this
Agreement.
7. Termination. You
may terminate this Agreement if the Closing shall not have occurred on or prior
to July 31, 2007, other than as a result of a breach by you of your obligations
under this Agreement. In the event of a termination of this
Agreement, the voting agreement and proxy provided in Section 3 of this
Agreement shall likewise terminate.
[Signature
Page Follows]
If
the
foregoing accurately states our agreement, please sign and return a copy hereof,
at which time this will become a mutually binding agreement.
Very
truly yours,
BRENCOURT
ADVISORS, LLC
By:
/s/ Xxxxxxx Xxxxxx
Name:
Xxxxxxx
Xxxxxx
Title:
Chief
Financial Officer
/s/Xxxxxx
X. Xxxxx
Xxxxxx
X.
Xxxxx
/s/Xxxxx
X. Xxxxxxxxxxx
Xxxxx
X.
Xxxxxxxxxxx
