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STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of March 21, 2000, is entered into
by and among PSINet INC., a New York corporation ("BUYER"), METAMOR WORLDWIDE,
INC., a Delaware corporation ("METAMOR"), and the other parties who have signed
this Agreement (each, a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS").
RECITALS
WHEREAS, each Stockholder is the beneficial owner of the number of
shares of common stock of Buyer, par value $.01 per share, set forth on the
signature page to this Agreement (such shares, together with any other shares of
capital stock of Buyer acquired by such Stockholder as sole beneficial owner
after the date hereof (including through the exercise of stock options, warrants
or similar rights or the conversion or exchange of securities) being
collectively referred to herein as the "SHARES" of such Stockholder);
WHEREAS, the respective Boards of Directors of Buyer, Metamor and
PSINet Shelf IV Inc. ("MERGER SUBSIDIARY") have approved the execution of an
Agreement and Plan of Merger, dated as of the date hereof (as the same may be
amended, supplemented or otherwise modified in accordance with its terms, the
"MERGER AGREEMENT"), with respect to, among other things, the merger of Merger
Subsidiary with or into Metamor (the "MERGER");
WHEREAS, pursuant to the Merger Agreement, each Stockholder is required
to execute this Agreement and deliver it to Metamor;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Buyer, Metamor and Merger Subsidiary have entered into the Merger
Agreement, setting forth certain representations, warranties, covenants and
agreements of the parties thereto in connection with the Merger; and
WHEREAS, as an inducement and an essential condition to Metamor
entering into the Merger Agreement, Buyer and each Stockholder have agreed to
enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein and for other good
and valuable consideration, the parties hereto, intending to be legally bound,
agree as follows (certain capitalized terms are used herein with the meanings
set forth in Section 6):
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1. Voting Agreement. Except for Beneficially Owned Shares sold or
otherwise conveyed by a financial institution or broker-dealer pursuant to bona
fide pledge arrangements relating to loans or margin arrangements (the
"ARRANGEMENTS") made through such financial institution or broker-dealer or with
respect to which the Stockholder is subject to restrictions affecting such
Stockholder's obligations hereunder ("RESTRICTED SHARES"), each Stockholder
hereby agrees with Metamor that, at any meeting of Buyer's shareholders, however
called and any postponement or adjournment thereof, or in connection with any
written consent of Buyer's shareholders (collectively, the "BUYER STOCKHOLDERS
MEETING"), such Stockholder shall, except as restricted by the Arrangements,
vote (or, if applicable and requested by Metamor, grant proxies (including
proxies to execute consents), execute consents and give approvals in respect of)
the Shares Beneficially Owned by such Stockholder as of the date of such meeting
or written consent, whether heretofore owned or hereafter acquired in favor of
adoption and approval of the issuance of Buyer common stock pursuant to the
Merger Agreement and such other matters, if any, as requested by Metamor.
2. Restrictions on Transfer.
(a) Except with respect to or pursuant to the Arrangements, each
Stockholder covenants and agrees with Metamor that, until after the Effective
Time, such Stockholder shall not, directly or indirectly give, offer, sell,
transfer, assign, pledge, hypothecate or otherwise dispose of the record or
beneficial ownership of (any such act, a "TRANSFER"), or consent to any Transfer
of, any or all of the Beneficially Owned Shares or any interest therein. No
Transfer of any Beneficially Owned Shares in violation of this Section 2 shall
be made or recorded on the books of Buyer and any such Transfer shall be void
and of no effect.
3. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto without
the prior written consent of the other parties, and any purported assignment in
violation of this Section 3 shall be void and of no effect. 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 administrators, heirs,
legal representatives, successors and permitted assignees.
4. Termination. This Agreement shall terminate immediately upon the
earlier of: (i) the termination of the Merger Agreement, or (ii) the Effective
Time. Notwithstanding the foregoing, this Section 4 and Sections 5 through 6
hereof shall survive any termination of this Agreement and remain in effect
until the date on which fully discharged in accordance with their respective
terms.
5. Stockholder Capacity. By executing and delivering this Agreement,
each Stockholder makes no agreement or understanding herein as to his or its
capacity, if any, as a director or officer of Buyer or any subsidiary of Buyer.
Each Stockholder signs solely in his or its capacity as the beneficial owner of
Buyer's Shares and nothing herein shall limit or affect any actions taken by
such Stockholder, or his or its Affiliates, solely in his or their fiduciary
capacity as an officer or director of Buyer or any subsidiary of Buyer.
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6. General Provisions.
(a) Certain Definitions. Capitalized terms used herein and not
otherwise defined are used with the meanings ascribed to them in the Merger
Agreement. As used in this Agreement, "BENEFICIALLY OWNED" with respect to any
securities of Buyer shall mean a Stockholder's having such ownership, control or
power to direct the voting or investment with respect to, or otherwise enabling
such Stockholder to legally act with respect to, such securities as contemplated
hereby, including pursuant to any agreement, arrangement or understanding,
whether or not in writing provided, however, that notwithstanding the foregoing,
securities Beneficially Owned by such Stockholder shall not include (1)
securities Beneficially Owned by all other persons with whom such Stockholder
would constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act or (2) any securities owned by any trust, limited liability
company, relative of such Stockholder or foundation or jointly owned with such
Stockholder's spouse.
(b) Amendments. This Agreement may not be amended, supplemented,
modified or waived except by an instrument in writing signed by Metamor and the
Stockholder or Stockholders to whom such amendment, modification or waiver
relates.
(c) Notice. All notices or other communications under this Agreement
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by delivery in person, by telecopy (with confirmation of
receipt), or by registered or certified mail, postage prepaid, return receipt
requested, addressed to the notice address specified on the applicable signature
page to this Agreement.
(d) Interpretation. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. The parties acknowledge and
agree that: (i) each party to this Agreement and its counsel reviewed and
negotiated the terms and provisions of this Agreement and have contributed to
its revision; (ii) the rule of construction to the effect that any ambiguities
are resolved against the drafting party shall not be employed in the
interpretation of this Agreement; and (iii) the terms and provisions of this
Agreement shall be construed fairly as to both parties hereto, regardless of
which party was generally responsible for the preparation of this Agreement or
any provision hereof.
(e) Counterparts. This Agreement may be executed in two or more
counterparts which together shall constitute a single agreement.
(f) Entire Agreement; No Third-Party Beneficiaries. This Agreement and
the Merger Agreement constitute the entire agreement, and supersede all other
prior agreements, understandings, representations and warranties, both written
and oral, between the parties, with respect to the subject matter hereof. The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns. Nothing in this Agreement, expressed or implied, is intended to confer
upon any party, other than the parties hereto, and their respective successors
and permitted assigns, any rights, remedies, obligations or liabilities under or
by reason of this Agreement, except as expressly provided herein.
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(g) Governing Law. This Agreement shall be construed in accordance with
and governed in all respects, including validity, interpretation and effect, by
the law of the State of New York without giving effect to the principles of
conflicts of laws thereof.
(h) Consent to Jurisdiction; Consent to Service. IN THE EVENT OF ANY
LITIGATION, CLAIM OR OTHER LEGAL PROCEEDING WITH RESPECT TO ANY MATTER
PERTAINING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, THE
PARTIES HERETO HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY. THE PARTIES HERETO
HEREBY READILY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF
THE STATE OF NEW YORK AND ANY FEDERAL COURT LOCATED IN NEW YORK IN CONNECTION
WITH ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(i) 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 terms and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon determination that any term or other
provision hereof 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 to the fullest extent
permitted by applicable Law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
IN WITNESS WHEREOF, Buyer, Metamor and each Stockholder have executed or
caused this Agreement to be duly executed and delivered as of the date first
written above.
PSINET INC.
By:
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Name: Xxxxxx X. Xxxxx
Title: President
METAMOR WORLDWIDE, INC.
By:
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Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer and
President
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SIGNATURE PAGE TO STOCKHOLDER AGREEMENT
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Name: Xxxxxxx X. Xxxxxxxx
Number of Shares
Beneficially Owned as of March 21, 2000:
10,954,744 shares of Common Stock
Notice Address:
c/o PSINet Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
