STOCKHOLDER SUPPORT AGREEMENT
This
STOCKHOLDER SUPPORT AGREEMENT (this “Agreement”) dated as
of April 29, 2004, is by and between infoUSA Inc., a Delaware corporation (“Parent”),
OSIS Acquisition Corp., a Delaware corporation (“Merger Sub”) and a direct
wholly-owned subsidiary of Parent and Xxxxxx X. Xxxx (“Stockholder”).
RECITALS
In order to induce Parent and Merger Sub to enter into an Agreement and
Plan of Merger, dated as of even date herewith (as amended from time to time,
the “Merger Agreement”) with OneSource Information Services, Inc., a Delaware
corporation (“Target”), Merger Sub has requested Stockholder, and Stockholder
has agreed, to enter into this Agreement.
As of the date hereof, Stockholder is the holder of the shares of capital
stock of Target (the “Common Shares”) or of options to purchase Common Shares
listed on the signature page hereof.
Capitalized terms used but not separately defined herein shall have the
meanings ascribed to them in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Agreement to Tender
Section 1.01 Agreement to Tender. Stockholder hereby irrevocably and
unconditionally agrees to validly tender (and not withdraw) or cause to be
validly tendered (and not withdrawn) pursuant to and in accordance with the
terms of the Offer all of the Common Shares that Stockholder owns as of the
date hereof, as well as any additional Common Shares that Stockholder may own,
whether acquired by purchase, exercise of Options or otherwise, at any time
after the date hereof (the “Stockholder Shares”). Within ten business days
after the commencement of the Offer (or within ten business days after any
Stockholder Shares are acquired by Stockholder during pendency of the Offer, if
later), Stockholder shall deliver to the depositary designated in the Offer (i)
a letter of transmittal with respect to the Stockholder Shares complying with
the terms of the Offer, (ii) certificates representing all of the Stockholder
Shares and (iii) all other documents or instruments required to be delivered
pursuant to the terms of the Offer. Stockholder hereby permits Parent and
Merger Sub to publish and disclose in the Offer Documents and, if approval of
the Company’s stockholders is required, the Proxy Statement his or her identity
and ownership of the Stockholder Shares and the nature of his or her
commitments, arrangements and understandings under this Agreement.
ARTICLE 2
Voting Agreement; Grant of Proxy
Section 2.01 Voting Agreement.
(a) Until the earliest to occur of (w) tender and acceptance of the
Stockholder Shares pursuant to the Offer, (x) the consummation of the Merger,
(y) the six-month anniversary of the date hereof, or (z) the termination of the
Merger Agreement (such date, the “Termination Date”),
1
Stockholder hereby irrevocably and unconditionally agrees to vote or cause
to be voted all Stockholder Shares that Stockholder is entitled to vote at the
time of any vote of the stockholders of Target where such matters arise (i) in
favor of the approval and adoption of the Merger Agreement and in favor of the
Transactions, (ii) against any proposal or transaction which could prevent or
delay the consummation of the Transactions, and (iii) against any corporate
action which would frustrate the purposes, or prevent or delay the
consummation, of the Transaction.
(b) If any stockholder vote in respect of the Merger Agreement or any of
the Transactions is taken by written consent, the provisions of this Agreement
imposing obligations in respect of or in connection with any vote of
stockholders shall also apply.
Section 2.02 Proxy. Stockholder hereby revokes any and all previous
proxies granted with respect to the Stockholder Shares. By entering into this
Agreement, Stockholder hereby grants a limited irrevocable proxy, within the
meaning of the DGCL, appointing Merger Sub as Stockholder’s attorney-in-fact
and proxy, with full power of substitution, for and in Stockholder’s name, to
vote, express consent or dissent, or otherwise to utilize such voting power in
such manner and upon and limited to only those matters referred to in Section
2.01 above, as Merger Sub or its proxy or substitute shall, in Merger Sub’s
sole discretion, deem proper with respect to the Stockholder Shares. The proxy
granted by Stockholder pursuant to this Article 2 is irrevocable and is granted
in consideration of Merger Sub’s entering into the Merger Agreement and to
secure Stockholder’s performance of this Agreement and duty to vote or cause to
be voted (including by written consent) all of the Stockholder Shares as set
forth in Section 2.01(a) and (b) hereof, and such irrevocable proxy shall
remain in effect until the Termination Date, notwithstanding the death or
incapacity of Stockholder. Such proxy shall be revoked on the Termination
Date.
Section 2.03 Capacity. The Stockholder is only obligating himself or
herself in his or her capacity as a stockholder of Target and not agreeing to
take any action or forego taking any action in his or her capacity as an
officer or director of Target.
ARTICLE 3
Representations and Warranties of Stockholder
Stockholder represents and warrants to Merger Sub that:
Section 3.01 Valid Title. Stockholder is the beneficial owner of the
Stockholder Shares held by such Stockholder on the date hereof with no
restrictions on Stockholder’s voting rights or rights of disposition pertaining
thereto, except securities Law requirements. None of the Stockholder Shares are
subject to any voting trust or other agreement or arrangement with respect to
the voting of such Stockholder Shares (other than this Agreement).
Section 3.02 Binding Effect. This Agreement is the valid and binding
agreement of Stockholder, enforceable against 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.
Section 3.03 Total Shares. The number of Stockholder Shares set forth on
the signature page hereto opposite the name of Stockholder are the only shares
of Common Shares beneficially owned by Stockholder.
2
ARTICLE 4
Representations and Warranties of Parent and Merger Sub
Parent and Merger Sub jointly and severally represent and warrant to
Stockholder that:
Section 4.01 Corporate Power and Authority. Each of Parent and Merger Sub
has all requisite corporate power and authority to enter into this Agreement
and to perform its obligations hereunder. The execution, delivery and
performance by each of Parent and Merger Sub of this Agreement and the
performance hereof have been duly authorized by the board of directors of each
of Parent and Merger Sub and no other corporate action on the part of either
Parent or Merger Sub is necessary to authorize the execution, delivery or
performance by Parent or Merger Sub of this Agreement and the performance
hereof. This Agreement has been duly executed and delivered by each of Parent
and Merger Sub and is a valid and binding Agreement of each of Parent and
Merger Sub, enforceable against each of them in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors’ rights generally.
ARTICLE 5
Covenants of Stockholder
Stockholder hereby covenants and agrees that:
Section 5.01 No Proxies for, Sale of or Encumbrances on Stockholder
Shares. Except pursuant to the terms of this Agreement, prior to the
Termination Date Stockholder shall not, without the prior written consent of
Merger Sub, 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 Stockholder Shares, or (ii) sell, assign, transfer, encumber or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment,
transfer, encumbrance or other disposition of, any Stockholder Shares during
the term of this Agreement. Stockholder shall not seek or solicit any such
sale, assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or assignment or understanding and agrees
to notify Merger Sub promptly and to provide all details requested by Merger
Sub if Stockholder shall be approached or solicited, directly or indirectly, by
any person with respect to any of the foregoing.
Section 5.02 Further Action. Stockholder intends this limited proxy to be
irrevocable and will take such further action and execute such other
instruments as may be necessary to effectuate the intent of this proxy,
including, without limitation, filing written notice of this irrevocable proxy
with the secretary of Target or permitting Merger Sub, as such Stockholder’s
attorney-in-fact, to file a copy of this Agreement with the secretary of
Target.
ARTICLE 6
Miscellaneous
Section 6.01 Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
Section 6.02 Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use all reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings,
3
arrangements or restrictions of any kind to which such party is a party or
by which such party is governed or bound, to effectuate the intent of this
Agreement.
Section 6.03 Specific Performance. The parties hereto agree that Merger
Sub would suffer irreparable damage if for any reason Stockholder failed to
perform any of such Stockholder’s obligations under this Agreement, and that
Merger Sub would not have an adequate remedy at law for money damages in such
event. Accordingly, Merger Sub shall be entitled to specific performance and
injunctive and other equitable relief to enforce the performance of this
Agreement by Stockholder. This provision is without prejudice to any other
rights that Merger Sub may have against Stockholder for any failure to perform
such Stockholder’s obligations under this Agreement.
Section 6.04 Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by cable, telegram or telex, or by registered or certified mail
(postage prepaid, return receipt requested) to such party at its address set
forth on the signature page hereto.
Section 6.05 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
Section 6.06 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other parties hereto; provided further that Merger
Sub may assign its rights and obligations to any affiliate of Merger Sub
without any such consent.
Section 6.07 Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of Delaware without giving
effect to the principles of conflicts of laws thereof.
Section 6.08 Counterparts. This Agreement may be signed in any number of
counterparts, each of which, when executed and delivered, shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
4