SHAREHOLDER SUPPORT AGREEMENT
Exhibit 2.2
This SHAREHOLDER SUPPORT AGREEMENT (this “Agreement”) is entered into as of June
28, 2007, by and among infoUSA Inc., a Delaware corporation (“Parent”), Xxxxxxxxxxxxx
Acquisition Corp., a New York corporation and a direct wholly-owned subsidiary of Parent
(“Merger Sub”) and Special Situations Fund III Q.P.,
L.P., Special Situations Fund III, L.P.,
Special Situations Private Equity Fund, L.P. and Special Situations
Cayman Fund, L.P. (collectively “Shareholder”).
RECITALS
In order to induce Parent and Merger Sub to enter into that certain Agreement and Plan of
Merger, dated as of even date herewith, by and among Parent, Merger Sub and Company (as amended
from time to time, the “Merger Agreement”), Merger Sub has requested that Shareholder, and
the Shareholder has agreed to, enter into this Agreement.
As of the date hereof, Shareholder is the holder of the shares of Company capital stock and/or
options and/or warrants to purchase shares of Company capital stock listed opposite Shareholder’s
name on Exhibit A.
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
Agreement to Tender
Section 1.01 Agreement to Tender. Subject to the provisions of Section 6.02, so long
as this Agreement remains in effect, Shareholder shall validly tender or cause to be validly
tendered pursuant to and in accordance with the terms of the Offer all of the shares of Company
capital stock that Shareholder owns as of the date hereof, as well as any additional shares of
Company capital stock that Shareholder may own, whether acquired by purchase, exercise of Options
or Warrants or otherwise, at any time after the date hereof (the “Shareholder Shares”).
Within ten (10) business days after the later of (i) commencement of the Offer, (ii) any
Shareholder Shares are acquired by Shareholder during pendency of the Offer or (iii) receipt of a
form of a letter of transmittal and other required documents relating to the Offer, Shareholder
shall deliver to the depositary designated in the Offer (i) a completed and executed letter of
transmittal relating to the Shareholder Shares, which shall comply with the terms of the Offer,
(ii) certificates representing all of the Shareholder Shares, and (iii) all other documents or
instruments required to be delivered pursuant to the terms of the Offer. Subject to the provisions
of Section 6.02, so long as this Agreement remains in effect, once its Shareholder Shares are
tendered, Shareholder will not withdraw any of such Shareholder Shares from the Offer, unless and
until the Offer shall have been terminated by Merger Sub in accordance with the terms of the Merger
Agreement.
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ARTICLE 2
Voting Agreement
Voting Agreement
Section 2.01 Voting Agreement.
(a) So long as this Agreement remains in effect, Shareholder shall vote or cause to be voted
all Shareholder Shares that Shareholder is entitled to vote at the time of any vote of the
shareholders of Company where such matters arise (i) in favor of the approval and adoption of the
Merger Agreement and the Merger and (ii) against any proposal or transaction which could prevent or
delay the consummation of the Merger.
(b) If any shareholder vote in respect of the Merger Agreement or the Merger is taken by
written consent, the provisions of this Agreement imposing obligations in respect of or in
connection with any vote of shareholders shall apply thereto.
(c) Subject to the provisions of Section 6.02, Shareholder shall retain at all times during
the term of this Agreement the right to vote the Shareholder Shares in Shareholder’s sole
discretion and without any other limitation on those matters other than those set forth in this
Section 2.01 that are at any time or from time to time presented for consideration to the Company’s
shareholders generally.
(d) The voting agreement set forth in this Section 2.01 will not apply to any shares of common
stock sold in accordance with Section 6.02 hereof.
ARTICLE 3
Non-Solicitation
Non-Solicitation
Section 3.01 Non-Solicitation. So long as this Agreement remains in effect,
Shareholder shall not, directly or indirectly, (i) solicit, initiate or encourage any inquiry in
connection with, or the making of any proposal by any party that constitutes, an Acquisition
Proposal (other than the Offer and the Merger), (ii) participate in any discussions or negotiations
with any party (other than the Company, Parent, Purchaser or the Parent Representatives) regarding
an Acquisition Proposal, (iii) furnish to any party (other than the Company, Parent, Purchaser or
the Parent Representatives) any information intended to facilitate, or with the reasonably
foreseeable effect of facilitating, an Acquisition Proposal, or (iv) enter into any agreement,
arrangement or understanding with respect to, or otherwise endorse, any Acquisition Proposal. The
Shareholder shall not be liable under this Section 3.01 for any actions taken or omitted to be
taken by the Company, its agents and representatives.
ARTICLE 4
Representations and Warranties of Shareholders
Representations and Warranties of Shareholders
Shareholder represents and warrants to Merger Sub that, as of the date hereof:
Section 4.01 Valid Title. Shareholder is the legal and record owner of the
Shareholder Shares held by Shareholder on the date hereof with no restrictions on Shareholder’s
voting rights or rights of disposition pertaining thereto, except securities Law requirements and
except as provided in this Agreement. None of the Shareholder Shares are subject to any voting
trust or other agreement or arrangement with respect to the voting of such Shareholder Shares
(other than this Agreement).
Section 4.02 Binding Effect. This Agreement is the valid and binding agreement of
Shareholder, enforceable against Shareholder 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 to general equitable principles. The execution and delivery by Shareholder of
this Agreement does not, and the performance by Shareholder of Shareholder’s obligations under this
Agreement will not,
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require any consent, approval, authorization or permit of, or filing with or notification to,
any Governmental Authority; provided, however, that no representation or warranty is made with
respect to any requirements applicable to the Offer or the Merger.
Section 4.03 Ownership of Company Securities. The shares of Company capital stock and
options to purchase shares of Company capital stock set forth next to Shareholder’s name on
Exhibit A hereto are the only securities of Company owned by Shareholder or in which
Shareholder has any beneficial interest.
Section 4.04 Power and Authority. Shareholder (i) is duly organized or formed,
validly existing and in good standing under the laws of its jurisdiction of organization or
formation and (ii) has the requisite power and authority to execute and deliver this Agreement and
to perform its obligations hereunder.
Section 4.05 Conflicting Obligations. The execution and delivery of this Agreement
and the performance of Shareholder’s obligations hereunder do not (i) conflict with or violate any
organizational or formation document of Shareholder (ii) conflict with or result in an event of
default under any agreement, arrangement or understanding to which the Shareholder is a party or by
which Shareholder is bound or (iii) result in the creation of a lien or other encumbrance on any of
Shareholder’s Shares (except as created pursuant to the terms of this Agreement).
ARTICLE 5
Representations and Warranties of Parent and Merger Sub
Representations and Warranties of Parent and Merger Sub
Parent and Merger Sub jointly and severally represent and warrant to Shareholder that:
Section 5.01 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. 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 6
Covenants
Covenants
Section 6.01 No Proxies for, Sale of or Encumbrances on Shareholder Shares. Except as
set forth in Section 6.02 below, so long as this Agreement remains in effect, Shareholder shall
not, without the prior written consent of Merger Sub (a) grant any proxies or enter into any voting
trust or other agreement or arrangement with respect to the voting of any Shareholder Shares, or
(b) sell, assign, transfer, encumber or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale, assignment, transfer, encumbrance or
other disposition of, any Shareholder Shares.
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Section 6.02 Permitted Sale of Limited Number of Shareholder Shares. At any time when
the quoted per share bid price of the Company’s common stock is at least $1.50 per share,
Shareholder may sell an aggregate of up to 1,750,000 of the Shareholder Shares for a gross price
(before subtracting xxxx-ups, xxxx-xxxxx or commissions) of not less than $1.50 per share provided,
however, that Shareholder does not knowingly sell an aggregate of more than 1,000,000 of the
Shareholder Shares to any person or group of Affiliated persons.
ARTICLE 7
Miscellaneous
Miscellaneous
Section 7.01 Termination. This Agreement shall terminate automatically, without any
notice or other action by any party, upon the earliest to occur of (x) tender, acceptance and
payment of the Shareholder Shares pursuant to the Offer, (y) the consummation of the Merger, or (z)
the termination of the Merger Agreement. Shareholder shall also have the right to terminate this
Agreement at any time after (i) any change in the nature of the consideration payable to
Shareholder in the Offer or the Merger, (ii) any decrease in consideration payable to Shareholder
in the Offer or the Merger, (iii) any increase in the consideration payable to holders of any
shares of the Company’s common stock that is not made equally available to the Shareholder, or (iv)
any material breach by Parent or Merger Sub of Article 5 of this Agreement which is not cured (to
the extent curable) within two (2) business days after receipt of written notice of such breach
from Shareholder. The date of any termination of this Agreement in accordance with this section
7.01 shall be referred to herein as the “Termination Date”. Notwithstanding the foregoing, nothing
set forth in this Section 7.01 or elsewhere in this Agreement shall relieve any party hereto from
liability, or otherwise limit the liability of any party hereto, for any breach of this Agreement.
Section 7.02 Expenses. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
Section 7.03 Specific Performance. The parties hereto agree that each party hereto
would suffer irreparable damage if for any reason the other parties hereto failed to perform any of
their respective obligations under this Agreement, and that such non-breaching party would not have
an adequate remedy at law in such event. Accordingly, the non-breaching party shall be entitled to
specific performance and injunctive and other equitable relief to enforce the performance of this
Agreement by the other parties hereto. This provision is without prejudice to any other rights that
the non-breaching party may have against the breaching party for any failure by the breaching party
to perform its obligations under this Agreement.
Section 7.04 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 7.05 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 7.06 Successors and Assigns. Subject to the provisions of Section 6.02, 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, however, 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.
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Section 7.07 Governing Law. This Agreement shall be construed in accordance with and
governed by the law of the State of New York without giving effect to the principles of conflicts
of laws thereof.
Section 7.08 Counterparts/Electronic Transmission. This Agreement may be executed in
one or more counterparts, any of which may be executed and transmitted by facsimile or other
electronic method, and each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
PARENT: | ||||||
infoUSA Inc. | ||||||
By: | /s/ XXXXXX XXXX | |||||
Name: | Xxxxxx Xxxx | |||||
Title: | Chief Financial Officer | |||||
MERGER SUB: | ||||||
Xxxxxxxxxxxxx Acquisition Corp. | ||||||
By: | /s/ XXXXXX XXXX | |||||
Name: | Xxxxxx Xxxx | |||||
Title: | Chief Financial Officer | |||||
SPECIAL SITUATIONS FUND III Q.P., L.P. | ||||||
SPECIAL SITUATIONS FUND III, L.P. | ||||||
SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P. | ||||||
SPECIAL SITUATIONS CAYMAN FUND, L.P. | ||||||
By: | /s/ XXXXXX X. XXXXX | |||||
Name: | ||||||
Title: | General Partner |
[Signature page to Shareholder support agreement]