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EXHIBIT 5.4
VOTING AND STANDSTILL AGREEMENT, dated as of November 14, 1999 (this
"Agreement") by and between Interactive Data Corporation, a Delaware
corporation ("Lynx"), and Xxxx X. Xxxxxxxxxxx Living Trust (the "Stockholder").
Capitalized terms used but not defined herein shall have the meanings set forth
in the Agreement and Plan of Merger, dated the date hereof (as such agreement
may be amended from time to time, the "Merger Agreement").
WHEREAS, concurrently herewith, Lynx, Xxxxxxx Longman, Inc., a
Delaware corporation, Detective Merger-Sub, Inc., a Delaware corporation
("Acquisition Sub") and Data Broadcasting Corporation, a Delaware corporation
("Detective"), are entering into the Merger Agreement, which provides for,
among other things, the merger of Acquisition Sub with and into Lynx.
WHEREAS, as a condition to Lynx's entering into the Merger Agreement,
the Stockholder has agreed to enter into this Agreement with Lynx.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual agreements contained herein, the parties hereby
agree as follows:
Section 1. Certain Definitions. The following terms, when used in this
Agreement, shall have the following meanings (such definitions to be equally
applicable to both singular and plural terms of the terms defined):
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities Beneficially
Owned by all other Persons with whom such Person would constitute a "group" as
described in Section 13(d)(3) of the Exchange Act.
"Detective" has the meaning ascribed thereto in the recitals of this
Agreement.
"Existing Shares" has the meaning ascribed thereto in Section 2(a)(i).
"Lynx" has the meaning ascribed thereto in the introductory paragraph
of this Agreement.
"Merger Agreement" has the meaning ascribed thereto in the
introductory paragraph of this Agreement.
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"Permitted Transferee" means (a) a spouse or lineal descendent
(including by adoption and stepchildren), heir, executor, testamentary trustee
or legatee of the Stockholder or (b) any trust or estate the beneficiaries of
which, or any corporation, limited liability company or partnership, the
stockholders, members or partners of which, include only the Stockholder and
the Persons described in clause (a) above.
"Shares" means the Existing Shares, together with any shares of
Detective Common Stock acquired of record or beneficially by the Stockholder in
any capacity after the date hereof and prior to the termination hereof, whether
upon exercise of options, conversion of convertible securities, purchase,
exchange or otherwise; provided, however, that in the event of a stock dividend
or distribution, or any change in the Detective Common Stock by reason of any
stock dividend, split-up, recapitalization, combination, exchange of shares or
the like, the term "Shares" shall be deemed to refer to and include the Shares
as well as all such stock dividends and distributions and any shares into which
or for which any or all of the Shares may be changed or exchanged.
"Stockholder" has the meaning ascribed thereto in the introductory
paragraph to this Agreement.
"Termination Date" has the meaning ascribed thereto in Section 9 of
this Agreement.
"Trustee" has the meaning ascribed thereto in Section 2(a)(i) of this
Agreement.
Section 2. Representations and Warranties of the Stockholder.
The Stockholder hereby represents and warrants to Lynx as follows:
(a) (i) The Stockholder is either (A) the record
holder or beneficial owner of the number of, or (B) trustee
("Trustee") of a trust that is the record holder or
beneficial owner of, and whose beneficiaries are the
beneficial owners of the shares of Detective Common Stock set
forth opposite the Stockholder's name on Schedule I hereto
(the "Existing Shares").
(ii) On the date hereof, the Existing Shares
constitute all of the outstanding shares of Detective Common
Stock owned of record or beneficially by the Stockholder.
(iii) The Stockholder has sole power of
disposition and sole voting power with respect to the matters
set forth in Section 4 hereof and sole power to demand
dissenter's or appraisal rights, in each case with respect to
all of the Existing Shares, with no restrictions on such
rights, subject to applicable securities laws and the terms
of this Agreement.
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(iv) The Stockholder will have sole power of
disposition and will have sole voting power with respect to
the matters set forth in Section 4 hereof and sole power to
demand dissenter's or appraisal rights, in each case with
respect to all Shares other than Existing Shares, if any,
which become beneficially owned by the Stockholder, with no
restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(b) The Stockholder has the legal capacity, power and
authority to enter into and perform all of the Stockholder's
obligations under this Agreement. The execution, delivery and
performance of this Agreement by the Stockholder will not violate any
other Contract to which the Stockholder is a party or by which the
Stockholder is bound including, without limitation, any trust
agreement, voting agreement, stockholders agreement, voting trust,
partnership or other agreement. This Agreement has been duly and
validly executed and delivered by the Stockholder and (assuming due
authorization, execution and delivery by Lynx) constitutes a legal,
valid and binding agreement of the Stockholder, enforceable against
the Stockholder in accordance with its terms. All necessary consents
of any beneficiary of or holder of interest in any trust of which the
Stockholder is Trustee to the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been
obtained. If the Stockholder is married and the Stockholder's Shares
constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and
binding agreement of, the Stockholder's spouse, enforceable against
such person in accordance with its terms.
(c) Except for filings under the HSR Act, if applicable,
(i) no filing with, and no permit, authorization, consent or approval
of, any state or federal public body or authority is necessary for the
execution of this Agreement by the Stockholder and the consummation by
the Stockholder of the transactions contemplated hereby and (ii)
neither the execution and delivery of this Agreement by the
Stockholder nor the consummation by the Stockholder of the
transactions contemplated hereby nor compliance by the Stockholder
with the provisions hereof shall (x) conflict with or result in any
breach of any applicable trust, partnership agreement or other
Contracts or organizational documents applicable to the Stockholder,
(y) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any right
of termination, cancellation, material modification or acceleration),
under any of the terms, conditions or provisions of any Contract to
which the Stockholder is a party or by which the Stockholder or any of
the Stockholder's properties or assets may be bound or (z) violate any
Governmental Order applicable to the Stockholder or any of the
Stockholder's properties or assets.
(d) Except for the shares of Detective Common Stock
identified in Schedule II hereto (the "Pledged Shares"), the
Stockholder's Shares and the certificates representing such Shares are
now and at all times during the term hereof will be held by the
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Stockholder, or by a nominee or custodian for the benefit of the
Stockholder, free and clear of all Liens, proxies, voting trusts or
arrangements or any other encumbrances whatsoever, except for any of
the same arising hereunder.
(e) No broker, investment banker, financial adviser or
other Person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on
behalf of the Stockholder in his or her capacity as such.
(f) The Stockholder understands and acknowledges that
Lynx is entering into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Agreement with Lynx.
Section 3. Representations and Warranties of Lynx. Lynx hereby
represents and warrants to each the Stockholder as follows:
(a) Lynx is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) Lynx has all necessary corporate power and authority
to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and
performance by Lynx of this Agreement and the consummation by Lynx of
the transactions contemplated hereby have been duly and validly
authorized and approved by all required corporate action. This
Agreement has been duly executed and delivered by Lynx, and (assuming
due authorization, execution and delivery by the Stockholder)
constitutes a legal, valid and binding obligation of Lynx, enforceable
against it in accordance with its terms.
(c) Except for filings under the HSR Act, if applicable,
(i) no filing with and no permit, authorization, consent or approval
of, any state or federal public body or authority is necessary for the
execution of this Agreement by Lynx and the consummation by Lynx of
the transactions contemplated hereby and (ii) neither the execution
and delivery of this Agreement by Lynx nor the consummation by Lynx of
the transactions contemplated hereby nor compliance by Lynx with the
provisions hereof shall (x) conflict with or result in any breach of
any applicable trust, partnership agreement or other Contracts or
organizational documents applicable to Lynx, (y) result in a violation
or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any right of termination,
cancellation, material modification or acceleration) under any of the
terms, conditions or provisions of any Contract to which Lynx is a
party or by which Lynx or any of Lynx's properties or assets may be
bound or (z) violate any Governmental Order applicable to Lynx or any
of Lynx's properties or assets.
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Section 4. Agreement to Vote; Proxy
(a) The Stockholder hereby agrees that, until the
Termination Date (as defined in Section 9), at any meeting of the
stockholders of Detective, however called, or in connection with any
action by written consent of the stockholders of Detective, the
Stockholder shall vote (or cause to be voted) or act by written
consent with respect to the Shares (i) in favor of the Merger, the
Amended Charter and the election of the Post-Closing Directors, the
execution and delivery by Detective of the Merger Agreement and the
Ancillary Agreements and the approval of the terms thereof and each of
the other actions contemplated by the Merger Agreement and this
Agreement and any actions required in furtherance hereof and thereof;
(ii) against any action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or
agreement of Detective under the Merger Agreement, the Ancillary
Agreements or this Agreement; and (iii) against the following actions
(other than the Merger and the transactions contemplated by the Merger
Agreement or any such actions identified in writing by Lynx in
advance): (A) any extraordinary corporate transaction, including,
without limitation, a merger, consolidation or other business
combination involving Detective or any of its Subsidiaries; (B) a
sale, lease or transfer of a material amount of assets of Detective or
any of its Subsidiaries or a reorganization, recapitalization,
dissolution or liquidation of Detective or any of its Subsidiaries;
(C) any change in the majority of the board of directors of Detective;
(D) any change in the present capitalization of Detective or any
amendment of Detective's Certificate of Incorporation or by-laws
(other than as contemplated by the Amended Charter); (E) any other
change in Detective's corporate structure or business; or (F) any
other action which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, discourage or materially
adversely affect the Merger or the transactions contemplated by the
Merger Agreement, the Ancillary Agreements or this Agreement. The
Stockholder shall not enter into any Contract or understanding with
any Person to vote or give instructions in any manner inconsistent
with the terms of this Agreement.
(b) STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, LYNX AND
ANY DESIGNEE OF LYNX, EACH OF THEM INDIVIDUALLY, STOCKHOLDER'S
IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY AND ATTORNEY-IN-FACT
(WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES AS SET FORTH IN
SECTION 4(a) ABOVE. STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE
(UNTIL THE TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL
TAKE SUCH FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE
NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES
ANY PROXY PREVIOUSLY GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO SUCH
SHARES.
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Section 5. Certain Covenants of the Stockholder. Except in
accordance with the terms of this Agreement, the Stockholder hereby covenants
and agrees as follows:
(a) Prior to the Termination Date, the Stockholder shall
not, in its capacity as such, directly or indirectly (including
through advisors, agents or other intermediaries), solicit, initiate
or encourage (including by way of furnishing information) or respond
to (or take any other action designed to facilitate) any inquiries or
the making of any proposal by any Person (other than Lynx or any
Affiliate thereof) with respect to Detective that constitutes or could
reasonably be expected to lead to a Detective Takeover Proposal or
engage in any discussions or negotiations with regard to any Detective
Takeover Proposal.
(b) Prior to the Termination Date, the Stockholder shall
not, directly or indirectly (i) except pursuant to the terms of the
Merger Agreement or this Agreement, offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, enforce or
permit the execution of the provisions of any redemption agreement
with Detective, enter into any Contract, Option or other arrangement
or understanding with respect to, or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, or exercise any discretionary powers to distribute,
any or all of the Shares or any interest therein, including any trust
income or principal, except in each case to a Permitted Transferee who
is or agrees to become bound by this Agreement; (ii) except as
contemplated hereby, grant any proxies or powers of attorney with
respect to any Shares, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or (iii) take any
action that would make any representation or warranty of the
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing any of the
Stockholder's obligations under this Agreement.
(c) The Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger that the Stockholder
may have. Each Trustee represents that no beneficiary who is a
beneficial owner of Shares under any trust has any right of appraisal
or right to dissent from the Merger which has not been so waived.
(d) Unless, in connection therewith, the Shares held by
any trust which is presently subject to the terms of this Agreement
are transferred to one or more Permitted Transferees who upon receipt
of such Shares become signatories to this Agreement, the Stockholder
acting as a Trustee shall not take any action to terminate, close or
liquidate any such trust and shall take all steps necessary to
maintain the existence thereof at least until the Termination Date.
Section 6. Further Assurances. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further action
as may be necessary or desirable to consummate and
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make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
Section 7. Certain Events. The Stockholder agrees that this
Agreement and the obligations hereunder shall attach to the Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such Shares shall pass, whether by operation of law or otherwise, including
without limitation the Stockholder's heirs, guardians, administrators or
successors or as a result of any divorce.
Section 8. Stop Transfer. The Stockholder agrees with, and
covenants to, Lynx that the Stockholder shall not request that Detective
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, unless such transfer is
made in compliance with this Agreement.
Section 9. Termination. The obligations of the Stockholder and
the irrevocable proxy contained in Section 4(b) of this Agreement shall
terminate upon the first to occur of (a) the Effective Time and (b) the date
the Merger Agreement is terminated in accordance with its terms (unless such
termination is being contested in good faith by Lynx in a court of competent
jurisdiction, in which event this Agreement shall remain in full force and
effect until the resolution of such action from which there is no further right
of appeal) (the "Termination Date"); provided that the provisions of Sections
2, 3 and 10 and any claim for breach of any representation, warranty, covenant
or other agreement under this Agreement shall survive the Termination Date.
Section 10. Miscellaneous.
(a) All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by overnight courier service, by
cable, by facsimile, by telegram, by telex or by registered or
certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other
address for a party as shall be specified in a notice given in
accordance with this Section 10(a)):
If to the Stockholder:
Xxxx X. Xxxxxxxxxxx Living Trust
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
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If to Lynx:
c/o Pearson Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Gold, Esq.
Telecopier: (000) 000-0000
(b) At any time prior to the Termination Date, any party
hereto may, with respect to any other party hereto, (i) extend the
time for the performance of any of the obligations or other acts, (ii)
waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto or (iii) waive
compliance with any of the agreements or conditions contained herein.
Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound
thereby.
(c) The headings contained in this Agreement are for the
convenience of reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
(d) 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 conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is
not affected in any manner adverse to any party. Upon such
determination that any term or other provision 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 in a mutually acceptable
manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the greatest extent
possible.
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(e) This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and
supersede all prior agreements and undertakings, both written and oral
with respect to the subject matter hereof and thereof and except as
otherwise expressly provided herein.
(f) This Agreement shall not be assigned by operation of
Law or otherwise, except that Lynx may assign all or any of their
respective rights and obligations hereunder to any of its Affiliates,
provided, however, that no such assignment shall relieve the assigning
party of its obligations hereunder.
(g) The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms. It is
accordingly agreed that the parties hereto (i) will waive, in any
action for specific performance, the defense of adequacy of remedy at
law and (ii) shall be entitled to specific performance of the terms
hereof, this being in addition to any other remedy to which they are
entitled at law or in equity.
(h) No failure or delay on the part of any party hereto
in the exercise of any right hereunder shall impair such right or be
construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
(i) Notwithstanding anything herein to the contrary, no
Person executing this Agreement who is, or becomes during the term
hereof, a director of Detective makes any agreement or understanding
herein in his or her capacity as such director, and the agreements set
forth herein shall in no way restrict any director in the exercise of
his or her fiduciary duties as a director of Detective in his or her
capacity as a director of Detective. The Stockholder has executed this
Agreement solely in his or her capacity as the record or beneficial
holder of the Shares or as the trustee of a trust whose beneficiaries
are the beneficial owners of the Shares.
(j) Each party agrees to bear its own expenses in
connection with the transactions contemplated hereby.
(k) This Agreement shall be governed by, and construed
in accordance with, the Laws of the State of Delaware. All actions and
proceedings arising out of or relating to this Agreement shall be
heard and determined in a Delaware state or federal court sitting in
the State of Delaware, and the parties hereto hereby irrevocable
submit to the exclusive jurisdiction of such courts in any such action
or proceeding and irrevocably waive the defense of an inconvenient
forum to the maintenance of any such action or proceeding.
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(l) EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT.
(m) This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature
page to this Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this Agreement.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
INTERACTIVE DATA CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Authorized Person
XXXX X. XXXXXXXXXXX LIVING TRUST
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
Title: Trustee
[Signature page to Voting and Standstill Agreement]
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SCHEDULE I
EXISTING SHARES
Stockholder No. of Existing Shares
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Xxxx X. Xxxxxxxxxxx Living Trust 1,212,145
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SCHEDULE II
PLEDGED SHARES
Number of Pledged Shares Pledgee
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None
