EXHIBIT 2.2
TENDER AND VOTING AGREEMENT
TENDER
AND VOTING AGREEMENT (“Agreement”), dated
April 29, 2004, by and between info USA, Inc., a
Delaware corporation (“Parent”), OSIS Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent (the “Purchaser”) and the entities listed on
Schedule A hereto (each, a “Stockholder” and,
collectively, the “Stockholders”).
A. Parent,
the Purchaser and the OneSource Information Services, Inc. (the
“Company”) propose to enter into an Agreement and Plan
of Merger of even date herewith, as may be amended from time to
time (the “Merger Agreement”). Capitalized terms used
but not defined herein have the meanings ascribed thereto in the
Merger Agreement.
B. The
Company and VAC-OS Holdings, LLC and OS Merger Sub, Inc.,
affiliates of the Stockholders, were parties to an Agreement and
Plan of Merger, dated as of February 18, 2004. Such Agreement
and Plan of Merger has been terminated in accordance with its
terms, effective prior to the execution of the Merger
Agreement.
C. As
of the date hereof, each Stockholder is the record and beneficial
owner of the shares of Common Stock, par value $0.01 per share, of
the Company set forth opposite such Stockholder’s name on
Schedule A hereto (such shares together with any other shares
of Common Stock acquired by Stockholder after the date hereof being
collectively referred to herein as the “Stockholder
Shares”).
D. In
accordance with the Merger Agreement, the Purchaser has agreed to
make, and Parent has agreed to cause the Purchaser to make, the
Offer on the terms and subject to the conditions contained in the
Merger Agreement.
E. As
a condition to its willingness to enter into the Merger Agreement,
the Purchaser has required that the Stockholders enter into this
Agreement.
In
consideration of the mutual covenants and agreements contained
herein and intending to be legally bound hereby, the parties agree
as follows:
1. Agreement
to Tender and Vote.
(a) Tender.
In accordance with the Merger Agreement, the Purchaser shall make,
and Parent shall cause the Purchaser to make, the Offer on the
terms and subject to the conditions contained in the Merger
Agreement. Provided this Agreement is in effect, each Stockholder
hereby severally and not jointly agrees that such Stockholder will,
within ten business days of the commencement of the Offer, tender
the Stockholder Shares held by such Stockholder into the Offer,
pursuant to and in accordance with the terms of the Offer, and that
provided this Agreement is in effect, it shall not withdraw any
Stockholder Shares so tendered prior to the termination of the
Offer.
(b) Voting.
During the time this Agreement is in effect, at any meeting of the
stockholders of the Company however called (or any action by
written consent in lieu of a meeting) with respect to the Merger or
the Merger Agreement or any adjournment thereof, each Stockholder
hereby severally and not jointly agrees to vote the Stockholder
Shares held by such Stockholder or cause them to be voted
(i) in favor of the Merger, the adoption of the Merger
Agreement and the approval of the terms thereof; (ii) against
any action or agreement that would result in a breach in any
material respect of any covenant or any other obligation or
agreement of the Company under the Merger Agreement or in a breach
in any material respect of any representation or warranty of the
Company in the Merger Agreement; (iii) against any Acquisition
Proposal; and (iv) against any other action that is intended
or could reasonably be expected to impede, interfere with, delay,
postpone or discourage the Offer or the Merger.
2. Representation
and Warranties of the Parent and Purchaser. The Parent and the
Purchaser each hereby jointly and severally represents and warrants
to the Stockholders as follows:
(a) Corporate
Organization. Each of Parent and Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and has the requisite
corporate power and authority to own or lease all of its properties
and assets and to carry on its business as it is now being
conducted.
(b) Authority.
Each of Parent and Purchaser has all necessary corporate power and
authority to execute and deliver this Agreement and the Merger
Agreement and to consummate the transactions contemplated hereby
and thereby. The execution, delivery and performance by Parent and
Purchaser of this Agreement and the Merger Agreement, and the
consummation of the transactions contemplated hereby and thereby,
have been duly authorized and approved by their Boards of Directors
and by Parent as the sole stockholder of Purchaser, and no other
corporate action on the part of Parent and Purchaser is necessary
to authorize the execution and delivery by Parent and Purchaser of
this Agreement and the Merger Agreement and the consummation by
them of the transactions contemplated hereby and thereby. Each of
this Agreement and the Merger Agreement has been duly executed and
delivered by Parent and Purchaser, and, assuming due and valid
authorization, execution and delivery hereof by the other parties
hereto or thereto, is a valid and binding obligation of each of
Parent and Purchaser, enforceable against each of them in
accordance with its terms, except that such enforceability
(i) may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting or relating to the enforcement of
creditors’ rights generally and (ii) is subject to
general principles of equity.
(c) Consents
and Approvals; No Violations.
(i) Except
for (i) the filing with the SEC of the Offer Documents and the
Proxy Statement, (ii) the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware pursuant to
the DGCL, and (iii) filings, permits, authorizations, consents and
approvals as may be required under, and other applicable
requirements of, the Exchange Act, the Securities Act, the HSR Act
and state securities or blue
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sky laws, no consents or
approvals of, or filings, declarations or registrations with, any
Governmental Authority or the Nasdaq Stock Market, Inc. are
required to be obtained or made by Parent or Purchaser in
connection with the transactions contemplated by this Agreement and
the Merger Agreement, other than such other consents, approvals,
filings, declarations or registrations that, if not obtained, made
or given, would not reasonably be expected to prevent or delay the
consummation of the transactions contemplated by this Agreement and
the Merger Agreement or Parent’s or Purchaser’s
performance of their respective material obligations under this
Agreement and the Merger Agreement.
(ii) Neither
the execution and delivery of this Agreement or the Merger
Agreement by Parent or Purchaser, nor the consummation by Parent or
Purchaser of the transactions contemplated hereby or thereby, nor
compliance by Parent or Purchaser with any of the terms or
provisions hereof or thereof, will (A) conflict with or violate any
provision of the certificate of incorporation or bylaws of Parent
or any of the similar organizational documents of Purchaser or
(B) assuming that the authorizations, consents and approvals
referred to in Section 2(c)(i) are obtained, (x) violate
any statute, code, ordinance, rule, regulation, judgment, order,
writ, decree or injunction applicable to Parent or any of its
subsidiaries or any of their respective properties or assets, or
(y) violate, conflict with, result in the loss of any material
benefit under, constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under,
result in the termination of or a right of termination or
cancellation under, accelerate the performance required by, or
result in the creation of any lien, security interest or
encumbrance upon any of the respective properties or assets of
Parent or Purchaser or any of their respective subsidiaries under,
any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or
other instrument or obligation to which Parent, Purchaser or any of
their respective subsidiaries is a party, or by which they or any
of their respective properties or assets may be bound or affected,
except, in the case of clause (B) above, for such violations,
conflicts, breaches, defaults, losses, terminations of rights
thereof, accelerations or creations which would not reasonably be
expected to have a Purchaser Material Adverse Effect or a material
adverse effect on the ability of Parent or Purchaser to consummate
the transactions contemplated by this Agreement and the Merger
Agreement.
3. Representations
and Warranties of Stockholder. Each Stockholder hereby, severally
and not jointly, represents and warrants to the Parent and the
Purchaser as of the date hereof as follows:
(a) Ownership
of Shares. Such Stockholder owns of record and beneficially the
number of Stockholder Shares set forth on Schedule A hereto
and such Shares constitute all of the Shares owned of record or
beneficially by such Stockholder. Such Stockholder has sole voting
power and sole power of disposition with respect to all of the
Stockholder Shares set forth on Schedule A hereto, with no
restrictions on such Stockholder’s rights of voting or
disposition pertaining thereto (except under applicable securities
laws and pursuant to that certain Registration Rights Agreement
between the Company and the Stockholders (the “Registration
Rights Agreement”)). Such Stockholder owns all of
the
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Stockholder Shares set forth on
Schedule A hereto
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