EXHIBIT 2
SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT, dated as of December 22, 2000 (as amended,
supplemented or otherwise modified from time to time, this "Agreement"), among
SEAT PAGINE GIALLE S.P.A. ("Parent"), a limited company Organized under the laws
of the Republic of Italy and a majority owned subsidiary of Telecom Italia
S.p.A., a limited company organized under the laws of the Republic of Italy,
SOGERIM, SOCIETE ANONYME ("Lux Sub"), a Luxembourg corporation and a wholly
owned subsidiary of Telecom Italia S.p.A., NICKEL ACQUISITION CORP., a New York
corporation and a direct wholly owned subsidiary of Lux Sub ("Merger Sub"), and
the undersigned SHAREHOLDERS (each, a "Shareholder" and, collectively, the
"Shareholders") of NetCreations, Inc., a New York corporation ("Company").
Capitalized and other terms used and not otherwise defined herein
shall have the respective meanings set forth in the Merger Agreement described
below.
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of the
date hereof, among Parent, Lux Sub, Merger Sub and Company (as amended,
supplemented or otherwise modified from time to time, the "Merger Agreement"),
Parent has agreed to acquire, through Lux Sub and Merger Sub, all the
outstanding securities of Company pursuant to a statutory merger of Merger Sub
with and into Company in which each outstanding share of common stock, $.01 par
value per share, of Company (the "Company Common Stock") will be converted into
the right to receive $7.00 in cash as set forth in the Merger Agreement (the
"Merger");
WHEREAS, in order to induce Parent, Lux Sub and Merger Sub to enter
into the Merger Agreement and consummate the Merger, the Shareholders desire to
execute and deliver to Parent, Lux Sub and Merger Sub a shareholders' agreement
upon the terms set forth herein; and
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WHEREAS, each Shareholder is the registered and beneficial owner of
such number of shares of the outstanding capital stock of Company as is
indicated on the signature page of this Agreement under the heading "Total
Number of Shares of Company Capital Stock Owned on the Date Hereof", and such
Shareholder desires to make the number of shares indicated on the signature page
of this Agreement under the heading "Total Number of Shares of Company Capital
Stock Subject to this Agreement" (such shares, together with any other shares of
capital stock of Company acquired by such Shareholder after the date hereof and
during the term of this Agreement (including through the exercise of any stock
options, warrants or similar instruments), being collectively referred to herein
as the "Shares") subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. Ownership of Shares; Transfer. (a) Each Shareholder represents and
warrants to Parent, Lux Sub and Merger Sub (collectively, the "Acquirors") that
such Shareholder is the record and beneficial owner of, and has good and
marketable title to, the Shares. The Shares constitute a portion of such
Shareholder's interest in the outstanding capital stock and voting securities of
Company. The Shares are free and clear of any liens, claims, options, charges or
other encumbrances. Shareholder has the sole right to vote the Shares and,
except as contemplated by this Agreement, none of the Shares is subject to any
voting trust or other agreement, arrangement or restriction with respect to the
voting of such Shares. Such Shareholder's principal residence or place of
business is accurately set forth on the signature page hereto. As used herein,
the term "Expiration Date" shall mean the earlier to occur of (i) the Effective
Time or (ii) termination of the Merger Agreement in accordance with the terms
thereof.
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(b) Other than pursuant to this Agreement, Shareholder shall not (i)
sell, transfer, pledge, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or enter into any contract, agreement, option or
other arrangement (including any profit sharing arrangement) with respect to the
Transfer of, any Shares to any person (other than pursuant to the Merger) or
(ii) enter into any voting arrangement, whether by proxy, voting agreement or
otherwise, with respect to any Shares and shall not commit or agree to take any
of the foregoing actions. Shareholder shall not, nor shall Shareholder permit
any entity under such Shareholder's control to, deposit any Shares in a voting
trust.
2. Agreement to Vote Shares. (a) Prior to the Expiration Date, at
every meeting of the shareholders of Company at which any of the following is
considered or voted upon, and at every adjournment or postponement thereof, and
on every action or approval by written consent of the shareholders of Company
with respect to any of the following, each Shareholder shall vote (or cause to
be voted) the Shares in favor of adoption of the Merger Agreement and approval
of the Merger and any other transactions contemplated by the Merger Agreement.
(b) Prior to the Expiration Date, at every meeting of the shareholders
of Company at which any of the following is considered or voted upon, and at
every adjournment or postponement thereof, and on every action or approval by
written consent of the shareholders of Company with respect to any of the
following, each Shareholder shall vote (or cause to be voted) the Shares against
(i) any merger agreement or merger (other than the Merger Agreement and the
Merger), consolidation, combination, share exchange, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or winding up of or
by or involving Company, (ii) any Competing Transaction and (iii) any amendment
of Company's certificate of incorporation or by-laws or other proposal or
transaction involving Company or any of its subsidiaries, which amendment or
other proposal or transaction would in any manner impede, frustrate, prevent or
nullify any provision
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of the Merger Agreement, the Merger or any other transaction contemplated by the
Merger Agreement or change in any manner the voting rights of any class of
capital stock of Company (each a "Frustrating Transaction"). No Shareholder
shall commit or agree to take any action inconsistent with the foregoing.
(c) Notwithstanding the foregoing, nothing in this Agreement shall
limit or restrict any Shareholder from (i) acting in his or her capacity as a
director or officer of Company, to the extent applicable, it being understood
that this Agreement shall apply to each Shareholder solely in his or her
capacity as a shareholder of Company or (ii) voting in his or her sole
discretion on any matter other than those matters referred to in Section 2(a) or
2(b).
3. IRREVOCABLE PROXY. Each Shareholder hereby irrevocably grants to,
and appoints, Parent, Lux Sub and Merger Sub, or any of them, and any individual
designated in writing by any of them, and each of them individually, as the
Shareholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Shareholder, to vote the Shares of such
Shareholder, or grant a consent or approval in respect of the Shares of such
Shareholder in a manner consistent with Sections 2(a) and 2(b). Each Shareholder
understands and acknowledges that each of the Acquirors is entering into the
Merger Agreement in reliance upon such Shareholder's execution and delivery of
this Agreement. Each Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 3 is given in connection with the agreement of Merger Sub
to purchase the Shares of the Shareholder pursuant to the Merger Agreement. Each
Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. Each Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 609 of the New York
Business Corporation Law. The irrevocable proxy granted hereunder shall
automatically terminate upon the
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termination of Sections 2(a) and 2(b) in accordance with Section 8. Upon the
execution of this Agreement by each Shareholder, such Shareholder hereby revokes
any and all prior proxies or powers of attorney given by such Shareholder with
respect to the Shares and agrees not to grant any subsequent proxies or powers
of attorney with respect to the Shares until after the Expiration Date.
4. Representations, Warranties and Covenants of Shareholder. Each
Shareholder hereby represents, warrants and covenants to each Acquiror as
follows:
(a) Each Shareholder has full power, authority and legal capacity to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by such Shareholder and constitutes the valid
and binding obligation of such Shareholder, enforceable against such Shareholder
in accordance with its terms, except as may be limited by (i) the effect of
bankruptcy, insolvency, conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally, or (ii) the rules
governing the availability of specific performance, injunctive relief or other
equitable remedies and general principles of equity, regardless of whether
considered in a proceeding in equity or at law. The execution and delivery of
this Agreement by such Shareholder does not, and the performance of such
Shareholder's obligations hereunder will not, result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any right to terminate, amend,
accelerate or cancel any right or obligation under, or result in the creation of
any lien or encumbrance on any Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Shareholder is a party or by which such
Shareholder or the Shares are or will be bound or affected. If Shareholder is
married and the Shares constitute community property or if there otherwise is a
need for spousal or other approval of this Agreement for it to be legal, valid
and binding, this
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Agreement has been duly authorized, executed and delivered by, and constitutes a
valid and binding agreement of, Shareholder's spouse, enforceable against such
spouse in accordance with its terms.
(b) Except to the extent otherwise permitted under Section 6.04 of the
Merger Agreement, until the Expiration Date, each Shareholder, in the
Shareholder's capacity as a shareholder of Company, will not (and will use such
Shareholder's reasonable best efforts to cause its affiliates, officers,
directors and employees and any investment banker, attorney, accountant or other
agent retained by such Shareholder, not to): (i) initiate or solicit, directly
or indirectly, any proposal, plan or offer to acquire all or any material part
of the business or properties or capital stock of Company, whether by merger,
purchase of assets, tender offer or otherwise, or to liquidate Company or
otherwise distribute to the shareholders of Company all or any substantial part
of the business, properties or capital stock of Company (each, an "Acquisition
Proposal"); (ii) initiate, directly or indirectly, any contact with any person
in an effort to or with a view towards soliciting any Acquisition Proposal;
(iii) furnish information concerning Company's business, properties or assets to
any corporation, partnership, person or other entity or group (other than
Parent, or any affiliate, associate, agent or representative of Parent) under
any circumstances that could reasonably be expected to relate to an actual or
potential Acquisition Proposal; (iv) negotiate or enter into discussions or an
agreement, directly or indirectly, with any entity or group with respect to any
potential Acquisition Proposal or (v) either alone or together with any other
shareholder of Company, request that a special meeting of the shareholders of
Company be held to consider and vote on any Competing Transaction or Frustrating
Transaction. In the event any Shareholder, in such Shareholder's capacity as a
shareholder of Company, shall receive or become aware of any Acquisition
Proposal subsequent to the date hereof, such Shareholder shall promptly inform
Parent as to any such matter and the details thereof to the extent possible
without breaching any
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other agreement to which such Shareholder is a party or violating its fiduciary
duties.
(c) Each Shareholder understands and agrees that if any Shareholder
attempts to vote or provide any other person with the authority to vote any of
the Shares held by such Shareholder as of the record date for any meeting at
which such Shares are to be voted other than in compliance with this Agreement,
Company shall not, and such Shareholder hereby unconditionally and irrevocably
instructs Company to not, record such vote unless and until such Shareholder
shall have complied with the terms of this Agreement.
5. No Limitation on Discretion as Director. If any Shareholder is a
natural person and is a member of the board of directors of Company, then this
Agreement will apply to the exercise by such Shareholder in his or her
individual capacity of rights attaching to ownership of the Shares, and nothing
herein shall be deemed to apply to, or to limit in any manner the discretion of
such Shareholder with respect to, any action which may be taken or omitted by
him or her acting in his or her fiduciary capacity as a member of the board of
directors of Company.
6. Additional Documents. Each Shareholder hereby covenants and agrees
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent, to carry out the purpose and intent of this
Agreement.
7. Consent and Waiver. Each Shareholder hereby consents to and
approves the actions taken by the board of directors of Company in approving the
Merger and adopting the Merger Agreement and gives any consents or waivers that
are reasonably required for the consummation of the Merger under the terms of
any agreement to which such Shareholder is a party; provided, however, that such
Shareholder shall not be required by this Section 7 to give any consent or
waiver in his or her capacity as a director or officer of Company.
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8. Termination. This Agreement and the proxy granted in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
9. Confidentiality. Each Shareholder agrees (i) to hold any
information regarding this Agreement and the Merger in strict confidence and
(ii) not to divulge any such information to any third person, except to the
extent any of the same is hereafter publicly disclosed by Parent.
10. Obligations Attach to Shares; Survival; Acquisition of Additional
Shares of Capital Stock of Company. Each Shareholder agrees that this Agreement
and the obligations hereunder shall attach to such Shareholder's Shares and
shall be binding upon any person to which or whom legal or beneficial ownership
of such Shares shall pass, whether by operation of law or otherwise, including
such Shareholder's heirs, guardians, administrators or successors, and that each
certificate representing such Shares will be inscribed with a legend to such
effect. All authority herein conferred by a Shareholder shall survive the death
or incapacity of such Shareholder and any obligation of a Shareholder hereunder
shall be binding upon the heirs, guardians, administrators, personal
representatives, successors and assigns of a Shareholder. In the event of any
stock split, stock dividend, merger, reorganization, recapitalization or other
change in the capital structure of Company affecting the Shares, or the
acquisition of additional shares of capital stock of Company by any Shareholder,
the number of shares of capital stock of Company listed under the heading "Total
Number of Shares of Company Capital Stock Subject to this Agreement" shall be
adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of capital stock of Company issued to or
acquired by such Shareholder.
11. Miscellaneous.
11.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or
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unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
11.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without the prior written consent of the other. This Agreement is
intended to bind each Shareholder solely as a securityholder of Company only
with respect to the specific matters set forth herein.
11.3 Amendment and Modification. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
11.4 Enforcement. The parties hereto acknowledge and agree that
irreparable damage would occur and that the parties would not have any adequate
remedy at law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
State of New York or in any New York state court, the foregoing being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of any Federal court located in the State of New York or
any New York state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated by this Agreement, (ii) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any
▇▇
▇▇▇▇ ▇▇▇▇▇, (▇▇▇) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any court
other than a Federal court sitting in the State of New York or any New York
state court and (iv) waives any right to trial by jury with respect to any claim
or proceeding related to or arising out of this Agreement or any transaction
contemplated by this Agreement.
11.5 Notices. All notices, requests, demands or other
communications that are required or may be given pursuant to the terms of this
Agreement shall be in writing and shall be deemed to have been duly given (a)
when delivered, if delivered by hand, (b) one business day after transmitted, if
transmitted by a nationally recognized overnight courier service, (c) when
telecopied, if telecopied (which is confirmed), or (d) three business days after
mailing, if mailed by registered or certified mail (return receipt requested),
to the parties at the following addresses:
(i) If to any Shareholder, at the address set forth below such
Shareholder's signature at the end hereof.
(ii) if to Parent, Lux Sub or Merger Sub, to:
SEAT Pagine Gialle S.p.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: 011 39 011 435 2882
with a copy to:
Cravath, Swaine & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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or to such other address as any party hereto may designate for itself by notice
given as herein provided.
11.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
11.7 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
11.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
11.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
SEAT PAGINE GIALLE S.P.A. SHAREHOLDER
By: /s/ ▇▇▇▇▇▇▇ Pelliccioli -----------------------------------
---------------------------- (Signature)
Name: ▇▇▇▇▇▇▇ Pelliccioli
Title: CEO
-----------------------------------
(Print Name of Shareholder)
SOGERIM, SOCIETE ANONYME -----------------------------------
(Print Street Address)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Print City, State and Zip)
Title: Administrateur
-----------------------------------
(Print Telephone Number)
By:/s/ Fabio Morvilli
-------------------------------- -----------------------------------
Name: Fabio Morvilli (Print Facsimile Number)
Title: President
-----------------------------------
(Social Security or Tax
I.D. Number)
NICKEL ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
Total Number of Shares of Company Capital Stock Owned on the Date Hereof:
Company Common Stock:
------------------
State of Residence:
------------------
Total Number of Shares of Company Capital Stock Subject to this Agreement:
Company Common Stock:
------------------
SIGNATURE PAGE TO SHAREHOLDERS' AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
SEAT PAGINE GIALLE S.P.A. SHAREHOLDER
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ------------------------------------
(Signature)
Name:
-----------------------------
Title:
---------------------------- ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
(Print Name of Shareholder)
SOGERIM, SOCIETE ANONYME 47 Joraleman St.
-------------------------------------
(Print Street Address)
By: ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------- -------------------------------------
(Print City, State and Zip)
Name:
----------------------------- (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------------------
Title: (Print Telephone Number)
---------------------------
(▇▇▇) ▇▇▇-▇▇▇▇
-------------------------------------
(Print Facsimile Number)
NICKEL ACQUISITION CORP.
###-##-####
-------------------------------------
By: (Social Security or Tax
------------------------------- I.D. Number)
Name:
----------------------------
Title:
----------------------------
Total Number of Shares of Company Capital Stock Owned on the Date Hereof:
Company Common Stock: 5,754,500
State of Residence: New York
Total Number of Shares of Company Capital Stock Subject to this Agreement:
Company Common Stock: 5,290,383
SIGNATURE PAGE TO SHAREHOLDERS' AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
SEAT PAGINE GIALLE S.P.A. SHAREHOLDER
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------- -------------------------------------
(Signature)
Name:
----------------------------
Title:
--------------------------- ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
(Print Name of Shareholder)
SOGERIM, SOCIETE ANONYME ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. #▇▇
-------------------------------------
(Print Street Address)
By: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------ -------------------------------------
(Print City, State and Zip)
Name:
---------------------------- (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------------------
Title: (Print Telephone Number)
---------------------------
(▇▇▇) ▇▇▇-▇▇▇▇
-------------------------------------
(Print Facsimile Number)
NICKEL ACQUISITION CORP.
###-##-####
-------------------------------------
By: (Social Security or Tax
----------------------------- I.D. Number)
Name:
---------------------------
Title:
---------------------------
Total Number of Shares of Company Capital Stock Owned on the Date Hereof:
Company Common Stock: 5,230,035
State of Residence: New York
Total Number of Shares of Company Capital Stock Subject to this Agreement:
Company Common Stock: 4,808,218
SIGNATURE PAGE TO SHAREHOLDERS' AGREEMENT