Exhibit 2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of August 3, 1999 (the "Agreement"),
among Xxxx.xxx, Inc., a Delaware corporation (the "Company"), the undersigned
holders (the "Holders") of shares of the common stock, $.0001 par value (the
"Common Stock"), of the Company and National Broadcasting Company, Inc., a
Delaware corporation ("NBC").
WHEREAS, the Company, Xenon 2, Inc., a Delaware corporation ("Xenon
2"), Xenon 3, Inc., a Delaware corporation ("Xenon 3"), Snap! LLC, a Delaware
limited liability company, and CNET, Inc., a Delaware corporation, are parties
to an Agreement and Plan of Contribution and Merger, dated as of May 9, 1999
(the "Merger Agreement"), pursuant to which, among other things, the parties
thereto have agreed that (i) Xenon 3 will merge with and into the Company, with
the Company as the surviving corporation, and each outstanding share of Common
Stock of the Company will be converted into one share of Class A common stock,
par value $0.0001 per share, of Xenon 2 ("Class A Common Stock") and (ii) CNET
will contribute certain of its assets to Xenon 2 in exchange for shares of Class
A Common Stock;
WHEREAS, the Company, Xenon 2, NBC, Neon Media Corporation, a
Delaware corporation ("NMC"), and GE Investments Subsidiary, Inc., a Delaware
corporation, are parties to an Agreement and Plan of Contribution, Investment
and Merger dated as of July 8, 1999 (the "Contribution Agreement" and together
with the Merger Agreement, the "Merger Agreements"), pursuant to which, among
other things, the parties thereto have agreed that (i) NMC will merge with and
into Xenon 2, with Xenon 2 as the surviving corporation, (ii) Xenon 2 will be
renamed NBC Internet, Inc., (iii) a subsidiary of NBC will transfer its
ownership interest in Snap! LLC and certain other assets to Xenon 2 and (iv) an
affiliate of NBC will purchase a convertible note from Xenon 2 in exchange from
the assignment to Xenon 2 of a note issued by NBC;
WHEREAS, as a condition to consenting to the Agreement and Plan of
Merger by and among the Company, LiquidMarket, Inc. and Xoom Acquisition Sub II,
Inc. (the "LiquidMarket Merger"), NBC has requested that the undersigned Holders
agree, and such Holders have agreed, to enter into this Agreement;
WHEREAS, other than pursuant to the terms and conditions of the
Merger Agreements and the exhibits and schedules attached thereto and prior to
the date hereof, NBC, CNET, the Company and the Holders had no agreement,
arrangement or understanding (within the meaning of Section 203 of the General
Corporation Law of the State of Delaware (the "DGCL")) for the purpose of
acquiring, holding, voting or disposing of shares of Common Stock; and
WHEREAS, in consideration of the agreements contained herein, prior
to the date hereof, and prior to the time at and date on which NBC became
"interested stockholders" for purposes of Section 203 of the DGCL, the board of
directors of the Company has approved this Agreement and the transactions
contemplated hereby.
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NOW, THEREFORE, the parties hereto agree as follows:
1. Agreement to Vote Shares. At every meeting of the stockholders of the
Company called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of the Company with respect to any of the following, each Holder irrevocably
agrees that it shall vote (or cause to be voted) all of the shares of Common
Stock acquired by such Holder pursuant to the LiquidMarket Merger set forth
under such Holder's signature to this Agreement (together with any shares of
Common Stock acquired by such Holder hereafter (including through the exercise
of options or similar instruments) the "Subject Securities") (a) in favor of the
adoption of the Merger Agreements and the approval of the terms thereof (with
such modifications as the parties thereto may make (except for modifications
that would adversely affect such Holder)) and each of the other transactions
contemplated by the Merger Agreements and (b) against any of the following (or
any agreement to enter into or effect any of the following): (i) prior to the
Effective Time, any Takeover Proposal, Material Transaction Proposal (as such
terms are defined in the Merger Agreements) requiring the vote of the Company's
stockholders or transaction or occurrence which if publicly proposed and offered
to the Company and its stockholders (or any of them) would be the subject of a
Takeover Proposal or Material Transaction Proposal, or (ii) any amendment of the
Company's certificate of incorporation or by-laws or other proposal, action or
transaction involving the Company or any of its Subsidiaries, which amendment or
other action or transaction would reasonably be expected to prevent or
materially impede or delay the consummation of the transactions contemplated by
the Merger Agreements; provided, however, that the obligations pursuant to this
Section 1 shall automatically terminate without any further action on the part
of the Holder or NBC upon the termination of this Agreement pursuant to Section
5 hereof. Such Holder shall not commit or agree to take any action inconsistent
with the foregoing.
2. Irrevocable Proxy. Each Holder hereby, severally and not jointly,
grants to, and appoints NBC and the President and Treasurer of NBC and the
Secretary of NBC, in their respective capacities as officers of NBC, and any
individual who shall hereafter succeed to any such office of NBC, and any other
designee of NBC, each of them individually, such Holder's proxy and
attorney-in-fact (with full power of substitution) to vote or act by written
consent with respect to such Holder's Subject Securities in accordance with
Section 1 hereof. This proxy is coupled with an interest and shall be
irrevocable, and each Holder will take such further action or execute such other
instruments as may be necessary to effectuate the intent of this proxy and
hereby revokes any proxy previously granted by it with respect to the Subject
Securities; provided, however, that this proxy shall be automatically revoked
without any further action on the part of the Holder or NBC upon the termination
of this Agreement pursuant to Section 6 hereof.
3. Covenant of the Company. The Company hereby agrees and covenants that
it shall not, and shall direct its transfer agent not to, transfer any Common
Stock subject to this Agreement except in accordance with the provisions of
Section 4(a) hereof.
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4. Covenants of the Holders. Each Holder hereby agrees and covenants that:
(a) Restriction on Transfer, Proxies and Noninterference. Each
Holder shall not, and shall not authorize or permit any of his, her or its
affiliates, partners, investment bankers, attorneys, agents or other advisors or
representatives to, directly or indirectly: (i) offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of (including by gift), or
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, any or all of the Subject
Securities (or any interest therein), unless the transferee or pledgee of such
Subject Securities agrees in writing in a form reasonably satisfactory to NBC
(with a copy furnished to NBC) to be bound by all of the provisions of this
Agreement with respect to such transferred or pledged Subject Securities, as
contemplated by the Merger Agreements; (ii) except as contemplated hereby, grant
any proxies or powers of attorney, deposit any such Subject Securities into a
voting trust or enter into a voting agreement with respect to any of the Subject
Securities; (iii) take any action that would have the effect of preventing or
disabling such Holder from performing his obligations under this Agreement; or
(iv) commit or agree to take any of the foregoing actions.
(b) Each Holder agrees to allow the Company to provide such Holder,
in connection with the consummation of the LiquidMarket Merger Agreement, with
certificates representing the Common Stock containing a conspicuous legend
referring to the transfer restrictions set forth in this Agreement.
(c) Each Holder will, from time to time, execute and deliver, or
cause to be executed and delivered, such additional or further consents,
documents and other instruments as NBC may reasonably request for the purpose of
effectuating the matters covered by this Agreement.
5. Termination. This Agreement shall terminate upon the earliest of any of
the following events: (i) upon the consummation of the mergers contemplated by
the Merger Agreements, (ii) upon the termination of any of the Merger Agreements
or (iii) if the Company shall not have received the tax opinion described in
Section 7.3 of the Merger Agreement by the Closing Date (as such term is defined
in the Merger Agreement). Upon any termination of this Agreement, this Agreement
shall thereupon become void and of no further force and effect, and there shall
be no liability in respect of this Agreement or of any transactions contemplated
hereby or by the Merger Agreements on the part of any party hereto or any of its
directors, officers, partners, stockholders, employees, agents, advisors,
representatives or affiliates; provided, however, that nothing herein shall
relieve any party from any liability for such party's wilful breach of any of
its material agreements contained in this Agreement.
6. Notice of Litigation. The Company and each Holder shall promptly notify
NBC of any pending or, to its knowledge, threatened action or proceeding
challenging the validity or enforceability of this Agreement.
7. Specific Performance. The parties hereto agree that irreparable harm
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be
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entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state thereof having jurisdiction, this being in addition
to any other remedy to which they are entitled at law or in equity.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without giving effect to the
principles of conflicts of law.
9. Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability and shall not
render invalid or unenforceable the remaining terms and provisions of this
Agreement or affect the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
XXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Principal Financial and Accounting
Officer
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President, NBC Interactive
HOLDER:
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Address: 000 Xxxxxxxx Xx
Xxx Xxxxx, XX 00000
Facsimile: 000-000-0000
Number of Subject Securities: 17,477
shares of Common Stock held by the Parekh
R84 Trust, 17,477 shares of Common Stock
held by the Parekh R88 Trust, and 102,810
shares of Common Stock held by Rajdak
Investment, LLC
HOLDER:
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxx
Address: c/o LiquidMarket
0000 X. Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Facsimile:
Number of Subject Securities: 88,787
shares of Common Stock
HOLDER:
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx H. Groult
Address: c/o LiquidMarket
0000 X. Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Facsimile:
Number of Subject Securities: 118,150
shares of Common Stock
HOLDER:
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Address: 0000 Xxxx Xxx.
Xxxxx 000
Xxxxxx, XX 00000
000-000-0000
Facsimile:
Number of Subject Securities: 102,810
shares of Common Stock
