Exhibit (d)(2)
TENDER AND STOCKHOLDER SUPPORT AGREEMENT
TENDER AND STOCKHOLDER SUPPORT AGREEMENT, dated as of December 21,
2000 (the "Agreement"), by and among Xxxxxx Electronics Corporation, a Delaware
---------
corporation ("Purchaser"), DIRECTV Broadband Inc., a Delaware corporation and a
---------
wholly-owned subsidiary of Purchaser ("Merger Sub"), and the parties listed on
----------
Annex A hereto (each, a "Stockholder" and, collectively, the "Stockholders").
------- ----------- ------------
RECITALS
WHEREAS, Purchaser, Merger Sub and Telocity Delaware, Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
-------
Merger, dated as of December 21, 2000 (as the same may be amended or
supplemented from time to time, the "Merger Agreement"), which provides, among
----------------
other things, that Merger Sub will make a cash tender offer (the "Offer") for
-----
all of the outstanding capital stock of the Company and, after expiration of the
Offer, will merge with and into the Company (the "Merger"), in each case upon
------
the terms and subject to the conditions in the Merger Agreement (with all
capitalized terms used but not defined herein having the meanings set forth in
the Merger Agreement);
WHEREAS, each Stockholder owns the number of shares of common stock,
par value $0.001 per share, of the Company (the "Common Stock") set forth
------------
opposite his or its name on Annex A hereto (such shares of Common Stock,
-------
together with any other shares of capital stock of the Company acquired (whether
beneficially or of record) by such Stockholder after the date hereof and during
the term of this Agreement, including any shares acquired by means of purchase,
dividend or distribution, or issued upon the exercise of any warrants or
options, and the conversion of any convertible securities or otherwise being
collectively referred to herein as, the "Subject Shares");
--------------
WHEREAS, as a condition to the willingness of Purchaser and Merger Sub
to enter into the Merger Agreement and make the Offer, Purchaser has required
that each Stockholder agree and, in order to induce Purchaser and Merger Sub to
enter into the Merger Agreement, each Stockholder has agreed, to enter into this
Agreement.
NOW, THEREFORE, to induce Purchaser and Merger Sub to enter into, and
in consideration of their entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. Representations and Warranties of Each Stockholder. Each
--------------------------------------------------
Stockholder hereby, severally and not jointly, represents and warrants to
Purchaser and Merger Sub as of the date hereof in respect of himself, herself or
itself as follows:
(a) Organization. To the extent applicable, such Stockholder is a
------------
corporation, partnership or limited liability company, duly organized,
validly existing and in good standing under the laws of the jurisdiction of
such Stockholder's organization.
(b) Authority. Such Stockholder has the legal capacity and all
---------
requisite power and authority to execute and deliver this Agreement and to
perform such Stockholder's obligations and consummate the transactions
contemplated hereby. To the extent applicable, the execution, delivery and
performance by such Stockholder of this Agreement and the consummation by
it of the transactions contemplated hereby have been duly and validly
authorized by such Stockholder (or its Board of Directors or similar
governing body, as applicable) and no other action or proceedings on the
part of such Stockholder are necessary to authorize the execution and
delivery by it of this Agreement and the consummation by it of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Stockholder, and constitutes a valid and
binding obligation of the Stockholder enforceable in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(c) The Subject Shares. The Stockholder is the record and
------------------
beneficial owner of, and has good and marketable title to, the Subject
Shares set forth opposite such Stockholder's name on Annex A hereto, free
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and clear of any and all Encumbrances. The Stockholder does not own, of
record or beneficially, any shares of capital stock of the Company (or
rights to acquire any such shares) other than the Subject Shares set forth
opposite such Stockholder's name on Annex A hereto. The Stockholder has the
-------
sole right to vote, sole power of disposition, sole power to issue
instructions with respect to the matters set forth in Sections 3, 4 and 5
hereof, sole power of conversion, sole power to demand appraisal rights and
sole power to agree to all of the matters set forth in this Agreement, in
each case with respect to all of such Stockholder's Subject Shares, with no
material limitations, qualification or restrictions on such rights, subject
to applicable federal securities laws and the terms of this Agreement.
(d) No Conflicts. Except for (i) the filings provided for in
------------
Section 2.3 of the Merger Agreement and the filings required under the
Exchange Act and the Securities Act, (ii) the filings required under the
HSR Act, and any other applicable law governing antitrust or competition
matters, (iii) the filings required under the rules and regulations of the
National Association of Securities Dealers, Inc. (the "NASD"), and (iv) the
applicable requirements of state securities, takeover or Blue Sky laws, and
(iv) such notifications, filings, authorizing actions, orders and approvals
as may be required under other laws, (A) no material filing with, and no
material permit, authorization, consent or approval of, any state, federal
or foreign public body or authority is necessary for the execution of this
Agreement by such Stockholder and the consummation by such Stockholder of
the transactions contemplated hereby, (B) the execution and delivery of
this Agreement by such Stockholder do not, and the consummation by such
Stockholder of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of, or
breach or default (with or without notice or lapse of time or both) under
(1) to the extent applicable, any provisions of the
2
organizational documents of such Stockholder, (2) any provision of any
material trust, loan or credit agreement, note, bond, mortgage, indenture,
guarantee, lease, license, contract or other agreement to which such
Stockholder is a party or by which such Stockholder is bound, or (3) any
material franchise, judgment, order, writ, injunction, notice, decree,
statute, law, ordinance, rule or regulation applicable to the Stockholder
or such Stockholder's property or assets, and (C) the execution and
delivery of this Agreement by the Stockholder do not, and the consummation
by such Stockholder of the transactions contemplated hereby will not,
violate any material laws applicable to such Stockholder.
2. Representations and Warranties of Purchaser and Merger Sub.
----------------------------------------------------------
Each of Purchaser and Merger Sub hereby, jointly and severally, represents and
warrants to each Stockholder as of the date hereof as follows:
(a) Organization. Each of Purchaser and Merger Sub is a
------------
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization.
(b) Authority. Each of Purchaser and Merger Sub has the requisite
---------
corporate power and authority to execute and deliver this Agreement and to
perform its respective obligations and consummate the transactions
contemplated hereby. The execution, delivery and performance by Purchaser
and Merger Sub of this Agreement and the consummation by them of the
transactions contemplated hereby, have been duly and validly authorized by
the Board of Directors of Purchaser and Merger Sub and no other corporate
or other action or proceedings on the part of Purchaser and Merger Sub are
necessary to authorize the execution and delivery by them of this Agreement
and the consummation by them of the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Purchaser and
Merger Sub, and constitutes a valid and binding obligation of Purchaser and
Merger Sub enforceable in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
(c) No Conflicts. Except for (i) the filings provided for in
------------
Section 2.3 of the Merger Agreement and the filings required under the
Exchange Act and the Securities Act, (ii) the filings required under the
HSR Act, and any other applicable law governing antitrust or competition
matters, (iii) the filings required under the rules and regulations of the
NASD, and (iv) the applicable requirements of state securities, takeover or
Blue Sky laws, and (iv) such notifications, filings, authorizing actions,
orders and approvals as may be required under other laws, (A) no material
filing with, and no material permit, authorization, consent or approval of,
any state, federal or foreign public body or authority is necessary for the
execution of this Agreement by Purchaser and Merger Sub and the
consummation by Purchaser and Merger Sub of the transactions contemplated
hereby, (B) the execution and delivery of this Agreement by Purchaser and
Merger Sub
3
do not, and the consummation by them of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or
result in any violation of, or breach or default (with or without notice or
lapse of time or both) under (1) the charter documents of Purchaser or
Merger Sub, (2) any provision of any material trust, loan or credit
agreement, note, bond, mortgage, indenture, guarantee, lease, license,
contract or other agreement to which Purchaser or Merger Sub is a party or
by which it is bound, or (3) any material franchise, judgment, order, writ,
injunction, notice, decree, statute, law, ordinance, rule or regulation
applicable to Purchaser or Merger Sub or their respective properties or
assets, and (C) the execution and delivery of this Agreement by Purchaser
and Merger Sub do not, and the consummation by them of the transactions
contemplated hereby will not, violate any laws applicable to Purchaser or
Merger Sub, except in the case of clauses (B)(2), (B)(3) and (C) above, for
any such conflicts, violations, breaches or defaults that would not have a
material adverse effect on the ability of Purchaser or Merger Sub to
consummate the transactions contemplated hereby.
3. Tender of Subject Shares.
------------------------
(a) Purchaser and Merger Sub jointly and severally agree subject
to the conditions of the Offer set forth in Exhibit A to the Merger
---------
Agreement and the other terms and conditions of the Merger Agreement, that
(i) Merger Sub will commence the Offer no later than February 1, 2001 and
(ii) Merger Sub will accept for payment, purchase and pay for, in
accordance with the terms of the Offer and the Merger Agreement, all shares
of Common Stock validly tendered pursuant to the Offer.
(b) Each Stockholder agrees (i) to tender the Subject Shares into
the Offer promptly, and in any event no later than the fifth Business Day
following the commencement of the Offer, or, if any Stockholder has not
received the Offer Documents by such time, within two Business Days
following receipt of such documents but in any event prior to the date of
expiration of such Offer, in each case, free and clear of any Encumbrances
except those arising from this Agreement and (ii) not to withdraw any
Subject Shares so tendered. If any Stockholder acquires Subject Shares
after the date hereof, such Stockholder shall tender (or cause the record
holder to tender) such Subject Shares on or before such fifth Business Day
following the commencement of the Offer, or, if later, on or before the
second Business Day after such acquisition. Each Stockholder acknowledges
and agrees that Purchaser's and Merger Sub's obligation to accept for
payment and pay for the Subject Shares in the Offer is subject to the terms
and conditions of the Offer.
(c) Each Stockholder agrees, (i) to exercise prior to the date of
expiration of the Offer each stock option held by it that has a per share
exercise price equal to or less than the Offer Consideration; (ii) to
tender the Subject Shares issued upon exercise of such stock options into
the Offer prior to the date of expiration of the Offer, in each case, free
and clear of any Encumbrances except those arising from this Agreement and
(iii) not to withdraw any Subject Shares so tendered.
4
(d) Each Stockholder will receive the same Offer Consideration
received by other stockholders of the Company in the Offer with respect to
Subject Shares tendered by such Stockholder in the Offer. In the event
that, notwithstanding the provisions of the first sentence of Section 3(b)
and Section 3(c), any Subject Shares are for any reason withdrawn from the
Offer, such Subject Shares will remain subject to the terms of this
Agreement.
(e) Each Stockholder hereby agrees to permit Purchaser to publish
and disclose in the Offer Documents and, if approval of the stockholders of
the Company is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the SEC), such
Stockholder's identity and ownership of Common Stock and the nature of such
Stockholder's commitments, arrangements and understandings under this
Agreement.
4. Agreement to Vote. Each Stockholder, severally and not jointly,
-----------------
agrees that:
(a) At any meeting of stockholders of the Company called to vote
upon the Merger Agreement and the transactions contemplated thereby,
however called, or at any adjournment thereof or in connection with any
written consent of the holders of Common Stock or in any other
circumstances upon which a vote, consent or other approval with respect to
the Merger Agreement and the transactions contemplated thereby is sought,
the Stockholder shall be present (in person or by proxy) and shall vote (or
cause to be voted) all Subject Shares then held of record or beneficially
owned by such Stockholder in favor of the Merger and the Merger Agreement
and the transactions contemplated thereby.
(b) At any meeting of stockholders of the Company, however called,
or at any adjournment thereof or in connection with any written consent of
the holders of Common Stock or in any other circumstances upon which a
vote, consent or other approval is sought, the Stockholder shall vote (or
cause to be voted) all Subject Shares then held of record or beneficially
owned by such Stockholder against any action or agreement (other than the
Merger Agreement or the transactions contemplated thereby) that would
impede, interfere with, delay, postpone or attempt to discourage the
Merger, the Offer or the other transactions contemplated by this Agreement
and the Merger Agreement, including, but not limited to: (i) any
Acquisition Proposal; (ii) any action that is likely to result in a breach
in any respect of any representation, warranty, covenant or any other
obligation or agreement of the Company under the Merger Agreement or result
in any of the conditions set forth in Exhibit A to the Merger Agreement not
---------
being fulfilled; (iii) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company
and its Subsidiaries; (iv) a sale, lease or transfer of a material amount
of assets of the Company and its Subsidiaries or a reorganization,
recapitalization, dissolution, winding up or liquidation of the Company and
its Subsidiaries; (v) any change in the management or board of directors of
the Company, except as otherwise agreed to in writing by Purchaser; (vi)
any material change
5
in the present capitalization or dividend policy of the Company; or (vii)
any other material change in the Company's corporate structure, business,
certificate of incorporation or by-laws.
(c) Each of the Stockholders hereby irrevocably grants to, and
appoints Xxxxx Xxxxxx and Xxx Xxxxxxxxxx, or either of them, in their
respective capacities as officers or directors of Purchaser, and any
individual who shall hereafter succeed to any such office or directorship
of Purchaser, and each of them individually, such Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name,
place and stead of such Stockholder, to vote the Subject Shares in favor of
the Merger, the Merger Agreement and the transactions contemplated thereby,
against any Acquisition Proposal and as otherwise contemplated by this
Section 4. Each of the Stockholders represents that any proxies heretofore
given in respect of the Subject Shares are revocable, and that any such
proxies are hereby revoked.
(d) Each of the Stockholders understands and acknowledges that
Purchaser and Merger Sub are entering into the Merger Agreement in reliance
upon each of the Stockholders' execution and delivery of this Agreement.
Each of the Stockholders hereby affirms that the irrevocable proxy set
forth in this Section 4 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholders under this Agreement. Each of
the Stockholders hereby further affirms that the irrevocable proxy is
coupled with an interest. Such irrevocable proxy is executed and intended
to be irrevocable in accordance with the provisions of Section 212(e) of
the Delaware General Corporation Law.
5. Restriction on Transfer. Each Stockholder agrees not (a) to
-----------------------
sell, transfer, pledge, encumber, assign or otherwise dispose of (collectively,
"Transfer"), or enter into any contract, option or other arrangement or
--------
understanding with respect to the Transfer by such Stockholder of, any of the
Subject Shares or offer any interest in any thereof to any person other than
pursuant to the terms of the Offer, the Merger or this Agreement, (b) to enter
into any voting arrangement or understanding, whether by proxy, power of
attorney, voting agreement, voting trust or otherwise with respect to the
Subject Shares, or (c) take any action that would make any representation or
warranty of such Stockholder contained herein untrue or incorrect in any
material respect or have the effect of preventing or disabling such Stockholder
from performing its obligations under this Agreement.
6. No Solicitation of Acquisition Proposals. Each Stockholder shall
----------------------------------------
not, and shall not authorize, permit or cause any of its, directors, officers,
employees, agents, representatives and advisors (including the Financial Advisor
or any investment banker, attorney or accountant retained by the Company or any
of its Subsidiaries) to, directly or indirectly, (i) solicit, initiate,
knowingly encourage (including by way of furnishing information) or take any
action to facilitate the submission of any inquiries, proposals or offers
(whether or not in writing) from any person relating to, other than the
transactions contemplated by the Merger Agreement, an Acquisition Proposal or
(ii) enter into or participate in any discussions or negotiations regarding any
Acquisition Proposal, or furnish to any other person any information with
respect
6
to the Company's business, properties or assets in connection with an
Acquisition Proposal, or otherwise cooperate in any way with, or participate in
or knowingly assist, facilitate or encourage any effort or attempt by any other
person to do or seek any of the foregoing. Each Stockholder shall immediately
communicate to Purchaser, to the same extent as is required by the Company
pursuant to Section 8.8(b) of the Merger Agreement, the terms, and other
information concerning, any proposal, discussion, negotiation or inquiry and the
identity of the party making such proposal or inquiry which such Stockholder may
receive in respect of any such Acquisition Proposal.
7. Further Assurances. Upon the terms and subject to the conditions
------------------
hereof and of the Merger Agreement and the Offer, each of the parties hereto
shall use its reasonable best efforts to take, or cause to be taken, all
appropriate action, and to do or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement. Without limiting the
foregoing, each party hereto will, from time to time and without further
consideration, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments and shall take
all such other action as any other party may reasonably request for the purpose
of effectively carrying out the transactions contemplated by this Agreement,
including (a) vesting good title to the Subject Shares in Merger Sub and (b)
using its reasonable best efforts to obtain all consents and approvals of
governmental authorities and parties to contracts as are necessary for the
consummation of the transactions contemplated by this Agreement. Without in any
way limiting the foregoing, the relevant Stockholder shall, as soon as
practicable but in no event later than the date on which such Stockholder is
obligated to tender his or its Subject Shares pursuant to Section 3(b) or
Section 3(c), obtain the release of the Encumbrances set forth on Annex A
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hereto.
8. Termination. Except for Section 10 (and Sections 7 and 11
-----------
through 15 to the extent they relate thereto), which shall terminate in
accordance with the terms set forth therein, this Agreement, and all
obligations, agreements and waivers hereunder, will terminate and be of no
further force and effect on the earlier of: (a) 60 days after the date the
Merger Agreement is terminated in accordance with its terms; and (b) the
Effective Time; provided, however, that nothing herein shall relieve any party
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from liability for any breach hereof.
9. Waiver of Appraisal and Dissenter's Rights. Each Stockholder
------------------------------------------
waives and agrees not to exercise any rights of appraisal or rights to dissent
from the Merger that such Stockholder may have with respect to such
Stockholder's Subject Shares.
10. Stockholder Capacity. No person executing this Agreement who is
--------------------
or becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer. Each Stockholder signs solely in its capacity as the record holder and
beneficial owner of such Stockholder's Subject Shares and nothing herein shall
limit or affect any actions taken by any Stockholder in such Stockholder's
capacity as an officer or director of the Company to the extent specifically
permitted by the Merger Agreement. This Section 10 shall survive termination of
this Agreement.
7
11. Purchaser Guarantee. Purchaser hereby guarantees the due
-------------------
performance of any and all obligations and liabilities of Merger Sub under or
arising out of this Agreement and the transactions contemplated hereby.
12. Enforcement. The parties 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 or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to the remedy of
specific performance of such provisions and to an injunction or injunctions
and/or such other equitable relief as may be necessary to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any federal or state court located in Los Angeles, California, this
being in addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto (a) consents to submit such
party to the personal jurisdiction of any federal or state court located in Los
Angeles, California in the event any dispute arises out of this Agreement or any
of the transactions contemplated hereby, (b) agrees that such party will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (c) agrees that such party will not bring any
action relating to this Agreement or the transactions contemplated hereby in any
court other than a federal or state court sitting in Los Angeles, California,
and (d) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
13. Stop Transfer Order; Legend. In furtherance of this Agreement,
---------------------------
concurrently herewith, each Stockholder shall, and hereby does authorize the
Company or its counsel to, notify the Company's transfer agent that there is a
stop transfer order with respect to all of the Subject Shares (and that this
Agreement places limits on the voting and transfer of such shares). If
requested by Purchaser, each Stockholder agrees as promptly as is reasonably
practicable to apply a legend to all certificates representing the Subject
Shares referring to any and all rights granted to Purchaser by this Agreement;
provided that, no such legend shall restrict the transfer of the Subject Shares
--------
if such transfer is made pursuant to the Offer.
14. Adjustments to Prevent Dilution, Etc. In the event of a stock
------------------------------------
dividend or distribution, or any change in the Company's Common Stock by reason
of any stock dividend, split-up, reclassification, recapitalization,
combination, exchange of shares or the like, the term "Subject Shares" shall be
deemed to refer to and include the Subject Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Subject Shares may be changed or exchanged. In such event, the amount to be
paid per share by Purchaser shall be proportionately adjusted.
15. General Provisions.
------------------
(a) Amendments. This Agreement may not be modified, altered,
----------
supplemented or amended except by an instrument in writing signed by each
of the parties hereto.
8
(b) Notice. All notices and other communications hereunder shall be
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in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to Purchaser or Merger Sub
in accordance with Section 11.2 of the Merger Agreement and to the
Stockholders at their respective addresses set forth in Annex A hereto (or
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to such other address as any party may have furnished to the other parties
in writing in accordance herewith).
(c) Interpretation. When a reference is made in this Agreement to
--------------
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) Counterparts. This Agreement may be executed in one or more
-------------
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
-----------------------------------------------
(including, without limitation, the documents and instruments referred to
herein), (i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof and (ii) is not intended to
confer upon any person or entity other than the parties hereto any rights
or remedies hereunder.
(f) Binding Agreement. This Agreement and the obligations hereunder
-----------------
shall attach to the Subject Shares and shall be binding upon the parties
and any person or entity to which legal or beneficial ownership of the
Subject Shares shall pass, whether by operation of law or otherwise,
including, without limitation, any Stockholder's administrators or
successors. Notwithstanding any transfer of Subject Shares, the transferor
shall remain liable for the performance of all obligations of the
transferor under this Agreement.
(g) Governing Law. This Agreement shall be governed by, and
--------------
construed in accordance with, the laws of the State of Delaware, without
reference to the conflict of laws principles thereof.
(h) Costs and Expenses. Whether or not the Offer or the Merger is
------------------
consummated,
all costs and expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby shall be paid by the
party incurring such expenses.
(i) Assignment. This Agreement shall not be assigned by operation
----------
of law or otherwise without the prior written consent of Stockholder or
Merger Sub and Purchaser, as the case may be, provided that Merger Sub or
--------
Purchaser may assign, in its
9
respective sole discretion, its rights and obligations hereunder to any
direct or indirect subsidiary of Purchaser.
(j) Severability. Whenever possible, each provision or portion of
------------
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
(k) Multiple Stockholders. All representations, warranties,
---------------------
covenants and agreements of the Stockholders in this Agreement are several
and not joint, and solely relate to matters involving the subject
Stockholder and not the other Stockholders.
10
IN WITNESS WHEREOF, Purchaser, Merger Sub and each Stockholder have
caused this Agreement to be signed by their respective officer thereunto duly
authorized as of the date first written above.
PURCHASER:
---------
XXXXXX ELECTRONICS CORPORATION
By: /s/ Xxxxx X. Xxxxxx
___________________________________
Xxxxx X. Xxxxxx
Vice President
MERGER SUB:
----------
DIRECTV BROADBAND INC
By: /s/ Xxxxx X. Xxxxxx
___________________________________
Xxxxx X. Xxxxxx
Vice President
STOCKHOLDERS
------------
Bessemer Venture Partners IV L.P.;
Bessec Ventures IV L.P.; and
Bessemer Venture Investors L.P.
By: /s/ Xxxxx Xxxxx
___________________________________
August Capital, L.P.;
August Capital Strategic Partners, L.P.;
August Capital Associates, L.P.; and
August Capital II, L.P.
By: /s/ Xxxxxx Xxxxxxxxx
___________________________________
Xxxx, Xxxxxxx Ventures V, L.P.;
Xxxx, Xxxxxxx Ventures V, L.P. as
nominee for MDV Entrepreneurs' Network
Fund II (A), L.P. and MDV Entrepreneurs'
Network Fund II (B), L.P.; and
Xxxx, Xxxxxxx Ventures X-X, L.P.
By: /s/ Xxxxxxx Xxxxxxx
___________________________________
NBC Internet, Inc.
By: /s/ Xxxxx Xxxxxxxxx
___________________________________
NBC-TLCT Holding, Inc.
By: /s/ Xxxxxxxxx Xxxx
___________________________________
INDIVIDUAL STOCKHOLDERS
By: /s/ Xxxxx X. Xxxx
___________________________________
By: /s/ Xxxxx Xxxxx
___________________________________
By: /s/ Xxxxxxx Xxxxxxx
___________________________________
By: /s/ Xxxxxxx Xxxxxxx
___________________________________
By: /s/ Xxxxxx Xxxxxxxxx
___________________________________
By: /s/ Xxxxx Xxxxxx
___________________________________
By: /s/ Xxxxxx Xxxxx
___________________________________
By: /s/ Xxxxxxx Xxxxxxxxx
___________________________________
By: /s/ Xxxxx Xxxxxx
___________________________________
By: /s/ Xxxxxxxx Xxxxxx
___________________________________
ANNEX A
Name and Address Shares of Common Stock Options to Acquire Shares of
---------------- ---------------------- ----------------------------
Common Stock
------------
---------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx (1) 9,050,088 0
Bessemer Ventures Partners
000 Xxxxxxxxxxx Xx., Xxx. 000
Xxxxx Xxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxx 3,577,137 200,000
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx 2,500,065 0
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxx (2) 15,026,102 0
August Capital
0000 Xxxx Xxxx Xx., Xxx. 000
Xxxxx Xxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx (3) 8,538,355 0
Xxxx, Xxxxxxx Ventures
0000 Xxxx Xxxx Xx.
Xxxxx Xxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 261,500 (4) 130,000 (4)
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxxx 1,056,184 1,000
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx 26,167 (5) 705,000 (5)
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx 1,167 (6) 270,000 (6)
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx 1,619,075 0
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxx 1,505,467 151,500
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxx 0 40,000
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxxx (7) 5,343,511 0
NBC Internet, Inc.
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx Xxxx (8) 6,679,389 0
NBC-TLCT Holding, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
(1) Xx. Xxxxx signed the Tender Agreement on behalf of Bessemer Ventures
Partners IV L.P., Bessec Venture IV L.P., and Bessemer Venture Investors, L.P.
(2) Xx. Xxxxxxxxx signed the Tender Agreement on behalf of August Capital,
L.P., August Capital Strategic Partners, L.P., August Capital Associates, L.P.,
and August Capital II, L.P.
(3) Xx. Xxxxxxx signed the Tender Agreement on behalf of himself and Xxxx,
Xxxxxxx Ventures V, L.P., Xxxx, Xxxxxxx Ventures V, L.P. as nominee for MDV
Entrepreneurs' Network Fund II (A), L.P. and MDV Entrepreneurs' Network Fund II
(B), L.P. and Xxxx, Xxxxxxx Ventures X-X, L.P.
(4) In connection with the Merger Agreement, the Company and Xx. Xxxxxxx agreed
to rescind his exercise of 50,000 options and the promissory note executed by
the parties in connection therewith. The shares of common stock and options to
acquire common stock identified in the table above reflect the rescission of
those options.
(5) In connection with the Merger Agreement, the Company and Xx. Xxxxx agreed
to rescind his exercise of 370,000 options and the promissory note executed by
the parties in connection therewith. The shares of common stock and options to
acquire common stock identified in the table above reflect the rescission of
those options.
(6) In connection with the Merger Agreement, the Company and Xx. Xxxxxx agreed
to rescind his exercise of 245,000 options and the promissory note executed by
the parties in connection therewith. The shares of common stock and options to
acquire common stock identified in the table above reflect the rescission of
those options.
(7) Xx. Xxxxxxxxx signed the Tender Agreement on behalf of NBC Internet, Inc.
(8) Ms. Sami signed the Tender Agreement on behalf of NBC-TLCT Holding, Inc.
