EXECUTION COPY
STOCKHOLDER AGREEMENT dated as of May 20, 2001
(this "Agreement"), among VIVENDI UNIVERSAL, a
societe anonyme organized under the laws of France
("Parent"), and the individuals and other parties
listed on Schedule A hereto (each, a "Stockholder"
and, collectively, the "Stockholders").
WHEREAS, Parent, Metronome Acquisition Sub Inc., a Delaware
corporation ("Sub"), and XX0.xxx, Inc., a Delaware corporation (the
"Company"), propose to enter into an Agreement and Plan of Merger dated as of
the date hereof (as the same may be amended or supplemented, the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement) providing for the merger of the
Company with and into Sub; and
WHEREAS, each Stockholder owns the number of shares of Company
Common Stock set forth opposite his, her or its name on Schedule A hereto
(such shares of Company Common Stock, together with any other shares of
capital stock of the Company acquired by such Stockholder 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 "Subject Shares" of such Stockholder);
WHEREAS, the Board of Directors of the Company has approved the
terms of this Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that each Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, agree as follows:
SECTION 1. Representations and Warranties of Each Stockholder. Each
Stockholder hereby, severally and not jointly, represents and warrants to
Parent as follows:
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(a) Authority; Execution and Delivery; Enforceability. The
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated by this Agreement. The
execution and delivery of this Agreement by each Stockholder that is not a
natural person and the consummation by such Stockholder of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate or other comparable action on the part of such Stockholder and no
other corporate or other comparable proceedings on the part of such
Stockholder are necessary to authorize this Agreement or to consummate the
transactions contemplated by this Agreement. The Stockholder has duly executed
and delivered this Agreement, and this Agreement constitutes the legal, valid
and binding obligation of the Stockholder, enforceable against the Stockholder
in accordance with its terms. The execution and delivery by the Stockholder of
this Agreement do not, and the consummation of the transactions contemplated
by this Agreement and compliance by the Stockholder with the provisions of
this Agreement will not, conflict with, or result in any violation or breach
of, or default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination, cancelation or acceleration of any
obligation or to loss of a benefit under, or result in the creation of any
Lien upon any of the properties or assets of the Stockholder under, (i) with
respect to each Stockholder that is not a natural person, the certificate of
incorporation or by-laws, partnership agreement or limited liability company
agreement (or similar organizational documents) of such Stockholder, (ii) any
Contract to which the Stockholder is a party or otherwise applicable to the
Stockholder or the properties or assets of the Stockholder or (iii) subject to
the governmental filings and other matters referred to in the following
sentence, any judgment, order or decree (collectively, "Judgment") or any
statute, law, ordinance, rule or regulation (collectively, "Applicable Law"),
in each case applicable to the Stockholder or the properties or assets of the
Stockholder. No consent, approval, order or authorization (collectively,
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"Consent") of, action by or in respect of, or registration, declaration or
filing with, any Governmental Entity is required to be obtained or made by or
with respect to the Stockholder in connection with the execution and delivery
of this Agreement by the Stockholder or the consummation by the Stockholder of
the transactions contemplated by this Agreement, other than (i) compliance
with and filings under the HSR Act, if applicable to the Stockholder's receipt
in the Merger of Parent Shares, and (ii) such reports under Sections 13(d) and
16 of the Exchange Act as may be required in connection with this Agreement
and the transactions contemplated hereby. With respect to each Stockholder
that is a natural person and whose Subject Shares constitute community
property or otherwise need spousal or other approval for this Agreement to be
legal, valid and binding, this Agreement has been duly authorized, executed
and delivered by, and constitutes a valid and binding agreement of, such
Stockholder's spouse, enforceable against such spouse in accordance with its
terms.
(b) The Subject Shares. The Stockholder is the record and
beneficial owner of, or is the trustee of a trust that is the record holder of,
and whose beneficiaries are the beneficial owners of, and has good and
marketable title to, the Subject Shares set forth opposite his, her or its name
on Schedule A attached hereto, free and clear of any Liens. The Stockholder does
not own, of record or beneficially, any shares of capital stock of the Company
other than the Subject Shares set forth opposite his, her or its name on
Schedule A attached hereto. The Stockholder has the sole right to vote such
Subject Shares, and except as contemplated by this Agreement, none of such
Subject Shares is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of such Subject Shares.
SECTION 2. Representations and Warranties of
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Parent. Parent hereby represents and warrants to each Stockholder as follows:
Parent has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated by this Agreement.
The execution and delivery by Parent of this Agreement and consummation by
Parent of the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of Parent and no
other corporate proceedings on the part of Parent are necessary to authorize
this Agreement or to consummate the transactions contemplated by this
Agreement. Parent has duly executed and delivered this Agreement, and,
assuming this Agreement constitutes the legal, valid and binding obligation of
each of the other parties hereto, this Agreement constitutes the legal, valid
and binding obligation of Parent, enforceable against Parent in accordance
with its terms. The execution and delivery by Parent of this Agreement do not,
and the consummation of the transactions contemplated by this Agreement and
compliance by Parent with the provisions of this Agreement will not, conflict
with, or result in any violation or breach of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancelation or acceleration of any obligation or to loss of a
benefit under, or result in the creation of any Lien upon any of the
properties or assets of Parent under, (i) the Restated Corporate Statutes of
Parent, (ii) any Contract to which Parent is a party or otherwise applicable
to Parent or the properties or assets of Parent or (iii) subject to the
governmental filings and other matters referred to in the following sentence,
any Judgment or Applicable Law, in each case applicable to Parent or the
properties or assets of Parent. No Consent of, action by or in respect of, or
registration, declaration or filing with, any Governmental Entity is required
to be obtained or made by or with respect to Parent in connection with the
execution and delivery of this Agreement by Parent or the consummation by
Parent of the transactions contemplated by this Agreement, other than such
reports under Sections 13(d) and 16 of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated
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hereby.
SECTION 3. Covenants of Each Stockholder. Each Stockholder,
severally and not jointly, covenants and agrees as follows:
(a) (1) At any meeting (whether annual or special and whether or not
an adjourned or postponed meeting) of the stockholders of the Company called
to seek the Stockholder Approval or in any other circumstances upon which a
vote, consent or other approval (including by written consent) with respect to
the Merger Agreement, the Merger or any other transaction contemplated by the
Merger Agreement is sought, the Stockholder shall, including by executing a
written consent solicitation if requested by Parent, vote (or cause to be
voted) the Subject Shares of the Stockholder in favor of adoption of the
Merger Agreement and approval of the Merger and any other transactions
contemplated by the Merger Agreement.
(2) The Stockholder hereby irrevocably grants to, and appoints,
Parent and Xxxxxx X. Xxxxxxxx III, Xxxxxxxx Xxxxxxx and Xxxxxx Xxxx, or any of
them, and any individual designated in writing by any of them, and each of
them individually, as the Stockholder's proxy and attorney-in- fact (with full
power of substitution), for and in the name, place and stead of the
Stockholder, to vote the Subject Shares of the Stockholder, or grant a consent
or approval in respect of the Subject Shares of the Stockholder (i) in favor
of adoption of the Merger Agreement and approval of the Merger and any other
transactions contemplated by the Merger Agreement, (ii) against any Takeover
Proposal and (iii) against any amendment of the Company's certificate of
incorporation or by-laws or other proposal or transaction involving the
Company or any of its subsidiaries, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent
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or nullify any provision 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 the Company. The Stockholder
understands and acknowledges that Parent is entering into the Merger Agreement
in reliance upon the Stockholder's execution and delivery of this Agreement.
The Stockholder hereby affirms that the irrevocable proxy set forth in this
Section 3(a)(2) 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 Stockholder under this Agreement. The Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. The Stockholder 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 212(e) of the DGCL.
The irrevocable proxy granted hereunder shall automatically terminate upon the
termination of Sections 3(a) and 3(b) in accordance with Section 4.
(b) At any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought (in the Stockholder's capacity as a
stockholder of the Company), the Stockholder shall vote (or cause to be voted)
the Subject Shares of the Stockholder against (i) any Takeover Proposal and
(ii) any amendment of the Company's certificate of incorporation or by-laws or
other proposal or transaction involving the Company or any of its
subsidiaries, which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify any provision of the Merger
Agreement, the Merger or any other transaction
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contemplated by the Merger Agreement or change in any manner the voting rights
of any class of capital stock of the Company. The Stockholder shall not commit
or agree to take any action inconsistent with the foregoing.
(c) Other than pursuant to this Agreement, the Stockholder shall not
(i) sell, transfer, pledge, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or enter into any Contract, option or other
arrangement (including any profit sharing arrangement) with respect to the
Transfer of, any Subject Shares (or any options to acquire shares of Company
Common Stock) 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 Subject Shares and shall not commit or agree to take any
of the foregoing actions.
(d) The Stockholder shall not, nor shall it authorize or permit any
employee or affiliate of, or any investment banker, financial advisor,
attorney, accountant or other representative of, the Stockholder to, directly
or indirectly through another person, (i) solicit, initiate or encourage
(including by way of furnishing information), or take any other action
intended to, or which could reasonably be expected to, facilitate, any
inquiries or the making of any proposal that constitutes, or could reasonably
be expected to lead to, any Takeover Proposal or (ii) enter into, continue or
otherwise participate in any discussions or negotiations regarding, or furnish
to any person (other than Parent and any of its affiliates and
representatives) any information with respect to, or otherwise cooperate in
any way with, any Takeover Proposal. The Stockholder promptly shall advise
Parent orally and in writing of any Takeover Proposal or inquiry made to the
Stockholder with respect to or that could reasonably be expected to lead to
any Takeover Proposal.
(e) The Stockholder shall use all reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with
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the other parties in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable, the
Merger and the other transactions contemplated by the Merger Agreement. The
Stockholder shall not issue any press release or make any other public
statement with respect to the Merger Agreement, the Merger or any other
transaction contemplated by the Merger Agreement without the prior written
consent of Parent, except as may be required by Applicable Law.
(f) The Stockholder hereby consents to and approves the actions
taken by the Board of Directors of the Company in approving the Merger
Agreement and this Agreement, the Merger and the other transactions
contemplated by the Merger Agreement. The Stockholder hereby waives, and
agrees not to exercise or assert, any appraisal rights under Section 262 in
connection with the Merger.
(g) If, at the time the Merger Agreement is submitted for adoption
by the stockholders of the Company, the Stockholder is an "affiliate" of the
Company for purposes of Rule 145 under the Securities Act and has made or
proposes to make a Share Election, the Stockholder shall deliver to Parent
prior to the Closing a written agreement substantially in the form attached as
Exhibit A to the Merger Agreement.
SECTION 4. Termination. This Agreement shall terminate upon the
earliest of (i) the Effective Time and (ii) the termination of the Merger
Agreement in accordance with its terms.
SECTION 5. Additional Matters. (a) Each Stockholder shall, from time
to time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as Parent
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may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
(b) 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 a director or officer of
the Company. Each Stockholder signs solely in his, her or its capacity as the
record holder and beneficial owner of, or the trustee of a trust whose
beneficiaries are the beneficial owners of, such Stockholder's Subject Shares
and nothing herein shall limit or affect any actions taken by any Stockholder
in his or her capacity as an officer or director of the Company.
SECTION 6. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to Parent in accordance with
Section 8.02 of the Merger Agreement and to the Stockholders at their
respective addresses set forth on Schedule A hereto (or at such other address
for a party as shall be specified by like notice).
(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. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
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(d) Severability. 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. 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 to the
fullest extent permitted by applicable law in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement.
This Agreement shall become effective against Parent when one or more
counterparts have been signed by Parent and delivered to each Stockholder.
This Agreement shall become effective against any Stockholder when one or more
counterparts have been executed by such Stockholder and delivered to Parent.
Each party need not sign the same counterpart.
(f) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including 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 other than the
parties hereto any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware regardless of
the laws that might otherwise govern under applicable principles of conflicts
of
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law thereof.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or
in part, by operation of law or otherwise, by Parent without the prior written
consent of each Stockholder (except that Parent may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder, to
any direct or indirect wholly owned subsidiary of Parent) or by any
Stockholder without the prior written consent of Parent, and any purported
assignment without such consent shall be void. Subject to the preceding
sentences, this Agreement will be binding upon, inure to the benefit of, and
be enforceable by, the parties and their respective successors and assigns.
(i) Enforcement. The parties 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 Delaware or in any Delaware 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 Delaware or
any Delaware 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 such court, (iii) 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
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Federal court sitting in the State of Delaware or any Delaware 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.
(j) Agent for Service of Process. Each Stockholder hereby appoints
CorpAmerica, Inc., with offices on the date hereof at 00 Xxx Xxxxxxx Xxxx,
Xxxx xx Xxxxx, Xxxxxx of Xxxx, Xxxxxxxx 00000, as its authorized agent (the
"Authorized Agent"), upon whom process may be served in any suit, action or
proceeding arising out of or relating to this Agreement or any transaction
contemplated by this Agreement that may be instituted in any court described
in Section 6(i)(i). Each Stockholder agrees to take any and all action at no
cost to such Stockholder, including the filing of any and all documents, that
may be reasonably necessary to establish and continue such appointment in full
force and effect as aforesaid. Each Stockholder agrees that service of process
upon the Authorized Agent shall be, in every respect, effective service of
process upon such Stockholder.
IN WITNESS WHEREOF, each party has duly executed this Agreement, all
as of the date first written above.
VIVENDI UNIVERSAL, S.A.,
by /s/Xxxx-Xxxxx Xxxxxxx
--------------------------
Name: Xxxx-Xxxxx Xxxxxxx
Title: Chairman & Chief Executive
Officer
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK --
STOCKHOLDER SIGNATURE PAGES FOLLOW]
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
The SKL Trust
by
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Trustee
by
/s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: Trustee
Xxxxxxxxx'x Descendant's
Irrevocable 1999 Trust
by
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Trustee
by
/s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: Trustee
Xxxxxxx X. Xxxxxxxxx 1999
Trust,
by
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Trustee
Xxxxxx Xxxxxxx 1999 Trust
by
/s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: Trustee
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Xxxxxxxx Family Trust
by
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trustee
by
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trustee
Xxxxxxxx Descendant's
Irrevocable Trust
by
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trustee
by
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trustee
Xxxxx X. Xxxxxxxx 1999 Trust
by
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trustee
Xxxxx X. Xxxxxxxx 1999 Trust
by
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trustee
/s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Sequoia Capital VIII
Sequoia International
Technology Partners VIII
Sequoia International
Technology Partners VIII(Q)
by
SC VIII Management, LLC
A California Limited
Liability Company,
its General Partner
by
/s/ Xxxx Xxxxxxx
------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
CMS Partners LLC
Sequoia 1997
Sequoia Capital Franchise Fund
Sequoia Capital Franchise
Partners
by
/s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Partner
SCHEDULE A
Number of Subject
Name and Address of Stockholder Shares Owned
------------------------------- -----------------
Xxxxxxx X. Xxxxxxxxx & related trusts 23,057,927
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxx XX, 00000-0000
Xxxxxx Xxxxxxx 379,478
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxx XX, 00000-0000
Xxxxx X. Xxxxxxxx & related trusts 1,503,446
00000 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
Xxxxx X. Xxxxxxxx 161,250
00000 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
Sequoia Capital & related entities 9,837,011
0000 Xxxx Xxxx Xxxx
Xxxx. 0 Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Xxxx Xxxxxxx 8,000
00 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
