1
Exhibit 99.6
TENDER AND VOTING AGREEMENT
by and among
XXXXXXXXXXXXXXXXX.XXX, INC.,
AMERICAN PIE ACQUISITION CORP.
and
CERTAIN STOCKHOLDERS OF EGREETINGS NETWORK, INC.
dated as of
FEBRUARY 5, 2001
2
TENDER AND VOTING AGREEMENT, dated as of February 5, 2001 (this
"Agreement"), by and among XXXXXXXXXXXXXXXXX.XXX, INC. a Delaware corporation
("Purchaser"), AMERICAN PIE ACQUISITION CORPORATION, a Delaware corporation
("Merger Sub"), and each of the stockholders set forth on Schedule A hereto
(each, a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, as of the date hereof, each Stockholder holds of record or
beneficially owns and is entitled to dispose of (or to direct the disposition
of) and to vote (or to direct the voting of) the number of shares of common
stock, par value $.001 per share, of eGreetings Network, Inc., a Delaware
corporation (the "Company") (the "Shares") set forth opposite such Stockholder's
name on Schedule A hereto (such Shares, together with any other Shares the
record or beneficial ownership of which is directly acquired by such Stockholder
during the period from and including the date hereof through and including the
date on which this Agreement is terminated pursuant to Section 14 hereof, are
collectively referred to herein as such Stockholder's "Subject Shares").
WHEREAS, Purchaser, Merger Sub and the Company have simultaneously with
the execution hereof entered into an Agreement and Plan of Merger, dated as of
the date hereof (as amended from time to time, the "Merger Agreement"), which
provides, among other things, that, upon the terms and subject to the conditions
therein, Merger Sub will merge (the "Merger") with and into the Company and each
issued and outstanding Share will be converted into the right to receive the Per
Share Amount (as defined in the Merger Agreement); and
WHEREAS, as a condition to the willingness of Purchaser and Merger Sub
to enter into the Merger Agreement, Purchaser and Merger Sub have requested that
the Stockholders agree, and in order to induce Purchaser and Merger Sub to enter
into the Merger Agreement, the Stockholders have agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
ARTICLE I
SECTION 1. CERTAIN DEFINITIONS. Capitalized terms used but not
otherwise defined herein have the meanings ascribed to such terms in the Merger
Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Subject
to those exceptions and qualifications listed and described herein, each
Stockholder, severally and not jointly, represents and warrants to Purchaser and
Merger Sub, as of the date hereof and as of the Closing Date, as follows:
(a) OWNERSHIP. Such Stockholder is the sole record and beneficial
owner of the number of Shares set forth opposite such Stockholder's name on
Schedule A hereto and has full and unrestricted power to dispose of and to vote
such Shares. Such Shares are now, and at all times during the term hereof will
be, held by such Stockholder, or by a nominee or custodian for the benefit of
such Stockholder, free and clear of any mortgage, pledge, hypothecation, rights
of others, claim, security interest, charge, encumbrance, title defect, title
retention agreement, voting trust agreement, interest, option, lien, charges or
similar restriction or limitation (each, a "Lien") (including any restriction on
the right to vote, sell or otherwise, dispose of such Shares), except for any
Liens arising hereunder. The transfer by such Stockholder of its Subject Shares
to Merger Sub pursuant to the Offer, shall pass to and unconditionally vest in
Merger Sub good and valid title to such Subject Shares, free and clear of all
Liens other than restrictions set forth under applicable securities laws. Except
as set forth in Schedule A hereto, such Stockholder does not beneficially own
any securities of the Company on the date hereof other than such Subject Shares.
Except as set forth on Schedule A hereto, the Stockholder does not, directly or
indirectly, beneficially own or have any option, warrant or other right to
acquire any securities of the Company that are or may by their terms become
entitled to vote or any securities that are convertible or exchangeable into or
exercisable for any securities of the Company that are or may by their terms
become entitled to vote, nor is the Stockholder subject to any contract,
commitment, arrangement, understanding or relationship (whether or not legally
enforceable), other than this Agreement, that allows or obligates him to vote or
acquire any securities of the
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Company. The Stockholder holds exclusive power to vote the Subject Shares and
has not granted a proxy to any other Person to vote the Shares, subject to the
limitations set forth in this Agreement. The Subject Shares constitute all of
the securities (as defined in Section 3(10) of the Exchange Act, which
definition will apply for all purposes of this Agreement) of the Company
beneficially owned, directly or indirectly, by the Stockholder (excluding any
securities beneficially owned by any of its affiliates or associates (as such
terms are defined in Rule 12b-2 under the Exchange Act, which definition will
apply for all purposes of this Agreement) as to which they do not have voting or
investment power).
(b) ORGANIZATION; AUTHORITY. If the Stockholder is an individual,
the Stockholder has the legal right, power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. If the
Stockholder is not an individual, the Stockholder is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation, has the requisite power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby, and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement.
(c) AUTHORIZATION, EXECUTION AND DELIVERY. This Agreement has been
duly executed and delivered by the Stockholder and, assuming due authorization,
execution and delivery of this Agreement by Purchaser and Merger Sub, is a valid
and binding obligation of the Stockholder enforceable against the Stockholder in
accordance with its terms, except that (i) the enforceability hereof may be
subject to applicable bankruptcy, insolvency or other similar laws, now or
hereinafter in effect, affecting creditors' rights generally, and (ii) the
general principles of equity (regardless of whether enforceability is considered
at a proceeding in law or equity).
(d) NO CONFLICTS. Neither the execution and delivery of this
Agreement by the Stockholder, nor the consummation of the transactions
contemplated hereby, will conflict with, result in a violation or breach of, or
constitute a default (or an event that, with notice or lapse of time or both,
would result in a default) or give rise to any right of termination, amendment,
cancellation, or acceleration or result in the creation of any Lien on any
Subject Shares under, (i) any material contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which Stockholder is a
party or (ii) to the knowledge of such Stockholder, any injunction, judgment,
writ, decree, order or ruling applicable to the Stockholder; except for
conflicts, violations, breaches or defaults that would not individually or in
the aggregate be reasonably expected to prevent or materially impair or delay
the consummation by Stockholder of the transactions contemplated hereby.
(e) NO VIOLATIONS. To the knowledge of the Stockholder, neither the
execution and delivery of this Agreement by the Stockholder, nor the
consummation of the transactions contemplated hereby, will violate any law,
decree, statute, rule or regulation applicable to the Stockholder or require any
order, consent, authorization or approval of, filing or registration with, or
declaration or notice to, any court, administrative agency or other governmental
body or authority, other than any required notices or filings pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder (the "HSR Act") or the federal securities
laws.
(f) BROKER FEES. Except as set forth in Section 4.10 of the Merger
Agreement, no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement or the Merger Agreement based upon arrangements
made by or on behalf of the Stockholder that is or will be payable by the
Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGER SUB.
Purchaser and Merger Sub represent and warrant to the Stockholders, as of the
date hereof and as of the Closing Date, as follows:
(a) AUTHORITY. Each of Purchaser and Merger Sub is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Each of Purchaser and Merger Sub has the requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, including their respective obligations
hereunder, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement.
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(b) EXECUTION AND DELIVERY. This Agreement has been duly executed
and delivered by Purchaser and Merger Sub and, assuming the due execution and
delivery of this Agreement by the Stockholders, is a valid and binding
obligation of each of Purchaser and Merger Sub, enforceable against each of them
in accordance with its terms, except that (i) the enforceability hereof may be
subject to applicable bankruptcy, insolvency or other similar laws, now or
hereinafter in effect, affecting creditors' rights generally, and (ii) the
availability of the remedy of specific performance or injunctive or other forms
of equitable relief may be subject to equitable defenses and would be subject to
the discretion of the court before which any proceeding therefor may be brought.
(c) CONFLICTS. Neither the execution and delivery of this Agreement
nor the performance by Purchaser and Merger Sub of their respective obligations
hereunder will conflict with, result in a violation or breach of, or constitute
a default (or an event that, with notice or lapse of time or both, would result
in a default) or give rise to any right of termination, amendment, cancellation,
or acceleration under, (i) their respective certificate of incorporation or
bylaws, (ii) any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which Purchaser or Merger Sub is a party or by which
Purchaser or Merger Sub is bound or (iii) any judgment, writ, decree, order or
ruling applicable to Purchaser or Merger Sub; except in the case of clauses (ii)
and (iii) for conflicts, violations, breaches or defaults that would not
individually or in the aggregate be reasonably expected to prevent or materially
impair or delay the consummation by Purchaser or Merger Sub of the transactions
contemplated hereby.
(d) NO VIOLATIONS. Neither the execution and delivery of this
Agreement nor the performance by Purchaser and Merger Sub of their respective
obligations hereunder will violate any law, decree, statute, rule or regulation
applicable to Purchaser or Merger Sub or require any order, consent,
authorization or approval of, filing or registration with, or declaration or
notice to, any court, administrative agency or other governmental body or
authority, other than any required notices or filings pursuant to the HSR Act or
the federal securities laws.
ARTICLE II
SECTION 4. TRANSFER OF THE SHARES. During the term of this Agreement,
except as otherwise provided herein, no Stockholder will (a) tender into any
tender or exchange offer or otherwise sell, transfer, pledge, assign,
hypothecate or otherwise dispose of, or encumber with any Lien, any of its
Subject Shares, other than any sale, transfer or assignment to members of such
Stockholder's family (including upon the death of Stockholder), a trust or
trustees of a trust for the benefit of such Stockholder or a charitable trust,
or other transfers for estate planning purposes, provided that any such
transferee shall agree in writing to be bound by the terms of this Agreement,
(b) with the exception of Xxxxxxxxx X. Xxxxxxxx, acquire any Shares or other
securities of the Company (otherwise than in connection with a transaction of
the type described in Section 6 or pursuant to the exercise of options or
warrants to acquire securities of the Company outstanding as of the date
hereof), (c) deposit its Subject Shares into a voting trust (other than pursuant
to a trust arrangement of the type described in clause (a) above), enter into a
voting agreement or arrangement with respect to its Subject Shares or grant any
proxy or power of attorney with respect to its Subject Shares, or (d) with the
exception of Xxxxxxxxx X. Xxxxxxxx only with respect to any permitted direct or
indirect acquisition of any Shares as set forth in clause (b) above, enter into
any contract, option or other arrangement or undertaking with respect to the
direct or indirect acquisition of any Shares (other than with respect to all
Stockholders as set forth in clause (b) above), or sale, transfer, pledge,
assignment, hypothecation or other disposition of any interest in or the voting
of any Shares or any other securities of the Company.
SECTION 5. ADJUSTMENTS.
(a) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of the Company on, of or affecting the Shares or the
like or any other action that would have the effect of changing the
Stockholders' ownership of the Company's capital stock or other securities or
(ii) the Stockholders become the beneficial owners of any additional Shares or
other securities of the Company, then the terms of this Agreement will apply to
the shares of capital stock held by the Stockholders immediately following the
effectiveness of the events described in clause (i) or the Stockholders becoming
the beneficial owner thereof, as described in clause (ii), as though they were
Shares hereunder.
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(b) Each Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Purchaser and Merger Sub of the number of any new
Shares acquired by such Stockholder, if any, after the date hereof.
SECTION 6. WAIVER OF APPRAISAL RIGHTS. Each Stockholder hereby waives
any rights of appraisal or rights to dissent from the Merger that such
Stockholder may have.
SECTION 7. NONEXERCISE OF RIGHTS OF FIRST REFUSAL. No Stockholder shall
exercise any purchase right or right of first refusal that it may have with
respect to any Shares of any other person in connection with any tender by such
other person of such Shares pursuant to the Offer.
SECTION 8. COOPERATION. Each Stockholder shall cooperate fully with
Purchaser in connection with their respective reasonable best efforts to fulfill
the conditions to the Offer set forth in Annex I to the Merger Agreement.
ARTICLE III
SECTION 9. TENDER OF SHARES. Each Stockholder will validly tender (or
cause the record owner of such shares to validly tender) and sell (and not
withdraw) pursuant to and in accordance with the terms of the Offer not later
than the fifteenth business day after commencement of the Offer all of its
Subject Shares. Upon the purchase of all the Shares by Merger Sub pursuant to
the Offer in accordance with this Section 10, this Agreement will terminate. In
the event, notwithstanding the provisions of the first sentence of this Section
10, any Subject Shares are for any reason withdrawn from the Offer or are not
purchased pursuant to the Offer, such Subject Shares will remain subject to the
terms of this Agreement. Each Stockholder acknowledges that Merger Sub's
obligation to accept for payment and pay for the Shares in the Offer is subject
to all the terms and conditions of the Offer. Nothing in this agreement shall be
construed to obligate any Stockholder to exercise any option or warrant to
purchase any securities of the Company not outstanding as of the date hereof.
SECTION 10. VOTING AGREEMENT. Each Stockholder, by this Agreement,
until such time as the Merger may be consummated or such Merger Agreement may be
terminated pursuant to Section 8.1 thereof, does hereby constitute and appoint
Purchaser and Merger Sub, or any nominee thereof, with full power of
substitution, during and for the term of this Agreement, as his true and lawful
attorney and proxy for and in his name, place and xxxxx, to vote all the Shares
Stockholder beneficially owns at the time of such vote, at any annual, special
or adjourned meeting of the stockholders of the Company (and this appointment
will include the right to sign its name (as stockholder) to any certificate or
other document relating to the Company that laws of the State of Delaware may
require or permit) (x) in favor of approval and adoption of the Merger Agreement
and approval of the Merger and the other transactions contemplated thereby and
(y) against (a) any Acquisition Transaction, (b) any action or agreement that
would result in a breach in any respect of any covenant, agreement,
representation or warranty of the Company under the Merger Agreement and (c) the
following actions (other than the Merger and the other transactions contemplated
by the Merger Agreement): (i) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company; (ii)
a sale, lease or transfer of a material amount of assets of the Company, or a
reorganization, recapitalization, dissolution or liquidation of the Company;
(iii) (A) any change in a majority of the persons who constitute the board of
directors of the Company as of the date hereof; (B) any change in the present
capitalization of the Company or any amendment of the Company's certificate of
incorporation or bylaws, as amended to date; (C) any other material change in
the Company's corporate structure or business; or (D) any other action that, in
the case of each of the matters referred to in clauses (iii)(A), (B) and (C) is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, or adversely affect the Merger and the other transactions contemplated
by this Agreement and the Merger Agreement. This proxy and power of attorney is
a proxy and power coupled with an interest, and each Stockholder declares that
it is irrevocable with respect to Subject Shares held of record by each
Stockholder, until such time as this Agreement may terminate pursuant to Section
14 hereof. Each Stockholder hereby revokes all and any other proxies with
respect to the Shares that he may have heretofore made or granted. For Shares as
to which the Stockholder is the beneficial but not the record owner, the
Stockholder shall use its best efforts to cause any record owner of such Shares
to grant to Purchaser a proxy to the same effect as that contained herein.
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SECTION 11. NO SOLICITATION. No Stockholder will, directly or
indirectly, through any agent, financial advisor, attorney, accountant or other
representative or otherwise, (i) solicit, initiate or encourage submission of
proposals or offers from any Person relating to, or that could reasonably be
expected to lead to, an Acquisition Transaction or (ii) participate in any
negotiations or discussions regarding, or furnish to any other Person any
information with respect to, or otherwise cooperate in any way with, or assist
or participate in, facilitate or encourage, any effort or attempt by any other
Person to do or seek an Acquisition Transaction.
SECTION 12. FIDUCIARY DUTIES. This Agreement is intended to bind each
Stockholder only with respect to the specific matters set forth herein, and
shall not prohibit or limit in any respect any Stockholder from acting in his or
her capacity as an officer or director of the Company in the manner required by
such Stockholder's fiduciary duties as an officer or director of the Company. No
person executing this Agreement, who is or becomes during the term hereof a
director or an officer of the Company, makes any agreement or understanding
herein in his or her capacity as such director or officer, and signs solely in
his or her capacity as the record and beneficial owner of such Stockholder's
Subject Shares.
ARTICLE IV
SECTION 13. TERMINATION. This Agreement will terminate (a) upon the
purchase of all the Shares pursuant to the Offer in accordance with Section 10,
(b) on the earlier to occur of (A) the Effective Time or (B) the date the Merger
Agreement is terminated in accordance with its terms, or (c) by the mutual
consent of the Stockholders and the Board of Directors of Purchaser.
SECTION 14. EXPENSES. Except as otherwise expressly provided herein or
in the Merger Agreement, all costs and expenses incurred by any of the parties
hereto will be borne by the party incurring such costs and expenses. Purchaser
and Merger Sub, on the one hand, and the Stockholders, on the other hand, will
indemnify and hold harmless the other from and against any and all claims or
liabilities for finder's fees or brokerage commissions or other like payments
incurred by reason of action taken by him, it or any of them, as the case may
be.
SECTION 15. FURTHER ASSURANCES. Each party hereto will execute and
deliver all such further documents and instruments and take all such further
action as may be necessary in order to consummate the transactions contemplated
hereby.
SECTION 16. PUBLICITY. Neither Purchaser nor the Stockholders shall
issue any press release or otherwise make any public statements with respect to
this Agreement or the Merger Agreement or the other transactions contemplated
hereby or thereby without the other party's prior consent (which consent shall
not be unreasonably withheld) except as may be required by law or applicable
stock exchange rules, and after consultation with the other party, if reasonably
possible.
SECTION 17. ENFORCEMENT OF THE AGREEMENT. The Stockholders acknowledge
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 Purchaser and Merger Sub
will be 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 having jurisdiction, this being in
addition to any other remedy to which it is entitled at law or in equity.
SECTION 18. OBTAINMENT OF SPOUSAL CONSENT. Following the date hereof,
each Stockholder which is, or may be, subject to the community property laws of
any state or other jurisdiction, will use best efforts to cause his or her
spouse to execute an acknowledgment and consent ("Consent") consenting to and
agreeing to the transactions contemplated by this Agreement. Such Consent will
survive until the termination of this Agreement pursuant to Section 13 hereof.
SECTION 19. MISCELLANEOUS.
(a) All representations and warranties contained herein will survive
for one year after the termination hereof. The covenants and agreements made
herein will survive in accordance with their respective terms. Any provision of
this Agreement may be waived at any time by the party that is entitled to the
benefits thereof. No such waiver, amendment or
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supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(b) This Agreement and the Merger Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter hereof,
and supersedes all prior agreements among the parties with respect to such
matters. This Agreement may not be amended, changed, supplemented, waived or
otherwise modified, except upon the delivery of a written agreement executed by
the parties hereto.
(c) This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of laws
principles thereof.
(d) The descriptive headings contained herein are for convenience
and reference only and will not affect in any way the meaning or interpretation
of this Agreement.
(e) All notices and other communications hereunder will be in
writing and will be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by telecopy, or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to a Stockholder, to the address
set forth for such Stockholder on
the signature page hereof.
With a copy to: Xxxxxx Godward LLP
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
If to Purchaser or Merger Sub to: XXXXXXXXXXXXXXXXX.XXX, INC.
Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to each of: AMERICAN GREETINGS CORPORATION
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxx Xxxxxxxxxxx, Xx.
Facsimile: (000) 000-0000
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(f) This Agreement may be executed in any number of counterparts,
each of which will be deemed to be an original, but all of which together will
constitute one agreement.
(g) This Agreement is binding upon and is solely for the benefit of
the parties hereto and their respective successors, legal representatives and
assigns. Neither this Agreement nor any of the rights, interests or obligations
under this Agreement will be assigned by any of the parties hereto without the
prior written consent of the other parties, except that Purchaser and
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Merger Sub will have the right to assign to any direct or indirect wholly owned
subsidiary of Purchaser or Merger Sub any and all rights and obligations of
Purchaser or Merger Sub under this Agreement, provided that any such assignment
will not relieve either Purchaser or Merger Sub from any of its obligations
hereunder.
(h) If any term or provision of this Agreement is determined to be invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other terms and provisions of this Agreement will nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party hereto.
Upon any such determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties hereto will negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated by this Agreement are consummated to the extent possible.
(i) All rights, powers and remedies provided under this Agreement or otherwise
available in respect hereof at law or in equity will be cumulative and not
alternative, and the exercise of any thereof by either party will not preclude
the simultaneous or later exercise of any other such right, power or remedy by
such party.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first above written.
XXXXXXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
AMERICAN PIE ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President
STOCKHOLDERS:
/s/ Xxxxx Xxxx
-----------------------------------------
XXXXX XXXX
/s/ Xxxxxxx Xxx
-----------------------------------------
XXXXXXX XXX
/s/ Xxxxxx Xxxxx
-----------------------------------------
XXXXXX XXXXX
/s/ Xxxxxxx Xxxxxxx
-----------------------------------------
XXXXXXX XXXXXXX
/s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------------------
XXXXXXXXX X. XXXXXXXX
/s/ Xxx Xxxxxxxxx
-----------------------------------------
XXX XXXXXXXXX
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ALTOS VENTURES I, L.P.
By: /s/ Xxxxxxx Xxx
--------------------------------------
Name: Xxxxxxx Xxx
Title:
ALTOS VENTURES II, L.P.
By: /s/ Xxxxxxx Xxx
--------------------------------------
Name: Xxxxxxx Xxx
Title:
ALTOS PARTNERS 1
By: /s/ Xxxxxxx Xxx
--------------------------------------
Name: Xxxxxxx Xxx
Title:
NEA PRESIDENTS FUND, L.P.
By: /s/ C. Xxxxxxx Xxxxxxxx
--------------------------------------
Name: C. Xxxxxxx Xxxxxxxx
Title:
NEA VENTURES 1999, L.P.
By: /s/ Xxx Xxxxxxx
--------------------------------------
Name: Xxx Xxxxxxx
Title:
NEW ENTERPRISE ASSOCIATES VIII, L.P.
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title:
KETTLE PARTNERS L.P.
By: /s/ Xxx Xxxxxxxxx
--------------------------------------
Name: Xxx Xxxxxxxxx
Title:
WPG ENTERPRISE FUND III, L.L.C.
By: Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title:
2.
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XXXXX, XXXX & XXXXX VENTURE
ASSOCIATES IV, L.L.C.
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title:
WPG INFORMATION SCIENCES
ENTREPRENEUR FUND, L.P.
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title:
XXXXX, XXXX & XXXXX VENTURE
ASSOCIATES IV CAYMAN, L.P.
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title:
XXXXX, XXXX & XXXXX VENTURE
ASSOCIATES V, L.L.C.
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title:
WPG VENTURE ASSOCIATES V-A, L.L.C.
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title:
WPG VENTURE ASSOCIATES V, CAYMAN
L.P.
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title:
3.
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SCHEDULE A
STOCKHOLDER SHARES HELD OPTIONS WARRANTS
----------- ----------- ------- --------
Xxx Xxxxxxxxx 394,378
Xxxxxx Xxxxx 202,055
Xxxxxxxxx X. Xxxxxxxx 824,000
Xxxxxxx Xxxxxxx 1,310,833
Entities parties hereto and affiliated with 2,333,472 ________
Xxxxx, Xxxx & Xxxxx Venture Partners (options
are attributable to Xxxxx Xxxx granted to him
in his capacity as a member of the Company's
Board of Directors)
Entities parties hereto and affiliated with Altos 2,110,841 _________
Ventures (options are attributable to Xxxxxxx
Xxx granted to him in his capacity as a member of
the Company's Board of Directors)
Entities parties hereto and affiliated with New 1,664,026 _________
Enterprise Associates (options are attributable to
Xxxxxxx Xxxxx granted to him in his capacity as a
member of the Company's Board of Directors)
Kettle Partners L.P. (options are attributable to 225,366 [19,166] 34,846
Xxx Xxxxxxxxx granted to him in his capacity as a
member of the Company's Board of Directors)
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TABLE OF CONTENTS
PAGE
ARTICLE I 1
Section 1. Certain Definitions....................................................................1
Section 2. Representations and Warranties of the Stockholders.....................................1
Section 3. Representations and Warranties of Purchaser and Merger Sub.............................3
ARTICLE II 4
Section 4. Transfer of the Shares.................................................................4
Section 5. Adjustments............................................................................4
Section 6. Waiver of Appraisal Rights.............................................................5
Section 7. Nonexercise of Rights of First Refusal.................................................5
Section 8. Cooperation............................................................................5
ARTICLE III 5
Section 9. Tender of Shares.......................................................................5
Section 10. Voting Agreement.......................................................................5
Section 11. No Solicitation........................................................................6
ARTICLE IV 6
Section 13. Termination............................................................................6
Section 14. Expenses...............................................................................6
Section 15. Further Assurances.....................................................................7
Section 16. Publicity..............................................................................7
Section 17. Enforcement of the Agreement...........................................................7
Section 18. Obtainment of Spousal Consent..........................................................7
Section 19. Miscellaneous..........................................................................7
i.
14
TABLE OF DEFINITIONS
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Agreement......................................................................................................1
Business Combination..........................................................................................11
Closing........................................................................................................8
Exercise Notice................................................................................................8
Exercise Price.................................................................................................7
Fair Market Value.............................................................................................10
HSR Act........................................................................................................3
Lien...........................................................................................................2
Manager........................................................................................................9
Merger.........................................................................................................1
Merger Agreement...............................................................................................1
Merger Sub.....................................................................................................1
Option Price..................................................................................................10
Permitted Offering.............................................................................................9
Purchaser......................................................................................................1
Registrable Securities.........................................................................................9
Registration Notice............................................................................................9
Securities Act.................................................................................................5
Stockholders...................................................................................................1
Subject Shares.................................................................................................1
Subsequent Price..............................................................................................11
Subsequent Transaction........................................................................................11
Trigger Event..................................................................................................8
ii.