Exhibit 99.2
STOCKHOLDER AGREEMENT dated as of February 29, 2000
(this "Agreement"), among 24/7 MEDIA, INC., a Delaware
corporation ("Parent"), and the individuals and other
parties listed on Schedule A hereto (each, a
"Stockholder" and, collectively, the "Stockholders").
WHEREAS, Parent, Evergreen Acquisition Sub Corp., a Delaware
corporation ("Sub"), and Xxxxxxx.xxx, Inc., a Delaware corporation
("Target"), 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 Sub
with and into Target; and
WHEREAS, each Stockholder owns the number of shares of Target
Common Stock set forth opposite his, her or its name on Schedule A hereto
(such shares of Target Common Stock, together with any other shares of
capital stock of Target 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 "Target Subject Shares" of such Stockholder);
WHEREAS, the Board of Directors of Target has approved the terms
of this Agreement; and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Parent has requested 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 of the date hereof in respect of himself, herself or itself as
follows:
(a) Authority; Execution and Delivery; Enforceability. The
Stockholder has all requisite power and authority to execute this Agreement
and to consummate the transactions contemplated hereby. The Stockholder has
duly executed and delivered this Agreement, and this Agreement constitutes
the legal, valid and binding obligation of the
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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 hereby and
compliance with the terms hereof will not, conflict with, or result in any
violation 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 material benefit under, or result in the
creation of any Lien upon any of the properties or assets of the
Stockholder under, any provision of any Contract to which the Stockholder
is a party or by which any properties or assets of the Stockholder are
bound, including the Third Amended and Restated Stockholders Agreement
referred to in the Merger Agreement, or, subject to the filings and other
matters referred to in the next sentence, any provision of any judgment,
order or decree (collectively, "Judgment") or any statute, law, ordinance,
rule or regulation (collectively, "Applicable Law") applicable to the
Stockholder or the properties or assets of the Stockholder. No consent,
approval, order or authorization (collectively, "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, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, other than (i) compliance with and filings under the
HSR Act, if applicable to the Stockholder's receipt in the Merger of Parent
Common Stock, 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. If the Stockholder is married and the
Target Subject Shares of the Stockholder constitute community property or
otherwise need spousal or other approval to be legal, valid and binding,
this Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such spouse in accordance with its terms.
(b) The Target Subject Shares. Except as set forth on Schedule A
hereto, 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
Target 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 outstanding shares of capital stock of
Target other than the Target Subject Shares set forth
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opposite his, her or its name on Schedule A attached hereto. Except as set
forth on Schedule A hereto, the Stockholder has the sole right to vote such
Target Subject Shares, and except as contemplated by this Agreement, none
of such Target Subject Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting of such
Target Subject Shares.
SECTION 2. Representations and Warranties of Parent. Parent
hereby represents and warrants to each Stockholder as follows: Parent has
all requisite corporate power and authority to execute this Agreement and
to consummate the transactions contemplated hereby. The execution and
delivery by Parent of this Agreement and consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on
the part of Parent. 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 hereby and compliance with the terms hereof will not, conflict
with, or result in any violation 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 material
benefit under, or result in the creation of any Lien upon any of the
properties or assets of Parent under, any provision of any Contract to
which Parent is a party or by which any properties or assets of Parent are
bound or, subject to the filings and other matters referred to in the next
sentence, any provision of any Judgment or Applicable Law 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, delivery and performance of
this Agreement or the consummation of the transactions contemplated hereby,
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 hereby.
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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 Target called
to seek Target 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 Target 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 Xxxx Xxxxx and C. Xxxxxx Xxxxx, 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 Target Subject Shares of the Stockholder, or grant
a consent or approval in respect of the Target 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.
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) 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) Other than this Agreement, the Stockholder shall not (i)
sell, transfer, pledge, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"),
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or enter into any Contract, option or other arrangement (including any
profit sharing arrangement) with respect to the Transfer of, any Target
Subject Shares to any person (other than pursuant to the Merger), unless
and until such person agrees, pursuant to a writing in customary form to
which Parent is a party or a stated third-party beneficiary, to be bound by
the terms of this Agreement, including without limitation the terms of
Section 3(a)(2), to the same extent, and in the same manner, as if such
person were explicitly named a Stockholder hereunder or (ii) enter into any
voting arrangement, whether by proxy, voting agreement or otherwise, with
respect to any Target Subject Shares and shall not commit or agree to take
any of the foregoing actions. The Stockholder shall not, nor shall such
Stockholder permit any entity under such Stockholder's control to, deposit
any Target Subject Shares in a voting trust.
(c) 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 to facilitate, any inquiries or the making of any proposal that
constitutes, or may 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, 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.
(d) 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 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.
(e) The Stockholder hereby consents to and approves the actions
taken by the Board of Directors of
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Target 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 or similar rights under Section 262 of the DGCL or other
applicable law in connection with the Merger.
(f) If, at the time the Merger Agreement is submitted for
adoption by the stockholders of Target, the Stockholder is an "affiliate"
of Target for purposes of Rule 145 under the Securities Act, the
Stockholder shall deliver to Parent at least 30 days 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 may reasonably request for the purpose of effectively carrying out
the transactions contemplated by this Agreement.
(b) Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder's Target Subject
Shares and shall be binding upon any person to which legal or beneficial
ownership of such Subject Shares shall pass, whether by operation of law or
otherwise, including such Stockholder's heirs, guardians, administrators or
successors, and that each certificate representing such Target Subject
Shares will be inscribed with a legend to such effect. In the event of any
stock split, stock dividend, merger, reorganization, recapitaliza tion or
other change in the capital structure of Target affecting the Target
Subject Shares, or the acquisition of additional shares of Target's capital
stock by any Stockholder, the number of Target Subject Shares listed in
Schedule A beside the name of such Stockholder shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach
to any additional shares of Target's capital stock issued to or acquired by
such Stockholder.
(c) No person executing this Agreement who is or becomes during
the term hereof a director or officer of Target makes any agreement or
understanding herein in his or
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her capacity as such a director or officer of Target. 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 Target Subject Shares and nothing
herein shall limit or affect any actions taken by any Stockholder in his
capacity as an officer or director of Target to the extent specifically
permitted by the Merger Agreement.
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".
(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
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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 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
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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 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 The Xxxxxxxx-Xxxx Corporation System, Inc., with offices on the
date hereof at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, 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, including the filing of any and all
documents, that may be 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.
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IN WITNESS WHEREOF, each party has duly executed this Agreement,
all as of the date first written above.
24/7 MEDIA, INC.,
by
/s/ C. Xxxxxx Xxxxx
--------------------------
Name:C. Xxxxxx Xxxxx
Title:Executive Vice President
CENTENNIAL FUND IV, L.P.,
by
/s/ Xxxx Xxxxxxx
-------------------------
Name:Xxxx Xxxxxxx
Title:General Partner
TRIBUNE COMPANY,
by
/s/ Xxxxx Xxxxxx
-------------------------
Name:Xxxxx Xxxxxx
Title:Senior Vice President
TELECOM PARTNERS, L.P.,
by
/s/ Xxxxxxx Xxxxxxx
-------------------------
Name:Xxxxxxx Xxxxxxx
Title:Managing Member of
Telecom Management, LLC, its
General Partner
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.,
by
/s/ Xxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxx
Title:Senior Vice President
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GLOBAL RETAIL PARTNERS, L.P.,
by
/s/ Xxxxx X. Xxxxxxxx
-------------------------
Name:Xxxxx X. Xxxxxxxx
Title:Vice President
BOULDER VENTURES III, L.P.,
by
/s/ Xxxx Xxxxxxx
-------------------------
Name:Xxxx Xxxxxxx
BOULDER VENTURES II, L.P.,
by
/s/ Xxxx Xxxxxxx
------------------------
Name:Xxxx Xxxxxxx
BOULDER VENTURES, LTD.,
by
/s/ Xxxx Xxxxxxx
-------------------------
Name:Xxxx Xxxxxxx
DLJ DIVERSIFIED PARTNERS, LP,
by
/s/ Xxxxx X. Xxxxxxxx
-------------------------
Name:Xxxxx X. Xxxxxxxx
Title:Vice President
E. XXXXXX XXXXXX, XX.,
by
/s/ E. Xxxxxx Xxxxxx, Xx.
-------------------------
SCHEDULE A
NUMBER OF
SHARES OF
TARGET
COMMON STOCK
HELD OF
NAME ADDRESS RECORD
---- ------- ------
Centennial Fund IV, L.P. 0000 Xxxxxxxxx Xxxxxx 2,120,098
Xxxxxx, XX 00000
Tribune Company 000 X. Xxxxxxxx Xxxxxx 1,146,553
Xxxxx 0000
Xxxxxxx, XX 00000
Telecom Partners, L.P. 0000 X. Xxxxxxx'x Xxxxx Xxxxxx 1,001,290
Xxxxx 000
Xxxxxxxxx, XX 00000
American Express Travel Related 3 World Financial Center 875,000
Services Company, Inc. 00xx Xxxxx
Xxx Xxxx, XX 00000
Global Retail Partners, L.P. 2121 Avenue of the Stars 000,000
00xx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Boulder Ventures III, L.P. 0000 Xxxxxx Xxxxxx 000,000
Xxxxx 000
Xxxxxxx, XX 00000
E. Xxxxxx Xxxxxx, Xx. 000 00xx Xxxxxx 256,411
Suite 2850
Xxxxxx, XX 00000
2
NUMBER OF
SHARES OF
TARGET
COMMON STOCK
HELD OF
NAME ADDRESS RECORD
---- ------- ------
Boulder Ventures, Ltd. 0000 Xxxxxx Xxxxxx 185,100
Xxxxx 000
Xxxxxxx, XX 00000
DLJ Diversified Partners, LP 2121 Avenue of the Stars 000,000
00xx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Boulder Ventures II, L.P. 0000 Xxxxxx Xxxxxx 000,000
Xxxxx 000
Xxxxxxx, XX 00000
