VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into as of March 31, 1999 (this
"VOTING AGREEMENT"), by and between Yahoo! Inc., a California corporation
("PARENT"), and the stockholders of ▇▇▇▇▇▇▇▇▇.▇▇▇ inc., a Delaware corporation
("COMPANY"), identified on the signature page hereto (each a "STOCKHOLDER" and,
collectively, the "STOCKHOLDERS").
RECITALS
A. Parent, Alamo Acquisition Corp., a Delaware corporation and a newly
formed wholly owned direct subsidiary of Parent ("MERGER SUB"), and Company have
contemporaneously with the execution of this Voting Agreement entered into an
Agreement and Plan of Merger dated as of March 31, 1999 (the "MERGER AGREEMENT")
which provides, among other things, that Merger Sub shall be merged (the
"MERGER") with and into Company pursuant to the terms and conditions thereof;
B. As an essential condition and inducement to Parent to enter into the
Merger Agreement and in consideration therefor, the Stockholders and Parent have
agreed to enter into this Voting Agreement; and
C. As of the date hereof, each Stockholder owns of record and beneficially
the shares of common stock, par value $0.01 per share, of Company ("COMPANY
COMMON STOCK") set forth on the signature page hereto and desires to enter into
this Voting Agreement with respect to such shares of Company Common Stock;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein and in the Merger Agreement, the parties hereto
agree as follows:
ARTICLE I
1. VOTING OF SHARES.
1.1 VOTING AGREEMENT. Each Stockholder hereby agrees to (a) appear, or
cause the holder of record on any applicable record date (the "RECORD HOLDER")
to appear for the purpose of obtaining a quorum at any annual or special meeting
of stockholders of Company and at any adjournment thereof at which matters
relating to the Merger, the Merger Agreement or any transaction contemplated
thereby are considered and (b) vote, or cause the Record Holder to vote, in
person or by proxy, all of the shares of Company Common Stock owned by such
Stockholder, or with respect to which such Stockholder has or shares voting
power or control, and all of the shares of Company Common Stock which shall, or
with respect to which voting power or control shall, hereafter be acquired by
such Stockholder (collectively, the "SHARES") in favor of the Merger, the Merger
Agreement and the transactions contemplated by the Merger Agreement. In the
event written consents are solicited or otherwise sought from stockholders of
Company with respect to approval or adoption of the Merger Agreement, with
respect to the approval of the Merger or with respect to any of the other
actions contemplated by the Merger Agreement, each Stockholder shall (unless
otherwise directed by Parent) execute, or cause the Record Holder to execute,
with respect to all Shares a written consent or written consents to such
proposed action.
1.2 GRANT OF PROXY. In furtherance of the foregoing, each Stockholder, by
this Agreement, with respect to all Shares now owned of record or that may
hereafter be acquired by such Stockholder at anytime prior to the Effective
Time, does hereby constitute and appoint Parent and Merger Sub, or any nominee
of Parent and Merger Sub, with full power of substitution, from the date hereof
to the earlier to occur of the termination of this Voting Agreement or the
Effective Time, as its true and lawful attorney and proxy (its "PROXY"), for and
in its name, place and stead, to demand that the Secretary of Company call a
special meeting of stockholders of Company for the purpose of considering any
action related to the Merger Agreement and to vote each of such Shares as its
Proxy at every annual, special or adjourned meeting of stockholders of Company,
including the right to sign its name (as stockholder) to any consent,
certificate or other document relating to Company that the law of the State of
Delaware may permit or require, in favor of the Merger, the Merger Agreement and
the transactions contemplated by the Merger Agreement. This Proxy and power of
attorney is irrevocable to the fullest extent permitted by the law of the State
of Delaware and is coupled with an interest.
1.3 FURTHER ASSURANCES. Each Stockholder shall perform such further acts
and execute such further documents and instruments as may reasonably be required
to vest in Parent and Merger Sub the power to carry out and give effect to the
provisions of this Voting Agreement.
1.4 NO OWNERSHIP INTEREST. Nothing contained in this Voting Agreement
shall be deemed to vest in Parent any direct or indirect ownership or incidence
of ownership of or with respect to any Shares. All rights, ownership and
economic benefits of and relating to the Shares shall remain and belong to the
Stockholders, and Parent shall have no authority to manage, direct, superintend,
restrict, regulate, govern, or administer any of the policies or operations of
Company or exercise any power or authority to direct the Stockholders in the
voting of any of the Shares, except as otherwise provided herein, or the
performance of any Stockholder's duties or responsibilities as a stockholder of
Company.
1.5 DOCUMENTS DELIVERED. Each Stockholder acknowledges receipt of copies
of the following documents:
(a) the Merger Agreement and all Exhibits and Schedules thereto; and
(b) each report filed with the Securities and Exchange Commission (the
"SEC") by the Parent on Forms 10-K, 8-K and 10-Q since August 1, 1998 and
the preliminary proxy statement filed by GeoCities with the SEC on February
26, 1999.
1.6 NO INCONSISTENT AGREEMENTS. Each Stockholder hereby covenants and
agrees that, except as contemplated by this Voting Agreement and the Merger
Agreement, such Stockholder (a) has not entered, and shall not enter at any time
while this Voting Agreement remains in effect, into any voting agreement
relating to the subject matter hereof and (b) has not granted, and shall not
grant at any time while this Voting Agreement remains in effect, a proxy or
power of attorney, in either case which is inconsistent with this Voting
Agreement.
ARTICLE II
2. RESTRICTIONS ON TRANSFER.
(a) Each Stockholder hereby covenants and agrees that such Stockholder will
not, prior to the termination of this Voting Agreement, either directly or
indirectly, sell, assign, pledge, hypothecate, transfer, exchange, or dispose
("TRANSFER") of any Shares or options to purchase Company Common Stock
("OPTIONS") or any other securities or rights convertible into or exchangeable
for shares of Company Common Stock, owned either directly or indirectly by such
Stockholder or with respect to which such Stockholder has the power of
disposition, whether now or hereafter acquired, without the prior written
consent of Parent; PROVIDED that nothing contained herein will be deemed to
restrict the exercise of Options; and PROVIDED FURTHER that the foregoing
requirements shall not prohibit any Transfer to any person or entity where as a
pre-condition to such Transfer the transferee agrees to be bound by all of the
terms and conditions of this Voting Agreement and delivers a duly executed copy
of this Voting Agreement to Parent to evidence such agreement.
(b) Each Stockholder hereby agrees and consents to the entry of stop
transfer instructions by Company against the transfer of any Shares consistent
with the terms of Section 2.1(a) hereof.
ARTICLE III
3. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Each Stockholder hereby
represents and warrants to Parent as follows:
3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Stockholder is competent to
execute and deliver this Voting Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This
Voting Agreement has been duly and validly executed and delivered by
Stockholder and, assuming the due authorization, execution and delivery by
Parent, constitutes a legal,
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valid and binding obligation of Stockholder, enforceable against Stockholder
in accordance with its terms.
3.2 NO CONFLICT. The execution and delivery of this Voting Agreement
by Stockholder does not, and the performance of this Voting Agreement by
Stockholder shall not, result in any breach of or constitute a default (or
an event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of a lien or encumbrance, on
any of the Shares or Options pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Stockholder is a party or by which
Stockholder or the Shares or Options are bound or affected.
3.3 TITLE TO THE SHARES. The Shares and Options held by Stockholder
are owned free and clear of all security interests, liens, claims, pledges,
options, rights of first refusal, agreements, limitations on Stockholder's
voting rights, charges and other encumbrances of any nature that would
adversely affect the exercise or fulfillment of the rights and obligations
of the parties to this Voting Agreement, and Stockholder has not appointed
or granted any proxy, which appointment or grant remains effective, with
respect to the Shares (other than under this Voting Agreement).
3.4 SCOPE OF REPRESENTATIONS. Parent acknowledges that the
representations made in this Article III are made by each Stockholder only
as to himself or itself, as the case may be.
ARTICLE IV
4. MISCELLANEOUS.
4.1 NO SOLICITATION. From the date hereof until the Effective Time or, if
earlier, the termination of the Merger Agreement, no Stockholder shall (whether
directly or indirectly through advisors, agents or other intermediaries) (a)
solicit, initiate or encourage any Acquisition Proposal or (b) engage in
discussions or negotiations with, or disclose any non-public information
relating to Company or its subsidiaries to any person that has made an
Acquisition Proposal or has advised Stockholder, or to its knowledge, Company or
any other stockholder of Company, that such person is interested in making an
Acquisition Proposal.
4.2 TERMINATION. This Agreement shall terminate upon the earliest to occur
of (a) the termination of the Merger Agreement in accordance with its terms or
(b) the Effective Time. Upon such termination, no party shall have any further
obligations or liabilities hereunder, PROVIDED that no such termination shall
relieve any party from liability for any breach of this Voting Agreement prior
to such termination.
4.3 ENFORCEMENT OF AGREEMENT. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Voting
Agreement were not performed in accordance with its specified terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Voting Agreement and
to specific performance of the terms and provisions hereof in addition to any
other remedy to which they are entitled at law or in equity.
4.4 SUCCESSORS AND AFFILIATES. This Voting Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
heirs, legal representatives and permitted assigns. If any Stockholder shall at
any time hereafter acquire ownership of, or voting power with respect to, any
additional Shares in any manner, whether by the exercise of any Options or any
securities or rights convertible into or exchangeable for shares of Company
Common Stock, by operation of law or otherwise, such Shares shall be held
subject to all of the terms and provisions of this Voting Agreement. Without
limiting the foregoing, each Stockholder specifically agrees that the
obligations of such Stockholder hereunder shall not be terminated by operation
of law, whether by death or incapacity of such Stockholder or otherwise.
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4.5 ENTIRE AGREEMENT. This Voting Agreement, together with the Company
Affiliates Agreements, in the form attached as EXHIBIT B to the Merger
Agreement, constitutes the entire agreement among Parent and the Stockholders
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, among Parent and the Stockholders
with respect to the subject matter hereof.
4.6 CAPTIONS AND COUNTERPARTS. The captions in this Voting Agreement are
for convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Voting Agreement. This
Voting Agreement may be executed in several counterparts, each of which shall
constitute one and the same instrument.
4.7 AMENDMENT. This Voting Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
4.8 WAIVERS. Except as provided in this Voting Agreement, no action taken
pursuant to this Voting Agreement, including without limitation any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Voting Agreement. The
waiver by any party hereto of a breach of any provision hereunder shall not
operate or be construed as a wavier of any prior or subsequent breach of the
same or any other provision hereunder.
4.9 SEVERABILITY. If any term or other provision of this Voting Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Voting 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 Voting Agreement so
as to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in a mutually acceptable manner in
order that the terms of this Voting Agreement remain as originally contemplated
to the fullest extent possible.
4.10 NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
and shall be effective upon receipt, if delivered personally, upon receipt of a
transmission confirmation if sent by facsimile (with a confirming copy sent by
overnight courier) and on the next business day if sent by Federal Express,
United Parcel Service, Express Mail or other reputable overnight courier to the
parties at the following addresses (or at such other address for a party as
shall be specified by notice):
If to a Stockholder: At the address set forth opposite such
Stockholder's name on the signature page hereto
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Parent or Merger Sub: Yahoo! Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy at the same address to the attention of the General Counsel and
Secretary and with a copy to:
Venture Law Group
A Professional Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
4.11 GOVERNING LAW. This Voting 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.
4.12 DEFINITIONS. Capitalized terms used and not defined herein shall have
the meaning set forth in the Merger Agreement.
4.13 OFFICERS AND DIRECTORS. No person who is or becomes (during the term
hereof) a director or officer of Company makes any agreement or understanding
herein in his or her capacity as such director or officer, and nothing herein
will limit or affect, or give rise to any liability to any Stockholder by virtue
of, any actions taken by such Stockholder in his or her capacity as an officer
or director of Company in exercising its rights under the Merger Agreement.
4.14 INTERPRETATION. The parties have participated jointly in the
negotiation of this Voting Agreement. In the event that an ambiguity or question
of intent or interpretation arises, this Voting Agreement shall be construed as
if drafted jointly by the parties, and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of the
provisions of this Voting Agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
YAHOO! INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: CEO
---------------------------------
STOCKHOLDER
Motorola, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Executive Vice President and
Chief Financial Officer,
Corporate Finance
---------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------
Attn: Chief Financial Officer
-------------------------------
Number of Shares of Company
Common Stock owned: 2,328,512
------------------
Number of Shares of Company
Common Stock as to which options
issued to Stockholder are
exercisable: 27,300 (7,500 of which
are vested)*
------------------------------
* The options were granted to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a Director of the Company
and an officer of Motorola. Pursuant to an agreement between Mr, ▇▇▇▇▇ and
Motorola, dated March 27, 1998, ▇▇. ▇▇▇▇▇ can exercise his options at the
sole discretion and for the benfit of Motorola.
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STOCKHOLDER
/s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Address: 2914 ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------
Number of Shares of Company
Common Stock owned: 4,921,200
------------------
Number of Shares of Company
Common Stock as to which options
issued to Stockholder are
exercisable: 282,960
------------------------------
STOCKHOLDER
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Address: 2914 ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------
Number of Shares of Company
Common Stock owned: 9,249,480
----------------------------------------
Number of Shares of Company
Common Stock as to which options
issued to Stockholder are
exercisable: 345,600
----------------------------------------
**** VOTING AGREEMENT ****
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