EXHIBIT 10.1
VOTING AND WAIVER AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into as
of July 22, 2003, by and among NMP, Inc. ("Holdco"), XxxxxxXxxxx.xxx, Inc.
("Parent"), Pinnacor Inc. (the "Company"), CBS Broadcasting Inc. ("CBS") and
Xxxxxxx International Finance Ltd. ("PIFL" and together with CBS shall be
hereinafter referred to as a "Stockholder" and collectively, as the
"Stockholders"). All capitalized terms herein not otherwise defined shall have
the meaning ascribed to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement") by and among Holdco, Parent, the Company,
Maple Merger Sub, Inc., a direct wholly owned subsidiary of Holdco ("Parent
Merger Sub"), and Pine Merger Sub, Inc., a direct wholly owned subsidiary of
Holdco ("Company Merger Sub"), Parent Merger Sub is merging with and into
Parent (the "Parent Merger") and Company Merger Sub is merging with and into
the Company (the "Company Merger" and together with the Parent Merger, the
"Mergers") whereby after the Mergers each of Parent and the Company shall be
the surviving corporations of the Mergers and direct wholly owned subsidiaries
of Holdco;
WHEREAS, each Stockholder is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of shares of the outstanding common stock, $0.01 par value per share,
of Parent (the "Parent Common Stock") in the amounts indicated on the final
page of this Agreement (the "Shares");
WHEREAS, as a material inducement for Holdco and the Company to enter
into the Merger Agreement, each Stockholder agrees to, in accordance with the
terms hereof, vote such Stockholder's Shares, any and all other shares or
securities of Parent exchangeable prior to the Expiration Date for any Shares,
or any New Shares (as defined below) (collectively with respect to each
Stockholder, the "Securities") as set forth herein;
WHEREAS, certain rights and obligations of the Stockholders with
respect to Parent are set forth in a certain Stockholders' Agreement by and
among Parent, CBS, Data Broadcasting Corporation ("DBC"), and XxxxxxXxxxx.xxx
LLC ("MKTW LLC"), dated as of January 13, 1999 (the "Stockholders'
Agreement");
WHEREAS, certain registration rights and obligations of the
Stockholders with respect to Parent are set forth in a certain Registration
Rights Agreement by and among Parent, CBS and DBC, dated as of January 13,
1999 (the "Registration Rights Agreement");
WHEREAS, certain licensing rights and obligations of Parent are set
forth in a certain Amended and Restated License Agreement by and among CBS and
MKTW LLC, dated as of January 13, 1999 (the "License Agreement");
WHEREAS, MKTW LLC assigned and transferred to Parent all the rights
and obligations of MKTW LLC under the Stockholders' Agreement and License
Agreement;
WHEREAS, in January 2001, DBC sold its shares of Parent Common Stock
to PIFL and subsequently assigned and transferred to PIFL all the rights and
obligations of DBC under the Stockholders' Agreement; and
WHEREAS, each Stockholder hereto agrees to waive certain provisions
of the Stockholders' Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in contemplation of the foregoing and in
consideration of the mutual agreements, covenants, representations and
warranties contained herein and intending to be legally bound hereby, the
parties agree as follows:
1. Definitions.
1.1 As used herein, the term "Expiration Date" shall mean
the earliest to occur of (i) the Effective Time (as such terms is defined in
the Merger Agreement), (ii) the date on which the Merger Agreement is
terminated in accordance with its terms (including any extensions to the
Merger Agreement, as provided for therein), (iii) December 31, 2003, or (iv)
with respect to any Securities held by any Stockholder sold, transferred or
otherwise disposed of to any Person (as defined in the Merger Agreement) other
than, with respect to CBS, a controlled affiliate of Viacom Inc., and with
respect to PIFL, a controlled affiliate of Xxxxxxx plc, the time of
effectiveness of such sale, transfer or disposition (each, a "Disposition").
1.2 As used herein, the term "New Shares" shall mean any
shares or securities of the capital stock of Parent that a Stockholder
purchases or with respect to which such Stockholder otherwise acquires
beneficial ownership after the date of this Agreement and prior to the
Expiration Date, and any and all other shares or securities of Parent
exchangeable prior to the Expiration Date for any New Shares.
2. Agreement to Vote. Prior to the Expiration Date, at every
meeting of the stockholders of Parent called with respect to any of the
following, and at every postponement or adjournment thereof, and on every
action or approval by written consent of the stockholders of Parent with
respect to any of the following, each Stockholder agrees to vote such
Stockholder's Securities, and, to the extent applicable, cause holders of
record of such Stockholder's Securities to vote in favor of approval of the
Merger Agreement, the Parent Merger, the issuance of shares of Holdco Common
Stock in the Company Merger and the transactions contemplated thereby. Prior
to the Expiration Date, each Stockholder will not enter into any agreement or
understanding with any person or entity to vote or give instructions in any
manner inconsistent with this Section 2.
3. Proxy. Concurrent with the execution of this Agreement, each
Stockholder agrees to deliver to the Company a proxy in the form attached
hereto as Exhibit A (each, a "Proxy" and collectively, the "Proxies"), which
shall be irrevocable to the extent provided in Section 212 of the Delaware
General Corporation Law prior to the Expiration Date, covering the total
number of Securities beneficially owned or as to which beneficial ownership is
acquired (as such term is defined in Rule 13d-3 under the Exchange Act) by
such Stockholder. Each Proxy shall not be terminated prior to the Expiration
Date by any act of a Stockholder or by operation of law, including, without
limitation, the dissolution or liquidation of any corporation or partnership.
If between the execution hereof and the Expiration Date, any corporation or
partnership holding the Securities should be dissolved or liquidated, or if
any other such similar event or events shall occur before the Expiration Date,
certificates representing the Securities shall be delivered by or on behalf of
such Stockholder in accordance with the terms and conditions of this
Agreement, and actions taken by Holdco and the Company hereunder shall be as
valid as if such dissolution, liquidation or other similar event or events had
not occurred, regardless of whether or not Holdco or the Company has received
notice of such dissolution, liquidation or other event. For the avoidance of
doubt, upon the effectiveness of a Disposition whereby any portion of the
Securities of a Stockholder is sold, transferred or disposed of as permitted
herein, the Proxy of such Stockholder only with respect to that portion of the
Securities subject to the Disposition shall be deemed revoked.
4. Acknowledgement. The parties acknowledge and agree that
neither the Company, nor the successors, assigns, subsidiaries, divisions,
employees, officers, directors, stockholders, agents and affiliates of the
Company shall owe any duty to, whether in law or otherwise, or incur any
liability of any kind whatsoever, including without limitation, with respect to
any and all claims, losses, demands, causes of action, costs, expenses
(including reasonable attorney's fees) and compensation of any kind or nature
whatsoever to a Stockholder in connection with or as a result of any voting (or
refrain from voting) by the Company of the Securities subject to the Proxies
hereby granted to the Company at any annual, special or other meeting or action
of the stockholders of Parent, or the execution of any consent of the
stockholders of Parent, so long as any such voting, consent or other action is
taken in accordance with the terms and conditions of this Agreement. The
parties acknowledge that, pursuant to the authority hereby granted under the
Proxies, the Company may, in accordance with the terms of the Proxies, vote
the Securities in furtherance of its own interests, and the Company is not
acting as a fiduciary for the Stockholders; provided however that the Company
shall vote the Securities in accordance with Section 2.
5. Representations, Warranties and Covenants of Stockholder.
Each Stockholder hereby represents, warrants and covenants to Holdco and the
Company that:
5.1 Ownership. The Stockholder has good and valid title
to, and, together with its affiliates reflected on its Schedule 13D and
amendments thereto as filed with the SEC, is the sole legal and beneficial
owner of the Shares which have not been subject to a Disposition, in each case
free and clear of all Liens (other than as reflected in such Schedule 13D and
amendments thereto as filed with the SEC). As of the date hereof, such
Stockholder does not beneficially own any shares or securities of the capital
stock of the Company other than such Stockholder's Shares.
5.2 Authorization. The Stockholder has all requisite power
and authority to execute and deliver this Agreement and the Proxy of such
Stockholder and to consummate the transactions contemplated hereby and thereby
and, together with its affiliates reflected on its Schedule 13D and amendments
thereto as filed with the SEC, has sole voting power and sole power of
disposition (other than under applicable law and as reflected in such Schedule
13D and amendments thereto as filed with the SEC) with respect to all of the
Shares with no restrictions on its voting rights or rights of disposition
pertaining thereto (other than under applicable law and as reflected in such
Schedule 13D and amendments thereto as filed with the SEC). The Stockholder
has duly executed and delivered this Agreement and, assuming the due execution
and delivery by the other parties hereto, this Agreement is a legal, valid and
binding agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
5.3 No Violation. To the Stockholder's knowledge, neither
the execution, delivery and performance of this Agreement or the Proxy nor the
consummation of the transactions contemplated hereby and thereby will (i)
require the Stockholder to file or register with, or obtain any material
permit, authorization, consent or approval of, any Governmental or Regulatory
Entity (as defined in the Merger Agreement), or any other entity (other than
the filing of a Schedule 13D, Schedule 13G or amendment thereto, if applicable
and the filings and/or notices under the HSR Act (as defined in the Merger
Agreement)); or (ii) violate, or cause a breach of or default (or an event
which with notice or the lapse of time or both would become a default) under,
any contract, agreement or understanding, any statute or law, or any judgment,
decree, order, regulation or rule of any Governmental or Regulatory Entity, or
any other entity or any arbitration award binding upon the Stockholder, except
in each case as would not materially impair or delay the performance of such
Stockholder's obligations hereunder. No proceedings are pending against such
Stockholder which, if adversely determined, will have a material adverse
effect on such Stockholder's ability to vote any of the Shares.
6. Representations, Warranties and Covenants of the Company. The
Company hereby represents, warrants and covenants to the Stockholders that:
6.1 Authorization. The Company has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The Company has duly executed and delivered
this Agreement and, assuming the due execution and delivery by the other
parties hereto, this Agreement is a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
6.2 No Violation. To the Company's knowledge, the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not (i) require the Company to file or
register with, or obtain any material permit, authorization, consent or
approval of, any Governmental or Regulatory Entity (as defined in the Merger
Agreement), or any other entity (other than the filing of a Schedule 13D,
Schedule 13G or amendment thereto, if applicable and the filings and/or
notices under the HSR Act); or (ii) violate, or cause a breach of or default
(or an event which with notice or the lapse of time or both would become a
default) under, any contract, agreement or understanding, any statute or law,
or any judgment, decree, order, regulation or rule of any Governmental or
Regulatory Entity, or any other entity or any arbitration award binding upon
the Company, except in each case as would not materially impair or delay the
performance of the Company's obligations hereunder.
7. Termination. This Agreement and the Proxies delivered in
connection herewith, including all representations, warranties and covenants
set forth herein and therein, shall terminate and shall have no further force
or effect as of the Expiration Date; provided that nothing herein shall
relieve any party from liability hereof for breaches of this Agreement and/or
the Proxies prior to the Expiration Date.
8. Other Agreements.
8.1 Participation Rights. Solely for purposes of this
Agreement, each Stockholder hereby acknowledges and agrees that the Mergers
and the transactions contemplated by the Merger Agreement and the other
agreements referred to in the Merger Agreement shall not be deemed to trigger
any of the participation rights of the Stockholders set forth in Section 9.1
of the Stockholders' Agreement and each Stockholder hereby irrevocably waives
any and all participation rights the Stockholders may have pursuant to Section
9.1 of the Stockholders' Agreement in connection with the Mergers and the
transactions contemplated by the Merger Agreement and the other agreements
referred to in the Merger Agreement.
8.2 Right of First Refusal. Solely for purposes of this
Agreement, each Stockholder hereby agrees and acknowledges that the conversion
of Parent Common Stock (as defined in the Merger Agreement) set forth in
Section 2.11(c) of the Merger Agreement in connection with the Parent Merger,
whereby the issued and outstanding shares of Parent Common Stock held by such
Stockholder shall be converted into a right to receive shares of Holdco Common
Stock, shall not be deemed a "Transfer" for purposes of, and shall not trigger
any right of first refusal pursuant to, Section 8 of the Stockholders'
Agreement.
8.3 Full Force and Effect. Except as expressly provided in
this Section 8, each of the parties hereto acknowledges, agrees, represents
and warrants that the Stockholders' Agreement and the Registration Rights
Agreement shall remain in full force and effect (other than provisions of the
Stockholders' Agreement and the Registration Rights Agreement that shall have
expired or otherwise are no longer in force and effect in accordance with
their terms and conditions). Effective as of the Effective Time, all
references to Parent in the Stockholders' Agreement and the Registration
Rights Agreement shall be deemed to be a reference to Holdco and the
provisions of the Stockholders' Agreement and the Registration Rights
Agreement shall inure to the benefit of, and shall be binding upon, Holdco.
For the avoidance of doubt, each of the parties hereto acknowledges, agrees,
represents and warrants that, effective as of the Effective Time, Holdco shall
be deemed to be the successor-in-interest to Parent, and Parent shall assign
and transfer to Holdco, and Holdco shall accept the assignment and transfer
of, all of the rights and obligations of Parent under the Stockholders'
Agreement and the Registration Rights Agreement.
8.4 License Agreement. Holdco and Parent hereby
acknowledge, agree, represent and warrant that the Parent Merger and the
transactions contemplated by the Merger Agreement and the other agreements
referred to in the Merger Agreement shall not affect the rights and obligations
of the parties to the License Agreement, including, without limitation, the
Holdco affiliate party to the License Agreement being a wholly owned and
controlled subsidiary of Holdco.
8.5 HSR Condition. Holdco, Parent and the Company agree
that prior to the consummation of the Mergers, any waiting period (and any
extension thereof) or approvals applicable to the consummation of the Mergers
under the HSR Act or any foreign antitrust or combination law or material
filings, consents, approvals and authorizations legally required to be
obtained to consummate the Mergers shall have expired, been terminated or
obtained, as applicable. Any and all filing fees incurred by any Stockholder
in connection with making such filings or obtaining such consents, approvals
or authorizations shall be promptly reimbursed by Parent.
9. Miscellaneous.
9.1 Waiver. No waiver by any party hereto of any condition
or any breach of any term or provision set forth in this Agreement shall be
effective unless in writing and signed by each party hereto. The waiver of a
condition or any breach of any term or provision of this Agreement shall not
operate as or be construed to be a waiver of any other previous or subsequent
breach of any term or provision of this Agreement.
9.2 Severability. In the event that any term, provision,
covenant or restriction set forth in this Agreement, or the application of any
such term, provision, covenant or restriction to any person, entity or set of
circumstances, shall be determined by a court of competent jurisdiction to be
invalid, unlawful, void or unenforceable to any extent, the remainder of the
terms, provisions, covenants and restrictions set forth in this Agreement, and
the application of such terms, provisions, covenants and restrictions to
persons, entities or circumstances other than those as to which it is
determined to be invalid, unlawful, void or unenforceable, shall remain in
full force and effect, shall not be impaired, invalidated or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by applicable law.
9.3 Binding Effect and Assignment. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor
any of the rights, interests or obligations of the parties hereto may be
assigned by either of the parties without the prior written consent of the
other. This Agreement shall be binding upon and inure solely to the benefit of
each party hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement. For the
avoidance of doubt, with respect to any portion of the Securities of a
Stockholder sold, transferred or disposed of as permitted herein, upon the
effectiveness of such Disposition, that portion of the Securities subject to
such Disposition shall be free and clear of any obligations hereunder.
9.4 Amendment and Modification. This Agreement may not be
modified, amended, altered or supplemented except by the execution and
delivery of a written agreement executed by the parties hereto.
9.5 Governing Law. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the internal laws of
the State of Delaware without giving effect to any choice or conflict of law
provision, rule or principle (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.
9.6 Jurisdiction. The parties to this Agreement agree that
any suit, action or proceeding arising out of, or with respect to, this
Agreement or the Proxies, or any judgment entered by any court in respect
thereof shall be brought in the federal courts located in the Borough of
Manhattan, The City of New York, or, failing jurisdiction thereof, the state
courts located therein, and each Stockholder hereby accepts the exclusive
jurisdiction of those courts for the purpose of any suit, action or
proceeding. In addition, each Stockholder hereby irrevocably waives, to the
fullest extent permitted by law, any objection which such Stockholder may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or such Stockholder's Proxy or
any judgment entered by those courts, and hereby further irrevocably waives
any claim that any suit, action or proceedings brought in those courts has
been brought in an inconvenient forum.
9.7 Entire Agreement. This Agreement and the Proxies
contain the entire understanding of the parties in respect of the subject matter
hereof, and supersede all prior negotiations and understandings between the
parties with respect to the subject matters hereof and thereof.
9.8 Notices. All notices and other communications pursuant
to this Agreement shall be in writing and deemed to be sufficient if contained
in a written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to
the parties at the following address (or at such other address for a party as
shall be specified by like notice):
If to Holdco or Parent: XxxxxxXxxxx.xxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to the Company: Pinnacor Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to the Stockholder: To the address for notice
set forth on the
signature page hereof.
9.9 Waiver of Jury Trial. Each party hereto irrevocably
waives any and all right to trial by jury in any legal proceeding arising out
of or related to this Agreement, the Proxy or the transactions contemplated
hereby and thereby.
9.10 Specific Performance, Injunctive Relief. Each of the
parties hereto hereby acknowledges that (i) the representations, warranties,
covenants and restrictions set forth in this Agreement are necessary,
fundamental and required for the protection of the Company and to preserve for
the Company the benefits of the Mergers; (ii) such covenants relate to matters
which are of a special, unique, and extraordinary character that gives each
such representation, warranty, covenant and restriction a special, unique and
extraordinary value; and (iii) a breach of any such representation, warranty,
covenant or restriction, or any other term or provision of this Agreement,
will result in irreparable harm and damages to the Company that cannot be
adequately compensated by a monetary award. Accordingly, Holdco, Parent and
each Stockholder hereby expressly agree that in addition to all other remedies
available at law or in equity, the Company shall be entitled to the immediate
remedy of specific performance, a temporary and/or permanent restraining
order, preliminary injunction, or such other form of injunctive or equitable
relief as may be used by any court of competent jurisdiction to restrain or
enjoin any of the parties hereto from breaching any representations,
warranties, covenants or restrictions set forth in this Agreement, or to
specifically enforce the terms and provisions hereof.
9.11 Counterparts. This Agreement may be executed in any
number of counterparts and delivered by facsimile, each of which when so
executed and delivered shall be deemed an original, but all of which together
shall constitute but one and the same instrument and the delivering party
covenants and agrees that an original will be sent immediately thereafter in
accordance with Section 9.8.
9.12 Effect of Headings. The section headings herein are
for convenience only and shall not affect the construction or interpretation of
this Agreement.
9.13 No Limitation on Actions of the Stockholder as
Director. Notwithstanding anything to the contrary in this Agreement, in the
event a representative (the "Representative") of a Stockholder is a director
of Parent, nothing in this Agreement is intended or shall be construed to
require the Representative, in the Representative's capacity as a director of
the Company, to act or fail to act in accordance with the Representative's
fiduciary duties in such capacity.
9.14 Disclosure. With respect to disclosure about a
Stockholder, each Stockholder hereby authorizes the Company to publish or
disclose in a Schedule 13D only its identity and the terms and conditions of
this Agreement and such Stockholder's Proxy, including the filing of an
accurate and complete copy of this Agreement and such Stockholder's Proxy as
exhibits to the Schedule 13D (provided, however, that 24 hours prior to making
such filing, Company shall provide a copy of such Schedule 13D to Stockholder
for such Stockholder's review, provided that the Company shall have no
obligations to make changes proposed by such Stockholder). The Company hereby
agrees that it shall not publish or disclose in any report filed with the SEC
any information relating to any Stockholder, other than as specifically
permitted herein, including, without limitation, any additional information in
the Schedule 13D not specifically permitted herein, without the prior written
consent of such Stockholder, which consent shall not be unreasonably withheld
or delayed.
9.15 Legend on Share Certificates. Each certificate
representing any Securities shall be endorsed by the Company with a legend
reading substantially as follows:
"The right to vote the shares represented by this
certificate is subject to certain restrictions set forth in
a voting agreement, a copy of which is on file at the
corporation's principal place of business."
It being understood and agreed that the legend set forth above shall
be removed by delivery of substitute certificates without such legend upon
termination of this Agreement.
9.16 Proxy. The terms and conditions set forth in this
Section 9 shall also apply to the Proxies, as if references to the Agreement
in this Section 9 were references to the Proxies.
[Remainder of the Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to
be duly executed on the day and year first above written.
HOLDCO:
By: /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
Title: CEO
PARENT:
By: /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
Title: CEO
COMPANY:
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: CFO
CBS:
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
Stockholder's Address for Notice:
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to General Counsel
Shares beneficially owned:
5,636,814 shares of the Company Common Stock
PIFL:
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: General Counsel
Stockholder's Address for Notice:
00 Xxxxxx
Xxxxxx XX0X CRL
Shares beneficially owned:
5,636,814 shares of the Company Common Stock
EXHIBIT A
PROXY TO VOTE STOCK OF THE COMPANY
The undersigned stockholder of XxxxxxXxxxx.xxx, Inc. ("Parent"),
hereby irrevocably (to the full extent permitted by Section 212 of the
Delaware General Corporation Law, except as provided below) appoints, until
the Expiration Date (as defined below), Xxxx Xxxxxxx and Xxxxx Xxxxxxx of
Pinnacor Inc. (the "Company"), and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the
full extent that the undersigned is entitled to do so) with respect to all of
the shares of capital stock of Parent that now are or hereafter may be
beneficially owned by the undersigned, and any and all other shares or
securities of Parent exchangeable therefor on or after the date hereof and
prior to the Expiration Date (collectively, the "Securities") in accordance
with the terms of this Proxy. The Securities beneficially owned by the
undersigned stockholder of Parent as of the date of this Proxy are listed on
the final page of this Proxy. Upon the undersigned's execution of this Proxy,
any and all prior proxies for the Securities given by the undersigned with
respect to any Voting Matters (as defined below) are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect thereto
until after the Expiration Date.
This Proxy is irrevocable (to the extent provided in Section 212 of
the Delaware General Corporation Law), is coupled with an interest and is
granted pursuant to that certain Voting Agreement dated as of July 22, 2003,
by and among NMP, Inc., a Delaware corporation ("Holdco"), Parent, the Company
and the undersigned stockholder of Parent (the "Voting Agreement"), and is
granted in consideration of the Company entering into that certain Agreement
and Plan of Merger dated as of the date hereof (the "Merger Agreement") by and
among Parent, Holdco, the Company, Maple Merger Sub, Inc., a direct wholly
owned subsidiary of Holdco, and Pine Merger Sub Inc., a direct wholly owned
subsidiary of Holdco. As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) the Effective Time (as such terms is defined in
the Merger Agreement), (ii) the date on which the Merger Agreement is
terminated in accordance with its terms (including any extensions to the
Merger Agreement, as provided for therein), (iii) December 31, 2003, (iv) with
respect to any Securities held by any Stockholder sold, transferred or
otherwise disposed of to any Person (as defined in the Merger Agreement) other
than, with respect to CBS Broadcasting Inc., a controlled affiliate of Viacom
Inc., and with respect to Xxxxxxx International Finance Ltd., a controlled
affiliate of Xxxxxxx plc, the time of effectiveness of such sale, transfer or
disposition (each, a "Disposition"), or (v) the date on which the Voting
Agreement is terminated.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Securities, and to exercise all voting and other rights of the undersigned
with respect to the Securities (including, without limitation, the power to
execute and deliver written consents pursuant to Section 228 of the Delaware
General Corporation Law), at every annual, special or other meeting or action
of the stockholders of Parent, as applicable, or at any postponement or
adjournment thereof and in every written consent in lieu of such meeting in
favor of approval of the Merger Agreement, the Parent Merger (as defined in
the Merger Agreement), the issuance of shares of Holdco Common Stock in the
Company Merger (as defined in the Merger Agreement) and the transactions
contemplated thereby (collectively, the "Voting Matters"). For the avoidance
of doubt, upon the effectiveness of a Disposition whereby any portion of the
Securities of a Stockholder is sold, transferred or disposed of as permitted
in the Voting Agreement, the Proxy of such Stockholder only with respect to
that portion of the Securities subject to the Disposition shall be deemed
revoked.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned stockholder may
vote the Securities on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the extent provided in Section 212 of
the Delaware General Corporation Law). This Proxy shall terminate, and be of
no further force and effect, automatically upon the Expiration Date.
Dated: July 22, 2003
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
(Signature of Stockholder)
CBS Broadcasting Inc.
Xxxxxxx X. Xxxxxxxx
Senior Executive Vice President
(Print Name of Stockholder)
Shares beneficially owned:
5,636,814 shares of Parent Common Stock
EXHIBIT A
PROXY TO VOTE STOCK OF THE COMPANY
The undersigned stockholder of XxxxxxXxxxx.xxx, Inc. ("Parent"),
hereby irrevocably (to the full extent permitted by Section 212 of the
Delaware General Corporation Law, except as provided below) appoints, until
the Expiration Date (as defined below), Xxxx Xxxxxxx and Xxxxx Xxxxxxx of
Pinnacor Inc. (the "Company"), and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the
full extent that the undersigned is entitled to do so) with respect to all of
the shares of capital stock of Parent that now are or hereafter may be
beneficially owned by the undersigned, and any and all other shares or
securities of Parent exchangeable therefor on or after the date hereof and
prior to the Expiration Date (collectively, the "Securities") in accordance
with the terms of this Proxy. The Securities beneficially owned by the
undersigned stockholder of Parent as of the date of this Proxy are listed on
the final page of this Proxy. Upon the undersigned's execution of this Proxy,
any and all prior proxies for the Securities given by the undersigned with
respect to any Voting Matters (as defined below) are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect thereto
until after the Expiration Date.
This Proxy is irrevocable (to the extent provided in Section 212 of
the Delaware General Corporation Law), is coupled with an interest and is
granted pursuant to that certain Voting Agreement dated as of July 22, 2003,
by and among NMP, Inc., a Delaware corporation ("Holdco"), Parent, the Company
and the undersigned stockholder of Parent (the "Voting Agreement"), and is
granted in consideration of the Company entering into that certain Agreement
and Plan of Merger dated as of the date hereof (the "Merger Agreement") by and
among Parent, Holdco, the Company, Maple Merger Sub, Inc., a direct wholly
owned subsidiary of Holdco, and Pine Merger Sub Inc., a direct wholly owned
subsidiary of Holdco. As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) the Effective Time (as such terms is defined in
the Merger Agreement), (ii) the date on which the Merger Agreement is
terminated in accordance with its terms (including any extensions to the
Merger Agreement, as provided for therein), (iii) December 31, 2003, (iv) with
respect to any Securities held by any Stockholder sold, transferred or
otherwise disposed of to any Person (as defined in the Merger Agreement) other
than, with respect to CBS Broadcasting Inc., a controlled affiliate of Viacom
Inc., and with respect to Xxxxxxx International Finance Ltd., a controlled
affiliate of Xxxxxxx plc, the time of effectiveness of such sale, transfer or
disposition (each, a "Disposition"), or (v) the date on which the Voting
Agreement is terminated.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Securities, and to exercise all voting and other rights of the undersigned
with respect to the Securities (including, without limitation, the power to
execute and deliver written consents pursuant to Section 228 of the Delaware
General Corporation Law), at every annual, special or other meeting or action
of the stockholders of Parent, as applicable, or at any postponement or
adjournment thereof and in every written consent in lieu of such meeting in
favor of approval of the Merger Agreement, the Parent Merger (as defined in
the Merger Agreement), the issuance of shares of Holdco Common Stock in the
Company Merger (as defined in the Merger Agreement) and the transactions
contemplated thereby (collectively, the "Voting Matters"). For the avoidance
of doubt, upon the effectiveness of a Disposition whereby any portion of the
Securities of a Stockholder is sold, transferred or disposed of as permitted
in the Voting Agreement, the Proxy of such Stockholder only with respect to
that portion of the Securities subject to the Disposition shall be deemed
revoked.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned stockholder may
vote the Securities on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the extent provided in Section 212 of
the Delaware General Corporation Law). This Proxy shall terminate, and be of
no further force and effect, automatically upon the Expiration Date.
Dated: July 22, 2003
/s/ Xxxx X. Xxxxx
---------------------------------
(Signature of Stockholder)
Xxxx X. Xxxxx on behalf of
Pearson International Finance Limited.
(Print Name of Stockholder)
Shares beneficially owned:
5,636,814 shares of Parent Common Stock
