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EXHIBIT 99.2
VOTING AGREEMENT
This VOTING AGREEMENT (this "Voting Agreement") is entered into as of
this 11th day of April, 2001, by and among Xxxxxxx.xxx, Inc., a Delaware
corporation ("Company"), and those persons listed on Exhibit "A" hereto
(collectively, the "Shareholders"), and, for the purpose of enforcing its rights
under this Voting Agreement, Xxxxxxxxx.xxx, Inc. a Delaware corporation
("Acquiror").
WITNESSETH:
WHEREAS, the Company has entered into that certain Acquisition Agreement
of even date herewith (the "Agreement"; all capitalized terms used but not
defined herein shall have the meaning ascribed thereto in the Agreement),
pursuant to which the Company will merge with a wholly owned subsidiary of
Acquiror;
WHEREAS, each Shareholder owns the shares, or rights to acquire shares
of common stock of the Company (the "Company Common Stock") set forth on Exhibit
A hereto opposite their respective names;
WHEREAS, the Company and the Shareholders are entering into this Voting
Agreement in order to fulfill the obligations of the Company under the
Agreement;
WHEREAS, the Shareholders believe that the terms of this Voting
Agreement, and the transactions contemplated by the Agreement, are in the best
interests of both the Company and the Shareholders, and the Company and the
Shareholders will benefit substantially from the performance of the transactions
and obligations thereunder;
NOW, THEREFORE, as an inducement to Acquiror to enter into and to
perform its obligations under the Agreement, and in consideration of the
benefits to be realized by both the Company and the Shareholders from such
performance, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Voting. Each Shareholder agrees that he, she or it shall vote or
cause to be voted (or give a written consent with respect to) all of his, her,
or its shares of Company Common Stock in favor of the Agreement and all
transactions contemplated thereby.
2. Restrictions on Transfer of Company Common Stock. Each Shareholder
agrees that he, she, or it will not transfer, sell, assign, or otherwise dispose
of, in whole or in part, the shares of Company Common Stock or any rights to
purchase shares of Company Common Stock held by him, her, or it or any voting
rights therein on or prior
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to the earlier of the termination of the Agreement, the Effective Time or
September 30, 2001.
3. Termination. This Voting Agreement and the obligations contained
herein shall continue in effect for the period commencing on the date hereof and
ending at the earliest of (i) the Effective Time, (ii) the date, if any, upon
which the Agreement is terminated pursuant to the provisions of Section 7.1
thereof, (iii) September 30, 2001 or (iv) the date, if any, upon which the
Acquiror and all parties hereto mutually agree to terminate the obligations and
rights of the parties hereunder.
4. Miscellaneous.
(a) Additional Representations. Each Shareholder represents and
warrants that (i) he, she or it has the requisite power and authority to enter
into and perform this Voting Agreement; and (ii) the performance of this Voting
Agreement by such Shareholder will not require him, her or it to obtain the
consent, waiver or approval of any Person and will not violate, result in a
breach of or constitute a default under any statute, regulation, agreement,
judgment, consent, decree or restriction by which he, she or it is bound.
(b) No Limitation on Discretion as Director. This Agreement is
intended solely to apply to the exercise by each Shareholder in his or its
individual capacity of rights attaching to ownership of the Company Common
Stock, and nothing herein shall be deemed to apply to, or to limit in any manner
the discretion of the Shareholder with respect to, any action which may be taken
or omitted by him acting in his fiduciary capacity as a director of the Company.
(c) Severability. In the event that any provision of this Voting
Agreement, or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Voting Agreement will continue in full force and effect and the application
of such provision will be interpreted so as reasonably to effect the intent of
the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Voting Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of such void or unenforceable provision.
(d) Amendments and Modification. This Voting Agreement may not
be modified, mended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto. Notwithstanding
the foregoing, this Voting Agreement may not be amended without the written
consent of Acquiror.
(e) Equitable Relief. Each Shareholder agrees that if he, she,
or it fails to perform his, her or its obligations under this Voting Agreement
for any reason, then Acquiror shall be entitled to specific performance and
injunctive or other equitable relief,
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and each Shareholder hereby further agrees to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any
injunctive or other equitable relief. This provision is without prejudice to any
other rights that Acquiror may have against such Shareholder for any failure to
perform his, her or its obligations under this Agreement.
(f) Governing Law. This Voting Agreement shall be governed by
and construed in accordance with the laws of the State of California without
regard to principles of conflicts of law, except to the extent that the laws of
the State of Delaware govern the enforcement of voting agreements. Each of the
parties hereto irrevocably consents to the exclusive jurisdiction of any court
located in Orange County, California in connection with any matter based upon or
arising out of this Voting Agreement or the matters contemplated herein, agrees
that process may be served upon them in any manner authorized by the laws of the
State of California for such Persons and waives and covenants not to assert or
plead any objection which they might otherwise have to such jurisdiction and
such process.
(g) Entire Agreement. This Voting Agreement contains the entire
agreement and understanding of the parties hereto in respect of the subject
matter hereof, and supersedes all prior negotiations and understandings among
the parties with respect to such subject matters.
(h) Counterparts. This Voting Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
(i) Binding Effect. During the term of this Voting Agreement,
the rights and obligations of the parties hereto shall inure to the benefit of
and be binding upon the parties and all transferees, assigns, and successors of
the Shareholders with respect to shares of the Company Common Stock.
(j) Capacity. The Shareholders are executing this Voting
Agreement in their capacity as shareholders, and not in their capacity as
directors or officers, and, without limiting their obligations as shareholders,
nothing herein shall limit their actions or require any actions in any director
or officer capacity.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
as of the day and year first written above.
XXXXXXX.XXX, INC.
By:
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Its:
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XXXXXXXXX.XXX, INC.
By:
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Its:
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SHAREHOLDERS:
GEOCAPITAL
By:
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Its:
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TECHNOLOGY CROSSOVER VENTURES
By:
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Its:
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ONWARD INFORMATION
By:
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Its:
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XXXX XXXXXXX
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EXHIBIT A
Based on Information as of 1/31
Name of Shareholder Shares Owned
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Geocapital 3,416,842
Technology Crossover Ventures 2,715,323
Onword Information 1,864,863
Xxxx XxXxxxx 490,660
