EXHIBIT 2
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (the "Stockholder Agreement"), dated December 12,
1999, is by and between USWeb Corporation, a Delaware corporation (the
"Company"), and the undersigned stockholder ("Stockholder") of Xxxxxxxx-Xxxx,
Inc., a Delaware corporation ("Parent").
RECITALS
A. WHEREAS, concurrent with the execution of this Stockholder Agreement,
Parent, the Company and Merger Sub, a Delaware corporation and a wholly owned
subsidiary of Parent, have entered into an Agreement and Plan of Merger, dated
of even date herewith (as amended from time to time, the "Merger Agreement"),
pursuant to which Merger Sub will be merged with and into the Company, with the
Company continuing as the surviving corporation and as a direct wholly owned
subsidiary of Parent (the "Merger").
B. WHEREAS, the Stockholder owns shares, par value $0.001 per share, of
common stock of Parent (the "Shares") in the amounts set forth opposite the
Stockholder's name and signature on the signature page hereof.
C. WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, the Company desires that the Stockholder agree, and the Stockholder
is willing to agree, to enter into this Stockholder Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Certain Definitions. In addition to the terms defined elsewhere
herein, capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement. For purposes of this
Stockholder Agreement:
(a) "Affiliate" means, as to any specified Person, (i) any stockholder,
equity holder, officer, or director of such Person and their family members or
(ii) any other Person which, directly or indirectly, controls, is controlled by,
employed by or is under common control with, any of the foregoing. For the
purposes of this definition, "control" means the possession of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
(b) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" as within the meanings of Section 13(d)(3) of
the Exchange Act.
(c) "Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
2. Disclosure. The Stockholder hereby agrees to permit the Company and
Parent to publish and disclose in the S-4 Registration Statement and the Proxy
Statement/Prospectus (including all documents and schedules filed with the SEC),
and any press release or other disclosure document which Parent reasonably
determines to be necessary or desirable in connection with the Merger and any
transactions related thereto, the Stockholder's identity and ownership of the
Shares and the nature of the Stockholder's commitments, arrangements and
understandings under this Stockholder Agreement.
3. Voting of Parent Stock. The Stockholder hereby agrees that, during the
period commencing on the date hereof and continuing until the first to occur of
(a) the Effective Time or (b) the termination of the Merger Agreement in
accordance with its terms (the "Termination Date"), at any meeting of the
holders of the Shares, however called, or in connection with any written consent
of the holders of the Shares, he shall vote (or cause to be voted) the Shares
held of record or Beneficially Owned by the Stockholder, whether heretofore
owned or hereafter acquired: (i) in favor of approval of the Merger Agreement
and any actions required in furtherance thereof and hereof, including the
amendment of Parent's Certificate of Incorporation to increase the number of
authorized shares to allow for issuance of Shares by virtue of the Merger, (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty, or any other obligation or agreement,
of Parent under the Merger Agreement or the Stockholder under this Stockholder
Agreement (after giving effect to any materiality or similar qualifications
contained therein) and (iii) except as otherwise agreed to in writing in advance
by the Company, against the following actions (other than the Merger and the
transactions contemplated by this Stockholder Agreement and the Merger
Agreement): (A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving Parent, (B) a sale, lease
or transfer of a material amount of assets of Parent, or a reorganization,
recapitalization, dissolution or liquidation of Parent; (C)(1) any change in a
majority of the individuals who constitute Parent's Board of Directors; (2) any
change in the present capitalization of Parent or any amendment of Parent's
Certificate of Incorporation or By-Laws; (3) any material change in Parent's
corporation structure or business; or (4) any other action which, in the case of
each of the matters referred to in clauses (C)(1), (2) or (3), is intended, or
could reasonably be expected, to impede, interfere with, delay, postpone, or
materially and adversely affect the Merger and the transactions contemplated by
this Stockholder Agreement and the Merger Agreement. The Stockholder agrees
that he will not enter into any agreement or understanding with any Person the
effect of which would be inconsistent with or violative of any provision
contained in this Section 3. Notwithstanding the foregoing, nothing in this
Section 3 shall require the Stockholder to exercise any options with respect to
Parent Shares.
4. Grant of Proxy; Appointment of Proxy. (a) The Stockholder hereby
irrevocably grants to, and appoints, the Board of Directors of the Company, 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 Stockholder's
Shares, or grant a consent or approval in respect of such Shares as set forth in
Section 3 hereof. The Stockholder shall have no claim against such proxy and
attorney-in-fact, for any action taken, decision made or instruction given by
such proxy and attorney-in-fact in accordance with this Stockholder Agreement.
(b) The Stockholder understands and acknowledges that the Company is
entering into the Merger Agreement in reliance upon such irrevocable proxy. The
Stockholder hereby affirms that the irrevocable proxy set forth in this Section
4 is given to secure the performance of the duties of the Stockholder under this
Stockholder Agreement. The Stockholder hereby affirms that the irrevocable proxy
is coupled with an interest and may under no circumstances be revoked. The
Stockholder hereby ratifies and confirms that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof.
5. Covenants, Representations and Warranties of Stockholder. The
Stockholder hereby represents and warrants to, and agrees with, the Company as
follows:
(a) Ownership of Shares. The Stockholder is the sole record and Beneficial
Owner of the number of Shares opposite the Stockholder's name on the signature
page hereof. On the date hereof, the Shares set forth opposite the
Stockholder's name on the signature page hereof constitute all of the Shares
owned of record or Beneficially Owned by the Stockholder or to which the
Stockholder has voting power by proxy, voting agreement, voting trust or other
similar instrument. The Stockholder has sole voting power and sole power to
issue instructions with respect to the matters set forth in Section 3 hereof,
sole power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Stockholder Agreement, in each case with respect to all of the Shares set forth
opposite the Stockholder's name on the signature page hereof, with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws, and the terms of this Stockholder Agreement.
(b) Authorization. The Stockholder has the legal capacity, power and
authority to enter into and perform all of the Stockholder's obligations under
this Stockholder Agreement. The execution, delivery and performance of this
Stockholder Agreement by the Stockholder will not violate any other agreement to
which the Stockholder is a party including, without limitation, any voting
agreement, stockholders agreement, voting trust, trust or similar agreement.
This Stockholder Agreement has been duly and validly executed and delivered by
the Stockholder and constitutes a valid and binding agreement enforceable
against the Stockholder in accordance with its terms. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust of which
the Stockholder is a trustee whose consent is required for the execution and
delivery of this Stockholder Agreement or the consummation by the Stockholder of
the transactions contemplated hereby. If the Stockholder is married and the
Stockholder's Shares constitute community property, this Stockholder Agreement
has been duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, the Stockholder's spouse, enforceable against such person
is accordance with its terms.
(c) No Conflicts. No filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for the
execution of this Stockholder Agreement by the Stockholder and the consummation
by the Stockholder of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Stockholder Agreement by the Stockholder, the
consummation by the Stockholder of the transactions contemplated hereby or
compliance by the Stockholder with any of the provisions hereof shall (A)
conflict with or result in any breach of the organizational documents of the
Stockholder (if applicable), (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which the Stockholder is a party or by which the Stockholder or any of
its properties or assets may be bound, or (C) violate any order, writ
injunction, decree, judgment, order, statute, rule or regulation applicable to
the Stockholder or any of its properties or assets.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Section 3 and 4 hereof, the Stockholder's Shares at
all times during the term hereof will be Beneficially Owned by the Stockholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever.
(e) No Solicitation. The Stockholder agrees not to take any action
inconsistent with or in violation of Section 6.2 of the Merger Agreement.
(f) Restriction on Transfer, Proxies and Non-Interference. The Stockholder
shall not, directly or indirectly (i) except as contemplated by the Merger
Agreement, offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Stockholder's Shares or any interest therein, (ii) except as contemplated by
this Stockholder Agreement, grant any proxies or powers of attorney, deposit any
Shares into a voting trust or enter into a voting agreement with respect to the
Shares, or (iii) take any action that would make any representation or warranty
of the Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing the Stockholder's
obligations under this Stockholder Agreement.
(g) Reliance by the Company. The Stockholder understands and acknowledges
that the Company is entering into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Stockholder Agreement.
6. Stop Transfer Legend.
(a) The Stockholder agrees and covenants to the Company that the
Stockholder shall
not request that Parent register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Stockholder's
Shares, unless such transfer is made in compliance with this Stockholder
Agreement.
(b) Without limiting the covenants set forth in paragraph (a) above, in the
event of a stock dividend or distribution, or any change in Shares by reason of
any stock dividend, split-up, recapitalization, combination, exchange of shares
or the like, other than pursuant to the Merger, the term "Shares" shall be
deemed to refer to and include the Shares into which or for which any or all of
the Shares may be changed or exchanged and appropriate adjustments shall be made
to the terms and provisions of this Stockholder Agreement.
7. Further Assurances. From time to time, at the Company's request and
without further consideration, the Stockholder shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Stockholder Agreement.
8. Stockholder Capacity. If the Stockholder is or becomes during the term
hereof a director or an officer of Parent, the Stockholder makes no agreement or
understanding herein in his capacity as such director or officer. The
Stockholder signs solely in his capacity as the record and Beneficial Owner of
the Stockholder's Shares.
9. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares shall terminate upon the
earlier of (a) the Termination Date or (b) the Effective Time.
10. Miscellaneous.
(a) Entire Agreement. This Stockholder Agreement constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) Certain Events. Subject to Section 5(f) hereof, the Stockholder agrees
that this Stockholder Agreement and the obligations hereunder shall attach to
the Stockholder's Shares and shall be binding upon any Person to which legal or
Beneficial Ownership of such Shares shall pass, whether by operation of law or
otherwise, including without limitation, the Stockholder's heirs, guardians,
administrators or successors. Notwithstanding any such transfer of Shares, the
transferor shall remain liable for the performance of all obligations under this
Stockholder Agreement.
(c) Assignment. This Stockholder Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party hereto, provided that the Company may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of the Company, but no such assignment shall relieve the
Company of its obligations hereunder if such assignee does not perform such
obligations.
(d) Amendment and Modification. This Stockholder Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) Notices. Any notice or other communication required or which may be
given hereunder shall be in writing and delivered (i) personally, (ii) via
telecopy, (iii) via overnight courier (providing proof of delivery) or (iv) via
registered or certified mail (return receipt requested). Such notice shall be
deemed to be given, dated and received (i) when so delivered personally, via
telecopy upon confirmation, or via overnight courier upon actual delivery or
(ii) [five] days after the date of mailing, if mailed by registered or certified
mail. Any notice pursuant to this section shall be delivered as follows:
If to the Stockholder to the address set forth for the Stockholder on the
signature page to this Stockholder Agreement.
If to the Company:
USWeb Corporation
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxxxx, Esq.
(f) Severability. Whenever possible, each provision or portion of any
provision of this Stockholder Agreement will be interpreted in such a manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Stockholder Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision of this Stockholder Agreement
in such jurisdiction, and this Stockholder Agreement will be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
(g) Specific Performance. The parties hereto agree recognize and
acknowledge that a breach by it of any covenants or agreements contained in this
Stockholder Agreement will
cause the other party to sustain damages for which it would not have an adequate
remedy at law for money damages, and therefore each of the parties hereto agrees
that in the event of any such breach the aggrieved party shall be entitled to
the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided under
this Stockholder Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any such
rights, powers or remedies by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Stockholder Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, will not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This Merger Agreement is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(k) Governing Law. This Stockholder Agreement will be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflict of laws thereof.
(l) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING IN CONNECTION
WITH THIS STOCKHOLDER AGREEMENT.
(m) Description Headings. The description headings used herein are for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Stockholder Agreement.
(n) Counterparts. This Merger Agreement may be executed in counterparts,
each of which will be considered one and the same Stockholder Agreement and will
become effective when such counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
(o) Recovery of Attorney's Fees. In the event of any litigation between the
parties relating to this Stockholder Agreement, the prevailing party shall be
entitled to recover its reasonable attorney's fees and costs (including court
costs) from the non-prevailing party, provided that if both parties prevail in
part, the reasonable attorney's fees and costs shall be awarded by the court in
such a manner as it deems equitable to reflect the relative amounts and merits
of the parties' claims.
IN WITNESS WHEREOF, the Company and the Stockholder have caused this
Stockholder Agreement to be duly executed as of the day and year first above
written.
Company:
By: /s/ Xxxxxxx X. Aver
---------------------------
Name: Xxxxxxx X. Aver
Title: Executive Vice President and
Chief Financial Officer
Stockholder:
-----------
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
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Number of Existing Shares: 12,808,535
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Address:
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
