EXHIBIT 10.4
STOCK PURCHASE AND VOTING AGREEMENT
(Executive Officers)
This Stock Purchase and Voting Agreement (the "Agreement") is made as
of March 15, 1999 between Vulcan Ventures Incorporated, a Washington corporation
("Purchaser"), and ________________, an individual ("Seller"), with reference to
the following facts:
Concurrently herewith Purchaser is entering into an agreement (the
"Stock Purchase Agreement") with Xxxxxx, Inc., a Delaware corporation (the
"Company") to purchase shares of the Company's Series A Convertible Preferred
Stock (the "Series A Preferred Stock") in two issuances (the "First Issuance"
and "Second Issuance," respectively).
Purchaser would be unwilling to enter into the Stock Purchase Agreement
without the agreements of Seller contained herein.
As an inducement to cause Purchaser to enter into the Stock Purchase
Agreement, Seller has agreed to enter into this Agreement.
In consideration of the foregoing premises and the mutual covenants and
promises contained herein, Purchaser and Seller hereby agree as follows:
1. Purchase and Sale of Shares.
1.1 Agreement to Purchase; Option. (a) On the terms and
subject to the conditions set forth herein, Seller agrees to sell to Purchaser,
and Purchaser agrees to purchase from Seller, at the Closing (as defined in
Section 1.1(d)), ____________ shares (the "Shares") of the Company's Common
Stock, $.01 par value (the "Common Stock"), at a purchase price per share (the
"Purchase Price") equal to the greater of $90.00 or the price paid by the
Company in the Offer (as defined below). Notwithstanding the foregoing, in the
event of a termination of the Second Issuance Agreements (as defined in the
Stock Purchase Agreement) pursuant to Section 9 of the Stock Purchase Agreement
(other than on account of Purchaser's breach), Purchaser shall instead have the
option (the "Option") (but not the obligation) in its sole and absolute
discretion to purchase from Seller, at the Closing, one-half of the Shares for
the Purchase Price. The Option shall be exercisable in whole or in part by
Purchaser by written notice to Seller (the "Exercise Notice"), specifying the
total number of Shares Purchaser intends to purchase pursuant to such exercise,
within thirty (30) days after such termination of the Second Issuance
Agreements. In the event of a termination of the Second Issuance Agreements on
account of Purchaser's breach, all obligations of the parties under this Section
1 will immediately terminate and Purchaser shall not be entitled to exercise the
Option.
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(b) The obligation of Seller to close the sale of Shares
pursuant to this Section 1 is subject to the following conditions, any of which
may be waived by Seller in his or her sole discretion: (i) the representations
and warranties of Purchaser in Section 4 of this Agreement shall be true and
correct in all material respects on the Closing Date with the same effect as if
made on and as of such date; (ii) all waiting periods under the Xxxx Xxxxx
Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), shall
have expired or been terminated; and (iii) there shall be no preliminary or
permanent injunction or other order, decree or ruling issued by any governmental
body, nor any statute, rule, regulation or order promulgated or enacted by any
governmental body prohibiting, or otherwise restraining, such sale .
(c) The obligation of Purchaser to close the purchase of the
Shares pursuant to this Section 1 is subject to the following conditions, any of
which may be waived by Purchaser in its sole discretion: (i) the representations
and warranties of Seller in Section 3 of this Agreement shall be true and
correct on the Closing Date with the same effect as if made on and as of such
date; (ii) at the Closing, there shall not be in effect any injunction, writ or
temporary restraining order or any other order of any nature issued by a court
or agency of competent jurisdiction directing that the transaction provided for
herein not be consummated as herein provided nor shall there by any litigation
or proceeding pending or threatened in respect of the transactions contemplated
hereby; and (iii) Purchaser shall have received all regulatory approvals under
the Stock Purchase Agreement, including the expiration or termination of the
waiting period under the HSR Act.
(d) The closing of the purchase of Shares pursuant to this
Section 1 (the "Closing") shall take place (i) concurrently with, and at the
same place as, the "Second Closing" under the Stock Purchase Agreement if such
Second Closing occurs, or (ii) if Purchaser exercises the Option, on the date
and at the time and place specified in the Exercise Notice; provided, however,
that if as of the Second Closing or the date for closing specified in the
Exercise Notice (as applicable) any of the conditions specified in Section
1.1(c) hereof shall not have been satisfied or waived, Purchaser may postpone
the Closing until a date within two business days after such conditions are
satisfied or waived; provided further, the Closing shall not precede the
Company's public release of its financial results for its fiscal quarter ending
March 31, 1999, and the Closing shall be postponed until such date if necessary;
provided further, upon consummation of the Second Closing and the Offer, the
conditions to the Closing set forth in Sections 1.1(b)(i) and 1.1(c)(i) above
shall be deemed to be satisfied, other than with respect to Seller's
representations and warranties contained in Section 3.1. The date of the Closing
is hereinafter referred to as the "Closing Date."
At the Closing, Seller will deliver to Purchaser the
certificates representing the Shares being purchased pursuant to this Section
1.1, without restrictive legends (other than with regard to the registration
requirements under the Securities Act of 1933, as amended) and duly endorsed or
accompanied by stock powers duly executed in blank. At such Closing, Purchaser
shall either (i) wire transfer to the account designated by Seller or (ii)
deliver to Seller a certified or bank cashier's check payable to or upon the
order of Seller, in either case in an amount equal
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to the sum of the number of Shares being purchased from Seller at such Closing
multiplied by the Purchase Price in immediately available funds.
(e) In the event of any change in the Common Stock by reason
of a stock dividend, split-up, recapitalization, combination, conversion,
exchange of shares or other similar change in the corporate or capital structure
of the Company, the type and number of shares or securities subject to this
Section 1, and the Purchase Price, shall be adjusted appropriately, and proper
provision shall be made in the agreements governing such transaction, so that
Purchaser shall receive at the Closing the same class and number of outstanding
shares or other securities or property that Purchaser would have received in
respect of the Common Stock if the Closing had occurred immediately prior to
such event, or the record date therefor, as applicable.
1.2 Agreement Not to Tender. If Purchaser commences a tender
offer (the "Offer") for the Common Stock pursuant to the Stock Purchase
Agreement, Seller shall not tender any shares of Common Stock that he owns
beneficially or of record in such Offer.
1.3 Covered Option Shares. The parties acknowledge and agree
that the Shares subject to this Section 1 include _________ shares of Common
Stock (the "Covered Option Shares") that Seller has the right to acquire within
thirty (30) days of the date hereof through exercise of vested options to
purchase Common Stock ("Stock Options"). Seller agrees to exercise a sufficient
number of Stock Options sufficiently in advance of the Closing, and to take all
action necessary to have certificates issued with respect to the shares issuable
upon exercise of such Stock Options, to permit Seller to deliver the number of
Covered Option Shares to Purchaser pursuant to this Agreement at such Closing.
2. Voting Agreement.
2.1 Except as provided in Section 2.2, Seller agrees that at
every meeting of the stockholders of the Company called with respect to any of
the following, and at every adjournment or postponement thereof, and on every
action or approval by written consent of the stockholders of the Company with
respect to any of the following, Seller will vote (or cause to be voted) all of
the shares of the Company owned beneficially or of record by Seller (including,
without limitation, any shares as to which Seller becomes the record or
beneficial owner after the date hereof) (a) in favor of approval of (i)
Purchaser's acquisition of the Company's capital stock pursuant to the Second
Issuance, the Offer, and this Agreement and similar agreements with other
officers, directors and employees of the Company (together, the "Purchaser
Acquisitions"), and (ii) any matter that could reasonably be expected to
facilitate the Purchaser Acquisitions and the other transactions contemplated by
the Stock Purchase Agreement (including the election of a Board of Directors of
the Company consistent with the provisions of the Stock Purchase Agreement); (b)
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
the Company under the Stock Purchase Agreement or of Seller under this
Agreement; and (c) against any action or agreement that is intended, or might
reasonably be expected, to impede, interfere with,
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delay, postpone or attempt to discourage or adversely affect the Purchaser
Acquisitions and the other transactions contemplated by this Agreement and the
Stock Purchase Agreement.
2.2 Exceptions. Notwithstanding anything herein to the
contrary, Seller shall not be obligated to vote any Shares or any other capital
stock in the manner described in Section 2.1 on or after the first to occur of
the Closing or a termination of the parties' obligations under Section 1.
3. Representations and Warranties of Seller. As a material inducement
to Purchaser to enter into this Agreement, Seller represents and warrants to
Purchaser that as of the date hereof and as of the Closing Date:
3.1 Sole Ownership of Shares; No Encumbrances. On the date
hereof, Seller is-the record owner of (a) ___________ shares of Common Stock
(the "Existing Shares"), and (b) Stock Options to purchase ________ shares of
Common Stock (the "Existing Options"), which Stock Options will be vested as to
________ shares of Common Stock within 30 days of the date hereof. On the date
hereof, such shares and Stock Options constitute all of the shares of Common
Stock and Stock Options owned of record and beneficially by Seller. Seller has
sole voting power, sole power of disposition and sole power to agree to all of
the matters set forth in this Agreement with respect to the Existing Shares and
the shares of Common Stock purchasable upon exercise of the Existing Options,
with no limitations, qualifications or restrictions on such rights, and Seller
does not possess such powers over any other shares of Common Stock. The Existing
Shares and the certificates representing such shares are now, and at all times
during the term hereof the Existing Shares and any shares of Common Stock that
Seller acquires through the exercise of Stock Options will be, held by Seller
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever and, in connection with the transfer of Shares to Purchaser in the
Offer, Seller shall transfer to and unconditionally vest in Purchaser good and
valid title to such Shares, free and clear of all claims, liens, restrictions,
security interests, pledges, limitations and encumbrances whatsoever.
3.2 Validity; Binding Effect; No Conflict. This Agreement has
been duly and validly executed by Seller and constitutes the valid and binding
obligation of Seller enforceable against Seller in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and the
availability of equitable remedies may be limited by equitable principles of
general applicability. The execution and delivery of this Agreement does not and
the consummation of the transactions contemplated hereby will not, (i) violate
or conflict with any law, ordinance, rule, regulations, orders, judgment, or
decree to which Seller is subject or by which Seller is bound; or (ii) violate
or conflict with or constitute a default (or an event which, with notice or the
lapse of time, or both, would constitute a default) under, or will result in the
termination of, or accelerate the performance required by or result in the
creation of any lien, security interest, change or encumbrance upon any of the
properties or assets under, any term or provision of any
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contract, commitment, understanding, arrangement, agreement or restriction of
any kind or character to which Seller is a party or by which any of her assets
may be bound or affected. Except for required approvals under the HSR Act, no
consent, approval, authorization or action by or any filings with any federal,
state or local governmental agency or any other third party are required in
connection with the execution and delivery by Seller of this Agreement or the
consummation by Seller of the transactions contemplated hereby.
3.3 Brokerage. No investment banker, broker, financial
advisor, finder or other person is entitled to a commission or fee from Seller
in respect of this Agreement or the transactions contemplated hereby based upon
any arrangement or agreement made by or on behalf of Seller.
3.4 Reliance by Purchaser. Seller understands and acknowledges
that Purchaser is entering into the Stock Purchase Agreement in reliance upon
Seller's execution and delivery of this Agreement and the representations,
warranties and covenants of Seller set forth herein.
4. Representations and Warranties of Purchaser. As a material
inducement to Seller to enter into this Agreement, Purchaser represents and
warrants to Seller that as of the date hereof and as of the Closing Date:
4.1 Validity; Binding Effect; No Conflict. This Agreement has
been duly and validly executed by Purchaser and constitutes the valid and
binding obligation of Purchaser enforceable against Purchaser in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and the
availability of equitable remedies may be limited by equitable principles of
general applicability. The execution and delivery of this Agreement does not and
the consummation of the transactions contemplated hereby will not, (i) violate
or conflict with any law, ordinance, rule, regulations, orders, judgment, or
decree to which Purchaser is subject or by which Purchaser is bound; or (ii)
violate or conflict with or constitute a default (or an event which, with notice
or the lapse of time, or both, would constitute a default) under, or will result
in the termination of, or accelerate the performance required by or result in
the creation of any lien, security interest, change or encumbrance upon any of
the properties or assets under, any term or provision of any contract,
commitment, understanding, arrangement, agreement or restriction of any kind or
character to which Purchaser is a party or by which any of her assets may be
bound or affected. Except for required approvals under the HSR Act, no consent,
approval, authorization or action by or any filings with any federal, state or
local governmental agency or any other third party are required in connection
with the execution and delivery by Purchaser of this Agreement or the
consummation by Purchaser of the transactions contemplated hereby.
4.2 Brokerage. Except for NationsBanc Xxxxxxxxxx Securities
LLC, no investment banker, broker, financial advisor, finder or other person is
entitled to a commission or
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fee from Purchaser in respect of this Agreement or the transactions contemplated
hereby based upon any arrangement or agreement made by or on behalf of
Purchaser.
5. Additional Covenants.
5.1 No Solicitation. Seller shall not, and shall direct and
use Seller's best efforts to cause his or her agents and representatives not to,
directly or indirectly solicit (including by way of furnishing information) or
respond to any inquires or the making of any proposal by any person or entity
(other than Purchaser) concerning any Transaction Proposal (as defined in the
Stock Purchase Agreement); provided, however, nothing herein shall preclude
Seller, in his capacity as a director of the Company, from exercising his
fiduciary duties in accordance with Section 5.5 of the Stock Purchase Agreement.
If Seller receives any such inquiry or proposal with respect to the sale of
Shares, then Seller shall promptly inform Purchaser in the same manner as set
forth in Section 12.2 of the Stock Purchase Agreement. Seller shall immediately
cease and cause to be terminated any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any of the
foregoing.
5.2 Notice of Additional Shares. Seller hereby agrees to
promptly notify Purchaser in writing of the number of shares of Common Stock
that may be acquired by Seller, if any, after the date hereof.
5.3 Further Assurances. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further action
as may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
5.4 Restrictions on Transfers. Prior to the first to occur of
the Closing or a termination of the parties' obligations under Section 1, Seller
shall not sell, transfer, encumber or otherwise dispose of any of the Shares,
and shall not take any action inconsistent with his or her obligations
hereunder.
5.5 Right of First Refusal.
(a) Except for Permitted Transfers, so long as Purchaser owns
beneficially or of record shares of Common Stock (including shares of Common
Stock issuable upon the conversion of Series A Preferred Stock) representing at
least 15% of the outstanding Common Stock, Seller shall not Transfer after
consummation of the Second Closing any shares of the Common Stock (whether owned
as of the date hereof or acquired thereafter) (such shares of Common Stock are
hereinafter referred to as the "Subject Shares"), or any right or interest
therein, unless Seller shall have first given at least two full business days'
advance written notice (the "Right of First Refusal Notice") to Purchaser of
Seller's intent to do so and such Transfer is thereafter completed in accordance
with this Section 5.5. The Right of First Refusal Notice shall
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specify the terms of the proposed Transfer, including without limitation the
number of Subject Shares proposed to be Transferred, the consideration per
share, the timing of the transaction, and the name of the proposed transferee if
Seller has received a bona fide offer to acquire Subject Shares. Purchaser shall
have the right, exercisable by written notice to Seller ("Purchaser's Notice")
within such two business day period, to purchase from Seller such number of the
Subject Shares Seller proposes to Transfer as described in Purchaser's Notice on
the terms set forth in the Right of First Refusal Notice (provided that if the
proposed Transfer is not for cash, then Purchaser may deliver cash equal to the
fair market value of such non-cash consideration); provided, however, that if
Seller proposes to Transfer Subject Shares pursuant to a bona fide written offer
which is disclosed in the Right of First Refusal Notice, then Purchaser may not
exercise its right of first refusal with respect to less than all of the Subject
Shares Seller proposes to Transfer pursuant to such bona fide written offer. In
the event that Purchaser does not exercise its right of first refusal with
respect to a proposed Transfer described in a Right of First Refusal Notice,
Seller shall have the right, for a period of ninety (90) days from the date of
the Right of First Refusal Notice, to Transfer such number of Subject Shares
described in such Right of First Refusal Notice at the price and on the terms
set forth in such Right of First Refusal Notice. No Transfer of the Subject
Shares specified in the Right of First Refusal Notice shall be made after the
expiration of such 90-day period, nor shall any change in the terms of Transfer
or change in the transferee (if specified) be made, without a new Right of First
Refusal Notice and compliance with the terms of this Section 5.5.
(b) The term "Permitted Transfer" for purposes of this Section
5.5 shall mean (i) any Transfer of Subject Shares pursuant to a merger or other
reorganization which would be tax-free to Seller (without regard to the amount
of the gain or loss), provided that Purchaser's right of first refusal shall,
with respect to such Subject Shares, be applicable to the securities or other
consideration acquired in such merger or other reorganization, (ii) any sales
pursuant to the manner of sale restrictions and unsolicited broker's transaction
provisions of Rule 144(f) and (g) under the Securities Act of 1933, as amended,
(iii) bona fide gifts of no more than an aggregate of 5% of the Subject Shares
in any 360-day period, (iv) Transfers to trusts for the benefit of Seller or his
immediate family for estate planning purposes where the transferee has agreed in
writing to be bound by Seller's obligations under this Section 5.5. The term
"Transfer" shall mean any sale, transfer, assignment, hypothecation, encumbrance
or other disposition, whether voluntary or involuntary, whether by gift, bequest
or otherwise, of any interest in the Subject Shares.
(c) Purchaser's rights under this Section 5.5 all terminate
180 days after the date on which Seller ceases to be an officer of the Company.
6. Miscellaneous.
6.1 Survival of Representations, Warranties and Agreements.
All representations, warranties and agreements made by Seller or Purchaser
pursuant hereto shall survive Closing.
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6.2 Binding Agreement; Assignments; Third-Party Beneficiaries.
This Agreement shall be binding on and enforceable by the parties and their
respective successors and permitted assigns. No party may assign any of its
rights, benefits or obligations under this Agreement to any person without the
prior written consent of the other party; provided, however, that Purchaser may
assign its rights, benefits or obligations under this Agreement, without the
prior consent of the Company, to an Affiliate of Purchaser (as defined in
Section 5.7 of the Stock Purchase Agreement). No such assignment shall relieve
the Purchaser of its obligations under this Agreement. Nothing contained in this
Agreement shall confer any rights or remedies upon any other person, firm or
corporation.
6.3 Waiver of Provisions. The terms, covenants,
representations, warranties and conditions of this Agreement may be waived only
by a written instrument executed by the party waiving compliance. The failure of
any party at any time or times to require performance of any provision of this
Agreement shall in no manner affect the right at a later date to enforce the
same. No waiver by any party of any condition or the breach of any provision,
term, covenant, representation or warranty contained in this Agreement, whether
by conduct or otherwise, in any one or more instances shall be deemed to be or
construed as further or continuing waiver of any such condition or of the breach
of any other provision, term, covenant, representation or warranty of this
Agreement.
6.4 Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this 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.
6.5 Notices. Any notice or other communication required or
permitted hereunder shall be expressed in writing and delivered in person or
sent by certified or registered mail, return receipt requested, or sent by
overnight courier service such as Federal Express and confirmed by certified or
registered mail, return receipt requested, or sent by facsimile (receipt
confirmed) to (a) Purchaser at its address specified in the Stock Purchase
Agreement, and (b) to Seller at the addresses set forth on the signature page
hereof, or at such other addresses as the parties shall designate by written
notice to the other. All notices shall be deemed received on the third business
day after mailing or the first business day after delivery to the overnight
courier service or the same business day if personally delivered or sent by
facsimile.
6.6 Cooperation. Each party shall cooperate and use its best
efforts to consummate the transaction contemplated herein. In addition, each
party shall cooperate and take such action and execute such other and further
documents as reasonably may be requested by any
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other party from time to time after the consummation of the transactions
contemplated herein to carry out the terms and provisions and intent of this
Agreement.
6.7 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
6.8 Entire Agreement; Modification. This Agreement contains
the entire agreement between the parties and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. This Agreement may be amended, modified and supplemented
in any and all respects by written agreement of the parties hereto.
6.9 Governing Law. The Agreement shall be governed by
and construed under the of the State of Washington.
6.10 Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one instrument.
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SIGNATURE PAGE TO
STOCK PURCHASE AND VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above set forth.
PURCHASER:
Vulcan Ventures Incorporated
By:______________________________
Name:
Title:
SELLER:
Signature:
Print Name:
Address:
Facsimile:
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