EXHIBIT 8
VOTING AND RIGHT OF FIRST OFFER AGREEMENT
VOTING AND RIGHT OF FIRST OFFER AGREEMENT, dated as of November 30,
1999 (the "AGREEMENT"), between National Broadcasting Company, a Delaware
corporation ("NBC"), and CNET, Inc., a Delaware corporation (together with its
successors and permitted assigns, "CNET").
WHEREAS, CNET, Xxxx.xxx, Inc., a Delaware corporation ("XOOM"), Xenon
2, Inc., a Delaware corporation ("XENON 2"), and Xenon 3, Inc., a Delaware
corporation, have entered into an Agreement and Plan of Contribution, Investment
and Merger, dated as of the date hereof (the "XENON 2 MERGER AGREEMENT",
capitalized terms not otherwise defined herein shall have the meaning given to
them in the Xenon 2 Merger Agreement; and pursuant to which CNET will become a
holder of shares of the Class A common stock, $.0001 par value, of Xenon 2 (the
"COMPANY COMMON STOCK");
WHEREAS, NBC, Neon Media Corporation, a Delaware corporation
("NMC"), Xenon 2 and Xoom have entered into an Agreement and Plan of
Contribution, Investment and Merger, dated as of the date hereof (the "NMC
MERGER AGREEMENT"), pursuant to which NMC will merge with and into Xenon 2;
and
WHEREAS, it is a condition to the closing of the transactions
contemplated by the Xenon 2 Merger Agreement and the NMC Merger Agreement that
NBC and CNET enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises contained herein and intending to be legally bound hereby, the parties
agree as follows:
AGREEMENT
1. REPRESENTATIONS AND WARRANTIES OF CNET. CNET represents and
warrants to NBC as follows:
(a) OWNERSHIP OF SECURITIES. Upon consummation of the transactions
contemplated by the Xenon 2 Merger Agreement and the NMC Merger Agreement at the
Effective Time, CNET will be the record and beneficial owner of, and have good
and marketable title to, the number of shares of Company Common Stock (the
"CLOSING DATE SECURITIES") (together with any shares of Company Common Stock
hereafter acquired by CNET (including through the exercise of options or similar
instruments), the "SUBJECT SECURITIES") set forth on the signature page to this
Agreement. CNET does not own of record or beneficially any shares of capital
stock of the Company on the date hereof other than the Closing Date Securities.
CNET has sole voting power and sole power to issue instructions with respect to
the voting of the Closing Date Securities and sole power of disposition of the
Closing Date Securities.
(b) POWER; BINDING AGREEMENT. CNET has full power and authority to
enter into and perform all of its obligations under this Agreement. This
Agreement has been duly and validly executed and delivered by CNET and
constitutes a valid and binding agreement of
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CNET, enforceable against CNET in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws relating to or affecting creditors generally, by
general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) or by an implied covenant of
good faith and fair dealing.
(c) NO CONFLICTS. No filing with, and no permit, authorization,
consent or approval of, any state or federal governmental body or authority or
any other person or entity is necessary for the execution of this Agreement by
CNET and the consummation by CNET of the transactions contemplated hereby, other
than pursuant to the HSR Act or any filing, permit, authorization, consent or
approval, the failure of which to obtain would not reasonably be expected to
prevent CNET from performing its obligations under this Agreement, and neither
the execution and delivery of this Agreement by CNET nor the consummation by
CNET of the transactions contemplated hereby nor compliance by CNET with any of
the provisions hereof will conflict with or result in any breach of any
applicable organizational documents or instruments applicable to CNET, 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 CNET is a party or by which the Subject
Securities may be bound or violate any order, writ, injunction, decree,
judgment, statute, rule or regulation applicable to CNET as of the date hereof,
other than such violations, breaches or defaults that would not reasonably be
expected to prevent CNET from performing its obligations under this Agreement.
2. AGREEMENT TO VOTE SHARES. At every meeting of the stockholders of
the Company called with respect to any Takeover Proposal, Material Transaction
Proposal or transaction or occurrence which if publicly proposed and offered to
the Company and its stockholders (or any of them) would be the subject of a
Takeover Proposal or Material Transaction Proposal (collectively, a "SUBJECT
PROPOSAL"), and at every adjournment of any such meeting, and on every action or
approval by written consent of the stockholders of the Company with respect to
any Subject Proposal, CNET irrevocably agrees that it shall vote (or cause to be
voted) all the Subject Securities that it beneficially owns on the record date
of any such vote or action to ratify, approve and adopt any and all actions
adopted or approved by NBC, and against any and all actions voted against by
NBC. CNET shall not commit or agree to take any action inconsistent with the
foregoing. As used herein, "MATERIAL TRANSACTION PROPOSAL" means any inquiry,
proposal or offer from any Person relating to (i) the direct or indirect
acquisition or purchase of 5% or more of the assets (based on the fair market
value thereof) of Xenon 2 and its Subsidiaries, taken as a whole, or of 5% or
more of any class of equity securities of Xenon 2 or any of its Subsidiaries or
any tender offer or exchange offer (including by Xenon 2 or its Subsidiaries)
that if consummated would result in any person beneficially owning 5% or more of
any class of equity securities of Xenon 2 or any of its Subsidiaries, or (ii)
any merger, consolidation, business combination, sale of all or substantially
all assets, recapitalization, liquidation, dissolution or similar transaction
involving Xenon 2 or any of its Subsidiaries. As used herein, "TAKEOVER
PROPOSAL" means any inquiry, proposal or offer from any Person relating to (A)
any of the matters set forth in clause (i) of the definition of Material
Transaction Proposal
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but replacing "5%" with "50%" each place "5%" is used in such definition, (B)
a sale of all or substantially all of the assets of Xenon 2 and its
Subsidiaries or (C) a merger or consolidation of Xenon 2 as a result of which
the stockholders of Xenon 2 immediately prior to such transaction would not
beneficially own immediately after such transaction 50% or more of the
resulting or surviving entity (or the parent thereof)
3. IRREVOCABLE PROXY. CNET hereby grants to, and appoints NBC and
the President and Treasurer of NBC and the Secretary of NBC, in their
respective capacities as officers of NBC, and any individual who shall
hereafter succeed to any such office of NBC, and any other designee of NBC,
each of them individually, CNET's proxy and attorney-in-fact (with full power
of substitution) to vote or act by written consent with respect to the
Subject Securities in accordance with Section 2 hereof. This proxy is
coupled with an interest and shall be irrevocable, and CNET will take such
further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy and hereby revokes any proxy previously
granted by it with respect to the Subject Securities; provided that this
proxy shall be automatically revoked without any further action on the part
of NBC and CNET upon the termination of this Agreement pursuant to Section 14
hereof.
4. REPRESENTATIONS AND WARRANTIES OF NBC. NBC represents and
warrants, to CNET as follows:
(a) POWER; BINDING AGREEMENT. NBC has full power and authority to
enter into and perform all of its obligations under this Agreement. This
Agreement has been duly and validly executed and delivered by NBC and
constitutes a valid and binding agreement of NBC, enforceable against NBC in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws relating to
or affecting creditors generally, by general equity principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
or by an implied covenant of good faith and fair dealing.
(b) NO CONFLICTS. No filing with, and no permit, authorization,
consent or approval of, any state or federal governmental body or authority or
any other person or entity is necessary for the execution of this Agreement by
NBC and the consummation by NBC of the transactions contemplated hereby, other
than pursuant to the HSR Act or any filing, permit, authorization, consent or
approval, the failure of which to obtain would not reasonably be expected to
prevent NBC from performing its obligations under this Agreement, and neither
the execution and delivery of this Agreement by NBC nor the consummation by NBC
of the transactions contemplated hereby nor compliance by NBC with any of the
provisions hereof will conflict with or result in any breach of any
organizational documents or instruments applicable to NBC, 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 NBC is a party or by which NBC's respective
properties or assets may be bound or violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to NBC as of the date
hereof, other than such
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violations, breaches or defaults that would not reasonably be expected to
prevent NBC from performing its respective obligations under this Agreement.
5. COVENANTS OF CNET. CNET hereby agrees and covenants that:
(a) NO SOLICITATION. CNET shall not, and shall not authorize its
affiliates, partners, investment bankers, attorneys, agents or other advisors or
representatives to, directly or indirectly, solicit, knowingly encourage
(including by way of providing confidential information or data) or have any
discussion or negotiate with any person or entity (other than NBC or any
affiliate of NBC) concerning any proposal by such person or entity with respect
to the Company that constitutes or could reasonably be expected to lead to a
Subject Proposal. CNET will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore by or on its behalf with respect to any of the foregoing.
(b) RESTRICTION ON TRANSFER, PROXIES AND NONINTERFERENCE. CNET
shall not, and shall not authorize any of its affiliates, partners, investment
bankers, attorneys, agents or other advisors or representatives to, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of (including by gift), 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 Subject Securities (or any interest therein),
other than in accordance with the provisions of this Agreement and the
Standstill Agreement, dated as of the date hereof, between CNET and Xenon 2;
(ii) except as contemplated hereby, grant any proxies or powers of attorney,
deposit any such Subject Securities into a voting trust or enter into a voting
agreement with respect to any of the Subject Securities; (iii) take any action
that would have the effect of preventing or disabling CNET from performing its
obligations under this Agreement; or (iv) commit or agree to take any of the
foregoing actions. CNET will not sell, transfer or otherwise dispose of any of
the Subject Securities to any affiliate of CNET unless such agrees to be bound
by the terms of this Agreement with respect to such Subject Securities as if it
were CNET and delivers a written agreement to NBC to such effect.
(c) FURTHER ASSURANCES. CNET will, from time to time, execute and
deliver, or cause to be executed and delivered, without further consideration,
such additional or further consents, documents and other instruments and take
all such further actions as NBC may reasonably request for the purpose of
effectuating the matters covered by this Agreement in the most expeditious
manner practicable.
6. RIGHTS OF FIRST OFFER AND REOFFER.
(a) If CNET at any time intends to transfer, sell, assign,
exchange, mortgage, pledge, hypothecate or otherwise dispose of any Company
Common Stock or any interest therein (other than pursuant to a merger,
consolidation or reorganization to which the Company is a party or a tender
offer approved by the Board of Directors of the Company) ("TRANSFER") to any
Person other than NBC and its affiliates (a "THIRD PARTY"), CNET shall first
give written notice (a "SELLER'S NOTICE") to NBC, stating CNET's intention to
make such Transfer, the name of the proposed Third Party transferee (if the
Transfer is to occur in a privately negotiated transaction),
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the number of shares of Company Common Stock to be transferred (the "OFFERED
SHARES"), the price or other consideration per share which CNET proposes to
be paid for the Offered Shares by the Third Party (the "FIRST OFFER PRICE")
and the other material terms upon which such Transfer is proposed. It being
expressly understood that, with respect to proposed open market sales and
sales pursuant to bona fide underwritten public offerings, CNET may indicate
as the price in the Seller's Notice as the "then current market price" and
such indication shall be sufficient for such notice. If the Seller's notice
specifies the "then current market price" or that the sale will be made for
non-cash consideration, then the First Offer Price will be the closing price
for shares of Company Common Stock on the NASDAQ Stock Market on the day
immediately preceding NBC's acceptance of CNET's offer. CNET will not include
in any Seller's Notice more shares of Company Common Stock than the number of
shares it anticipates it will sell during the next 60 days.
(b) Upon receipt of the Seller's Notice (the "FIRST OFFER"), NBC
shall have an irrevocable, non-transferable (other than to Affiliates) option to
purchase all or any number of the Offered Shares at the First Offer Price. The
option of NBC under this Section 6(b) shall be exercisable by written notice to
CNET given within 7 days from receipt of the Seller's Notice. NBC may assign its
rights under this Section 6 in whole or in part to the Company.
(c) If NBC determines not to exercise its option to purchase the
Offered Shares at the First Offer Price or determines to exercise its option to
purchase less than all the Offered Shares, then CNET shall be free, for a period
of 60 days from the earlier of (i) the expiration of the option period with
respect to such First Offer pursuant to Section 6(b) and (ii) the date CNET
shall have received written notice from NBC stating that NBC intends not to
exercise the option granted to it under the foregoing provisions of this Section
6 with respect to all the Offered Shares, to sell the Offered Shares as to which
such options are not exercised to the Third Party transferee at a price equal to
or greater than the First Offer Price and on substantially similar material
terms as were contained in the First Offer, PROVIDED that the Transfer complies
with the provisions of Section 5(b).
(d) In the event the proposed purchase price of a Third Party
transferee for the Offered Shares is less than the First Offer Price (other than
a reduction in the purchase price due to decreases in the market value of the
Company Common Stock if the Offered Shares are proposed to be sold in the open
market or pursuant to an underwritten offering) or is otherwise on terms that
are different in any material respect from those set forth in the Seller's
Notice, CNET shall not sell or otherwise transfer any of the Offered Shares
unless CNET shall first reoffer the Offered Shares at such lesser price to NBC
(the "REOFFER") by giving written notice (the "REOFFER NOTICE") to NBC, stating
the items required to be included in the Seller's Notice, including CNET's
intention to make such transfer at such lower price or on such different terms
(the "REOFFER PRICE"). NBC shall then have an irrevocable, non-transferable
(other than to Affiliates) option to purchase all or part of the Offered Shares
at the Reoffer Price, exercisable in the same manner as provided in Section
6(b). In the event that NBC does not then elect to purchase all the remaining
Offered Shares, or NBC elects to purchase less than all the remaining Offered
Shares, the Offered Shares not so purchased may be sold by CNET within 60 days
following the earlier of (i) the expiration of the option period with respect to
the Reoffer pursuant to Section 6(b) or (ii) the date on which CNET shall have
received written notice from NBC
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stating that NBC intends not to exercise the option granted to it in this
Section 6(d) with respect to all of the remaining Offered Shares, at a price
equal to or greater than the Reoffer Price, PROVIDED that the Transfer
complies with the provisions of Section 5(b).
(e) In the event that NBC does not exercise its option to purchase
any or all of the Offered Shares at the First Offer Price or at the Reoffer
Price, and CNET shall not have sold the remaining Offered Shares to a Third
Party transferee for any reason before the expiration of the 30-day period
described in Section 6(d) in the event of a Reoffer, or, if no Reoffer Notice is
given, the 60-day period described in Section 6(c), then all of the provisions
of this Section 6 shall again become applicable to any sales or transfers of
Company Common Stock by CNET.
(f) If NBC exercises its rights of first offer or reoffer
hereunder, the closing of the purchase of the Offered Shares with respect to
which such right has been exercised shall take place on the tenth day after the
later of (i) the date NBC gives notice of such exercise and (ii) the expiration
of such time as NBC may reasonably require in order to comply with applicable
United States federal and state laws and regulations, which in no event shall be
more than 30 days after the date specified in clause (i). Upon exercise by NBC
of its rights of first offer and reoffer under this Section 6, NBC and CNET
shall be legally obligated to consummate the purchase contemplated thereby and
shall use their best efforts to secure any approvals required, and to comply as
soon as practicable with all applicable United States federal and state laws and
regulations in connection therewith.
(g) Notwithstanding anything herein to the contrary, (i) nothing
herein shall prohibit or restrict CNET in any way from (A) pledging or
hypothecating any Subject Securities to a financial institution in a bona fide
financing transaction so long as CNET controls the voting of such Subject
Securities prior to the occurrence of a default or (B) entering into hedging
strategies or transactions such as, for example, the purchase and sale of puts,
calls, options, straddles and other hedging mechanisms with respect to Subject
Securities so long as the aggregate hedging transaction at any time outstanding
with any Person and its affiliates do not relate to an aggregate number of
shares of Common Stock in excess of 5% of the outstanding shares of Common Stock
and Class B Common Stock of the Company at the time such transactions were
entered into (or an equivalent position) and (ii) the transactions described in
clause (i) shall not be a Transfer and shall not be subject to the Right of
First Offer set forth in this Section 6.
7. ENTIRE AGREEMENT; ASSIGNMENT; BENEFITS. This Agreement
constitutes the entire agreement between the parties with respect to the
subject matter hereof and supercedes all other prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter hereof. Except as provided in the last sentence of Section
5(b), this Agreement may not be assigned by any party hereto without the
prior written consent of the other party. This Agreement shall be binding
upon, and shall inure to the benefit of, each of NBC and CNET and their
respective successors and permitted assigns.
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8. NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly
given or made if and when delivered personally or by overnight courier or
sent by electronic transmission, with confirmation received, to the telecopy
numbers specified below:
If to NBC:
National Broadcasting Company
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
With copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
If to CNET:
CNET, Inc.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with copies to:
Xxxxxx & Xxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: R. Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
or to such other address or telecopy number as any party may have furnished to
the other parties in writing in accordance herewith.
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9. NOTICE OF LITIGATION. CNET shall promptly notify NBC of any
pending or, to its knowledge, threatened action or proceeding challenging the
validity or enforceability of this Agreement or the ability of CNET to
perform its obligations hereunder.
10. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
harm would occur in the event that any of the provisions of this Agreement were
not performed in accordance with its specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
11. AMENDMENT. This Agreement may not be amended or modified, except
by an instrument in writing signed by or on behalf of each of the parties
hereto. This Agreement may not be waived by any party hereto, except by an
instrument in writing signed by or on behalf of the party granting such waiver.
12. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without giving effect to
the principles of conflicts of law.
13. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
14. TERMINATION. This Agreement shall terminate upon the date on
which CNET and its affiliates do not beneficially own (as determined pursuant to
Rule 13d-3 under the Exchange Act) in the aggregate at least 5% of the Company
Common Stock outstanding. Upon any termination of this Agreement, this
Agreement shall thereupon become void and of no further force and effect, and
there shall be no liability in respect of this Agreement or of any transactions
contemplated hereby on the part of any party hereto or any of its directors,
officers, partners, stockholders, employees, agents, advisors, representatives
or affiliates; PROVIDED, HOWEVER, that nothing herein shall relieve any party
from any liability for such party's wilful breach of any of its material
agreements contained in this Agreement; and PROVIDED FURTHER that nothing herein
shall limit, restrict, impair, amend or otherwise modify the rights, remedies,
obligations or liabilities of any person under any other contract or agreement.
15. SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability and shall not
render invalid or unenforceable the remaining terms and provisions of this
Agreement or affect the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
NATIONAL BROADCASTING COMPANY
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
CNET, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
