EXHIBIT 10.3
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT (this "Agreement") is made and entered into
as of July 22, 2003 by and among NMP, Inc., a Delaware corporation ("Holdco"),
XxxxxxXxxxx.xxx, Inc., a Delaware corporation ("Parent"), and the undersigned
stockholder (the "Affiliate"), who may be deemed an affiliate of Pinnacor
Inc., a Delaware corporation (the "Company"), under applicable law.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto 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 Parent, the Company, Holdco,
Maple Merger Sub Inc., a Delaware corporation and a direct wholly owned
subsidiary of Holdco ("Parent Merger Sub"), and Pine Merger Sub, Inc., a
Delaware corporation and 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, the Affiliate has been advised that the Affiliate may be
deemed to be an "affiliate" of the Company, as the term "affiliate" is used
for purposes of Rule 144 and Rule 145 of the rules and regulations of the
Securities and Exchange Commission (the "SEC"); and
WHEREAS, the execution and delivery of this Agreement by the
Affiliate is a material inducement to, and in consideration of, the
willingness of Holdco and Parent to enter into the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Acknowledgments by Affiliate. The Affiliate understands and
hereby acknowledges that the representations, warranties and covenants by the
Affiliate set forth herein shall be relied upon by Holdco and Parent and their
respective affiliates and legal counsel, and that substantial losses and
damages may be incurred by such persons if the representations and warranties
of the Affiliate contained herein are inaccurate or if the covenants of the
Affiliate contained herein are breached. The Affiliate hereby represents and
warrants to Holdco and Parent that the Affiliate has carefully read this
Agreement and the Merger Agreement and has discussed the requirements of this
Agreement with the Affiliate's professional advisors, who are qualified to
advise the Affiliate with regard to such matters. Execution of this Agreement
shall not be considered an admission by the Affiliate that he or it is an
"affiliate", or as a waiver of any rights the Affiliate may have to object to
any claim that the Affiliate is such an "affiliate" on or after the date of
this Agreement.
2. Representations and Warranties of the Affiliate. The Affiliate
hereby represents and warrants to Holdco and Parent as follows as of the date
hereof: (i) the Affiliate is the sole beneficial owner of the number of shares
of the common stock of the Company, par value $0.01 (the "Company Common
Stock") set forth under the Affiliate's name on the signature page hereto (the
"Shares"); (ii) the Shares are not subject to any Liens (as such term is
defined in the Merger Agreement) or other encumbrance or to any rights of
first refusal of any kind (other than in the case of GapStar, LLC ("GapStar"),
the pledge and grant of a security interest by GapStar in its Shares to a
lender to secure loans made to GapStar by such lender); (iii) there are no
options, warrants, calls, rights, commitments or agreements of any kind or
character, written or oral, to which the Affiliate is party or by which the
Affiliate is bound obligating the Affiliate to issue, deliver, sell,
repurchase or redeem, or cause to be issued, delivered, sold, repurchased or
redeemed, any Shares, or obligating the Affiliate to grant or enter into any
such option, warrant, call, right, commitment or agreement; (iv) the Affiliate
has the sole right to transfer the Shares; (v) as of the date hereof, the
Shares constitute all shares of Company Common Stock owned, beneficially or of
record, by the Affiliate; (vi) the Shares are not subject to preemptive rights
created by any agreement to which the Affiliate is party or by which the
Affiliate is bound; and (vii) the Affiliate has not engaged in any sale or
other transfer of the Shares in contemplation of the Mergers.
3. Application to Subsequently Acquired Shares. The Affiliate
hereby agrees that all shares of Company Common Stock and shares of the common
stock of Holdco, par value $0.01 (the "Holdco Common Stock") acquired by the
Affiliate subsequent to the date hereof (including shares of Holdco Common
Stock acquired in the Company Merger), but prior to the earlier of (i) the
Effective Time (as defined in the Merger Agreement), and (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)
shall be subject to the terms and conditions set forth in this Agreement as if
held by the Affiliate as of the date hereof.
4. Compliance with Rule 145 and the Securities Act.
(a) The Affiliate understands and hereby acknowledges that
the Affiliate has been advised that (A) the issuance of Holdco Common Stock in
connection with the Company Merger is expected to be effected pursuant to a
registration statement on Form S-4 promulgated under the Securities Act of 1933,
as amended (the "Securities Act"), and the resale of such shares of Holdco
Common Stock will be subject to restrictions set forth in Rule 145 under the
Securities Act; and (B) Affiliate may be deemed to be an "affiliate" of the
Company as the term "affiliate" is used for purposes of Rule 144 and Rule 145
under the Securities Act. Accordingly, the Affiliate hereby agrees not to sell,
transfer or otherwise dispose of any Holdco Common Stock issued to the Affiliate
in the Company Merger, or otherwise acquired by the Affiliate subsequent to the
date hereof, unless (i) such sale, transfer or other disposition is made in
conformity with the requirements of Rule 145(d) promulgated under the
Securities Act; (ii) such sale, transfer or other disposition is made pursuant
to a registration statement declared or ordered effective under the Securities
Act, or an appropriate exemption from the registration and prospectus delivery
requirements of the Securities Act; (iii) the Affiliate delivers to Holdco a
written opinion of legal counsel, reasonably acceptable to Holdco in form and
substance, that such sale, transfer or other disposition is otherwise exempt
from the registration and prospectus delivery requirements of the Securities
Act; or (iv) an authorized representative of the SEC shall have rendered
written advice to the Affiliate to the effect that the SEC would take no
action, or that the staff of the SEC would not recommend that the SEC take any
action, with respect to the proposed disposition if consummated.
(b) The Affiliate understands and hereby acknowledges
that Holdco will give stop transfer instructions to its transfer agent with
respect to any Holdco Common Stock issued to the Affiliate pursuant to the
Company Merger, and there shall be placed on the certificates representing such
Holdco Common Stock, or any substitutions therefor, a legend stating in
substance:
"The shares represented by this Certificate were issued in a
transaction to which Rule 145 applies and may only be
transferred in conformity with Rule 145(d) or pursuant to an
effective registration statement under the Securities Act of
1933, as amended, or in accordance with a written opinion of
counsel, reasonably acceptable to the issuer in form and
substance, that such transfer is exempt from registration
under the Securities Act of 1933, as amended."
The legend set forth above shall be removed (by delivery of a substitute
certificate without such legend), and any stop transfer instructions shall be
rescinded, if the Affiliate delivers to Holdco (i) satisfactory written
evidence that the Shares have been sold in compliance with Rule 145 (in which
case, the substitute certificate shall be issued in the name of the
transferee); or (ii) an opinion of counsel, in form and substance reasonably
satisfactory to Holdco, to the effect that public sale of the Shares by the
holder thereof is no longer subject to Rule 145.
5. Termination. This Agreement shall be terminated, and be of no
further force and effect, automatically upon the termination of the Merger
Agreement pursuant to its terms (including any extension to the Merger
Agreement as provided for therein).
6. Miscellaneous.
(a) 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.
(b) 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.
(c) 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; provided, however, that each of Holdco and Parent may freely assign its
rights to a subsidiary of Holdco or Parent without such prior written approval
but no such assignment shall relieve Holdco or Parent of any of its obligations
hereunder. Any purported assignment without such consent shall be void.
(d) 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.
(e) Specific Performance; Injunctive Relief. Each of the
parties hereto hereby acknowledge that (i) the representations, warranties,
covenants and restrictions set forth in this Agreement are necessary,
fundamental and required for the protection of Holdco and Parent and to
preserve for Holdco and Parent 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
Holdco and Parent that cannot be adequately compensated by a monetary award.
Accordingly, Holdco, Parent and the Affiliate hereby expressly agree that in
addition to all other remedies available at law or in equity, Holdco and Parent
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.
(f) 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.
(g) Jurisdiction. The parties to this Agreement agree
that any suit, action or proceeding arising out of, or with respect to, this
Agreement or any judgment entered by any court in respect thereof shall be
brought in the courts of California, County of San Francisco or in the U.S.
District Court for the Northern District of California as the commencing party
may elect, and the Affiliate hereby accepts the exclusive jurisdiction of those
courts for the purpose of any suit, action or proceeding. In addition, the
Affiliate hereby irrevocably waives, to the fullest extent permitted by law,
any objection which the Affiliate 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 any judgment entered by any court in respect thereof brought in
California, County of San Francisco or the U.S. District Court for the Northern
District of California, as selected by the commencing party, and hereby further
irrevocably waives any claim that any suit, action or proceedings brought in
California or in such District Court has been brought in an inconvenient
forum.
(h) Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to the subject matter hereof.
(i) 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 Affiliate: To the address for notice set
forth on the signature
page hereof.
(j) Further Assurances. The Affiliate shall execute and
deliver any additional certificate, instruments and other documents, and take
any additional actions, as Holdco or Parent may deem necessary or desirable, in
the reasonable opinion of Holdco or Parent, to carry out and effectuate the
purpose and intent of this Agreement and the transactions contemplated hereby.
(k) Expenses. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled after a final, non-appealable judgment that this Agreement has been
breached by the non-prevailing party and such breach has caused actual damages
to the prevailing party. In no event shall the prevailing party be entitled to
consequential, speculative or punitive damages.
(l) Remedies Not Exclusive. All rights, powers and
remedies provided under this Agreement or otherwise available in respect hereof
at law or in equity will be cumulative and not alternative, and the exercise of
any thereof by either party will not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.
(m) 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 or the transactions contemplated hereby.
(n) 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 by
registered or certified mail.
(o) Effect of Headings. The section headings herein are
for convenience only and shall not affect the construction or interpretation of
this Agreement.
(p) Third Party Reliance. Legal counsel to Parent and the
Company shall be entitled to rely upon this Agreement.
(q) Survival. The representations, warranties, covenants
and other terms and provisions set forth in this Agreement shall survive the
consummation of the Mergers.
[Remainder of the Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have caused this Affiliate
Agreement to be duly executed as of the date first written above.
HOLDCO:
By: /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
Title: CEO
PARENT:
By: /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
Title: CEO
AFFILIATE:
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Affiliate's Address for Notice:
___________________________________________
___________________________________________
___________________________________________
Shares beneficially owned:
_____ shares of Company Common Stock
_____ shares of Company Common Stock
issuable upon the exercise of
outstanding options, warrants
and other rights
SIGNATURE PAGE TO AFFILIATE AGREEMENT
INDIVIDUALS/ENTITIES SUBJECT TO THE AFFILIATES AGREEMENT
GENERAL ATLANTIC PARTNERS 69, L.P. - 5,835,624 shares of common stock
GAP COINVESTMENT PARTNERS II, L.P. - 905,421 shares of common stock
GAPSTAR, LLC - 449,403 shares of common stock
RRE VENTURES II L.P. - 497,459 shares of common stock
RRE VENTURES FUND II L.P. - 87,022 shares of common stock
XXXXX XXXXX - 375,938 shares of common stock
XXXXX XXXXX - 0 shares of common stock
XXXXX XXXXXXX - 5,000 shares of common stock
XXXX XXXXXXX - 437,500 shares of common stock
XXXXX XXXXXXX - 57,509 shares of common stock
XXXXX X. XXXXXXXX - 2,266,261 shares of common stock
XXXXX XXXXXXX - 30,000 shares of common stock
XXXXXXX XXXXX - 170,861 shares of common stock
