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VOTING AGREEMENT
among
CBS CORPORATION,
XXXXXXXXX.XXX, INC.,
AND EACH OF THE OTHER PARTIES SIGNATORY HERETO
Dated January 3, 2000
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VOTING AGREEMENT
This VOTING AGREEMENT ("Agreement") is entered into on this 3rd day of
January 2000, by and among CBS Corporation, a Pennsylvania corporation ("CBS"),
Xxxxxxxxx.xxx, Inc., a Florida corporation with principal offices located at
0000 Xxxxxx Xxxx, Xxxxx 000 X, Xxxx Xxxxx, Xxxxxxx 00000-0000 (the "Company"),
and each of the other parties signatory hereto (each a "Stockholder" and
collectively, the "Stockholders").
WITNESSETH:
WHEREAS, CBS has entered into a Stock Purchase Agreement with the
Company dated August 26, 1999 (the "Stock Purchase Agreement") pursuant to which
CBS has agreed to purchase shares of common stock, $.01 par value, (the "Common
Stock") of the Company; and
WHEREAS, each of the Stockholders own shares of Common Stock ("Shares")
of the Company; and
WHEREAS, as an inducement and condition for CBS and the Company to
enter into the Stock Purchase Agreement, each of CBS, the Company and the
Stockholders have agreed to enter into a voting agreement as hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual agreements and covenants contained herein, the parties, intending to be
legally bound, hereby agree as follows:
1.1 Voting Covenants by the Company. As of the date of this Agreement,
the Company's Board of Directors ("Board") comprises nine directors. CBS shall
have the right from time to time to nominate for election to the Board a number
of individuals (the "CBS Designees") equal to the product of the CBS Percentage
(as defined below) and the total number of members of the Board (rounded down to
the nearest whole number); provided that so long as the Advertising and
Promotion Agreement between CBS and Xxxxxxxxx.xxx, Inc. or the Content License
Agreement between CBS and Xxxxxxxxx.xxx, Inc., each of even date herewith, have
not terminated or expired, CBS shall have the right to nominate at least one CBS
Designee. CBS shall designate the CBS Designees each year sufficiently in
advance of the Company's distribution of its annual proxy statement. The Company
shall use its reasonable best efforts to cause the nomination and election from
time to time of the CBS Designees. In connection therewith, the Company agrees
to solicit proxies for, and recommend that its stockholders vote in favor of,
each of the CBS Designees. If a CBS Designee shall cease to be a member of the
Board for any reason other than expiration of his or her term, the Company shall
promptly, upon the request of CBS, use its reasonable best efforts to cause the
election or appointment of a person selected by CBS to replace such designee.
For purposes of this Section 1.1, the "CBS
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Percentage" shall mean, on any date of determination, that percentage determined
by dividing (a) the number of outstanding shares of Common Stock CBS (or a CBS
affiliate) then holds, by (b) the total number of shares of Common Stock of the
Company then outstanding.
1.2 Voting Covenants by Stockholders. In any and all elections for
members of the Board (whether at a meeting or by written consent in lieu of a
meeting), each of the Stockholders shall vote or cause to be voted all shares of
the Common Stock now or hereinafter directly or indirectly owned (of record or
beneficially) by it, or over which it has voting control, and otherwise shall
use its best efforts so as to elect to the Company's Board the CBS Designees.
1.3 Voting Covenants by CBS. In any and all elections for members of
the Board (whether at a meeting or by written consent in lieu of a meeting), CBS
shall vote or cause to be voted all shares of the Common Stock owned by it (or
its affiliates), or over which it has voting control, and otherwise shall use
its best efforts so as to elect to the Company's Board (a) each individual
nominated for election to the Board by the Company and (b) each individual
nominated for election to the Board by The Times Mirror Company, pursuant to the
terms and conditions of Section 7.1 of that certain Shareholder Agreement, dated
January 10, 1999, between the Company and The Times Mirror Company, and a
renewal or extension of the term of Section 7.1 of such Shareholder Agreement
(without otherwise modifying or amending any other term or condition of Section
7.1), which renewal or extension period shall not extend beyond the term of this
Agreement.
2. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a member of the Board makes any agreement or
understanding herein in his or her capacity as such member of the Board. Each
Stockholder who signs this Agreement signs solely in his or her capacity as the
record and/or beneficial owner of shares of Common Stock of the Company.
3. General.
3.1. Waivers and Amendments. Any amendment or modification to
this Agreement or the rights of any party hereto must be by the written
agreement of the parties hereto.
3.2. Governing Law. This Agreement shall be governed in all
respects by the laws of the State of New York as such laws are applied to
agreements between New York residents entered into and to be performed entirely
within New York.
3.3. Successors and Assigns. Except as specifically set forth
in this Agreement, nothing in this Agreement, express or implied, is intended to
confer on any party other than the signatories hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
3.4. Entire Agreement. Except as set forth below, this
Agreement and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof, and this Agreement
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shall supersede and cancel all prior agreements between the parties hereto with
regard to the subject matter hereof.
3.5. Severability. If any provision of this Agreement, or the
application thereof, is for any reason and to any extent determined by a court
of competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement and the application of such provision to other persons or
circumstances will be interpreted so as best to reasonably effect the intent of
the parties hereto. The parties agree to use their best efforts to replace such
void or unenforceable provision of this Agreement with a valid and enforceable
provision which will achieve, to the extent greatest possible, the economic,
business and other purposes of the void or unenforceable provision.
3.6. Notices, etc. All notices or other communications
required or permitted to be given hereunder shall be in writing and shall be
delivered by hand or sent, postage prepaid, by registered, certified or express
mail or reputable overnight courier service and shall be deemed given when so
delivered by hand, or if mailed, three days after mailing (one business day in
the case of express mail or overnight courier service), as follows:
if to CBS, to:
CBS Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Executive Vice President and
Chief Financial Officer
with a copy to:
CBS Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Executive Vice President and
General Counsel
if to the Company, to:
Xxxxxxxxx.xxx, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000 X
Xxxx Xxxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxxxxx, Chief Executive Officer
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with a copy to:
Xxxxxxxxx.xxx, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000 X
Xxxx Xxxxx, XX 00000-0000
Attention: W. Xxxxxx Xxxxxxx, General Counsel
with a copy (which shall not constitute
notice pursuant to this Section 3.6) to:
Xxxxxxxxx Xxxxxxx
MetLife Building, 15th Floor
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
if to any of the Stockholders, at the address
set forth on Schedule I hereto.
3.7. Titles and Subtitles The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
3.8. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
3.9. Termination of Board Rights. Notwithstanding anything to
the contrary set forth herein, the Company's obligations under Section 1.1 and
the Stockholders' obligations under Section 1.2 shall terminate and be of no
further force and effect upon the acquisition ("Competitor Acquisition") by CBS
(or any of its affiliates or its assignees hereunder), directly or indirectly,
of an equity interest in excess of 15% in any entity who, directly or
indirectly, owns, operates or controls a Competitive Site. CBS shall remain
subject to its obligations under Section 1.3 of this Agreement following any
Competitor Acquisition, provided that CBS's voting obligations shall be limited
to the number of individuals that would have been nominated for election to the
Board by the Company and The Times Mirror Company if CBS's rights under Section
1.1 remained in effect at the time of any such nominations. As used herein, a
"Competitive Site" means a website that has as its primary function and its
principal theme the delivery of news or information related to movies, movie
celebrities or the motion picture industry or the sale of movie- or
television-related merchandise. The definition of "Competitive Site" shall not
include a website that has as its primary function and its principal theme the
sale of music to consumers in CD, cassette or music video format or in or
through any and all other
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formats, media, methods, processes or technologies (including, but not limited
to, Internet streaming), whether now known or hereafter invented.
3.10. Term. This Agreement, and all rights and obligations
hereunder shall become effective on the date first set forth above, and shall
terminate on the earlier of: (a) seven years thereafter; (b) the termination or
expiration of the Advertising and Promotion Agreement between CBS and
xxxxxxxxx.xxx, Inc. and the Content License Agreement between CBS and
xxxxxxxxx.xxx, Inc., each of even date herewith, whichever later occurs; and (c)
the date on which the CBS Percentage is less than 10% as a result of CBS's sale
of its Common Stock (and excluding, for avoidance of doubt, any other diminution
or dilution of the CBS Percentage or any transfer of Common Stock to an
affiliate of CBS), at which time this Agreement, and all rights and obligations
hereunder, shall cease to be of further force or effect.
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IN WITNESS WHEREOF, the parties hereby have executed this Agreement on
the date first above written.
CBS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Executive Vice President
and Chief Financial Officer
XXXXXXXXX.XXX, INC.
By:/s/ Xxxxxxxx Xxxxxxxxxx
--------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Chief Executive Officer
THE TIMES MIRROR COMPANY
By:/s/ Xxxxxx X. Blood
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Xxxxxx X. Blood
Vice President
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Schedule I to Voting Agreement
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Number of Shares of
Stockholder Name and Address Common Stock Beneficially Owned
---------------------------- -------------------------------
Xxxxxxxx Xxxxxxxxxx
c/o Xxxxxxxxx.xxx, Inc.
0000 Xxxxxx Xxxx
Xxxxx 000 Xxxx
Xxxx Xxxxx, XX 00000-0000 1,469,199*
Xxxxxx X. Xxxxxxx
c/o Xxxxxxxxx.xxx, Inc.
0000 Xxxxxx Xxxx
Xxxxx 000 Xxxx
Xxxx Xxxxx, XX 00000-0000 1,469,199*
Mr. and Xxx. Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000 296,624
The Times Mirror Company
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx 2,300,075
* Except for 100,000 shares owned individually by each of Xx. Xxxxxxxxxx and Xx.
Xxxxxxx, all of the shares are held jointly as tenants by their entities.
I-1
