EXHIBIT 10.3
STOCK PURCHASE AND VOTING AGREEMENT
(Non-Executive Directors)
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.
(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). The parties' obligations under this Section 1 shall terminate
concurrently with a termination of the Second Issuance Agreements (as defined in
the Stock Purchase Agreement) pursuant to Section 9 of the Stock Purchase
Agreement.
(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;
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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 concurrently with, and at the same
place as, the "Second Closing" under the Stock Purchase Agreement if such Second
Closing occurs; provided, however, that if as of the Second Closing 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 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
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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, 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.
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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 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.
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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 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.
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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 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.
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.
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.
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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 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
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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 laws 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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