EXHIBIT 2.5
STOCKHOLDER AGREEMENT
AGREEMENT, dated as of February 14, 2005, among MLB Advanced Media,
L.P., a Delaware limited liability partnership ("Parent"), MLBAM Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of Parent (the
"Purchaser"), and each of General Atlantic Partners 74, L.P., a Delaware limited
partnership ("GAP LP"), General Atlantic Partners 46, L.P., a Delaware limited
partnership ("GAP 46"), General Atlantic Partners 54, L.P., a Delaware limited
partnership ("GAP 54"), GAP Coinvestment Partners, L.P., a New York limited
partnership ("GAPCO"), GAP Coinvestment Partners II, L.P., a Delaware limited
partnership ("GAPCO II"), and GapStar, LLC, a Delaware limited liability company
("GapStar"). Each of GAP LP, GAP 46, GAP 54, GAPCO, GAPCO II and GapStar is
hereinafter referred to as a "Stockholder" and collectively as the
"Stockholders".
WITNESSETH:
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, the Purchaser and Xxxxxxx.xxx, Inc., a Delaware corporation
(the "Company"), have entered into an Agreement and Plan of Merger (as such
agreement may hereafter be amended from time to time, the "Merger Agreement"),
pursuant to which the Purchaser will be merged with and into the Company (the
"Merger"); and
WHEREAS, in furtherance of the Merger, Parent and the Company desire
that after the announcement of the execution of the Merger Agreement, the
Purchaser shall commence a cash tender offer (the "Offer") to purchase at the
Offer Price all outstanding shares of Common Stock (each as defined in Section 1
hereof), including all of the Securities (as defined in Section 2 hereof)
beneficially owned by the Stockholders; and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Beneficially Owned" or "Beneficial Ownership" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
(as hereinafter defined) shall include securities Beneficially Owned by all
other Persons with whom such Person would constitute a "group" within the
meaning of Section 13(d)(3) of the Exchange Act.
(b) "Common Stock" shall mean the Common Stock, $0.000225 par value,
of the Company.
(c) "Offer Price" shall mean cash in the amount of $1.10 per share
of Common Stock (as adjusted for stock splits, stock dividends, combinations or
other recapitalizations of the Common Stock) or, if greater, the price per share
paid by the Purchaser in the Offer.
(d) "Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
(e) Capitalized terms used and not defined herein shall have the
respective meanings ascribed to them in the Merger Agreement.
2. Tender of Shares.
(a) In order to induce Parent and the Purchaser to enter into the
Merger Agreement, each Stockholder hereby agrees to validly tender (or cause the
record owner of such shares to validly tender), and not to withdraw, pursuant to
and in accordance with the terms of the Offer, not later than the fifth business
day after commencement of the Offer pursuant to Section 1.01 of the Merger
Agreement and Rule 14d-2 under the Exchange Act, the number of shares of Common
Stock set forth opposite such Stockholder's name on Schedule I hereto (the
"Existing Securities", and together with any shares of Common Stock acquired by
such Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement by means of purchase, dividend, distribution,
exercise of options, warrants or other rights to acquire Common Stock or in any
other way, the "Securities"), all of which are Beneficially Owned by such
Stockholder. Each Stockholder hereby acknowledges and agrees that Parent's and
the Purchaser's obligation to accept for payment and pay for the Securities in
the Offer, including the Securities Beneficially Owned by such Stockholder, is
subject to the terms and conditions of the Offer.
(b) Each Stockholder hereby permits Parent and the Purchaser to
publish and disclose in the Offer Documents and, if approval of the Company's
stockholders is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the SEC) its identity and ownership of
the Securities and the nature of its commitments, arrangements and
understandings under this Agreement.
3. Additional Agreements.
(a) Voting Agreement. Each Stockholder shall, at any meeting of the
stockholders of the Company, however called, or in connection with any written
consent of the stockholders of the Company, vote (or cause to be voted) all
Securities then held of record or Beneficially Owned by such Stockholder, (i) in
favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof; and (ii) against any proposal relating to an
Acquisition Proposal and against any action or agreement that would impede,
frustrate, prevent or nullify this Agreement, or result in a breach in any
respect of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which would result in any
of the conditions set forth in Annex I to the Merger Agreement or set forth in
Article VI of the Merger Agreement not being fulfilled .
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(b) No Inconsistent Arrangements. Each Stockholder hereby covenants
and agrees that, except as contemplated by this Agreement and the Merger
Agreement, it shall not (i) transfer (which term shall include, without
limitation, any sale, gift, pledge (other than a pledge which does not impair
such Stockholder's ability to perform under this Agreement) or other
disposition), or consent to any transfer of, any or all of the Securities or any
interest therein, (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Securities or
any interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to the Securities, (iv) deposit the Securities
into a voting trust or enter into a voting agreement or arrangement with respect
to the Securities or (v) take any other action that would in any way restrict,
limit or interfere with the performance of its obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement, provided that,
Parent and the Purchaser acknowledge that GapStar has previously pledged and
granted a security interest in its Securities to secure a bona fide loan made by
a financial institution to GapStar, which pledge and security interest will be
terminated and fully released upon consummation of the Offer.
(c) No Solicitation. Each Stockholder hereby agrees, in the capacity
as a stockholder of the Company, that neither such Stockholder nor any
affiliates, representatives or agents shall (and, if such Stockholder is a
corporation, partnership, trust or other entity, such Stockholder shall cause
its officers, directors, partners, and employees, representatives and agents,
including, but not limited to, investment bankers, attorneys and accountants,
not to), directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group (other than Parent,
the Purchaser or any of their respective affiliates or representatives)
concerning any proposal relating to an Acquisition Proposal. Each Stockholder
will immediately cease any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any proposal relating to an
Acquisition Proposal. Each Stockholder will immediately communicate to Parent
the terms of any proposal, discussion, negotiation or inquiry (and will disclose
any written materials received by such Stockholder in connection with such
proposal, discussion, negotiation or inquiry) and the identity of the party
making such proposal or inquiry which it may receive in respect of any such
Acquisition Proposal. For the avoidance of doubt, the foregoing shall not
restrict or prohibit any action of any of such Stockholder's officers, directors
or agents in their capacity as a director or officer of the Company to the
extent permitted pursuant to and in accordance with the terms of the Merger
Agreement, to the extent necessary to discharge their fiduciary duties, or to
the extent otherwise required in accordance with applicable law.
(d) Reasonable Efforts. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable Laws to consummate and
make effective the transactions contemplated by this Agreement. Each party shall
promptly consult with the other and provide any necessary information and
material with respect to all filings made by such party with any Governmental
Entity in connection with this Agreement and the transactions contemplated
hereby.
(e) Waiver of Dissenters' Rights. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that it may have.
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4. Representations and Warranties of the Stockholder. Each Stockholder
hereby represents and warrants to Parent and the Purchaser as follows:
(a) Ownership of Securities. Such Stockholder is the record and
Beneficial Owner of the Existing Securities, as set forth on Schedule I. On the
date hereof, except for warrants to purchase shares of Common Stock that may be
owned by such Stockholder, the Existing Securities constitute all of the shares
of Common Stock owned of record or Beneficially Owned by such Stockholder. Such
Stockholder has sole voting power and sole power to issue instructions with
respect to the matters set forth in Sections 2 and 3 hereof, sole power of
disposition, sole power to demand appraisal rights and sole power to agree to
all of the matters set forth in this Agreement, in each case with respect to all
of the Existing Securities with no limitations, qualifications or restrictions
on such rights, subject to applicable securities laws and the terms of this
Agreement.
(b) Power; Binding Agreement. Such Stockholder has the power and
authority to enter into and perform all of such Stockholder's obligations under
this Agreement. The execution, delivery and performance of this Agreement by
such Stockholder will not violate any other agreement to which such Stockholder
is a party including, without limitation, any voting agreement, proxy
arrangement, pledge agreement, shareholders agreement or voting trust. This
Agreement has been duly and validly executed and delivered by such Stockholder
and constitutes a valid and binding agreement of such Stockholder, enforceable
against such Stockholder in accordance with its terms, except that such
enforceability (i) may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to the enforcement of creditors' rights
generally and (ii) is subject to general principles of equity. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which such Stockholder is a trustee, or any party to any other
agreement or arrangement, whose consent is required for the execution and
delivery of this Agreement or the consummation by such Stockholder of the
transactions contemplated hereby.
(c) No Conflicts. Except for filings under the HSR Act and the
Exchange Act (i) no filing with, and no permit, authorization, consent or
approval of, any Governmental Entity is necessary for the execution and delivery
of this Agreement by such Stockholder, the consummation by such Stockholder of
the transactions contemplated hereby and the compliance by such Stockholder with
the provisions hereof and (ii) none of the execution and delivery of this
Agreement by such Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby or compliance by such Stockholder with any of
the provisions hereof, except in cases in which any conflict, breach, default or
violation described below would not interfere with the ability of such
Stockholder to perform such Stockholder's obligations hereunder, shall (A)
conflict with or result in any breach of any organizational documents applicable
to such Stockholder, (B) 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, modification or acceleration) under,
any of the terms, conditions or provisions of any note, loan agreement, bond,
mortgage, indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which such
Stockholder is a party or by which such Stockholder or any of its properties or
assets may be bound, or (C) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such Stockholder or
any of such Stockholder's properties or assets.
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(d) No Liens. Except as permitted by this Agreement, the Existing
Securities and the certificates representing such securities are now, and at all
times during the term hereof will be, held by such Stockholder, or by a nominee
or custodian for the benefit of such Stockholder, free and clear of all Liens,
proxies, voting trusts or agreements, understandings or arrangements or any
other rights whatsoever, except for any such Liens or proxies arising hereunder
and except that GapStar has previously pledged and granted a security interest
in its Securities to secure a bona fide loan made by a financial institution to
GapStar, which pledge and security interest will be terminated and fully
released upon consummation of the Offer.
(e) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder.
(f) Reliance by Parent. Such Stockholder understands and
acknowledges that Parent is entering into, and causing the Purchaser to enter
into, the Merger Agreement in reliance upon such Stockholder's execution and
delivery of this Agreement.
5. Representations and Warranties of Parent and the Purchaser. Each of
Parent and the Purchaser hereby represents and warrants to the Stockholders as
follows:
(a) Power; Binding Agreement. Parent and the Purchaser each has the
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by each of
Parent and the Purchaser will not violate any other agreement to which either of
them is a party. This Agreement has been duly and validly executed and delivered
by each of Parent and the Purchaser and constitutes a valid and binding
agreement of each of Parent and the Purchaser, enforceable against each of
Parent and the Purchaser in accordance with its terms, except that such
enforceability (i) may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to the enforcement of creditors' rights
generally and (ii) is subject to general principles of equity.
(b) No Conflicts. Except for filings under the HSR Act and the
Exchange Act, (i) no filing with, and no permit, authorization, consent or
approval of, any Governmental Entity is necessary for the execution of this
Agreement by each of Parent and the Purchaser, the consummation by each of
Parent and the Purchaser of the transactions contemplated hereby and the
compliance by Parent and the Purchaser with the provisions hereof and (ii) none
of the execution and delivery of this Agreement by each of Parent and the
Purchaser, the consummation by each of Parent and the Purchaser of the
transactions contemplated hereby or compliance by each of Parent and the
Purchaser with any of the provisions hereof, except in cases in which any
conflict, breach, default or violation described below would not interfere with
the ability of Parent or the Purchaser to perform their respective obligations
hereunder, shall (A) conflict with or result in any breach of any organizational
documents applicable to either of Parent or the Purchaser, (B) 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, modification or acceleration) under, any of the terms, conditions
or provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which either of Parent or the Purchaser is a party
or by which either of Parent or the Purchaser or any of their properties or
assets may be bound, or (C)
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violate any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to either of Parent or the Purchaser or any of their
properties or assets.
6. 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 lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
7. Stop Transfer. No Stockholder shall request that the Company register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of the Securities, unless such transfer is made in
compliance with this Agreement. In the event of a stock dividend or
distribution, or any change in the Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Securities" shall refer to and include the Securities as well as all such
stock dividends and distributions and any shares into which or for which any and
all of the Securities may be changed or exchanged.
8. Termination. The covenants and agreements contained herein with respect
to the Securities shall terminate upon the earlier to occur of the Effective
Time and the termination of the Merger Agreement in accordance with its terms.
9. Miscellaneous.
(a) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
(b) Binding Agreement. This Agreement and the obligations hereunder
shall attach to the Securities and shall be binding upon any person or entity to
which legal or beneficial ownership of the Securities shall pass, whether by
operation of law or otherwise, including, without limitation, the Stockholders'
administrators or successors. Notwithstanding any transfer of Securities, the
transferor shall remain liable for the performance of all obligations of the
transferor under this Agreement.
(c) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the Stockholders or Parent
and the Purchaser, as the case may be, provided that Parent or the Purchaser may
assign, in its respective sole discretion, its rights and obligations hereunder
to any affiliate of Parent or any other MLB Entity without the consent of the
Stockholders, but no such assignment shall relieve Parent or the Purchaser of
its obligations hereunder if such assignee does not perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if
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given) by hand delivery or facsimile (with a confirmation copy sent for next day
delivery via courier service, such as Federal Express), or by any courier
service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses:
If to the Stockholders:
Three Pickwick Plaza
Greenwich, CT 06830
Attention: Xxxxxxx Xxxxxx
Xxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
If to Parent or the Purchaser:
MLB Advanced Media, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxx & Lardner LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx X. Xxxxxxx
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
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(g) 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 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.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any
rights, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(k) Governing Law; Jurisdiction. This Agreement shall be governed
and construed in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law thereof. Any court of
competent jurisdiction sitting within the State of New York, New York County
will be the exclusive jurisdiction and venue for any dispute arising out of or
relating to this Agreement.
(l) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same agreement.
(n) Several. All representations, warranties and covenants made by
each Stockholder in this Agreement are made on a several and not joint basis.
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IN WITNESS WHEREOF, Parent, the Purchaser and the Stockholders have
caused this Agreement to be duly executed as of the day and year first above
written.
MLB ADVANCED MEDIA, L.P.,
by MLB Advanced Media, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and General Counsel
MLBAM ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
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GENERAL ATLANTIC PARTNERS 74, L.P.
By: General Atlantic Partners, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 46, L.P.
By: General Atlantic Partners, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 54, L.P.
By: General Atlantic Partners, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A General Partner
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GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A General Partner
GAPSTAR, LLC
By: General Atlantic Partners, LLC,
its Sole Member
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: A Managing Member
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SCHEDULE I
COMMON STOCK BENEFICIALLY OWNED
Stockholder Shares of Common Stock
----------- ----------------------
General Atlantic Partners 46, L.P. 525,483
General Atlantic Partners 54, L.P. 339,844
General Atlantic Partners 74, L.P. 340,368
GapStar, LLC 25,844
GAP Coinvestment Partners, L.P. 109,436
GAP Coinvestment Partners II, L.P. 118,236
Total 1,459,211
