EXHIBIT 99(c)(2)
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.
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1.1 Agreement to Purchase.
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(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; 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
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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
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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
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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
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
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"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
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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.
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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,
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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.
3. Representations and Warranties of Seller. As a material inducement to
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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,
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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
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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.
3.3 Brokerage. No investment banker, broker, financial advisor, finder
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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6.1 Survival of Representations, Warranties and Agreements. All
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representations, warranties and agreements made by Seller or Purchaser pursuant
hereto shall survive Closing.
6.2 Binding Agreement; Assignments; Third-Party Beneficiaries. This
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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
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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.
6.3 Waiver of Provisions. The terms, covenants, representations,
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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
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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
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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
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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
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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
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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 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
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under the laws of the State of Washington.
6.10 Counterparts. This Agreement may be executed in one or more
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counterparts, all of which taken together shall constitute one instrument.
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:
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Name:
Title:
SELLER:
Signature:
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Print Name:
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Address:
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Facsimile:
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