EXHIBIT 9.1
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AGREEMENT TO VOTE STOCK
THIS AGREEMENT TO VOTE STOCK, dated as of June 7, 2000 (the
"Agreement"), among the Granting Stockholders named on SCHEDULE A hereto,
XxxXxxx.xxx, Inc., a Delaware corporation (the "Company"), EarthLink, Inc., a
Delaware corporation ("EarthLink") and OM Combination, Inc., a Delaware
corporation and a wholly owned subsidiary of EarthLink ("Newco") (the Granting
Stockholders, the Company, EarthLink and Newco are collectively referred to
herein as the "Parties" and individually as a "Party").
WHEREAS, the respective Boards of Directors of the Company and
EarthLink have determined to enter into an Agreement and Plan of Merger (the
"Merger Agreement") whereby the Company will be merged with and into Newco (the
"Merger");
WHEREAS, EarthLink, Newco and the Company have entered into the Merger
Agreement as of the date hereof (the "Merger Agreement");
WHEREAS, a condition to EarthLink's obligations under the Merger
Agreement is that each of the Granting Stockholders execute and perform this
Agreement;
WHEREAS, pursuant to the Merger Agreement each issued and outstanding
share of the Company's common stock, $.001 par value per share ("Company Common
Stock"), owned by the stockholders of the Company as of the Effective Time of
the Merger will be converted into the right to receive a combination of cash and
common stock of EarthLink, as set forth therein; and the Board of Directors of
the Company has approved the Merger and the other transactions contemplated in
the Merger Agreement and is recommending that the Company's stockholders approve
the Merger;
WHEREAS, capitalized terms used herein shall have the meaning set forth
in the Merger Agreement unless otherwise defined herein; and
NOW, THEREFORE, in consideration of (i) the foregoing premises, (ii)
the benefits to be received equally by all stockholders of the Company upon the
execution, delivery and performance of the Merger Agreement, (iii) the interest
of EarthLink in purchasing the Company Shares from the stockholders of the
Company in the Merger, (iv) the representations, warranties, covenants and
agreements contained in this Agreement and the Merger Agreement, and (v) for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto, intending to be legally bound, hereby
agree as follows:
1. AGREEMENT AND OBLIGATION TO VOTE.
(a) Unless this Agreement is terminated pursuant to Section 4 herein, each of
the Granting Stockholders prior to the Effective Time of the Merger agrees to
cast, or cause to be cast (in person or by proxy), and to not withdraw any vote
cast hereunder, at any duly called meeting of the stockholders, all of the votes
represented by the shares of Company Common Stock which such stockholder owns of
record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act
as of the date hereof) (other than shares of the Company's Common
Stock subject to an option or other convertible security prior to exercise or
conversion of such option or convertible security or after the exercise or
conversion of an option or convertible security provided that such exercise
or conversion occurs subsequent to the Company Stockholders Meeting), which
number of shares as of June 7, 2000 is set forth opposite the Granting
Stockholder's name on SCHEDULE A attached hereto (the "Owned Shares", which
term shall include any and all other shares of capital stock or securities or
rights issued or issuable in respect thereof or acquired on or after the date
hereof including any options or convertible security exercised or converted
after the date hereof except for those exercised or converted subsequent to
the Company Stockholder Meeting), and which such Granting Stockholder has the
right or power to vote, directly or indirectly, or has the right or power to
vote by holding a proxy to vote such shares or otherwise, in favor of the
following matters: (i) the Merger, (ii) the other transactions contemplated
by the Merger Agreement, and (iii) any related matter that must be approved
by the holders of Company Shares in order for the transactions contemplated
by the Merger Agreement to be consummated, so long as not inconsistent with
the Merger Agreement. Notwithstanding the aforementioned voting agreement, or
any other provision of this Agreement, each Granting Stockholder shall be
permitted to vote, grant any proxy, power of attorney or other voting
interest in or with respect to his or her Owned Shares as to matters other
than those subject to the voting agreement in this Section 1(a) and the proxy
in Section 1(b) herein.
(b) In order to ensure that the voting agreement set forth in Section 1(a) will
be fulfilled, each of the Granting Stockholders agrees to grant, and
concurrently with the execution of this Agreement hereby grants, to EarthLink an
Irrevocable Proxy, coupled with an interest, with respect to all of the Owned
Shares covered by the aforesaid voting agreement which the Granting Stockholder
is entitled solely to vote, for and in the name, place and stead of such
stockholder, at any annual or special meeting of the holders of the Company
Shares and at any adjournment or postponement thereof, or pursuant to any
consent in lieu of a meeting, or otherwise solely for the matters described in
Section 1(a)(i), (ii), and (iii). The Irrevocable Proxy granted by each of the
Granting Stockholders constitutes the valid and effective irrevocable proxy,
coupled with an interest, of each of the Granting Stockholders in respect of
their Owned Shares within the meaning of Section 212(e) of the Delaware General
Corporation Law; revokes any proxy or proxies or powers of attorney heretofore
given by each of the Granting Stockholders in respect of their Owned Shares;
shall remain in full force and effect and is and shall be irrevocable until the
Termination Date; and is coupled with an interest and an integral part of the
benefits and obligations of each of the Granting Stockholders and the rights and
benefits of EarthLink.
2. AGREEMENT NOT TO DISPOSE OF SHARES. Each Granting Stockholder hereby
covenants and agrees as follows between the date hereof and the Termination
Date:
(a) The Granting Stockholders will not, and will not agree to, directly
or indirectly, (i) sell, transfer, assign, pledge, hypothecate, cause to be
redeemed or repurchased or otherwise dispose of any of the Owned Shares
(except as otherwise provided in Section 2(c) herein), (ii) grant any proxy,
power of attorney or other voting interest in or with respect to the Granting
Stockholder's Owned Shares, or (iii) enter into a voting agreement with
respect to the Granting Stockholder's Owned Shares, in any such case prior to
the Termination Date, except as otherwise provided herein.
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(b) The Granting Stockholders will request the Company to have the
certificates, if any, evidencing the Owned Shares owned of record by such
Granting Stockholders bear substantially the following legend and to request
the Company to instruct its transfer agent to stop the transfer of any
certificates bearing such legend that is not made in accordance with this
Agreement:
THE TRANSFER OF AND VOTING OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE PRIOR RIGHTS AND LIMITATIONS
IMPOSED BY THE AGREEMENT TO VOTE DATED AS OF JUNE 7, 2000
AMONG EARTHLINK, INC., A DELAWARE CORPORATION, OM COMBINATION,
INC., A DELAWARE CORPORATION, THE COMPANY AND CERTAIN GRANTING
STOCKHOLDERS WHO ARE SIGNATORIES THERETO. A COPY OF SUCH
AGREEMENT WILL BE FURNISHED BY THE COMPANY'S SECRETARY UPON
WRITTEN REQUEST AND WITHOUT CHARGE.
(c) Notwithstanding any provision of this Agreement, each Granting
Stockholder shall be permitted to sell, transfer, assign, pledge,
hypothecate, cause to be redeemed or repurchased or otherwise dispose of any
of such Granting Stockholder's Owned Shares (a "Transfer"), PROVIDED that the
voting agreement set forth in Section 1(a) of this Agreement and the proxy
set forth in Section 1(b) shall survive any such Transfer and shall continue
to apply to the Owned Shares so Transferred and PROVIDED FURTHER that the
transferee shall agree to take such Owned Shares subject to this Agreement,
the voting agreement set forth in Section 1(a) and the proxy set forth in
Section 1(b) of this Agreement.
(3) REPRESENTATIONS AND WARRANTIES. Each of the Granting Stockholders,
as to itself only, represents and warrants to EarthLink as follows:
(a) Each Granting Stockholder that is an entity is a corporation,
limited liability company or partnership is duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it is
incorporated or organized and has the power and authority to execute, deliver
and perform this Agreement. Each Granting Stockholder that is a natural
person has the capacity and the full legal right to execute, deliver and
perform this Agreement.
(b) This Agreement has been duly executed and delivered by such Granting
Stockholder and, assuming due authorization, execution and delivery of this
Agreement by EarthLink, Newco and the Company, constitutes a valid and
binding agreement of such Granting Stockholder and is enforceable in
accordance with its terms, except to the extent that the enforcement of this
Agreement may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at law.
(c) The execution and delivery of this Agreement by each Granting
Stockholder did not, and the performance thereof, by each Granting
Stockholder will not, conflict with, or result
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in any violation of, or default (with or without notice or lapse of time, or
both) under (i) with respect to any Granting Stockholder that is an entity,
the certificate of incorporation or bylaws or similar charter documents of
such Granting Stockholder, (ii) any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit or license
applicable to the Granting Stockholder or such Granting Stockholder's Owned
Shares, or (iii) any law applicable to such Granting Stockholder. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any governmental entity or any third party to a Contract or any other
contract binding on such Granting Stockholder is required by or with respect
to the applicable Granting Stockholder or by the Granting Stockholder in
connection with the execution and delivery of this Agreement except under the
Exchange Act (in the event that a filing is required by such Granting
Stockholder or by EarthLink to the extent so required).
(d) Each of the Owned Shares owned by each Granting Stockholder is free
and clear of all liens, encumbrances, pledges or other claims except as
contemplated by this Agreement, and, as of the date hereof, is not subject to
any (i) right of first refusal, (ii) right to purchase, acquire or vote, or
(iii) power of attorney.
(e) Each Granting Stockholder has the sole power, right and authority to
vote such Granting Stockholder's Owned Shares in accordance with the terms of
this Agreement.
4. TERM. This Agreement and the obligations hereunder shall commence on
the date hereof and continue until the earlier of (a) the Effective Time of
the Merger and (b) termination of the Merger Agreement pursuant to Article
VII thereof (the "Termination Date").
5. MISCELLANEOUS PROVISIONS. (a) Unless otherwise provided herein, any
notice, request, waiver, instruction, consent or document or other
communication required or permitted to be given by this Agreement shall be
effective only if it is in writing and (i) delivered by hand or sent by
certified mail, return receipt requested, (ii) if sent by a
nationally-recognized overnight delivery service with delivery confirmed, or
(iii) if telexed, faxed or telecopied, with receipt confirmed as follows:
EarthLink: EarthLink, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to: Hunton & Xxxxxxxx
Bank of America Plaza, Suite 4100
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Hobby, Esq.
Telecopy No.: (000) 000-0000
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The Company: XxxXxxx.xxx, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Telecopy No.: (000) 000-0000
with a copy to: Xxxxx & Xxxxxxx L.L.P.
Columbia Square
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, Xxxxxxxx xx Xxxxxxxx
20004-1109
Attn: X. Xxxxx Xxxx
Telecopy No.: (000) 000-0000
Granting Stockholders: To their respective addresses
or telecopier numbers as set
forth on Schedule A.
with a copy to: Xxxxx & Xxxxxxx L.L.P.
Columbia Square
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, Xxxxxxxx xx Xxxxxxxx
20004-1109
Attn: X. Xxxxx Xxxx
Telecopy No.: (000) 000-0000
The Parties shall promptly notify each other of any change in their respective
addresses or facsimile numbers or of the Person or office to receive notices,
requests or other communications under this Section 5(a). Notice shall be deemed
to have been given as of the date when so personally delivered, when physically
delivered by the U.S. Postal Service at the proper address, the next day when of
a telex or telecopy is confirmed, as the case may be, unless the sending Party
has actual knowledge that such notice was not received by the intended
recipient.
(b) This Agreement embodies the entire agreement and understanding of the
Parties in respect to the subject matter contemplated hereby and supersedes and
renders null and void all other prior agreements and understandings, written and
oral, with respect to the subject matter hereof, PROVIDED that this provision
shall not abrogate the Merger Agreement executed simultaneously with this
Agreement. No Party shall be liable or bound to any other Party in any manner by
any promises, conditions, representations, or warranties, covenants, agreements
and understandings, except as specifically set forth herein or therein.
(c) Except as otherwise permitted in this Agreement, this Agreement may not
be amended or supplemented, unless set forth in a writing signed by and
delivered to, all the Parties. Except as otherwise permitted in this
Agreement, the terms or conditions of this Agreement may not be waived unless
set forth in a writing signed by the Party or Parties entitled to the
benefits thereof. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of such provision at any time in the
future or a waiver of any other provision hereof. The rights and remedies of
the Parties are cumulative and not alternative. Except as otherwise provided
in this Agreement, neither the failure nor any delay by any Party in
exercising any right, power of privilege under this Agreement will operate as
a waiver of such right, power of privilege, and no single or partial exercise
of any such right, power or privilege will preclude any
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other or further exercise of such right, power or privilege or the exercise
of any other right, power or privilege.
(d) Except as set forth herein in connection with a Transfer of Owned
Shares, neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned or transferred, in whole
or in part, by any of the Parties without the prior written consent of the
other Parties; PROVIDED, HOWEVER, that such assignment or transfer may be
made by (i) EarthLink to any of its Affiliates, (ii) by any affiliate of
EarthLink to any other affiliate of EarthLink, or (iii) pursuant to any
merger, consolidation, reorganization or sale of substantially all of the
assets of EarthLink or such affiliates (or any transaction having such
effect). Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the Parties and their
respective successors and assigns.
(e) This Agreement shall be governed by the laws of the State of
Delaware, without regard to conflict of laws principles.
(f) If any term or provision of this Agreement or the application
thereof to any Party or set of circumstances shall, in any jurisdiction and
to any extent, be finally held invalid or unenforceable, such term or
provision shall only be ineffective as to such jurisdiction, and only to the
extent of such invalidity or unenforceability, without invalidating or
rendering unenforceable any other terms or provisions of this Agreement, and
the Parties shall negotiate in good faith a substitute provision which comes
as close as possible to the invalidated or unenforceable term or provision
and which puts each Party in a position as nearly comparable as possible to
the position it would have been in but for the finding of invalidity or
unenforceability, while remaining valid and enforceable.
(g) This Agreement may be executed in one or more counterparts each of
which when so executed and delivered shall for all purposes be deemed to be
an original but all of which, when taken together, shall constitute one and
the same Agreement.
(h) The captions and headings used in this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement
or to affect the construction or interpretation hereof. In the event that any
signature is delivered by facsimile transmission, such signature shall create
a valid and binding obligation of the executing party with the same force and
effect as if such facsimile signature page were an original thereof.
(i) Nothing in this Agreement, express or implied, shall create or
confer upon any Person, other than the Parties or their respective successors
and permitted assigns, any legal or equitable rights, remedies, obligations,
liabilities or claims under or with respect to this Agreement, except as
expressly provided herein.
(j) Unless specifically stated otherwise, references to sections refer
to sections in this Agreement. References to "includes" and "including" mean
"includes without limitation" and "including without limitation."
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(k) Each Granting Stockholder is a sophisticated (financially, legally
and otherwise) legal entity or individual that was advised by experienced
counsel and, to the extent it deemed necessary, other advisors in connection
with this Agreement. Accordingly, each Party hereby acknowledges that no
Party has relied or will rely in respect of this Agreement or the
transactions contemplated hereby upon any document or written or oral
information previously furnished to or discovered by it or its
representatives, other than this Agreement or the documents and instruments
delivered at the Closing Date.
(l) No provision of this Agreement shall be interpreted in favor of, or
against, any Party by reason of the extent to which such Party or its counsel
participated in the drafting thereof or by reason of the extent to which any
such provision is inconsistent with any prior draft hereof or thereof.
(m) The Parties agree that any action arising out of or relating to
this Agreement shall be brought by the Parties and held and determined only
in a Delaware state court or a federal court sitting in that state which
shall be the exclusive venue of any such action. Each Party waives any
objection which such Party may now or hereafter have to the laying of venue
of any such action, and irrevocably consents and submits to the jurisdiction
of any such court (and the appropriate appellate courts) in any such action.
Any and all service of process and any other notice in any such action shall
be effective against such Party when transmitted in accordance with
subsection (a) of this Section 5. Nothing contained herein shall be deemed to
affect the right of any Party to serve process in any manner permitted by Law.
(n) All representations, warranties and covenants in this Agreement
shall survive the execution and delivery of this Agreement and shall continue
until the Termination Date, and shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of any Party
or any information capable of being acquired by any Party.
(o) THE PARTIES HEREBY IRREVOCABLY AND UNCONTIONALLY WAIVE ANY RIGHT
THAT THEY MAY HAVE TO A TRIAL BY JURY IN ANY ACTION INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT.
(p) Notwithstanding any other provision of this Agreement, a Granting
Stockholder hereto acting in his or her capacity as a director of the Company
may take such actions as are permitted in accordance with Section 8.1 of the
Merger Agreement, to fulfill his or her fiduciary duties as a director to the
stockholders of the Company; PROVIDED, HOWEVER, that any such action shall
not relieve such Party of his or her obligations to vote as a stockholder in
favor of the Merger and other obligations pursuant to the terms of this
Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the day and year first above written.
EARTHLINK, INC.
By: /s/
------------------------------------
Name:
Title:
OM COMBINATION, INC.
By: /s/
------------------------------------
Name:
Title:
XXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief Executive
Officer
GRANTING STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
/s/ M. Xxxxxxxx Xxxxx
----------------------------------------
M. Xxxxxxxx Xxxxx
/s/ Xxxx Xxxxxxxxx xx Xxxxxxxx
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Xxxx Xxxxxxxxx xx Xxxxxxxx
[SIGNATURE PAGE FOR AGREEMENT TO VOTE STOCK]
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SCHEDULE A
NAME AND ADDRESS OWNED SHARES
---------------- ------------
Xxxxxxx X. Xxxxx 1,360,000
0000 Xxxxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Xxxxx Xxxxxxx 167,296
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxxxxxx xx Xxxxxxxx 1,010,000
Calle Caribay, Quanta Los Cisnes
Alto Hatiyo Caracas, Venezula
M. Xxxxxxxxx Xxxxx 100,000
000 Xxxx 00xx Xxxxxx, Xxxxxxxxx 0X
Xxx Xxxx, XX 00000
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