EXHIBIT 2.3
STOCKHOLDER AGREEMENT
THIS AGREEMENT, dated as of February 14, 2005, is made by and 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 International Capital Partners, Inc. Profit
Sharing Trust (the "Stockholder").
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 Stockholder; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholder agree, and the Stockholder
has 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 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) "Series F Preferred Stock" shall mean the Series F Senior
Cumulative Redeemable Preferred Stock, par value $0.000225 per share, of the
Company.
(f) 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, the Stockholder hereby agrees (i) to convert (or cause the
record owner of such shares to convert), not later than the second 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 Series F
Preferred Stock set forth opposite the Stockholder's name on Schedule I hereto
(the "Preferred Stock"), into the number of shares of Common Stock into which
such Series F Preferred Stock is then convertible pursuant to its terms, and
(ii) 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, all shares of Common Stock Beneficially Owned by the Stockholder,
including all shares of Common Stock acquired upon conversion of the Preferred
Stock as provided above (the "Existing Securities", and together with any other
shares of Common Stock acquired by the 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"). The 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 the Stockholder, is subject to the terms and conditions of
the Offer.
(b) The 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. The 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 the 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. The 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
the 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.
(c) No Solicitation. The Stockholder hereby agrees, in the capacity
as a stockholder of the Company, that neither the Stockholder nor any
affiliates, representatives or agents shall (and, if the Stockholder is a
corporation, partnership, trust or other entity, the 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. The 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. The Stockholder will immediately communicate to Parent the
terms of any proposal, discussion, negotiation or inquiry (and will disclose any
written materials received by the 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 the 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. The Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that it may have.
4. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent and the Purchaser as follows:
(a) Ownership of Securities. The Stockholder is the record and
Beneficial Owner of the Existing Securities, as set forth on Schedule I. On the
date hereof, the Existing
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Securities constitute all of the Securities owned of record or Beneficially
Owned by the Stockholder. The 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. The Stockholder has the power and
authority to enter into and perform all of the Stockholder's obligations under
this Agreement. The execution, delivery and performance of this Agreement by the
Stockholder will not violate any other agreement to which the 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 the Stockholder and constitutes
a valid and binding agreement of the Stockholder, enforceable against the
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 the
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 the Stockholder of the transactions contemplated hereby.
(c) No Conflicts. Except for filings under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (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 the Stockholder, the consummation by the Stockholder of the
transactions contemplated hereby and the compliance by the Stockholder with the
provisions hereof and (ii) none of the execution and delivery of this Agreement
by the Stockholder, the consummation by the Stockholder of the transactions
contemplated hereby or compliance by the 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 the
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 the Stockholder
is a party or by which the 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 the Stockholder or any of such
Stockholder's properties or assets.
(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 the Stockholder, or by a nominee
or custodian for the benefit of the 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.
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(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 the
Stockholder.
(f) Reliance by Parent. The Stockholder understands and acknowledges
that Parent is entering into, and causing the Purchaser to enter into, the
Merger Agreement in reliance upon the 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 Stockholder 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) 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.
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7. Stop Transfer. The Stockholder shall not 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 Stockholder's
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 Stockholder 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
Stockholder, 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 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:
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If to the Stockholder:
International Capital Partners Profit-Sharing Trust
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Trustee
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.
(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.
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(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.
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IN WITNESS WHEREOF, Parent, the Purchaser and the Stockholder 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
INTERNATIONAL CAPITAL PARTNERS, INC.
PROFIT SHARING TRUST
/s/ X. Xxxxxxxx
-----------------------------------------
(signature)
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SCHEDULE I
SERIES F PREFERRED STOCK
NAME OF STOCKHOLDER BENEFICIALLY OWNED
------------------- ------------------
International Capital Partners, Inc. Profit 833,336
Sharing Trust
