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EXHIBIT 99.2
VOTING AND RIGHT OF FIRST OFFER AGREEMENT
VOTING AND RIGHT OF FIRST OFFER AGREEMENT, dated as of November 29, 1999
(the "Agreement"), between National Broadcasting Company, a Delaware corporation
("NBC"), and CNET, Inc., a Delaware corporation (together with its successors
and permitted assigns, "CNET").
WHEREAS, CNET, Xxxx.xxx, Inc., a Delaware corporation ("Xoom"), Xenon 2,
Inc., a Delaware corporation ("Xenon 2"), and Xenon 3, Inc., a Delaware
corporation, have entered into an Agreement and Plan of Contribution, Investment
and Merger, dated as of the date hereof (the "Xenon 2 Merger Agreement",
capitalized terms not otherwise defined herein shall have the meaning given to
them in the Xenon 2 Merger Agreement; and pursuant to which CNET will become a
holder of shares of the Class A common stock, $.0001 par value, of Xenon 2 (the
"Company Common Stock");
WHEREAS, NBC, Neon Media Corporation, a Delaware corporation ("NMC"), Xenon
2 and Xoom have entered into an Agreement and Plan of Contribution, Investment
and Merger, dated as of the date hereof (the "NMC Merger Agreement"), pursuant
to which NMC will merge with and into Xenon 2; and
WHEREAS, it is a condition to the closing of the transactions contemplated
by the Xenon 2 Merger Agreement and the NMC Merger Agreement that NBC and CNET
enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
contained herein and intending to be legally bound hereby, the parties agree as
follows:
AGREEMENT
1. Representations and Warranties of CNET. CNET represents and warrants to
NBC as follows:
(a) Ownership of Securities. Upon consummation of the transactions
contemplated by the Xenon 2 Merger Agreement and the NMC Merger Agreement at the
Effective Time, CNET will be the record and beneficial owner of, and have good
and marketable title to, the number of shares of Company Common Stock (the
"Closing Date Securities") (together with any shares of Company Common Stock
hereafter acquired by CNET (including through the exercise of options or
similar instruments), the ("Subject Securities") set forth on the signature page
to this Agreement. CNET does not own of record or beneficially any shares of
capital stock of the Company on the date hereof other than the Closing Date
Securities. CNET has sole voting power and sole power to issue instructions with
respect to the voting of the Closing Date Securities and sole power of
disposition of the Closing Date Securities.
(b) Power: Binding Agreement. CNET has full power and authority to enter
into and perform all of its obligations under this Agreement. This Agreement has
been duly and validly executed and delivered by CNET and constitutes a valid and
binding agreement of CNET, enforceable against CNET in accordance with its
terms, except as such enforceability
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may be limited by bankruptcy, insolvency, reorganization, moratorium and similar
laws relating to or affecting creditors generally, by general equity principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) or by an implied covenant of good faith and fair dealing.
(c) No Conflicts. No filing with, and no permit, authorization, consent or
approval of, any state or federal governmental body or authority or any other
person or entity is necessary for the execution of this Agreement by CNET and
the consummation by CNET of the transactions contemplated hereby, other than
pursuant to the HSR Act or any filing, permit, authorization, consent or
approval, the failure of which to obtain would not reasonably be expected to
prevent CNET from performing its obligations under this Agreement and neither
the execution and delivery of this Agreement by CNET nor the consummation by
CNET of the transactions contemplated hereby nor compliance by CNET with any of
the provisions hereof will conflict with or result in any breach of any
applicable organizational documents or instruments applicable to CNET, 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, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which CNET is a party or by which the Subject
Securities may be bound or violate any order, writ, injunction, decree,
judgment, statute, rule or regulation applicable to CNET as of the date hereof,
other than such violations, breaches or defaults that would not reasonably be
expected to prevent CNET from performing its obligations under this Agreement.
2. Agreement to Vote Shares. At every meeting of the stockholders of the
Company called with respect to any Takeover Proposal, Material Transaction
Proposal or transaction or occurrence which if publicly proposed and offered to
the Company and its stockholders (or any of them) would be the subject of a
Takeover-Proposal or Material Transaction Proposal (collectively, a "Subject
Proposal"), and at every adjournment of any such meeting, and on every action or
approval by written consent of the stockholders of the Company with respect to
any Subject Proposal, CNET irrevocably agrees that it shall vote (or cause to be
voted) all the Subject Securities that it beneficially owns on the record date
of any such vote or action to ratify, approve and adopt any and all actions
adopted or approved by NBC, and against any and all actions voted against by
NBC. CNET shall not commit or agree to take any action inconsistent with the
foregoing. As used herein, "Material Transaction Proposal" means any inquiry,
proposal or offer from any Person relating to (i) the direct or indirect
acquisition or purchase of 5% or more of the assets (based on the fair market
value thereof) of Xenon 2 and its Subsidiaries, taken as a whole, or of 5% or
more of any class of equity securities of Xenon 2 or any of its Subsidiaries or
any tender offer or exchange offer (including by Xenon 2 or its Subsidiaries)
that if consummated would result in any person beneficially owning 5% or more of
any class of equity securities of Xenon 2 or any of its Subsidiaries, or (ii)
any merger, consolidation, business combination, sale of all or substantially
all assets, recapitalization, liquidation, dissolution or similar transaction
involving Xenon 2 or any of its Subsidiaries. As used herein, "Takeover
Proposal" means any inquiry, proposal or offer from any Person relating to (A)
any of the matters set forth in clause (i) of the definition of Material
Transaction Proposal but replacing "5%" with "50%" each place "5%" is used in
such definition, (B) a sale of all or substantially all of the assets of Xenon 2
and its Subsidiaries or (C) a merger or consolidation of
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Xenon 2 as a result of which the stockholders of Xenon 2 immediately prior to
such transaction would not beneficially own immediately after such transaction
50% or more of the resulting or surviving entity (or the parent thereof)
3. Irrevocable Proxy. CNET hereby grants to, and appoints NBC and the
President and Treasurer of NBC and the Secretary of NBC, in their respective
capacities as officers of NBC, and any individual who shall hereafter succeed to
any such office of NBC, and any other designee of NBC, each of them
individually, CNET's proxy and attorney-in-fact (with full power of
substitution) to vote or act by written consent with respect to the Subject
Securities in accordance with Section 2 hereof. This proxy is coupled with an
interest and shall be irrevocable, and CNET will take such further action or
execute such other instruments as may be necessary to effectuate the intent of
this proxy and hereby revokes any proxy previously granted by it with respect to
the Subject Securities; provided that this proxy shall be automatically revoked
without any further action on the part of NBC and CNET upon the termination of
this Agreement pursuant to Section 14 hereof.
4. Representations and Warranties of NBC. NBC represents and warrants, to
CNET as follows:
(a) Power; Binding Agreement. NBC has full power and authority to enter
into and perform all of its obligations under this Agreement. This Agreement has
been duly and validly executed and delivered by NBC and constitutes a valid and
binding agreement of NBC, enforceable against NBC in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting creditors
generally, by general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law) or by an
implied covenant of good faith and fair dealing.
(b) No Conflicts. No filing with, and no permit, authorization, consent or
approval of, any state or federal governmental body or authority or any other
person or entity is necessary for the execution of this Agreement by NBC and the
consummation by NBC of the transactions contemplated hereby, other than pursuant
to the HSR Act or any filing, permit, authorization, consent or approval, the
failure of which to obtain would not reasonably be expected to prevent NBC from
performing its obligations under this Agreement, and neither the execution and
delivery of this Agreement by NBC nor the consummation by NBC of the
transactions contemplated hereby nor compliance by NBC with any of the
provisions hereof will conflict with or result in any breach of any
organizational documents or instruments applicable to NBC, 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,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which NBC is a party or by which NBC's respective
properties or assets may be bound or violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to NBC as of the date
hereof, other than such violations, breaches or defaults that would not
reasonably be expected to prevent NBC from performing its respective obligations
under this Agreement.
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5. Covenants of CNET, CNET hereby agrees and covenants that:
(a) No Solicitation. CNET shall not, and shall not authorize its
affiliates, partners, investment bankers, attorneys, agents or other advisors or
representatives to, directly or indirectly, solicit, knowingly encourage
(including by way of providing confidential information or data) or have any
discussion or negotiate with any person or entity (other than NBC or any
affiliate of NBC) concerning any proposal by such person or entity with respect
to the Company that constitutes or could reasonably be expected to lead to a
Subject Proposal. CNET will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore by or on its behalf with respect to any of the foregoing.
(b) Restriction on Transfer, Proxies and Noninterference. CNET shall not,
and shall not authorize any of its affiliates, partners, investment bankers,
attorneys, agents or other advisors or representatives to, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of (including by gift), or enter into any contract, option.
or other arrangement or understanding with respect to or consent to the offer
for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Subject Securities (or any interest therein),
other than in accordance with the provisions of this Agreement and the
Standstill Agreement, dated as of the date hereof, between CNET and Xenon 2;
(ii) except as contemplated hereby, grant any proxies or powers of attorney,
deposit any such Subject Securities into a voting trust or enter into a voting
agreement with respect to any of the Subject Securities; (iii) take any action
that would have the effect of preventing or disabling CNET from performing its
obligations under this Agreement; or (iv) commit or agree to take any of the
foregoing actions. CNET will not sell, transfer or otherwise dispose of any of
the Subject Securities to any affiliate of CNET unless such agrees to be bound
by the terms of this Agreement with respect to such Subject Securities as if it
were CNET and delivers a written agreement to NBC to such effect.
(c) Further Assurances CNET will, from time to time, execute and deliver,
or cause to be executed and delivered, without further consideration, such
additional or further consents, documents and other instruments and take all
such further actions as NBC may reasonably request for the purpose of
effectuating the matters covered by this Agreement in the most expeditious
manner practicable.
6. Rights of First Offer and Reoffer.
(a) If CNET at any time intends to transfer, sell, assign, exchange,
mortgage, pledge, hypothecate or otherwise dispose of any Company Common Stock
or any interest therein (other than pursuant to a merger, consolidation or
reorganization to which the Company is a party or a tender offer approved by the
Board of Directors of the Company) ("Transfer") to any Person other than NBC and
its affiliates (a "Third Party"), CNET shall first give written notice (a
"Seller's Notice") to NBC, stating CNET's intention to make such Transfer, the
name of the proposed Third Party transferee (if the Transfer is to occur in a
privately negotiated transaction), the number of shares of Company Common Stock
to be transferred (the "Offered Shares"), the price or other consideration per
share which CNET proposes to be paid for the Offered Shares by the Third Party
(the "First Offer Price") and the other material terms upon which such Transfer
is proposed. It being expressly understood that, with respect to proposed open
market sales and
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sales pursuant to bona fide underwritten public offerings, CNET may indicate as
the price in the Seller's Notice as the "then current market price" and such
indication shall be sufficient for such notice. If the Seller's notice specifies
the "then current market price" or that the sale will be made for non-cash
consideration, then the First Offer Price will be the closing price for shares
of Company Common Stock on the NASDAQ Stock Market on the day immediately
preceding NBC's acceptance of CNET's offer. CNET will not include in any
Seller's Notice more shares of Company Common Stock than the number of shares it
anticipates it will sell during the next 60 days.
(b) Upon receipt of the Seller's Notice (the "First Offer"), NBC shall have
an irrevocable, non-transferable (other than to Affiliates) option to purchase
all or any number of the Offered Shares at the First Offer Price. The option of
NBC under this Section 6(b) shall be exercisable by written notice to CNET given
within 7 days from receipt of the Seller's Notice. NBC may assign its rights
under this Section 6 in whole or in part to the Company.
(c) If NBC determines not to exercise its option to purchase the Offered
Shares at the First Offer Price or determines to exercise its option to purchase
less than all the Offered Shares, then CNET shall be free, for a period of 60
days from the earlier of (i) the expiration of the option period with respect to
such First Offer pursuant to Section 6(b) and (ii) the date CNET shall have
received written notice from NBC stating that NBC intends not to exercise the
option granted to it under the foregoing provisions of this Section 6 with
respect to all the Offered Shares, to sell the Offered Shares as to which such
options are not exercised to the Third Party transferee at a price equal to or
greater than the First Offer Price and on substantially similar material terms
as were contained in the First Offer, provided that the Transfer complies with
the provisions of Section 5(b).
(d) In the event the proposed purchase price of a Third Party transferee
for the Offered Shares is less than the First Offer Price (other than a
reduction in the purchase price due to decreases in the market value of the
Company Common Stock if the Offered Shares are proposed to be sold in the open
market or pursuant to an underwritten offering) or is otherwise on terms that
are different in any material respect from those set forth in the Seller's
Notice, CNET shall not sell or otherwise transfer any of the Offered Shares
unless CNET shall first reoffer the Offered Shares at such lesser price to NBC
(the "Reoffer") by giving written notice (the "Reoffer Notice") to NBC, stating
the items required to be included in the Seller's Notice, including CNET's
intention to make such transfer at such lower price or on such different terms
(the "Reoffer Price"). NBC shall then have an irrevocable, non-transferable
(other than to Affiliates) option to purchase all or part of the Offered Shares
at the Reoffer Price, exercisable in the same manner as provided in Section
6(b). In the event that NBC does not then elect to purchase all the remaining
Offered Shares, or NBC elects to purchase less than all the remaining Offered
Shares, the Offered Shares not so purchased may be sold by CNET within 60 days
following the earlier of (i) the expiration of the option period with respect to
the Reoffer pursuant to Section 6(b) or (ii) the date on which CNET shall have
received written notice from NBC stating that NBC intends not to exercise the
option granted to it in this Section 6(d) with respect to all of the remaining
Offered Shares, at a price equal to or greater than the Reoffer Price, provided
that the Transfer complies with the provisions of Section 5(b).
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(e) In the event that NBC does not exercise its option to purchase any or
all of the Offered Shares at the First Offer Price or at the Reoffer Price, and
CNET shall not have sold the remaining Offered Shares to a Third Party
transferee for any reason before the expiration of the 30-day period described
in Section 6(d) in the event of a Reoffer, or, if no Reoffer Notice is given,
the 60-day period described in Section 6(c), then all of the provisions of this
Section 6 shall again become applicable to any sales or transfers of Company
Common Stock by CNET.
(f) If NBC exercises its rights of first offer or reoffer hereunder, the
closing of the purchase of the Offered Shares with respect to which such right
has been exercised shall take place on the tenth day after the later of (i) the
date NBC gives notice of such exercise and (ii) the expiration of such time as
NBC may reasonably require in order to comply with applicable United States
federal and state laws and regulations, which in no event shall be more than 30
days after the date specified in clause (i). Upon exercise by NBC of its rights
of first offer and reoffer under this Section 6, NBC and CNET shall be legally
obligated to consummate the purchase contemplated thereby and shall use their
best efforts to secure any approvals required, and to comply as soon as
practicable with all applicable United States federal and state laws and
regulations in connection therewith.
(g) Notwithstanding anything herein to the contrary, (i) nothing herein
shall prohibit or restrict CNET in any way from (A) pledging or hypothecating
any Subject Securities to a financial institution in a bona fide financing
transaction so long as CNET controls the voting of such Subject Securities prior
to the occurrence of a default or (B) entering into hedging strategies or
transactions such as, for example, the purchase and sale of puts, calls,
options, straddles and other hedging mechanisms with respect to Subject
Securities so long as the aggregate hedging transaction at any time outstanding
with any Person and its affiliates do not relate to an aggregate number of
shares of Common Stock in excess of 5% of the outstanding shares of Common Stock
and Class B Common Stock of the Company at the time such transactions were
entered into (or an equivalent position) and (ii) the transactions described in
clause (i) shall not be a Transfer and shall not be subject to the Right of
First Offer set forth in this Section 6.
7. Entire Agreement; Assignment; Benefits. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supercedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof. Except as
provided in the last sentence of Section 5(b), this Agreement may not be
assigned by any party hereto without the prior written consent of the other
party. This Agreement shall be binding upon, and shall inure to the benefit of,
each of NBC and CNET and their respective successors and permitted assigns.
8. Notices. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
if and when delivered personally or by overnight courier or sent by electronic
transmission, with confirmation received, to the telecopy numbers specified
below:
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If to NBC:
National Broadcasting Company
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
With copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
If to CNET:
CNET, Inc.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with copies to:
Xxxxxx & Xxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: R. Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
or to such other address or telecopy number as any party may have furnished to
the other parties in writing in accordance herewith.
9. Notice of Litigation. CNET shall promptly notify NBC of any pending or,
to its knowledge, threatened action or proceeding challenging the validity or
enforceability of this Agreement or the ability of CNET to perform its
obligations hereunder.
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10. Specific Performance. The parties hereto agree that irreparable harm
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
11. Amendment. This Agreement may not be amended or modified, except by an
instrument in writing signed by or on behalf of each of the parties hereto. This
Agreement may not be waived by any party hereto, except by an instrument in
writing signed by or on behalf of the party granting such waiver.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of conflicts of law.
13. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
14. Termination. This Agreement shall terminate upon the date on which CNET
and its affiliates do not beneficially own (as determined pursuant to Rule 13d-3
under the Exchange Act) in the aggregate at least 5% of the Company Common Stock
outstanding. Upon any termination of this Agreement, this Agreement shall
thereupon become void and of no further force and effect, and there shall be no
liability in respect of this Agreement or of any transactions contemplated
hereby on the part of any party hereto or any of its directors, officers,
partners, stockholders, employees, agents, advisors, representatives or
affiliates; provided, however, that nothing herein shall relieve any party from
any liability for such party's wilful breach of any of its material agreements
contained in this Agreement; and provided further that nothing herein shall
limit, restrict, impair, amend or otherwise modify the rights, remedies,
obligations or liabilities of any person under any other contract or agreement.
15. Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability and shall not
render invalid or unenforceable the remaining terms and provisions of this
Agreement or affect the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
each of the parties hereto, all as of the date first above written.
NATIONAL BROADCASTING COMPANY
By:
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Name:
Title:
CNET, INC.
By:
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Name:
Title:
