VOTING AND SUPPORT AGREEMENT
Exhibit 2.2
VOTING AND SUPPORT AGREEMENT (the “Agreement”), dated as of April 27, 2011 between the Persons
listed on Schedule A hereto (“Stockholders”), CoStar Group, Inc., a Delaware corporation
(“Parent”) and LoopNet, Inc., a Delaware corporation (the “Company”). All capitalized terms used
but not defined herein shall have the meanings assigned to them in the Merger Agreement (defined
below).
WHEREAS, in order to induce Parent and Xxxxxxxx Acquisition Sub, Inc., a Delaware corporation
and wholly-owned subsidiary of Parent (“Merger Subsidiary”), to enter into an Agreement and Plan of
Merger with the Company, dated as of the date hereof (the “Merger Agreement”), pursuant to which,
among other things, Merger Subsidiary will merge with and into the Company on the terms and subject
to the conditions set forth in the Merger Agreement (the “Merger”), Parent has requested each
Stockholder, and each Stockholder has agreed, to enter into this Agreement with respect to (i) the
shares of common stock, $0.001 par value of the Company (the “Common Stock”) owned by such
Stockholder as indicated on Schedule A and the shares of Series A Convertible Preferred
Stock, par value $0.001 of the Company (the “Series A Preferred Stock” and any holder thereof, a
“Series A Holder”) owned by such Stockholder as indicated on Schedule A (if any) (all such
shares, with respect to each Stockholder, the “Shares”) and (ii) any other voting securities of the
Company that such Stockholder acquires record and/or beneficial ownership of after the date hereof,
including by purchase, as a result of a stock dividend, stock split, recapitalization, combination,
reclassification, exchange or change of such shares, or upon exercise, conversion or settlement of
any securities, including Common Stock issued upon conversion of the Series A Preferred Stock or
upon exercise or settlement of stock options and restricted stock units granted pursuant to any
Company equity plan, including without limitation, the Company’s
2006 Equity Incentive Plan and the Company’s 2001 Stock Option
Plan (all
such shares, with respect to each Stockholder, the “After-Acquired Shares” and together with the
Shares, the “Covered Shares”);
WHEREAS, in order to induce Parent and Merger Subsidiary to enter into the Merger Agreement
with the Company and to proceed with the transactions contemplated thereby, each Stockholder has
agreed to provide a waiver and consent with respect to certain provisions of the Series A
Certificate of Designation and to terminate, as of the Effective Time, that certain Investors’
Rights Agreement, dated as of April 14, 2009 (the “Investors’ Rights Agreement”) and that certain
Securities Purchase Agreement dated as of March 29, 2009 among the Company and certain of the
Stockholders (the “SPA”);
WHEREAS, each Stockholder acknowledges that Parent and Merger Subsidiary are entering into the
Merger Agreement in reliance on the representations, warranties, covenants and other agreements of
the Stockholders set forth in this Agreement and would not enter into the Merger Agreement if any
Stockholder did not enter into this Agreement;
NOW, THEREFORE, in consideration of the promises, representations, warranties and agreements
contained herein, and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
Grant of Proxy; Voting Agreement; Stockholder Waiver and Consent
Grant of Proxy; Voting Agreement; Stockholder Waiver and Consent
Section 1.01. Voting Agreement. Each Stockholder hereby irrevocably and unconditionally
agrees that during the term of this Agreement, at the Company Stockholder Meeting and at any other
meeting of the stockholders of the Company, however called, including any adjournment or
postponement thereof, and in connection with any written consent of the stockholders of the
Company, such Stockholder shall:
(a) appear at each such meeting or otherwise cause such Stockholder’s Covered Shares to be
counted as present thereat for purposes of calculating a quorum; and
(b) vote (or cause to be voted), in person or by proxy, or deliver (or cause to be delivered)
a written consent covering, all of such Stockholder’s Covered Shares (i) in favor of the adoption
of the Merger Agreement and in favor of any related proposal in furtherance thereof; (ii) against
any action or agreement that would reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company contained in the
Merger Agreement or of such Stockholder contained in this Agreement; and (iii) against any
Acquisition Proposal and against any other action, agreement or transaction that would reasonably
be expected to impede, interfere with, delay, postpone, discourage, frustrate the purposes of or
adversely affect, or be inconsistent with, the Merger or the other transactions contemplated by the
Merger Agreement or this Agreement or the performance by the Company of its obligations under the
Merger Agreement or by such Stockholder of its obligations under this Agreement. The obligations
of such Stockholder specified in this Section 1.01(b) shall apply whether or not the adoption of
the Merger Agreement or any action described above is recommended by the Board of Directors.
Section 1.02. Irrevocable Proxy. Each Stockholder hereby revokes any and all previous
proxies granted with respect to its Covered Shares. By entering into this Agreement, each
Stockholder hereby grants a proxy appointing Parent, and any designee of Parent, and each of them
individually as the Stockholder’s attorney-in-fact and proxy, with full power of substitution and
resubstitution, for and in such Stockholder’s name, to vote, express consent or dissent, or
otherwise to exercise such voting power in each case solely with respect to the matters, and solely
in the manner, set forth in Section 1.01 above. The proxy granted by each Stockholder pursuant to
this Article 1 is irrevocable and coupled with an interest sufficient in law to support an
irrevocable proxy and may under no circumstances be revoked during the term of this Agreement.
Without limiting the generality of the foregoing, such irrevocable proxy is executed and intended
to be irrevocable in accordance with the provisions of Section 212 of the General Corporation Law
of the State of Delaware. This proxy is given to secure the performance of the duties of each
Stockholder under this Agreement. Each Stockholder further agrees to execute such other
instruments as may be necessary to effectuate the intent of this proxy. For the avoidance of
doubt, if for any reason the proxy granted herein is not irrevocable, each Stockholder agrees to
vote the Covered Shares in accordance with Section 1.01 hereof. Parent may terminate this proxy
with respect to any Stockholder at any time at its sole discretion by written notice provided to
the Stockholder. Each Stockholder shall cause the record owner of any Covered Shares of the
Stockholder of which such Stockholder is not the record owner to execute and deliver to Parent an
irrevocable proxy that conforms to the foregoing provisions of this Section 1.02.
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Section 1.03 No Inconsistent Agreements. Each Stockholder hereby covenants and agrees that,
except for this Agreement, such Stockholder (a) has not entered into, and shall not enter into at
any time while this Agreement remains in effect, any voting agreement or voting trust with respect
to the Covered Shares, (b) has not granted, and shall not grant at any time while this Agreement
remains in effect, a proxy (except pursuant to Section 1.02 hereof), consent or power of attorney
with respect to the Covered Shares and (c) has not taken and shall not knowingly take any action
that would make any representation or warranty of the Stockholder contained herein untrue or
incorrect or have the effect of preventing, impeding or delaying such Stockholder from performing
any of its obligations under this Agreement.
Section 1.04. Series A Holder Waiver and Consent; Conversion Notice. (a) Each Stockholder
that is or becomes a Series A Holder hereby:
(i) waives (A) such Stockholder’s rights under Section 4(c) and Section 6(c) of the
Series A Certificate of Designation (and any obligations of a Third Party Acquiror (as
defined in the Series A Certificate of Designation) or the Company, as the case may be,
thereunder) and (B) any notice that such Stockholder may be entitled to with respect to
the Merger or the Merger Agreement pursuant to the Series A Certificate of Designation,
the SPA or the Investors’ Rights Agreement (including, without limitation, any notice
under Section 6(c) and Section 10(a) of the Series A Certificate of Designation);
(ii) consents to the Merger and the transactions contemplated by the Merger Agreement
for purposes of Section 8 of the Series A Certificate of Designation;
(iii) consents to the termination, effective as of (and contingent upon the
occurrence of) the Effective Time, of the Investors’ Rights Agreement and the SPA (the
waivers and consents set forth in clauses (i) — (iii) above, collectively, the “Written
Waiver and Consent”); and
(iv) agrees, while this Agreement is in effect, not to revoke or otherwise withdraw
or modify in any manner adverse to Parent, Merger Subsidiary or the Company such Written
Waiver and Consent.
(b) Not later than five Business Days following the date hereof, each Stockholder that is a
Series A Holder shall deliver to the Company a Contingent Conversion Notice (as defined in the
Series A Certificate of Designation) in the form attached hereto as Exhibit A to convert
all of its Series A Preferred Stock to Common Stock in connection with the Merger, pursuant to
Section 4(a)(ii) of the Series A Certificate of Designation. Any Stockholder that becomes a Series
A Holder after the date hereof (or that is a Series A Holder on the date hereof but acquires
additional shares of Series A Preferred Stock after the date hereof) shall deliver to the Company a
Contingent Conversion Notice with respect to the Series A Preferred Stock acquired by it by the
earlier of (x) two Business Days after becoming a Series A Holder (or acquiring additional shares
of Series A Preferred Stock not covered by a Contingent Conversion Notice previously delivered to
the Company) and (y) one Business Day prior to the Effective Time. Each Stockholder referred to in
this Section 1.04(b) agrees not to, and hereby waives any right under said Section 4(a)(ii) of the
Series A Certificate of Designation to, revoke any Contingent Conversion Notice so delivered.
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ARTICLE 2
Representations and Warranties of Stockholders
Representations and Warranties of Stockholders
Each Stockholder represents and warrants to Parent and the Company that:
Section 2.01. Stockholder Authorization. Such Stockholder (if not an individual) is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
formation and such Stockholder has full right, power and authority to enter into this Agreement,
and this Agreement has been duly authorized, executed and delivered by such Stockholder and
constitutes a valid and binding agreement of such Stockholder, enforceable against such Stockholder
in accordance with its terms, and no other proceedings or actions on the part of such Stockholder
are necessary to authorize the execution, delivery or performance of this Agreement or the
transactions contemplated hereby.
Section 2.02. Governmental Authorization. No consent, waiver, approval, order or
authorization of, or registration, declaration or filing with, or notice to, any Governmental
Authority, is required to be made or obtained by such Stockholder in connection with the execution
and delivery of this Agreement by such Stockholder or the consummation by such Stockholder of the
transactions contemplated hereby, except for filings required to be made under Sections 13(d) or 16
of the 1934 Act, and such filings, authorizations, consents and approvals that if not obtained or
made would not have a material and adverse effect on the ability of such Stockholder to consummate
the transactions contemplated by this Agreement.
Section 2.03. Non-Contravention. The execution, delivery and performance by such
Stockholder of this Agreement and the consummation of the transactions contemplated hereby do not
and will not (i) violate the organizational documents of such Stockholder (if not an individual),
(ii) violate any law, rule, regulation, judgment, injunction, order, writ or decree of any
Governmental Authority applicable to such Stockholder, (iii) require any consent or other action by
any Person under, constitute a default (or an event which, with notice or lapse of time or both,
would become a default) under, or give rise to any right of termination, cancellation or
acceleration or to a loss of any benefit to which such Stockholder is entitled under any provision
of any agreement or other instrument binding on such Stockholder, or (iv) result in the imposition
of any Lien on any asset of such Stockholder, except for any of the foregoing as could not
reasonably be expected, individually or in the aggregate, to impair such Stockholder’s ability to
perform its obligations hereunder.
Section 2.04. Ownership of Shares. Such Stockholder is the record and beneficial owner of
the Shares set forth opposite the name of such Stockholder on Schedule A as of the date
hereof, free and clear of any lien, encumbrance or any other limitation or restriction (including
any restriction on the right to vote or otherwise dispose of the Shares), in each case other than
as arising under this Agreement. None of the Shares is subject to any voting trust or other
agreement or arrangement with respect to the voting of such Shares, in each case other than as
arising under this Agreement. Such Stockholder has not appointed or granted any proxy or power of
attorney that is still in effect with respect to any Shares, in each case other than as arising
under this Agreement. Such Stockholder has sole voting power, sole power of disposition and sole
power to demand appraisal rights with respect to the Shares set forth opposite the name of such
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Stockholder on Schedule A, in each case other than with respect to any limitations on
such powers pursuant to this Agreement.
Section 2.05. Total Shares. Except for the Shares set forth on Schedule A, such
Stockholder does not beneficially own any (i) shares of capital stock or voting securities of the
Company, (ii) securities of the Company convertible into or exchangeable for shares of capital
stock or voting securities of the Company or (iii) options or other rights to acquire from the
Company any capital stock, voting securities or securities convertible into or exchangeable for
capital stock or voting securities of the Company, other than stock options and restricted stock
units granted to such Stockholder pursuant to the Company’s 2006 Equity Incentive Plan or the
Company’s 2001 Stock Option Plan.
Section 2.06. Finder’s Fees. No investment banker, broker, finder or other intermediary is
entitled to a fee or commission from Parent or the Company in respect of this Agreement based upon
any arrangement or agreement made by or on behalf of such Stockholder.
Section 2.07. Litigation. As of the date hereof, there is no action, suit, investigation,
complaint or other proceeding pending against any such Stockholder or, to the knowledge of such
Stockholder, any other Person or, to the knowledge of such Stockholder, threatened against any
Stockholder or any other Person that restricts or prohibits (or, if successful, would restrict or
prohibit) the exercise by Parent of its rights under this Agreement or the performance by any party
of its obligations under this Agreement.
Section 2.08. Reliance. Such Stockholder understands and acknowledges that Parent and
Merger Subsidiary are entering into the Merger Agreement in reliance upon such Stockholder’s
execution and delivery of this Agreement and the representations and warranties of such Stockholder
contained herein.
Section 2.09. No Indemnification Claims. Such Stockholder has not made any claim for
indemnification that is continuing under Article VI of the SPA.
ARTICLE 3
Covenants of Stockholders
Covenants of Stockholders
Each Stockholder hereby covenants and agrees that:
Section 3.01. No Proxies for or Disposition of Shares. Except pursuant to the terms of this
Agreement, such Stockholder shall not, without the prior written consent of Parent, directly or
indirectly, (i) grant any proxies or powers of attorney or other authorization or consent in or
with respect to, or enter into any voting trust or other agreement or arrangement with respect to,
the voting of any Covered Shares, (ii) sell (constructively or otherwise), assign, transfer,
encumber or otherwise dispose of (including, without limitation, by merger, by tendering into any
tender or exchange offer, or otherwise), or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment, transfer, encumbrance or
other disposition of, any Covered Shares or beneficial ownership thereof or therein (each such
action, a “Transfer”), other than a Transfer of shares of Common Stock issued in connection with
the settlement of restricted stock units for the purpose of satisfying tax
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obligations upon the vesting thereof, consistent with the Company’s past practice, or (iii)
take any action that would restrict or otherwise affect the Stockholder’s legal power, authority
and right to comply with and perform its covenants and obligations under this Agreement. Such
Stockholder shall not seek or solicit any such Transfer and agrees to notify Parent and the Company
promptly if such Stockholder shall be approached or solicited, directly or indirectly, by any
Person with respect to any of the foregoing and provide the details of such approach or
solicitation to the extent requested by Parent and the Company. Any attempted Transfer of Covered
Shares or any interest therein in violation of this Section 3.01 shall be null and void. This
Section 3.01 shall not prohibit a Transfer of the Covered Shares by a Stockholder (A) if such
Stockholder is an individual, (i) to any member of such Stockholder’s immediate family, (ii) upon
the death of such Stockholder, or (iii) of up to 55,000 shares of Common Stock by gift to a
charitable trust or (B) if such Stockholder is a partnership or limited liability company, to one
or more partners or members of such Stockholder or to an affiliated entity under common control
with such Stockholder; provided, that a Transfer referred to clause (A)(i), (A)(ii) or (B) in this
sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a
writing, reasonably satisfactory in form and substance to Parent, to by bound by all the terms of
this Agreement.
Section 3.02. Other Offers. From and after the date hereof until the termination of this
Agreement in accordance with its terms, such Stockholder, in his, her or its capacity as a
stockholder of the Company, shall not, nor to the extent applicable to Stockholder, shall such
Stockholder authorize any partner, officer, director, advisor or representative of, such
Stockholder or any of his, her or its affiliates to (and, to the extent applicable to Stockholder,
such Stockholder shall use reasonable best efforts to prohibit any of his, her or its
representatives or affiliates to), (a) initiate, solicit, induce, explore, or knowingly take any
action to facilitate or encourage the submission or announcement of any Acquisition Proposal, or
any inquiries, proposals or offers that may reasonably be expected to lead to an Acquisition
Proposal, (b) enter into or participate in any discussions or negotiations with, furnish any
information relating to the Company or any of its Subsidiaries or afford access to any information
or data relating to the Company or any of its Subsidiaries or otherwise cooperate in any way with,
assist or facilitate any Third Party that is seeking to make, or has made, an Acquisition Proposal,
(c) enter into any agreement, including, without limitation, any agreement in principle, term
sheet, letter of intent, memorandum of understanding or similar arrangement with respect to an
Acquisition Proposal, (d) solicit proxies or become a “participant” in a “solicitation” (as such
terms are defined in Regulation 14A under the 0000 Xxx) with respect to an Acquisition Proposal
(other than the Merger Agreement) or otherwise encourage or assist any party in taking or planning
any action that would reasonably be expected to compete with, restrain or otherwise serve to
interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the
Merger Agreement, (e) initiate a shareholders’ vote or action by consent of the Company’s
shareholders with respect to an Acquisition Proposal, or (f) except by reason of this Agreement
(but without conceding the existence of a “group” (as such term is used in Section 13(d) of the
0000 Xxx) solely by virtue of this Agreement), become a member of a “group” with respect to any
voting securities of the Company that takes any action in support of an Acquisition Proposal.
Section 3.03. Waiver of Appraisal Rights and Dissenters’ Rights and Actions. Such
Stockholder agrees not to exercise any rights (including under Section 262 of the General
Corporation Law of the State of Delaware) to demand appraisal of any Covered
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Shares or rights to dissent which may arise with respect to the Merger. Such Stockholder
further agrees not to commence or participate in, and to take all actions necessary to opt out of
any class in any class action with respect to, any claim, derivative or otherwise, against Parent,
Merger Subsidiary, the Company or any of their respective successors relating to the negotiation,
execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger.
Section 3.04. Company Actions. Such Stockholder understands and agrees that if such
Stockholder attempts to transfer, vote or provide any other person with the authority to vote any
of the Covered Shares other than in compliance with this Agreement, the Company shall not, and such
Stockholder hereby unconditionally and irrevocably instructs the Company to not (and the Company
agrees to not, and to instruct its transfer agent to not), (a) permit any such transfer on its
books and records, (b) issue a new certificate representing any of the Covered Shares or (c) record
any such vote, in each case unless and until such Stockholder shall have complied with the terms of
this Agreement. Such Stockholder agrees that the certificates representing the Covered Shares
shall bear a legend stating that they are subject to this Agreement and instructs the Company to so
legend the shares (which the Company shall do as promptly as practicable following the date of this
Agreement).
Section 3.05 Communications. Such Stockholder hereby (i) consents to and authorizes the
publication and disclosure by Parent of such Stockholder’s identity and holding of Covered Shares,
and the nature of such Stockholder’s commitments, arrangements and understandings under this
Agreement, and any other information that Parent reasonably determines to be necessary in any SEC
disclosure document in connection with the Merger or any other transactions contemplated by the
Merger Agreement and (ii) agrees as promptly as practicable to notify Parent of any required
corrections with respect to any written information supplied by it specifically for use in any such
disclosure document.
ARTICLE 4
Miscellaneous
Miscellaneous
Section 4.01. New Shares. In the event that a Stockholder acquires record or beneficial
ownership of, or the power to vote or direct the voting of, any shares of Common Stock, Series A
Preferred Stock or other voting interests with respect to the Company, such shares or voting
interests shall, without further action of the parties, be subject to the provisions of this
Agreement, and the number of Shares held by such Stockholder set forth on Schedule A hereto
will be deemed amended accordingly. Each Stockholder shall promptly notify Parent and the Company
of any such event.
Section 4.02. Other Definitional and Interpretative Provisions. The words “hereof”,
“herein” and “hereunder” and words of like import used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. The captions herein
are included for convenience of reference only and shall be ignored in the construction or
interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles,
Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Schedules and
Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit
but not otherwise defined therein,
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shall have the meaning as defined in this Agreement. Any singular term in this Agreement
shall be deemed to include the plural, and any plural term the singular. Whenever the words
“include”, “includes” or “including” are used in this Agreement, they shall be deemed to be
followed by the words “without limitation”, whether or not they are in fact followed by those words
or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and
other means of reproducing words (including electronic media) in a visible form. References to any
agreement or contract are to that agreement or contract as amended, modified or supplemented from
time to time in accordance with the terms thereof. References to any Person include the successors
and permitted assigns of that Person. References from or through any date mean, unless otherwise
specified, from and including or through and including, respectively.
Section 4.03. Further Assurances. Parent and each of the Stockholders will execute and
deliver, or cause to be executed and delivered, all further documents and instruments and use its
or their best efforts to take, or cause to be taken, all actions necessary, proper or advisable
under applicable laws and regulations, to consummate and make effective the transactions
contemplated by this Agreement.
Section 4.04. No Impairment of Rights. The covenants contained herein shall apply to each
Stockholder solely in his or her capacity as a stockholder of the Company, and no covenant
contained herein shall apply to a Stockholder in his or her capacity as a director or officer of
the Company. Nothing herein shall limit or restrict each Stockholder from voting in such
Stockholder’s sole discretion on any matter other than the matters referred to in Sections 1.01 and
1.04 hereof. For the avoidance of doubt, neither Parent nor Merger Subsidiary shall be deemed an
Affiliate of any Stockholder or the Company by virtue of this Agreement.
Section 4.05. Amendments; Termination. Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement or in the case of a waiver, by the party against whom
the waiver is to be effective; provided, that Schedule A shall be deemed amended
automatically in accordance with Section 4.01. This Agreement shall terminate upon the earlier of
(i) the termination of the Merger Agreement in accordance with its terms and (ii) the Effective
Time. Each Stockholder shall also have the right to terminate this Agreement by written notice to
Parent as specified below if (but only if) the terms of the Merger Agreement are amended, modified
or waived without the written consent of such Stockholder to change the form or amount of the
consideration payable with respect to the Shares pursuant to the Merger Agreement in a manner
adverse to such Stockholder (for the avoidance of doubt, an increase in the cash or stock
consideration payable with respect to the Shares shall not be considered adverse to a Stockholder);
provided that such Stockholder sends notice to Parent of such Stockholder’s election to terminate
within five Business Days after the public announcement of such amendment. Notwithstanding the
foregoing, (1) the provisions set forth in Article 4 (other than Section 4.01) shall survive the
termination of this Agreement and (2) any liability incurred by any party hereto as a result of a
willful and material breach of a term or condition of this Agreement prior to such termination
shall survive the termination of this Agreement.
Section 4.06. Expenses. All costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such cost or expense.
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Section 4.07. Successors and Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns;
provided that no party may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties hereto.
Section 4.08. No Waiver. No failure or delay by any party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive
of any rights or remedies provided by law.
Section 4.09. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the conflicts of law rules of
such state.
Section 4.10 Jurisdiction. The parties hereto agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby (whether brought by any party or any of its
Affiliates or against any party or any of its Affiliates) shall be brought in the Court of Chancery
of the State of Delaware or, if such court shall not have jurisdiction, any federal court located
in the State of Delaware or other Delaware state court, and each of the parties hereby irrevocably
consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in
any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the jurisdiction of any
such court. Without limiting the foregoing, each party agrees that service of process on such
party as provided in Section 4.16 shall be deemed effective service of process on such party.
Section 4.11. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 4.12. Counterparts; Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other parties hereto. Until
and unless each party has received a counterpart hereof signed by the other party hereto, this
Agreement shall have no effect and no party shall have any right or obligation hereunder (whether
by virtue of any other oral or written agreement or other communication).
Section 4.13. Entire Agreement. This Agreement and the Merger Agreement constitute the
entire agreement between the parties with respect to the subject matter herein and therein and
supersede all prior agreements and understandings, both oral and written, between the parties with
respect to the subject matter herein and therein.
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Section 4.14 Severability. If any term, provision or covenant of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions and covenants of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
Section 4.15. Specific Performance. Each Stockholder acknowledges that it is a condition to
the willingness of Parent to enter into the Merger Agreement that such Stockholder execute and
deliver this Agreement. The parties hereto agree that irreparable damage would occur in the event
any provision of this Agreement is not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof in addition to any other
remedy to which they are entitled at law or in equity. Each Stockholder hereby further waives (a)
any defense in any action for specific performance that a remedy at law would be adequate and (b)
any requirement under any law to post security as a prerequisite to obtaining equitable relief.
Section 4.16 Notices. All notices, requests and other communications to any party hereunder
shall be in writing (including facsimile transmission) and shall be given,
if to Parent, to:
CoStar Group, Inc.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No: (000) 000-0000
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000
000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000
if to the Company, to:
LoopNet, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Facsimile No.: (000) 000-0000
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx LLP
0000 Xx Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
0000 Xx Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
10
If to a Stockholder, to the address set forth opposite such Stockholder’s name on Schedule
A hereto
or to such other address or facsimile number as such party may hereafter specify for the
purpose by notice to the other parties hereto. All such notices, requests and other communications
shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00
p.m. on a business day in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed to have been received on the next succeeding business day in the
place of receipt.
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
| COSTAR GROUP, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Chief Executive Officer | |||
[Signature Page to Voting Agreement]
| LOOPNET, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxx, Xx. | |||
| Title: | Chief Executive Officer and Chairman of the Board of Directors |
|||
[Signature Page to Voting Agreement]
| CALERA CAPITAL PARTNERS IV, L.P. |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Managing Director and General Counsel |
|||
| CALERA CAPITAL PARTNERS IV SIDE-BY-SIDE, L.P. |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Managing Director and General Counsel |
|||
[Signature Page to Voting Agreement]
| TRINITY VENTURES IX, L.P. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | Member of Trinity TVL IX, LLC, General Partner of Trinity Ventures IX, L.P. | |||
| TRINITY IX SIDE-BY-SIDE FUND, L.P. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | Member of Trinity TVL IX, LLC, General Partner of Trinity IX Side-by-Side Fund, L.P. | |||
| TRINITY IX ENTREPRENEURS FUND, L.P. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | Member of Trinity TVL IX, LLC, General Partner of Trinity IX Entrepreneurs Fund, L.P. |
|||
[Signature Page to Voting Agreement]
| SAINTS RUSTIC CANYON, L.P. | ||||||||
| By: | SAINTS RUSTIC CANYON, LLC, GENERAL PARTNER | |||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||||
| Name: | Xxxxxx Xxxxxxxx | |||||||
| Title: | Managing Partner | |||||||
| RUSTIC CANYON VENTURES III, L.P. | ||||||||
| By: | RUSTIC VENTURE PARTNERS, LLC, GENERLA PARTNER | |||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||||
| Name: | /s/ Xxxxxx Xxxxxxxx | |||||||
| Title: | Managing Partner | |||||||
[Signature Page to Voting Agreement]
| THE BOARD OF TRUSTEES OF THE XXXXXX XXXXXXXX JUNIOR UNIVERSITY (SBST) | ||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | Associate Director, Charitable Trust
Program Stanford Management Company |
|||||
[Signature Page to Voting Agreement]
| XXXXXXX X. XXXXX, XX. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |||
| XXXXXX X. XXXXX |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| XXXXX XXXXXX |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| XXXXX XXXXXXXX |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| XXXXX XXXXXXX |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| XXXXXXX XXXXXX |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
[Signature Page to Voting Agreement]
| XXXXXX XXXXXXXXXXX |
||||
| By: | /s/ Xxxxxx Xxxxxxxxxxx | |||
| XXXXX X. XXXXXXX |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| XXXX XXXXXX |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| XXXXX XXXXXXXX |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| XXXXXX X. XXXXXXXX |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
[Signature Page to Voting Agreement]
