Voting and Waiver Agreement - MarketWatch.com Inc., Pinnacor Inc., CBS Broadcasting Inc. and Pearson International Finance Ltd.
VOTING AND WAIVER AGREEMENT
This Voting and Waiver Agreement (the "AGREEMENT") is made and entered
into as of July 22, 2003, by and among NMP, Inc. ("HOLDCO"), MarketWatch.com,
Inc. ("PARENT"), Pinnacor Inc. (the "COMPANY"), CBS Broadcasting Inc. ("CBS")
and Pearson International Finance Ltd. ("PIFL" and together with CBS shall be
hereinafter referred to as a "STOCKHOLDER" and collectively, as the
"STOCKHOLDERS"). All capitalized terms herein not otherwise defined shall
have the meaning ascribed to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of the date
hereof (the "MERGER AGREEMENT") by and among Holdco, Parent, the Company, Maple
Merger Sub, Inc., a direct wholly owned subsidiary of Holdco ("PARENT MERGER
SUB"), and Pine Merger Sub, Inc., a direct wholly owned subsidiary of Holdco
("COMPANY MERGER SUB"), Parent Merger Sub is merging with and into Parent (the
"PARENT MERGER") and Company Merger Sub is merging with and into the Company
(the "COMPANY MERGER" and together with the Parent Merger, the "MERGERS")
whereby after the Mergers each of Parent and the Company shall be the surviving
corporations of the Mergers and direct wholly owned subsidiaries of Holdco;
WHEREAS, each Stockholder is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT")) of shares of the outstanding common stock, $0.01 par value per share, of
Parent (the "PARENT COMMON STOCK") in the amounts indicated on the final page of
this Agreement (the "SHARES");
WHEREAS, as a material inducement for Holdco and the Company to enter into
the Merger Agreement, each Stockholder agrees to, in accordance with the terms
hereof, vote such Stockholder's Shares, any and all other shares or securities
of Parent exchangeable prior to the Expiration Date for any Shares, or any New
Shares (as defined below) (collectively with respect to each Stockholder, the
"SECURITIES") as set forth herein;
WHEREAS, certain rights and obligations of the Stockholders with respect
to Parent are set forth in a certain Stockholders' Agreement by and among
Parent, CBS, Data Broadcasting Corporation ("DBC"), and MarketWatch.com LLC
("MKTW LLC"), dated as of January 13, 1999 (the "STOCKHOLDERS' AGREEMENT");
WHEREAS, certain registration rights and obligations of the Stockholders
with respect to Parent are set forth in a certain Registration Rights Agreement
by and among Parent, CBS and DBC, dated as of January 13, 1999 (the
"REGISTRATION RIGHTS AGREEMENT");
WHEREAS, certain licensing rights and obligations of Parent are set forth
in a certain Amended and Restated License Agreement by and among CBS and MKTW
LLC, dated as of January 13, 1999 (the "LICENSE AGREEMENT");
WHEREAS, MKTW LLC assigned and transferred to Parent all the rights and
obligations of MKTW LLC under the Stockholders' Agreement and License Agreement;
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WHEREAS, in January 2001, DBC sold its shares of Parent Common Stock to
PIFL and subsequently assigned and transferred to PIFL all the rights and
obligations of DBC under the Stockholders' Agreement; and
WHEREAS, each Stockholder hereto agrees to waive certain provisions of the
Stockholders' Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties agree as follows:
1. DEFINITIONS.
1.1 As used herein, the term "EXPIRATION DATE" shall mean the earliest to
occur of (i) the Effective Time (as such terms is defined in the Merger
Agreement), (ii) the date on which the Merger Agreement is terminated in
accordance with its terms (including any extensions to the Merger Agreement, as
provided for therein), (iii) December 31, 2003, or (iv) with respect to any
Securities held by any Stockholder sold, transferred or otherwise disposed of to
any Person (as defined in the Merger Agreement) other than, with respect to CBS,
a controlled affiliate of Viacom Inc., and with respect to PIFL, a controlled
affiliate of Pearson plc, the time of effectiveness of such sale, transfer or
disposition (each, a "DISPOSITION").
1.2 As used herein, the term "NEW SHARES" shall mean any shares or securities
of the capital stock of Parent that a Stockholder purchases or with respect to
which such Stockholder otherwise acquires beneficial ownership after the date of
this Agreement and prior to the Expiration Date, and any and all other shares or
securities of Parent exchangeable prior to the Expiration Date for any New
Shares.
2. AGREEMENT TO VOTE. Prior to the Expiration Date, at every meeting of
the stockholders of Parent called with respect to any of the following, and at
every postponement or adjournment thereof, and on every action or approval by
written consent of the stockholders of Parent with respect to any of the
following, each Stockholder agrees to vote such Stockholder's Securities, and,
to the extent applicable, cause holders of record of such Stockholder's
Securities to vote in favor of approval of the Merger Agreement, the Parent
Merger, the issuance of shares of Holdco Common Stock in the Company Merger and
the transactions contemplated thereby. Prior to the Expiration Date, each
Stockholder will not enter into any agreement or understanding with any person
or entity to vote or give instructions in any manner inconsistent with this
Section 2.
3. PROXY. Concurrent with the execution of this Agreement, each
Stockholder agrees to deliver to the Company a proxy in the form attached hereto
as Exhibit A (each, a "PROXY" and collectively, the "PROXIES"), which shall be
irrevocable to the extent provided in Section 212 of the Delaware General
Corporation Law prior to the Expiration Date, covering the total number of
Securities beneficially owned or as to which beneficial ownership is acquired
(as such term is defined in Rule 13d-3 under the Exchange Act) by such
Stockholder. Each Proxy shall not be terminated prior to the Expiration Date by
any act of a Stockholder or by operation of law, including, without limitation,
the dissolution or liquidation of any corporation or
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partnership. If between the execution hereof and the Expiration Date, any
corporation or partnership holding the Securities should be dissolved or
liquidated, or if any other such similar event or events shall occur before the
Expiration Date, certificates representing the Securities shall be delivered by
or on behalf of such Stockholder in accordance with the terms and conditions of
this Agreement, and actions taken by Holdco and the Company hereunder shall be
as valid as if such dissolution, liquidation or other similar event or events
had not occurred, regardless of whether or not Holdco or the Company has
received notice of such dissolution, liquidation or other event. For the
avoidance of doubt, upon the effectiveness of a Disposition whereby any portion
of the Securities of a Stockholder is sold, transferred or disposed of as
permitted herein, the Proxy of such Stockholder only with respect to that
portion of the Securities subject to the Disposition shall be deemed revoked.
4. ACKNOWLEDGEMENT. The parties acknowledge and agree that neither the
Company, nor the successors, assigns, subsidiaries, divisions, employees,
officers, directors, stockholders, agents and affiliates of the Company shall
owe any duty to, whether in law or otherwise, or incur any liability of any kind
whatsoever, including without limitation, with respect to any and all claims,
losses, demands, causes of action, costs, expenses (including reasonable
attorney's fees) and compensation of any kind or nature whatsoever to a
Stockholder in connection with or as a result of any voting (or refrain from
voting) by the Company of the Securities subject to the Proxies hereby granted
to the Company at any annual, special or other meeting or action of the
stockholders of Parent, or the execution of any consent of the stockholders of
Parent, so long as any such voting, consent or other action is taken in
accordance with the terms and conditions of this Agreement. The parties
acknowledge that, pursuant to the authority hereby granted under the Proxies,
the Company may, in accordance with the terms of the Proxies, vote the
Securities in furtherance of its own interests, and the Company is not acting as
a fiduciary for the Stockholders; provided however that the Company shall vote
the Securities in accordance with Section 2.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER. Each
Stockholder hereby represents, warrants and covenants to Holdco and the Company
that:
5.1 Ownership. The Stockholder has good and valid title to, and, together
with its affiliates reflected on its Schedule 13D and amendments thereto as
filed with the SEC, is the sole legal and beneficial owner of the Shares which
have not been subject to a Disposition, in each case free and clear of all Liens
(other than as reflected in such Schedule 13D and amendments thereto as filed
with the SEC). As of the date hereof, such Stockholder does not beneficially own
any shares or securities of the capital stock of the Company other than such
Stockholder's Shares.
5.2 Authorization. The Stockholder has all requisite power and authority to
execute and deliver this Agreement and the Proxy of such Stockholder and to
consummate the transactions contemplated hereby and thereby and, together with
its affiliates reflected on its Schedule 13D and amendments thereto as filed
with the SEC, has sole voting power and sole power of disposition (other than
under applicable law and as reflected in such Schedule 13D and amendments
thereto as filed with the SEC) with respect to all of the Shares with no
restrictions on its voting rights or rights of disposition pertaining thereto
(other than under applicable law and as reflected in such Schedule 13D and
amendments thereto as filed with the SEC). The
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Stockholder has duly executed and delivered this Agreement and, assuming the due
execution and delivery by the other parties hereto, this Agreement is a legal,
valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
5.3 No Violation. To the Stockholder's knowledge, neither the execution,
delivery and performance of this Agreement or the Proxy nor the consummation of
the transactions contemplated hereby and thereby will (i) require the
Stockholder to file or register with, or obtain any material permit,
authorization, consent or approval of, any Governmental or Regulatory Entity (as
defined in the Merger Agreement), or any other entity (other than the filing of
a Schedule 13D, Schedule 13G or amendment thereto, if applicable and the filings
and/or notices under the HSR Act (as defined in the Merger Agreement)); or (ii)
violate, or cause a breach of or default (or an event which with notice or the
lapse of time or both would become a default) under, any contract, agreement or
understanding, any statute or law, or any judgment, decree, order, regulation or
rule of any Governmental or Regulatory Entity, or any other entity or any
arbitration award binding upon the Stockholder, except in each case as would not
materially impair or delay the performance of such Stockholder's obligations
hereunder. No proceedings are pending against such Stockholder which, if
adversely determined, will have a material adverse effect on such Stockholder's
ability to vote any of the Shares.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
hereby represents, warrants and covenants to the Stockholders that:
6.1 Authorization. The Company has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The Company has duly executed and delivered this Agreement
and, assuming the due execution and delivery by the other parties hereto, this
Agreement is a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
6.2 No Violation. To the Company's knowledge, the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not (i) require the Company to file or register with,
or obtain any material permit, authorization, consent or approval of, any
Governmental or Regulatory Entity (as defined in the Merger Agreement), or any
other entity (other than the filing of a Schedule 13D, Schedule 13G or amendment
thereto, if applicable and the filings and/or notices under the HSR Act); or
(ii) violate, or cause a breach of or default (or an event which with notice or
the lapse of time or both would become a default) under, any contract, agreement
or understanding, any statute or law, or any judgment, decree, order, regulation
or rule of any Governmental or Regulatory Entity, or any other entity or any
arbitration award binding upon the Company, except in each case as would not
materially impair or delay the performance of the Company's obligations
hereunder.
7. TERMINATION. This Agreement and the Proxies delivered in connection
herewith, including all representations, warranties and covenants set forth
herein and therein, shall terminate and shall have no further force or effect as
of the Expiration Date; provided that nothing herein shall relieve any party
from liability hereof for breaches of this Agreement and/or the Proxies prior to
the Expiration Date.
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8. OTHER AGREEMENTS.
8.1 Participation Rights. Solely for purposes of this Agreement, each
Stockholder hereby acknowledges and agrees that the Mergers and the transactions
contemplated by the Merger Agreement and the other agreements referred to in the
Merger Agreement shall not be deemed to trigger any of the participation rights
of the Stockholders set forth in Section 9.1 of the Stockholders' Agreement and
each Stockholder hereby irrevocably waives any and all participation rights the
Stockholders may have pursuant to Section 9.1 of the Stockholders' Agreement in
connection with the Mergers and the transactions contemplated by the Merger
Agreement and the other agreements referred to in the Merger Agreement.
8.2 Right of First Refusal. Solely for purposes of this Agreement, each
Stockholder hereby agrees and acknowledges that the conversion of Parent Common
Stock (as defined in the Merger Agreement) set forth in Section 2.11(c) of the
Merger Agreement in connection with the Parent Merger, whereby the issued and
outstanding shares of Parent Common Stock held by such Stockholder shall be
converted into a right to receive shares of Holdco Common Stock, shall not be
deemed a "Transfer" for purposes of, and shall not trigger any right of first
refusal pursuant to, Section 8 of the Stockholders' Agreement.
8.3 Full Force and Effect. Except as expressly provided in this Section 8,
each of the parties hereto acknowledges, agrees, represents and warrants that
the Stockholders' Agreement and the Registration Rights Agreement shall remain
in full force and effect (other than provisions of the Stockholders' Agreement
and the Registration Rights Agreement that shall have expired or otherwise are
no longer in force and effect in accordance with their terms and conditions).
Effective as of the Effective Time, all references to Parent in the
Stockholders' Agreement and the Registration Rights Agreement shall be deemed to
be a reference to Holdco and the provisions of the Stockholders' Agreement and
the Registration Rights Agreement shall inure to the benefit of, and shall be
binding upon, Holdco. For the avoidance of doubt, each of the parties hereto
acknowledges, agrees, represents and warrants that, effective as of the
Effective Time, Holdco shall be deemed to be the successor-in-interest to
Parent, and Parent shall assign and transfer to Holdco, and Holdco shall accept
the assignment and transfer of, all of the rights and obligations of Parent
under the Stockholders' Agreement and the Registration Rights Agreement.
8.4 License Agreement. Holdco and Parent hereby acknowledge, agree, represent
and warrant that the Parent Merger and the transactions contemplated by the
Merger Agreement and the other agreements referred to in the Merger Agreement
shall not affect the rights and obligations of the parties to the License
Agreement, including, without limitation, the Holdco affiliate party to the
License Agreement being a wholly owned and controlled subsidiary of Holdco.
8.5 HSR Condition. Holdco, Parent and the Company agree that prior to the
consummation of the Mergers, any waiting period (and any extension thereof) or
approvals applicable to the consummation of the Mergers under the HSR Act or any
foreign antitrust or combination law or material filings, consents, approvals
and authorizations legally required to be obtained to consummate the Mergers
shall have expired, been terminated or obtained, as applicable. Any and all
filing fees incurred by any Stockholder in connection with making such
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filings or obtaining such consents, approvals or authorizations shall be
promptly reimbursed by Parent.
9. MISCELLANEOUS.
9.1 Waiver. No waiver by any party hereto of any condition or any breach of
any term or provision set forth in this Agreement shall be effective unless in
writing and signed by each party hereto. The waiver of a condition or any breach
of any term or provision of this Agreement shall not operate as or be construed
to be a waiver of any other previous or subsequent breach of any term or
provision of this Agreement.
9.2 Severability. In the event that any term, provision, covenant or
restriction set forth in this Agreement, or the application of any such term,
provision, covenant or restriction to any person, entity or set of
circumstances, shall be determined by a court of competent jurisdiction to be
invalid, unlawful, void or unenforceable to any extent, the remainder of the
terms, provisions, covenants and restrictions set forth in this Agreement, and
the application of such terms, provisions, covenants and restrictions to
persons, entities or circumstances other than those as to which it is determined
to be invalid, unlawful, void or unenforceable, shall remain in full force and
effect, shall not be impaired, invalidated or otherwise affected and shall
continue to be valid and enforceable to the fullest extent permitted by
applicable law.
9.3 Binding Effect and Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but, except as otherwise
specifically provided herein, neither this Agreement nor any of the rights,
interests or obligations of the parties hereto may be assigned by either of the
parties without the prior written consent of the other. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement. For the avoidance of doubt, with respect to any
portion of the Securities of a Stockholder sold, transferred or disposed of as
permitted herein, upon the effectiveness of such Disposition, that portion of
the Securities subject to such Disposition shall be free and clear of any
obligations hereunder.
9.4 Amendment and Modification. This Agreement may not be modified, amended,
altered or supplemented except by the execution and delivery of a written
agreement executed by the parties hereto.
9.5 Governing Law. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the internal laws of the State of
Delaware without giving effect to any choice or conflict of law provision, rule
or principle (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Delaware.
9.6 Jurisdiction. The parties to this Agreement agree that any suit, action
or proceeding arising out of, or with respect to, this Agreement or the Proxies,
or any judgment entered by any court in respect thereof shall be brought in the
federal courts located in the Borough of Manhattan, The City of New York, or,
failing jurisdiction thereof, the state courts located
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therein, and each Stockholder hereby accepts the exclusive jurisdiction of those
courts for the purpose of any suit, action or proceeding. In addition, each
Stockholder hereby irrevocably waives, to the fullest extent permitted by law,
any objection which such Stockholder may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this
Agreement or such Stockholder's Proxy or any judgment entered by those courts,
and hereby further irrevocably waives any claim that any suit, action or
proceedings brought in those courts has been brought in an inconvenient forum.
9.7 Entire Agreement. This Agreement and the Proxies contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to the subject matters hereof and thereof.
9.8 Notices. All notices and other communications pursuant to this Agreement
shall be in writing and deemed to be sufficient if contained in a written
instrument and shall be deemed given if delivered personally, telecopied, sent
by nationally-recognized overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following address (or at such other address for a party as shall be specified by
like notice):
If to Holdco or Parent: MarketWatch.com, Inc.
825 Battery Street
San Francisco, CA 94111
Attention: Doug Appleton, Esq.
Facsimile: (415) 392-1972
Telephone: (415) 733-0535
with a copy to: Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105
Attention: Robert Townsend, Esq.
Facsimile: (415) 268-7522
Telephone: (415) 268-7080
If to the Company: Pinnacor Inc.
601 West 26th Street, 13th Floor
New York, New York 10001
Attention: David Obstler
Facsimile: (212) 691-1483
Telephone: (212) 691-7900
with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Attention: Thomas H. Kennedy, Esq.
Facsimile: (212) 735-2000
Telephone: (212) 735-2526
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If to the Stockholder: To the address for notice set forth on the
signature page hereof.
9.9 Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE PROXY OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
9.10 Specific Performance, Injunctive Relief. Each of the parties hereto
hereby acknowledges that (i) the representations, warranties, covenants and
restrictions set forth in this Agreement are necessary, fundamental and required
for the protection of the Company and to preserve for the Company the benefits
of the Mergers; (ii) such covenants relate to matters which are of a special,
unique, and extraordinary character that gives each such representation,
warranty, covenant and restriction a special, unique and extraordinary value;
and (iii) a breach of any such representation, warranty, covenant or
restriction, or any other term or provision of this Agreement, will result in
irreparable harm and damages to the Company that cannot be adequately
compensated by a monetary award. Accordingly, Holdco, Parent and each
Stockholder hereby expressly agree that in addition to all other remedies
available at law or in equity, the Company shall be entitled to the immediate
remedy of specific performance, a temporary and/or permanent restraining order,
preliminary injunction, or such other form of injunctive or equitable relief as
may be used by any court of competent jurisdiction to restrain or enjoin any of
the parties hereto from breaching any representations, warranties, covenants or
restrictions set forth in this Agreement, or to specifically enforce the terms
and provisions hereof.
9.11 Counterparts. This Agreement may be executed in any number of
counterparts and delivered by facsimile, each of which when so executed and
delivered shall be deemed an original, but all of which together shall
constitute but one and the same instrument and the delivering party covenants
and agrees that an original will be sent immediately thereafter in accordance
with Section 9.8.
9.12 Effect of Headings. The section headings herein are for convenience only
and shall not affect the construction or interpretation of this Agreement.
9.13 No Limitation on Actions of the Stockholder as Director. Notwithstanding
anything to the contrary in this Agreement, in the event a representative (the
"REPRESENTATIVE") of a Stockholder is a director of Parent, nothing in this
Agreement is intended or shall be construed to require the Representative, in
the Representative's capacity as a director of the Company, to act or fail to
act in accordance with the Representative's fiduciary duties in such capacity.
9.14 Disclosure. With respect to disclosure about a Stockholder, each
Stockholder hereby authorizes the Company to publish or disclose in a Schedule
13D only its identity and the terms and conditions of this Agreement and such
Stockholder's Proxy, including the filing of an accurate and complete copy of
this Agreement and such Stockholder's Proxy as exhibits to the Schedule 13D
(provided, however, that 24 hours prior to making such filing, Company shall
provide a copy of such Schedule 13D to Stockholder for such Stockholder's
review, provided that the Company shall have no obligations to make changes
proposed by such Stockholder).
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The Company hereby agrees that it shall not publish or disclose in any report
filed with the SEC any information relating to any Stockholder, other than as
specifically permitted herein, including, without limitation, any additional
information in the Schedule 13D not specifically permitted herein, without the
prior written consent of such Stockholder, which consent shall not be
unreasonably withheld or delayed.
9.15 Legend on Share Certificates. Each certificate representing any
Securities shall be endorsed by the Company with a legend reading
substantially as follows:
"THE RIGHT TO VOTE THE SHARES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN A VOTING AGREEMENT, A
COPY OF WHICH IS ON FILE AT THE CORPORATION'S PRINCIPAL PLACE OF
BUSINESS."
It being understood and agreed that the legend set forth above shall be
removed by delivery of substitute certificates without such legend upon
termination of this Agreement.
9.16 Proxy. The terms and conditions set forth in this Section 9 shall also
apply to the Proxies, as if references to the Agreement in this Section 9 were
references to the Proxies.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
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In Witness Whereof, the parties have caused this Voting Agreement to be
duly executed on the day and year first above written.
HOLDCO:
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
PARENT:
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
COMPANY:
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
CBS:
By: ______________________________________
Name: Richard J. Bressler
Title: Senior Executive Vice President
Stockholder's Address for Notice:
1515 Broadway
New York, New York 10036
with a copy to General Counsel
Shares beneficially owned:
5,636,814 shares of the Company Common Stock
PIFL:
By: ______________________________________
Name: Gary M. Rinck
Title: General Counsel
Stockholder's Address for Notice:
80 Strand
London WC2R CRL
Shares beneficially owned:
5,636,814 shares of the Company Common Stock
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EXHIBIT A
PROXY TO VOTE STOCK OF THE COMPANY
The undersigned stockholder of MarketWatch.com, Inc. ("PARENT"), hereby
irrevocably (to the full extent permitted by Section 212 of the Delaware General
Corporation Law, except as provided below) appoints, until the Expiration Date
(as defined below), Kirk Loevner and David Obstler of Pinnacor Inc. (the
"COMPANY"), and each of them, as the sole and exclusive attorneys and proxies of
the undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the full extent that the undersigned
is entitled to do so) with respect to all of the shares of capital stock of
Parent that now are or hereafter may be beneficially owned by the undersigned,
and any and all other shares or securities of Parent exchangeable therefor on or
after the date hereof and prior to the Expiration Date (collectively, the
"SECURITIES") in accordance with the terms of this Proxy. The Securities
beneficially owned by the undersigned stockholder of Parent as of the date of
this Proxy are listed on the final page of this Proxy. Upon the undersigned's
execution of this Proxy, any and all prior proxies for the Securities given by
the undersigned with respect to any Voting Matters (as defined below) are hereby
revoked and the undersigned agrees not to grant any subsequent proxies with
respect thereto until after the Expiration Date.
This Proxy is irrevocable (to the extent provided in Section 212 of the
Delaware General Corporation Law), is coupled with an interest and is granted
pursuant to that certain Voting Agreement dated as of July 22, 2003, by and
among NMP, Inc., a Delaware corporation ("HOLDCO"), Parent, the Company and the
undersigned stockholder of Parent (the "VOTING AGREEMENT"), and is granted in
consideration of the Company entering into that certain Agreement and Plan of
Merger dated as of the date hereof (the "MERGER AGREEMENT") by and among Parent,
Holdco, the Company, Maple Merger Sub, Inc., a direct wholly owned subsidiary of
Holdco, and Pine Merger Sub Inc., a direct wholly owned subsidiary of Holdco. As
used herein, the term "EXPIRATION DATE" shall mean the earlier to occur of (i)
the Effective Time (as such terms is defined in the Merger Agreement), (ii) the
date on which the Merger Agreement is terminated in accordance with its terms
(including any extensions to the Merger Agreement, as provided for therein),
(iii) December 31, 2003, (iv) with respect to any Securities held by any
Stockholder sold, transferred or otherwise disposed of to any Person (as defined
in the Merger Agreement) other than, with respect to CBS Broadcasting Inc., a
controlled affiliate of Viacom Inc., and with respect to Pearson International
Finance Ltd., a controlled affiliate of Pearson plc, the time of effectiveness
of such sale, transfer or disposition (each, a "DISPOSITION"), or (v) the date
on which the Voting Agreement is terminated.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Securities, and
to exercise all voting and other rights of the undersigned with respect to the
Securities (including, without limitation, the power to execute and deliver
written consents pursuant to Section 228 of the Delaware General Corporation
Law), at every annual, special or other meeting or action of the stockholders of
Parent, as applicable, or at any postponement or adjournment thereof and in
every written consent in lieu of such meeting in favor of approval of the Merger
Agreement, the Parent Merger (as defined in the Merger Agreement), the issuance
of shares of Holdco Common Stock in the
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Company Merger (as defined in the Merger Agreement) and the transactions
contemplated thereby (collectively, the "VOTING MATTERS"). For the avoidance of
doubt, upon the effectiveness of a Disposition whereby any portion of the
Securities of a Stockholder is sold, transferred or disposed of as permitted in
the Voting Agreement, the Proxy of such Stockholder only with respect to that
portion of the Securities subject to the Disposition shall be deemed revoked.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. The undersigned stockholder may vote the
Securities on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the extent provided in Section 212 of the
Delaware General Corporation Law). This Proxy shall terminate, and be of no
further force and effect, automatically upon the Expiration Date.
Dated: July 22, 2003
__________________________________________
(Signature of Stockholder)
__________________________________________
(Print Name of Stockholder)
Shares beneficially owned:
__________ shares of Parent Common Stock
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