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EXHIBIT 2.3
FORM OF STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (this "Agreement") is made and entered
into as of February 6, 2000, by and between Akamai Technologies, Inc., a
Delaware corporation ("Parent"), and the undersigned (the "Stockholder").
WHEREAS, the Stockholder desires that Parent, Alii Merger Corporation, a
wholly owned subsidiary of Parent ("Sub"), and InterVU Inc., a Delaware
corporation ("Company") enter into an Agreement and Plan of Merger dated the
date hereof (as the same may be amended or supplemented, the "Merger Agreement")
with respect to the merger of Sub with and into Company (the "Merger"); and
WHEREAS, the Stockholder is executing this Agreement as an inducement to
Parent to enter into and execute, and to cause Sub to enter into and execute,
the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Parent
and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Stockholder represents and
warrants to Parent as follows:
(a) The Stockholder is the record and beneficial owner of the
number of shares (such "Stockholder's Shares") of common stock, $.001
par value, of Company ("Company Common Stock"), Series G convertible
preferred stock, $.001 par value, of Company ("Company Series G Stock"),
and Series H convertible preferred stock, $.001 par value, of Company
("Company Series H Stock" and, together with the Company Common Stock
and Company Series G Stock, the "Company Stock") set forth below such
Stockholder's name on the signature page hereof. Except for the
Stockholder's Shares and any other shares of Company Stock subject
hereto, the Stockholder is not the record or beneficial owner of any
shares of Company Stock. This Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement
of, the Stockholder, enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Stockholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Stockholder is a party or bound or
to which the Stockholder's Shares are subject. If the Stockholder is
married and the Stockholder's Shares constitute community property, this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such person in accordance with its terms.
Consummation by the Stockholder of the transactions contemplated hereby
will not violate, or require any consent, approval, or notice under,
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any provision of any judgment, order, decree, statute, law, rule or
regulation applicable to the Stockholder or the Stockholder's Shares.
(c) The Stockholder's Shares and the certificates representing
such Shares are now, and at all times during the term hereof will be,
held by the Stockholder, or by a nominee or custodian for the benefit of
such Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Stockholder.
(e) The Stockholder understands and acknowledges that Parent is
entering into, and causing Sub to enter into, the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this
Agreement. The Stockholder acknowledges that the irrevocable proxy set
forth in Section 4 is granted in consideration for the execution and
delivery of the Merger Agreement by Parent and Sub.
2. Voting Agreements.
(a) The Stockholder agrees with, and covenants to, Parent that,
at any meeting of stockholders of Company called to vote upon the Merger and the
Merger Agreement or at any adjournment thereof or in any other circumstances
upon which a vote with respect to the Merger and the Merger Agreement is sought
(the "Stockholders' Meeting"), the Stockholder shall appear, or cause the holder
of record on any applicable record date (the "Record Holder") to appear, for the
purpose of obtaining a quorum at the Stockholders' Meeting, and vote (or cause
the Record Holder to vote) the Stockholder's Shares in favor of the Merger, the
adoption of the Merger Agreement, and the approval of the terms thereof and each
of the other transactions contemplated by the Merger Agreement, provided that
the terms of the Merger Agreement shall not have been amended to reduce the
consideration payable in the Merger to a lesser amount of Parent Common Stock.
(b) At any meeting of stockholders of Company or at any
adjournment thereof or in any other circumstances upon which their vote is
sought, the Stockholder shall vote (or cause to be voted) such Stockholder's
Shares against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of substantial
assets, reorganization, recapitalization, dissolution, liquidation or winding up
of or by Company or (ii) any amendment of Company's Certificate of Incorporation
or Bylaws or other proposal or transaction involving Company or any of its
subsidiaries which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or
any of the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
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3. Covenants. The Stockholder agrees with, and covenants to, Parent as
follows:
(a) If the Merger is consummated, the Stockholder's Shares
shall, pursuant to the terms of the Merger Agreement, be exchanged for
the consideration provided in the Merger Agreement. The Stockholder
hereby waives any rights of appraisal, or rights to dissent from the
Merger, that such Stockholder may have.
(b) The Stockholder shall not, nor shall it permit any
investment banker, attorney or other adviser or representative of the
Stockholder to, directly or indirectly, (i) solicit, initiate or
encourage the submission of, any takeover proposal or (ii) participate
in any discussions or negotiations regarding, or furnish to any person
any information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any takeover proposal. Without
limiting the foregoing, it is understood that any violation of the
restrictions set forth in the preceding sentence by an investment
banker, attorney or other adviser or representative of the Stockholder,
whether or not such person is purporting to act on behalf of the
Stockholder or otherwise, shall be deemed to be in violation of this
Section 3(b) by the Stockholder. For all purposes hereof, "takeover
proposal" means any proposal for a merger or other business combination
involving Company or any of its subsidiaries or any proposal or offer to
acquire in any manner, directly or indirectly, an equity interest in any
voting securities of, or a substantial portion of the assets of Company
or any of its subsidiaries, other than the Merger and the other
transactions contemplated by the Merger Agreement. Notwithstanding the
foregoing, no Stockholder who is or becomes (during the term hereof) a
director or officer of Company makes any agreement or understanding
herein in his or her capacity as such director or officer, and nothing
herein will limit or affect, or give rise to any liability to
Stockholder by virtue of, any actions taken by Stockholder in his or her
capacity as an officer or director of Company in exercising its rights
under the Merger Agreement.
(c) The Stockholder shall not (i) transfer (which term shall
include, without limitation, for the purposes of this Agreement, any
sale, gift, pledge or other disposition), or consent to any transfer of,
any or all of the Stockholder's Shares or any interest therein, except
pursuant to the Merger; (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of
such Shares or any interest therein, (iii) grant any proxy, power of
attorney or other authorization in or with respect to such Shares,
except for this Agreement, or (iv) deposit such Shares into a voting
trust or enter into a voting agreement or arrangement with respect to
such Shares; provided, that the Stockholder may transfer (as defined
above) any of the Stockholder's Shares to any other person who is on the
date hereof, or to any family member of a person or charitable
institution which prior to the Stockholders' Meeting and prior to such
transfer becomes, a party to this Agreement bound by all the obligations
of the "Stockholder" hereunder.
(d) The Stockholder further agrees that the Stockholder will not
sell, pledge, transfer, or otherwise dispose of his interests in, or
engage in any hedging transactions
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relative to, (each a "Transfer") any shares of Parent Common Stock to be
received by the Stockholder pursuant to the Merger ("Stockholder's
Parent Shares") except as follows:
(i) an aggregate of 25% of the Stockholder's Parent Shares may be
Transferred at any time from and after the date on which the
Merger becomes effective (the "Effective Date");
(ii) an additional 25% of the Stockholder's Parent Shares, for an
aggregate of 50% of the Stockholder's Parent Shares, may be
Transferred at any time from and after the date that is 60 days
after the Effective Date;
(iii) an additional 25% of the Stockholder's Parent Shares, for an
aggregate of 75% of the Stockholder's Parent Shares, may be
Transferred at any time from and after the date that is 90 days
after the Effective Date; and
(iv) an additional 25% of the Stockholder's Parent Shares, or all of
the Stockholder's Parent Shares, may be Transferred at any time
from and after the date that is 120 days after the Effective
Date.
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Stockholder hereby irrevocably grants to, and appoints,
Parent and Sub, and each of them individually, the Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of the Stockholder, to vote the Stockholder's Shares at any meeting of
stockholders of Company (i) in favor of the Merger, the execution and delivery
of the Merger Agreement and approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement, provided that the terms of
the Merger Agreement shall not have been amended to reduce the consideration
payable in the Merger to a lesser amount of Parent Common Stock, and (ii)
against any Competing Transaction.
(b) The Stockholder represents that any proxies heretofore given
in respect of the Stockholder's shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 4 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. The
Stockholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. The Stockholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law.
5. Certain Events. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or
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otherwise, including without limitation the Stockholder's successors or assigns.
The Stockholder agrees that, in the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of Company affecting the Company Stock, or the acquisition of
additional shares of Company Stock or other voting securities of Company by the
Stockholder, the number of Shares subject to the terms of this Agreement shall
be adjusted appropriately and this Agreement and the obligations hereunder shall
apply to any additional shares of Company Stock or other voting securities of
Company issued to or acquired by the Stockholder.
6. Further Assurances; Stop Transfer; Legends.
(a) The Stockholder shall, upon request and expense of Parent,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Parent to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Stockholder's Shares as
contemplated by Section 4 in Parent.
(b) The Stockholder understands and agrees that stop transfer
instructions will be given to the transfer agent for the Company Capital Stock
with respect to shares of the Company Capital Stock now owned or hereafter
acquired by the Stockholder and that there will be placed on the certificates
representing such shares of Company Capital Stock, and any shares issued in
substitution thereof, a legend stating in substance as follows:
"These shares may be transferred only in accordance with the terms of a
Stockholder Voting Agreement between the original holder of such shares
and Akamai Technologies, Inc., a copy of which agreement is on file at
the principal offices of InterVU Inc."
(c) The Stockholder understands and agrees that stop transfer
instructions will be given to the transfer agent for the Parent Common Stock
with respect to shares of the Parent Common Stock issued to Stockholder pursuant
to the Merger and that there will be placed on the certificates representing
such shares of Parent Common Stock, and any shares issued in substitution
thereof, a legend stating in substance as follows:
"These shares may be transferred only in accordance with the terms of a
Stockholder Voting Agreement between the original holder of such shares
and Akamai Technologies, Inc., a copy of which agreement is on file at
the principal offices of InterVU Inc."
7. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (i) the Effective
Time of the Merger or (ii) the date upon which the Merger Agreement is
terminated in accordance with its terms; provided, that the provisions of
Sections 3(d) and 6(c) shall remain in full force and effect from and after the
Effective Time of the Merger for the period provided in Section 3(d). Upon such
termination, no party shall have any further obligations or liabilities
hereunder, provided that no such termination shall relieve any party from
liability for any breach of this Agreement prior to such termination.
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8. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to them in the Merger
Agreement.
(b) All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice): (i) if to Parent, to the
address provided in the Merger Agreement; and (ii) if to the Stockholder; to its
address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts,
all of which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties. Any assignment in violation of the foregoing shall
be void.
(h) The Stockholder agrees that irreparable damage would occur
and that Parent would not have any adequate remedy at law in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that Parent
shall be entitled to an injunction or injunctions to prevent breaches by the
Stockholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other remedy to
which they are entitled at law or in equity.
(i) If any term, provision, covenant or restriction herein, or
the application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
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(j) Nothing contained in this Agreement shall be deemed to vest
in Parent or Sub any direct or indirect ownership or incidence of ownership of
or with respect to any of the Stockholder's Shares. All rights, ownership and
economic benefits of and relating to the Stockholder's Shares shall remain and
belong to the Stockholder, and neither Parent nor Sub shall have any authority
to manage, direct, superintend, restrict, regulate, govern, or administer any of
the policies or operations of Company or exercise any power or authority to
direct the Stockholder in the voting of any of the Stockholder's Shares, except
as otherwise provided herein, or the performance of Stockholder's duties or
responsibilities as a stockholder of Company.
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(k) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in writing and
signed by such party.
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Stockholders Agreement as of the day and year first above written.
AKAMAI Technologies, Inc.
By:
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President
STOCKHOLDER:
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Name:
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Address:
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Number of Shares
of Company Stock
Beneficially Owned:
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