PARENT VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
June __, 2000, among HomeGrocer.com, Inc., a Washington corporation ("Company"),
and the undersigned stockholder and/or option holder ("Stockholder") of Webvan
Group, Inc., a Delaware corporation ("Parent").
RECITALS
A. Company, Merger Sub (as defined below) and Parent have entered into
an Agreement and Plan of Reorganization (the "Reorganization Agreement"), which
provides for the merger (the "Merger") of a wholly-owned subsidiary of Parent
("Merger Sub") with and into the Company. Pursuant to the Merger, all
outstanding capital stock of the Company shall be converted into the right to
receive common stock of Parent, as set forth in the Reorganization Agreement;
B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such
number of shares of the outstanding capital stock of Parent and shares subject
to outstanding options and warrants as is indicated on the signature page of
this Agreement; and
C. In consideration of the execution of the Reorganization Agreement by
Company, Stockholder (in his or her capacity as such) agrees to vote the Shares
(as defined below) and other such shares of capital stock of Parent over which
Stockholder has voting power so as to facilitate consummation of the Share
Issuance.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Certain Definitions. Capitalized terms not defined herein shall have
the meanings ascribed to them in the Reorganization Agreement. For purposes of
this Agreement:
(a) "Expiration Date" shall mean the earlier to occur of (i) such date
and time as the Reorganization Agreement shall have been terminated pursuant to
Article VII thereof, or (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Reorganization
Agreement.
(b) "Person" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental authority.
(c) "Shares" shall mean: (i) all securities of the Parent (including
all shares of Parent Common Stock and all options, warrants and other rights to
acquire shares of Parent Common Stock) beneficially owned by Stockholder as of
the date of this Agreement; and (ii) all additional securities of Parent
(including all additional shares of Parent Common Stock and all additional
options, warrants and other rights to acquire shares of Parent Common Stock) of
which
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Stockholder acquires beneficial ownership during the period from the date of
this Agreement through the Expiration Date.
(d) Transfer. A Person shall be deemed to have effected a "Transfer" of
a security if such person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; or (ii) enters into an agreement or commitment
providing for the sale of, pledge of, encumbrance of, grant of an option with
respect to, transfer of or disposition of such security or any interest therein.
2. Transfer of Shares.
(a) Transferee of Shares to be Bound by this Agreement. Stockholder
agrees that, during the period from the date of this Agreement through the
Expiration Date, Stockholder shall not cause or permit any Transfer of any of
the Shares to be effected unless each Person to which any of such Shares or any
interest in any of such Shares is or may be transferred shall have (i) executed
a counterpart of this Voting Agreement and a proxy in the form attached hereto
as Exhibit A and (ii) agreed to hold such Shares or interest in such Shares
subject to all of the terms and provisions of this Agreement.
(b) Transfer of Voting Rights. Stockholder agrees that, during the
period from the date of this Agreement through the Expiration Date, Stockholder
shall not deposit (or permit the deposit of) any Shares in a voting trust or
grant any proxy or enter into any voting agreement or similar agreement in
contravention of the obligations of Stockholder under this Agreement with
respect to any of the Shares.
3. Agreement to Vote Shares. At every meeting of the stockholders of Parent
called during the period from the date of this Agreement through the Expiration
Date, and at every adjournment thereof, and on every action or approval by
written consent of the stockholders of Parent, Stockholder (in his or her
capacity as such) shall cause the Shares to be voted (i) in favor of the Share
Issuance, (ii) in favor of any matter that could reasonably be expected to
facilitate the Share Issuance, (iii) against any matter that could reasonably be
expected to prevent the Share Issuance, (iv) against any Parent Acquisition
Proposal and (v) against any matter that could be reasonably be expected to
facilitate any Parent Acquisition Proposal.
4. Irrevocable Proxy. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to Company a proxy in the form attached hereto as
Exhibit A (the "Proxy"), which shall be irrevocable to the fullest extent
permissible by law, with respect to the Shares.
5. Representations and Warranties of the Stockholder. Stockholder (i) is the
beneficial owner of the shares of Parent Common Stock and the options and
warrants to purchase shares of Common Stock of Parent indicated on the final
page of this Agreement, free and clear of any liens, claims, options, rights of
first refusal, co-sale rights, charges or other encumbrances that would
adversely affect the ability of Stockholder to carry out the terms of this
Agreement; (ii) does not beneficially own any securities of Parent other than
the shares of Parent Common Stock and options and warrants to purchase shares of
Common Stock of Parent indicated on the final page of this Agreement; and (iii)
has full power and authority to make, enter into and carry out the terms of this
Agreement and the Proxy.
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6. Additional Documents. Stockholder (in his or her capacity as such) hereby
covenants and agrees to execute and deliver any additional documents necessary
or desirable, in the reasonable opinion of Company, to carry out the intent of
this Agreement.
7. Consent and Waiver. Stockholder (not in his capacity as a director or
officer of Parent) hereby gives any consents or waivers that are reasonably
required for the consummation of the Share Issuance under the terms of any
agreements to which Stockholder is a party or pursuant to any rights Stockholder
may have.
8. Legending of Shares. If so requested by Company, Stockholder agrees
that the Shares shall bear a legend stating that they are subject to this
Agreement and to an irrevocable proxy. Subject to the terms of Section 2 hereof,
Stockholder agrees that Stockholder shall not Transfer the Shares without first
having the aforementioned legend affixed to the certificates representing the
Shares.
9. Termination. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date.
10. Miscellaneous. (a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(b) 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 prior written consent of the other.
(c) Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent shall be irreparably harmed and that there shall be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Company upon any such violation, Company
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Company at law
or in equity.
(e) 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):
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If to Company: HomeGrocer.com, Inc.
10230 N.E. Points Drive
Kirkland, WA 98033
Attention: General Counsel
Telecopy No.: (425) 201-7575
With a copy to:
Davis Polk & Wardwell
1600 El Camino Real
Menlo Park, CA 94025
Attention: David Ferguson
Telecopy No.: (650) 752-2111
If to Stockholder: To the address for notice set forth on the
signature page hereof.
(f) Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without giving effect to the conflicts of law principles
thereof.
(g) Entire Agreement. This Agreement and the Proxy 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 such subject matter.
(h) Effect of Headings. The section headings are for convenience only
and shall not affect the construction or interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(j) No Limitation on Actions of Stockholder as Director.
Notwithstanding anything to the contrary in this Agreement, in the event
Stockholder is a director of Parent, nothing in this Agreement is intended or
shall be construed to require Stockholder, in Stockholder's capacity as a
director of Parent, to fail to act in accordance with Stockholder's fiduciary
duties in such capacity.
[Remainder Of This Page Left Blank Intentionally]
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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.
HOMEGROCER.COM, INC. STOCKHOLDER
___________________________________ _______________________________________
Signature Signature
___________________________________ _______________________________________
Print Name Print Name:
___________________________________ _______________________________________
Print Title Print Title:
_______________________________________
Address:
Attn:
Print Telephone:_______________________
_______________________________________
Print Facsimile No.
Shares beneficially owned:
_______________shares of Parent Common
Stock
_______________shares of Parent Common
Stock issuable upon
exercise of outstanding
options or warrants
[SIGNATURE PAGE TO PARENT VOTING AGREEMENT]
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IRREVOCABLE PROXY
The undersigned stockholder of Webvan Group, Inc., a Delaware
corporation (the "Parent"), hereby irrevocably (to the fullest extent permitted
by law) appoints the directors on the Board of Directors of HomeGrocer.com,
Inc., a Washington corporation ("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 issued or issuable in respect thereof on or after
the date hereof (collectively, the "Shares") in accordance with the terms of
this Proxy. The Shares 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 given
by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the termination of this proxy in accordance with its terms.
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and among Company and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of Company
entering into that certain Agreement and Plan of Reorganization (the
"Reorganization Agreement"), among Parent, a Washington corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and the Company. The
Reorganization Agreement provides for the merger of Merger Sub with and into the
Company in accordance with its terms (the "Merger"). As used herein, the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the Reorganization Agreement shall have been validly terminated pursuant to
Article VII thereof or (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Reorganization
Agreement.
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 Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of stockholders
of Parent and in every written consent in lieu of such meeting (i) in favor of
the Share Issuance (as defined in the Reorganization Agreement), (ii) in favor
of any matter that reasonably be expected to facilitate the Stock Issuance or
the Merger, (iii) against any matter that could reasonably be expected to
prevent the Share Issuance, (iv) against any Parent Acquisition Proposal and (v)
against any matter that could reasonably be expected to facilitate any Parent
Acquisition Proposal.
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 Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
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This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date.
Dated: June __, 2000
STOCKHOLDER
Signature of Stockholder:_________________________
Print Name of Stockholder: _______________________
Shares beneficially owned:
__________ shares of Parent Common Stock
__________ shares of the Parent Common Stock
issuable upon exercise of outstanding
options or warrants
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
