SHAREHOLDER SUPPORT AGREEMENT
This SHAREHOLDER SUPPORT AGREEMENT (this “
Agreement ”) is entered into as of September 14, 2008,
by and among Best Buy Co., Inc., a Minnesota corporation (“
Parent ”), Puma Cat Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent (“
Merger Sub ”) and the holders of capital stock of
Napster, Inc., a Delaware corporation (“ Company
”) identified on Exhibit A attached hereto (each a
“ Shareholder ,” and collectively the “
Shareholders ”).
RECITALS
In order to induce Parent and Merger Sub to
enter into that certain Agreement and Plan of Merger, dated as of
even date herewith, by and among Parent, Merger Sub and Company (as
amended from time to time, the “ Merger Agreement
”), Merger Sub has requested that the Shareholders, and the
Shareholders have agreed to, enter into this Agreement.
As of the date hereof, each Shareholder is the
holder of the shares of Company capital stock and/or options to
purchase shares of Company capital stock listed opposite such
Shareholder’s name on Exhibit A .
Capitalized terms used but not separately
defined herein shall have the meanings ascribed to them in the
Merger Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as
follows:
ARTICLE
1
Agreement to
Tender
Section 1.01 Agreement to Tender . Each Shareholder agrees to validly tender or
cause to be validly tendered pursuant to and in accordance with the
terms of the Offer all of the shares of Company capital stock that
such Shareholder owns as of the date hereof, as well as any
additional shares of Company capital stock that such Shareholder
may own, whether acquired by purchase, exercise of Options or
otherwise, at any time after the date hereof (collectively, the
“ Shareholder Shares ”). Within ten (10)
business days after the commencement of the Offer (or within ten
(10) business days after any Shareholder Shares are acquired by
Shareholder during pendency of the Offer, if later), each
Shareholder shall deliver to the depositary designated in the Offer
all documents or instruments required to be delivered pursuant to
the terms of the Offer. Each Shareholder agrees that, once its
Shareholder Shares are tendered, such Shareholder will not withdraw
any of such Shareholder Shares from the Offer, unless and until (i)
the Offer shall have been terminated by Merger Sub in accordance
with the terms of the Merger Agreement or (ii) this Agreement shall
have been terminated in accordance with Section 6.01.
ARTICLE
2
Voting Agreement; Grant of
Proxy
Section 2.01 Voting Agreement .
(a) Until the Termination Date (as defined in
Section 6.01 hereof), each Shareholder hereby agrees to vote or
cause to be voted all Shareholder Shares that such Shareholder is
entitled to vote at the time of any vote of the shareholders of
Company where such matters arise (i) in favor of the approval and
adoption of the Merger Agreement and the Merger, (ii) against any
proposal or transaction which could prevent or delay the
consummation of the Merger, and (iii) against any corporate action
which would frustrate the purposes of, or prevent or delay the
consummation of, the Merger.
(b) If any shareholder vote in respect of the
Merger Agreement or the Merger is taken by written consent, the
provisions of this Agreement imposing obligations in respect of or
in connection with any vote of shareholders shall apply
thereto.
(c) Each Shareholder shall retain at all times the
right to vote his or her Shareholder Shares in such
Shareholders’ sole discretion and without any other
limitation on those matters other than those set forth in this
Section 2.01 that are at any time or from time to time presented
for consideration to the Company’s shareholders
generally.
Section 2.02 Proxy . Except with respect to any proxy delivered in
connection with the Company’s 2008 annual meeting of
shareholders and then only to the extent such proxy is not
inconsistent with the voting agreement set forth in Section 2.01
above, each Shareholder hereby revokes any and all previous proxies
granted with respect to the Shareholder Shares. By entering into
this Agreement, each Shareholder hereby grants a limited
irrevocable proxy, within the meaning of the DGCL, appointing
Merger Sub as such Shareholder’s attorney-in-fact and proxy,
with full power of substitution, for and in such
Shareholder’s name, to vote, express consent or dissent, or
otherwise to utilize such voting power in such manner and upon and
limited to only those matters described in Section 2.01 above, as
Merger Sub or its proxy or substitute shall, in Merger Sub’s
sole discretion, deem proper with respect to the Shareholder
Shares. The proxy granted by each Shareholder pursuant to this
Section 2.02 is irrevocable and is granted in consideration of
Merger Sub’s entering into the Merger Agreement, and such
irrevocable proxy shall remain in effect until the Termination
Date, notwithstanding the death or incapacity of such Shareholder.
Such proxy shall be revoked on the Termination Date. Each
Shareholder intends this limited proxy to be irrevocable and will
take such further action and execute such other instruments as may
be necessary to effectuate the intent of such proxy, including,
without limitation, filing written notice thereof with the
secretary of the Company or permitting Merger Sub, as such
Shareholder’s attorney-in-fact, to file a copy of this
Agreement with the secretary of the Company.
Section 2.03 Capacity . Each Shareholder is only obligating himself or
herself in his or her capacity as a shareholder of the Company and
not agreeing to take any action or forego taking any action in his
or her capacity as an officer or director of the Company. Nothing
contained in this Agreement shall be construed to prohibit any
Shareholder, solely in such Shareholder’s capacity as an
officer or director of the Company, from discharging such
Shareholder’s obligations as an officer or director,
including, but not limited to, the exercise of fiduciary duties
under applicable law and all actions permitted under Section 5.10
of the Merger Agreement.
Section 2.04 Shareholder Obligations Several and Not
Joint. The obligations of
each Shareholder hereunder shall be several and not joint and no
Shareholder shall be liable for any breach of the terms of this
Agreement by any other Shareholder.
ARTICLE
3
Representations and
Warranties of Shareholders
Each Shareholder represents and warrants to
Merger Sub that:
Section 3.01 Valid Title . There are no restrictions on
Shareholder’s voting rights or rights of disposition with
respect to the Shareholder Shares, except securities Law
requirements. None of the Shareholder Shares are subject to any
voting trust or other agreement or arrangement with respect to the
voting of such Shareholder Shares (other than this
Agreement).
Section 3.02 Binding Effect . Assuming due and valid execution and delivery
by Parent and Merger Sub, this Agreement is the valid and binding
agreement of Shareholder, enforceable against Shareholder in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating
to creditors’ rights generally. The execution and delivery by
Shareholder of this Agreement does not, and the performance by
Shareholder of Shareholder’s obligations under this Agreement
will not, require any consent, approval, authorization or permit
of, or filing with or notification to, any Governmental Authority,
except where the failure to obtain such consent, approval,
authorization or permit would not materially interfere with
Shareholder’s ability to perform its obligations
hereunder.
Section 3.03 Ownership of Company Securities
. The shares of Company capital
stock and options to purchase shares of Company capital stock set
forth next to Shareholder’s name on Exhibit A hereto
are the only securities of Company beneficially owned by
Shareholder.
Section 3.04 Power and Authority . If Shareholder is an individual, Shareholder
has the full legal right and capacity to execute and deliver this
Agreement, perform Shareholder’s obligations hereunder and
consummate the transactions contemplated under this Agreement. If
Shareholder is not an individual, Shareholder (i) is duly organized
or formed, validly existing and in good standing under the laws of
its jurisdiction of organization or formation, (ii) has the
requisite power and authority to carry on its business as it is now
being conducted, and (iii) has all necessary power and authority to
execute and deliver this Agreement, to perform its oblig
