EXHIBIT 9.1
VOTING AND FIRST OFFER AGREEMENT
VOTING AND FIRST OFFER AGREEMENT, dated as of January 24, 2000 (this
"AGREEMENT"), between Xxxxxxxx Xxxxxxxxx (the "PRINCIPAL STOCKHOLDER") and USANi
Sub LLC, a Delaware limited liability company ("PARENT").
WHEREAS, Xxxxxxxxxx.xxx Inc., a California corporation (the "COMPANY"), and
Parent propose to enter into an Agreement and Plan of Merger, dated as of the
date hereof (the "MERGER AGREEMENT"), which provides for, among other things,
the merger of the Company (the "MERGER") with a wholly owned subsidiary of a
newly formed Delaware corporation ("NEWCO") and the concurrent contribution by
Parent to Newco of all of the outstanding limited liability interests of
Internet Shopping Network LLC, a Delaware limited liability company ("ISN");
WHEREAS, the Principal Stockholder is the owner of one or more of the
following securities: (a) shares of common stock of the Company, no par value
("COMPANY COMMON STOCK") and (b) options to acquire Company Common Stock; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, the
Principal Stockholder has agreed to enter into this Agreement with respect to
all the shares of Company Common Stock now owned, whether beneficially or of
record, and which may hereafter be acquired by the Principal Stockholder and any
shares of Company Common Stock over which the Principal Stockholder has
investment power or voting power, each within the meaning of Rule 13d-3(a) of
the Securities Exchange Act of 1934, as amended (the "SHARES"), and all options
to acquire Shares now owned and which may hereafter be acquired (the "OPTIONS").
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE 1
Section 1.1 VOTING AGREEMENT. The Principal Stockholder hereby agrees that
during the Restricted Period (as defined below) at any meeting of the
stockholders of the Company, however called, and in any action by consent of the
stockholders of the Company, the Principal Stockholder shall vote his Shares or
shall cause his Shares to be voted: (a) in favor of the Merger, the Merger
Agreement (as amended from time to time) and the transactions contemplated by
the Merger Agreement (the "PROPOSED TRANSACTIONS") and (b) against any proposal
(other than in respect of the Proposed Transaction) for any: (i) merger,
consolidation, share exchange, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the Company or any
other material corporate transaction, the consummation of which could reasonably
be expected to impede, interfere with, prevent or materially delay the Proposed
Transactions; (ii) a sale, lease, exchange, transfer or other disposition of 20%
or more of the assets of the Company in a single transaction or series of
transactions; or (iii) the acquisition by any person or "group" (as defined in
Section 13(d) of the Exchange Act) other than Parent or its affiliates (herein,
a "THIRD PARTY"), of "beneficial ownership" of 15% or more of the Company's
voting stock whether by tender offer or exchange offer or otherwise and
including a self tender offer, merger, sale of assets or other business
combination between the Company and any person or entity or any other action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or which could result in any of the conditions to the Company's
obligations under the Merger Agreement not being fulfilled. For purposes of this
Agreement, the term "RESTRICTED PERIOD" shall mean the time during which the
Merger Agreement remains in effect and for 12 months thereafter.
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Section 1.2 ACKNOWLEDGMENT. The Principal Stockholder acknowledges receipt
and review of a copy of the Merger Agreement.
Section 1.3 WAIVER OF DISSENTERS' RIGHTS. The Principal Stockholder hereby
irrevocably and forever waives any rights the Principal Stockholder may have, as
a result of the Merger, to demand payment for any Shares beneficially owned by
the Principal Stockholder pursuant to Section 1300 et. seq. of California Law or
to otherwise qualify as a "dissenting shareholder" as such term is used in such
sections of California Law.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF THE PRINCIPAL STOCKHOLDER
The Principal Stockholder hereby represents and warrants to Parent as
follows:
Section 2.1 AUTHORITY RELATIVE TO THIS AGREEMENT. The Principal Stockholder
has all necessary power and authority to execute and deliver this Agreement, to
perform his obligations hereunder and to consummate the transactions
contemplated hereby and no other proceedings on the part of the Principal
Stockholder are necessary to authorize this Agreement or to consummate such
transactions. This Agreement has been duly and validly executed and delivered by
the Principal Stockholder and, assuming the due authorization, execution and
delivery by Parent, constitutes a legal, valid and binding obligation of the
Principal Stockholder, enforceable against the Principal Stockholder in
accordance with its terms.
Section 2.2 NO CONFLICT. (a) The execution and delivery of this Agreement by
the Principal Stockholder do not, and the performance of this Agreement by the
Principal Stockholder will not, (i) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to the Principal Stockholder or
by which the Shares or the Options are bound or affected or (ii) result in any
breach of or constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a Lien (as defined below) on any of the Shares or the Options
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which the
Principal Stockholder is a party or by which the Principal Stockholder or the
Shares or the Options are bound or affected, except for any such conflicts,
violations, breaches, defaults or other occurrences which would not prevent or
delay the performance by the Principal Stockholder of his obligations under this
Agreement.
(b) The execution and delivery of this Agreement by the Principal
Stockholder do not, and the performance of this Agreement by the Principal
Stockholder will not, require any consent, approval, authorization or permit
of, or filing with or notification to, any court or arbitrator or any
governmental body, agency or official except for applicable requirements, if
any, of the Securities Exchange Act of 1934, as amended, and except where
the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications, would not prevent or delay the
performance by the Principal Stockholder of his obligations under this
Agreement.
Section 2.3 TITLE TO THE SHARES. As of the date hereof, the Principal
Stockholder is the record and beneficial owner of, or has voting power or
investment power over, the Shares, and is the record and beneficial owner of the
Options, listed on Schedule 1. Such Shares and Options are all the securities of
the Company owned, either of record or beneficially, by the Principal
Stockholder or in which the Principal Stockholder has voting or investment power
and the Principal Stockholder owns no other rights or interests exercisable for
or convertible into any securities of the Company. Except as identified on
Schedule 2, all of the Shares and Options referred to above are owned free and
clear of all security
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interests, liens, claims, pledges, options, rights of first refusal, agreement,
limitations on the Principal Stockholder's voting rights, charges and other
encumbrances of any nature whatsoever (collectively, "Liens") except, with
respect to the Options, the Company Option Plan and any agreements executed
pursuant thereto pursuant to which such Options were issued. The Principal
Stockholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Shares.
ARTICLE 3
COVENANTS OF THE PRINCIPAL STOCKHOLDER
Section 3.1 NO INCONSISTENT AGREEMENT. The Principal Stockholder hereby
covenants and agrees that he shall not enter into any agreement or grant a proxy
or power of attorney with respect to the Shares or Options which is inconsistent
with this Agreement.
Section 3.2 TRANSFER RESTRICTION.
(a) The Principal Stockholder hereby covenants and agrees that he shall
not sell, give, assign, hypothecate, pledge, encumber, grant a security
interest in or otherwise dispose of, whether by operation of law or by
agreement or otherwise (each a "TRANSFER"), from the date hereof until the
termination of the Merger Agreement, any Shares or Options, or any right,
title or interest therein or thereto.
(b) Notwithstanding the foregoing, the Principal Stockholder may
Transfer any Shares or Options, or any right, title or interest therein or
thereto, to any trust which is established, and which remains, solely for
the benefit of the Principal Stockholder or his spouse, siblings, children
or grandchildren (a "TRUST"), provided, that, prior to such Transfer, the
Trust shall execute and deliver an agreement by which it shall become a
party to and be bound by the applicable terms and provisions of this
Agreement, in form and substance reasonably satisfactory to Parent.
(c) Notwithstanding the foregoing, if Parent permits any stockholder
that is a party to an agreement containing restrictions on transfer of the
type contained herein (the "TRANSFERRING STOCKHOLDER") to Transfer any
Shares, Options or warrants to purchase Company Common Stock (the
"WARRANTS") after the date hereof and prior to the termination of the Merger
Agreement, which Transfer would otherwise be prohibited by such agreement,
then Parent shall permit the Principal Stockholder, upon his request, to
Transfer a number of Shares or Options equal to the product of (i) the
number of Shares, Options or Warrants Transferred by the Transferring
Stockholder divided by the number of Shares, Options or Warrants owned by
the Transferring Stockholder as of the date of such Transfer, and (ii) the
number of Shares or Options owned by the Principal Stockholder as of the
date of such Transfer, in each case, treating all Options and Warrants as
Shares on an as-converted basis (without giving effect to restrictions or
limitations on the exercise of such Options or Warrants).
Section 3.3 RIGHT OF FIRST OFFER. The Principal Stockholder hereby covenants
and agrees that, following the termination of the Merger Agreement and during
the remainder of the Restricted Period, the Principal Stockholder shall not
Transfer any Shares or Options except pursuant to the following provisions:
(a) OFFERING NOTICE. If the Principal Stockholder wishes to Transfer
(other than pursuant to the Merger) all or any portion of his Shares or
Options to any person or entity (a "THIRD PARTY PURCHASER"), the Principal
Stockholder shall first offer such Shares or Options to Parent, by sending
written notice (an "OFFERING NOTICE") to Parent, which shall state (i) the
number of Shares or Options proposed to be transferred (the "OFFERED
SECURITIES"); (ii) whether such sale (with respect to Shares only) will be
effected in an open market transaction that complies with Rule 144(f) of
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the Securities Act of 1933 (a "PUBLIC SALE") or otherwise (a "PRIVATE
SALE"), (iii) the proposed purchase price for the Offered Securities, which
price must be in cash and, with respect to a Public Sale, may not be at a
per share price in excess of the closing price of shares of Company Common
Stock on the NASDAQ for the trading day immediately prior to the date on
which the Offering Notice is given (the "OFFER PRICE"); and (iv) with
respect to a Private Sale, the terms and conditions of such sale, which
terms and conditions must be customary and reasonable for a transaction of
such type. Upon delivery of the Offering Notice, such offer shall be
irrevocable unless and until the rights of first offer provided for herein
shall have been waived or shall have expired;
(b) PARENT OPTION. For a period of five days after the giving of the
Offering Notice pursuant to Section 3.3(a) (the "OPTION PERIOD"), Parent
shall have the right (the "OPTION") but not the obligation to purchase all
(but not less than all) of the Offered Securities at a purchase price equal
to the Offer Price and, with respect to a Private Sale, upon the terms and
conditions set forth in the Offering Notice. The right of Parent to purchase
any or all of the Offered Securities under this Section 3.3(b) shall be
exercisable by delivering written notice of the exercise thereof (the
"ACCEPTANCE"), prior to the expiration of the Option Period, to the
Principal Stockholder, which notice shall state the number of Offered
Securities proposed to be purchased by Parent. The failure of Parent to
respond within the Option Period shall be deemed to be a waiver of the
Option; PROVIDED that Parent may waive its rights under this Section 3.3(b)
prior to the expiration of the Option Period by giving written notice to the
Principal Stockholder (the date any such written waiver is received by the
Principal Stockholder or, if no notice is given, the last date of the Option
Period is referred to as the "WAIVER DATE");
(c) CLOSING. The closing of the purchase of Offered Securities
subscribed for by Parent under Section 3.3(b) shall be held at the executive
offices of Parent at 11:00 a.m., local time, on the later of (i) the 10th
day after the Acceptance pursuant to Section 3.3(b) and (ii) two days
following the date on which all governmental or regulatory approvals
(including the expiration of any waiting periods under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act) with respect to such transaction, if any, have
been obtained or at such other time and place as the parties to the
transaction may agree. At such closing, the Principal Stockholder shall
deliver certificates representing the Offered Securities, duly endorsed for
transfer and accompanied by all requisite transfer taxes, if any, and such
Offered Securities shall be free and clear of any Liens (other than those
arising hereunder) and the Principal Stockholder shall so represent and
warrant, and shall further represent and warrant that he is the sole
beneficial and record owner of such Offered Securities. Parent shall deliver
at the closing payment in full in immediately available funds for the
Offered Securities purchased. In connection with such sale the parties to
the transaction shall execute such additional documents and take all
reasonable steps as are otherwise necessary or appropriate to effectuate
such transaction; and
(d) SALE TO A THIRD PARTY PURCHASER. If Parent does not elect to
purchase all of the Offered Securities under Section 3.3(b), the Principal
Stockholder may sell all, but not less than all, of the Offered Securities
that Parent elected not to purchase (i) with respect to a Private Sale to a
Third Party Purchaser on terms and conditions no less favorable to the
Principal Stockholder than those set forth in the Offering Notice;
PROVIDED,HOWEVER, that such sale is bona fide and not undertaken for the
purpose of avoiding the Principal Stockholder's obligations hereunder and
made pursuant to a contract entered into within 10 days after the Waiver
Date and (ii) with respect to a Public Sale, such sale is effected within
five days following the Waiver Date at the market price in effect at the
time of such sale. If such sale is not consummated within five days after
the Waiver Date with respect to a Public Sale or 45 days after the Waiver
Date with respect to a Private Sale, then the restrictions provided for
herein shall again become effective, and no transfer of such Offered
Securities may be made thereafter by the Principal Stockholder without again
offering the same to Parent in accordance with this Section 3.3.
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Section 3.4 STOCKHOLDERS AGREEMENT. Prior to the Closing of the Merger, the
Principal Stockholder hereby agrees to execute the Stockholders Agreement,
substantially in the form attached as Exhibit A to the Merger Agreement.
Section 3.5 EMPLOYMENT AGREEMENT. Prior to the Closing of the Merger, the
Principal Stockholder hereby agrees to execute an employment agreement, between
the Principal Stockholder and Newco, substantially in the form agreed to by the
Principal Stockholder and Parent prior to the execution hereof.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT
Section 4.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Parent has full right,
power and authority to enter into and perform this Agreement and this Agreement
has been duly authorized, executed and delivered by Parent and is a valid and
binding agreement of Parent and enforceable against Parent in accordance with
its terms.
Section 4.2 NO CONFLICT. (a) The execution and delivery of this Agreement by
Parent do not, and the performance of this Agreement by Parent will not,
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to Parent.
(b) The execution and delivery of this Agreement by Parent do not, and
the performance of this Agreement by Parent will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
court or arbitrator or any governmental body, agency or official except for
applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended, and except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would
not prevent or delay the performance by Parent of its obligations under this
Agreement.
ARTICLE 5
MISCELLANEOUS
Section 5.1 TERMINATION. This Agreement shall terminate upon the earliest to
occur of (i) the Closing, (ii) the 12-month anniversary following termination of
the Merger Agreement and (iii) the termination of the Merger Agreement by Parent
pursuant to Section 7.1(c) of such Agreement; provided that the representations
and warranties contained herein shall survive the termination hereof.
Section 5.2 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were 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 at law or in equity.
Section 5.3 DEFINITIONS. Unless otherwise defined herein, all capitalized
terms shall have the definitions assigned to such terms in the Merger Agreement.
Section 5.4 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among Parent and the Principal Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
Section 5.5 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
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Section 5.6 SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule or law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
this Agreement is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible to the fullest extent permitted by applicable law in a
mutually acceptable manner in order that the terms of this Agreement remain as
originally contemplated.
Section 5.7 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law.
Section 5.8 JURISDICTION. Each party to this Agreement hereby irrevocably
agrees that any legal action or proceeding arising out of or relating to this
Agreement or any agreements or transactions contemplated hereby shall be brought
in the courts of the State of New York and hereby expressly submits to the
personal jurisdiction and venue of such courts for the purposes thereof and
expressly waives any claim of improper venue and any claim that such courts are
an inconvenient forum.
IN WITNESS WHEREOF, Parent and the Principal Stockholder have caused this
Agreement to be duly executed as of the date first above written.
USANI SUB LLC
By: /s/ XXXX XXXXXXXXXXXX
-----------------------------------------
Xxxx Xxxxxxxxxxxx
VICE PRESIDENT
/s/ XXXXXXXX XXXXXXXXX
-----------------------------------------
Xxxxxxxx Xxxxxxxxx
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SCHEDULE 1
NUMBER OF
SHARES
OWNED BENEFICIALLY NUMBER OF
OR OF RECORD(1) OPTIONS OWNED
------------------ -------------
417,619 237,227
------------------------
(1) Other than Shares issuable upon exercise of Options, which are listed in the
next column.
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SCHEDULE 2
LIENS
None.
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SCHEDULE TO EXHIBIT 9.1
Xxxxx Xxxxxxxx and Xxx Xxxxxxxx also executed a Voting and First Offer
Agreement substantially similar to the foregoing, except that Xxxxx Xxxxxxxx
holds 1,506,247 shares of Old Styleclick common stock and options to purchase
237,227 shares of Old Styleclick common stock and Xxx Xxxxxxxx holds 139,952
shares of Old Styleclick common stock and options to purchase 75,000 shares of
Old Styleclick common stock.
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