Exhibit 10.01
LOCK-UP AGREEMENT
May 14, 2001
Gemstar-TV Guide International, Inc.
000 Xxxxx Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned, Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and the The
Xxxxxx Xxxxxxx Worsley and Christi Xxxxx Xxxxxxx Family Revocable Trust,
beneficially own, on the date hereof, an aggregate of 4,830,280 shares of common
stock, par value $.001 per share ("SkyMall Common Stock"), of SkyMall, Inc., a
Nevada corporation ("SkyMall"). Each of the undersigned is entering into this
letter agreement as an inducement to you to enter into, and consummate the
transactions contemplated by, that certain Agreement and Plan of Merger (the
"Merger Agreement"), dated as of May 14, 2001, by and among SkyMall, Gemstar-TV
Guide International, Inc., a Delaware corporation ("Gemstar"), and GSky
Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Gemstar. Each of the undersigned has received a copy of the Merger Agreement,
and is familiar with its terms. Capitalized terms used herein and not otherwise
defined have the meanings ascribed thereto in the Merger Agreement.
Pursuant to the terms of the Merger Agreement, the undersigned will
receive, in exchange for all of the shares of SkyMall Common Stock beneficially
owned by them at the Effective Time of the Merger, shares of common stock, par
value $.01 per share ("Gemstar Common Stock"), of Gemstar. The shares of Gemstar
Common Stock issued to the undersigned in connection with the Merger, together
with any shares of Gemstar Common Stock issued in connection with or subsequent
to the Merger upon exercise of any options or warrants to acquire SkyMall Common
Stock beneficially owned by the undersigned immediately prior to the Effective
Time of the Merger are referred to herein as the "Lock-Up Shares."
Except as may otherwise be provided herein and only with respect to
those Lock-Up Shares subject to the terms of this letter agreement as of any
date of determination, each of the undersigned agree that they will not,
directly or indirectly, sell, offer or agree to sell, grant any option for the
sale of, pledge, make any short sale or maintain any short position, establish
or maintain any "put equivalent position" (within the meaning of Rule 16a-1(h)
under the Securities Exchange Act of 1934, as amended), enter into any swap,
derivative transaction or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Lock-Up Shares
if any such transaction is to be settled by delivery of Lock-Up Shares or
contemplates such delivery, or otherwise dispose of, any Lock-Up Shares or any
interest therein, or publicly disclose the intention to do any of the foregoing
without the prior written consent of Gemstar. The prohibitions contained in this
paragraph shall terminate and have no further force or effect as to a number of
Lock-Up Shares (rounded up to the nearest
whole number) equal to one-fifth of the initial number of Lock-Up Shares subject
to this letter agreement on each anniversary of the Effective Time, with all
such prohibitions lapsing on the fifth anniversary of the Effective Time. The
exact shares held by the undersigned as to which the prohibitions contained in
this paragraph shall terminate on each anniversary of the Effective Time shall
be selected by Xxxxxx X. Xxxxxxx.
Notwithstanding the prohibitions contained in the prior paragraph, the
undersigned may, for estate and tax planning purposes, monetize up to fifty
percent (50%) of the aggregate number of Lock Up Shares initially subject to
this agreement. Such monetization may consist of collars, swaps, forward
contracts or similar derivative instruments; provided, that (i) any shares being
monetized remain in the name of one of the undersigned prior to the termination
or settlement of such derivative, (ii) such person retains the right to vote
such shares during such period, and (iii) the derivative instrument contains
provisions that provide that (x) the shares subject thereto may not be sold in
the public market during any period in which they would have been subject to
this agreement absent the release provided by this paragraph and (y) if any of
the shares are returned to any of the undersigned upon settlement or termination
of the derivative prior to the end of the term of this Agreement, a number of
shares equal to the number that would have still been subject to the
prohibitions of the prior paragraph shall again become subject to the terms of
this letter agreement. Upon the undersigned providing Gemstar with reasonable
assurance that a monetization of Lock Up Shares is for estate or tax planning
purposes and meets the requirements of the forgoing sentence, then Gemstar shall
direct the transfer agent to reissue unlegended shares to the person providing
such assurance. The shares released from the prohibitions of the prior paragraph
in accordance with this paragraph shall, for purposes of determining the lock up
restrictions on the remaining shares subject hereto, be evenly allocated over
the remaining lock up periods specified in the penultimate sentence of the prior
paragraph.
Notwithstanding the prohibitions contained in the second preceding
paragraph, this letter agreement shall terminate, and be of no further force of
effect, upon the first anniversary of Xxxxxx X. Xxxxxxx ceasing to be an
employee of Gemstar or any subsidiary of Gemstar.
This letter agreement shall only apply to shares of Gemstar Common
Stock acquired by the undersigned in connection with the Merger, and shall not
apply to any such shares acquired by them after the Effective Time upon exercise
of options, in the open market or in privately negotiated transactions.
The number of shares of Gemstar Common Stock constituting Lock-Up
Shares at any time of determination shall be appropriately adjusted by Gemstar
(in its reasonable determination) in the event of any stock spilt, stock
dividend, reverse stock split, combination, reclassification or other similar
action with respect to the Gemstar Common Stock.
If the undersigned is a natural person, a transfer of shares of
Gemstar Common Stock to a family member or family trust may be made without
violating this letter agreement, provided the transferee agrees to be bound in
writing by the terms of this letter agreement.
In furtherance of the foregoing, Gemstar and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Gemstar Common Stock constituting
Lock-Up Shares if such transfer would constitute a violation or breach of this
letter agreement. During the period that any shares of Gemstar Common Stock are
Lock-Up Shares subject to the terms of this letter agreement, the certificates
representing such shares shall contain the following legend: "The shares
represented by this certificate are subject to the transfer restrictions
contained in the Lock-Up Agreement dated as of May 14, 2001, between the
registered or beneficial holder hereof and Gemstar-TV Guide International, Inc.,
and may not be transferred except in compliance therewith. A copy of such
agreement is available from the Secretary of Gemstar-TV Guide International,
Inc.." At such time as any shares of Gemstar Common Stock cease to be Lock-Up
Shares in accordance with the terms of this letter agreement, Gemstar shall
cause the transfer agent for the Gemstar Common Stock to reissue certificates
for such shares that do not contain the foregoing legend.
This letter agreement may not be amended, altered or modified and the
provisions hereof may not be waived except by a written instrument executed by
Gemstar.
This letter agreement shall become effective upon the consummation of
the Merger and shall be binding on the undersigned and the successors, heirs,
personal representatives and assigns of each of the undersigned.
Very truly yours,
_____________________________
XXXXXX X. XXXXXXX
_____________________________
XXXXXXX X. XXXXXXX
THE XXXXXX XXXXXXX XXXXXXX AND XXXXXXX XXXXX
XXXXXXX FAMILY REVOCABLE TRUST, dated July 28, 1998
By its Trustee: _________________________
Name: ___________________________________
