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VOTING AGREEMENT
This VOTING AGREEMENT (the "AGREEMENT") is made and entered into as of
July 12, 1999, between At Home Corporation, a Delaware corporation ("PARENT"),
and the undersigned stockholder ("STOCKHOLDER") of iMall, Inc., a Nevada
corporation ("COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, Company
and Shop Nevada, Inc., a Nevada corporation and a wholly-owned subsidiary of
Parent ("MERGER SUB"), are entering into an Agreement and Plan of Merger (the
"MERGER AGREEMENT") which provides for the merger (the "MERGER") of Merger Sub
with and into Company. Pursuant to the Merger, shares of capital stock of
Company will be converted into shares of Series A Common Stock of Parent on the
basis described in the Merger Agreement. Capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement.
B. Stockholder is the record holder of such number of outstanding shares
of Company Common Stock as is indicated on the final page of this Agreement.
C. As a material inducement to enter into the Merger Agreement, Parent
desires Stockholder to agree, and Stockholder is willing to agree, to vote the
Shares (as defined below), and such other shares of capital stock of Company
over which Stockholder has voting power, so as to facilitate consummation of the
Merger.
Intending to be legally bound, the parties agree as follows:
1. Agreement to Vote Shares.
1.1 Definitions. For purposes of this Agreement:
"SHARES" shall mean all issued and outstanding shares of Company Common
Stock owned of record or beneficially by Stockholder or over which Stockholder
exercises voting power, in each case, as of the record date for persons entitled
(a) to receive notice of, and to vote at the meeting of the stockholders of
Company called for the purpose of voting on the matters referred to in Section
1.2, or (b) to take action by written consent of the stockholders of Company
with respect to the matters referred to in Section 1.2. Stockholder agrees that
any shares of capital stock of Company that Stockholder purchases or with
respect to which Stockholder otherwise acquires beneficial ownership or over
which Stockholder exercises voting power after the execution of this Agreement
and prior to the date of termination of this Agreement pursuant to Section 3
below shall be subject to the terms and conditions of this Agreement to the same
extent as if they constituted Shares on the date hereof.
"SUBJECT SECURITIES" shall mean: (i) all securities of Company
(including all shares of
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Company Common Stock and all options, warrants and other rights to acquire
shares of Company Common Stock) beneficially owned by Stockholder as of the date
of this Agreement; and (ii) all additional securities of Company (including all
additional shares of Company Common Stock and all additional options, warrants
and other rights to acquire shares of Company Common Stock) of which Stockholder
acquires ownership during the period from the date of this Agreement through the
earlier of termination of this Agreement pursuant to Section 3 below or the
record date for the meeting at which stockholders of Company are asked to vote
upon approval of the Merger Agreement and the Merger (the "RECORD DATE").
Stockholder shall be deemed to have effected a "TRANSFER" of a security
if Stockholder directly or indirectly: (i) sells, pledges, encumbers, transfers
or disposes of, or grants an option with respect to, such security or any
interest in such security; or (ii) enters into an agreement or commitment
providing for the sale, pledge, encumbrance, transfer or disposition of, or
grant of an option with respect to, such security or any interest therein.
Stockholder shall not be deemed to have effected a "Transfer" of a security by
virtue of entering into a merger, consolidation or other business combination of
any nature with another entity or entities.
1.2 Agreement to Vote Shares. Until the termination of this Agreement
pursuant to Section 3 below, at every meeting of the stockholders of Company
called with respect to any of the following, and at every adjournment thereof,
and on every action or approval by written consent of the stockholders of
Company with respect to any of the following, Stockholder shall cause the Shares
to be voted (i) in favor of approval of the Merger Agreement and the Merger,
(ii) in favor of approval of an amendment to the Articles of Incorporation of
the Company which deletes Article VI.C of the Company's Articles of
Incorporation regarding a supermajority vote requirement in certain dispositions
of assets of the Company and (iii) against approval of (a) any proposal made in
opposition to or in competition with consummation of the Merger, (b) any merger,
consolidation, sale of assets, reorganization or recapitalization with any party
other than Parent or its affiliates or (c) any liquidation or winding up of
Company.
1.3. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Stockholder agrees to deliver to Parent a proxy in the form attached
hereto as Exhibit I (the "PROXY"), which shall be irrevocable, with respect to
the Shares.
1.4. No Transfer of Subject Securities. Until the earlier of termination
of this Agreement pursuant to Section 3 below or the Record Date, except as may
be required by (i) the foreclosure on any encumbrance secured by such Subject
Securities as of the date hereof or (ii) court order, Stockholder agrees not to
Transfer any of the Subject Securities.
2. Representations and Warranties of Stockholder. Stockholder (i) is the
owner of record or beneficially or Stockholder exercises voting power of the
shares of Company Common Stock indicated on the final page of this Agreement,
which at the date hereof are free and clear of any liens, claims, options,
charges or other encumbrances that would adversely affect the ability of
Stockholder to carry out the terms of this Agreement; and (ii) has the legal
capacity or full corporate power and authority to make, enter into and carry out
the terms of this Agreement.
3. Termination. This Agreement shall terminate and shall have no further
force or
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effect as of the first to occur of (i) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the Merger
Agreement, or (ii) such date and time as the Merger Agreement shall have been
terminated pursuant to Article VII thereof.
4. Miscellaneous.
4.1 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.
4.2 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. Any purported
assignment in violation of this Section shall be void.
4.3 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.
4.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will 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 Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
4.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or by commercial delivery service to the respective parties
as follows (or at such other address for a party as shall be specified by like
notice):
If to Parent:
At Home Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
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with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
If to Stockholder, to the address for notice set forth on the
last page hereof.
4.6 Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the State of California,
without regard to the principles of conflict of laws thereof.
4.7 Entire Agreement. This Agreement contains the entire understanding
of the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings, both oral and written, between the parties with
respect to such subject matter.
4.8 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.
4.9 Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
AT HOME CORPORATION
By: _______________________________
Name:
Title:
STOCKHOLDER:
___________________________________
Name:
Stockholder's Address for Notice:
___________________________________
___________________________________
___________________________________
Shares of Company Common Stock
Beneficially Owned by Stockholder:
______________________
[VOTING AGREEMENT]
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EXHIBIT I
IRREVOCABLE PROXY
The undersigned stockholder (the "STOCKHOLDER") of iMall, Inc., a Nevada
corporation (the "COMPANY"), hereby irrevocably appoints and constitutes the
members of the Board of Directors of At Home Corporation, a Delaware corporation
("PARENT"), and each of them (the "PROXYHOLDERS"), the agents, attorneys and
proxies of the undersigned, with full power of substitution and resubstitution,
to the full extent of the undersigned's rights with respect to the shares of
capital stock of Company which are listed below (the "SHARES"), and any and all
other shares or securities issued or issuable in respect thereof on or after the
date hereof and prior to the date this proxy terminates, to vote the Shares as
follows: the agents and proxies named above are empowered at any time prior to
termination of this proxy to exercise all voting and other rights (including,
without limitation, the power to execute and deliver written consents with
respect to the Shares) of the undersigned at every annual, special or adjourned
meeting of Company stockholders, and in every written consent in lieu of such a
meeting, or otherwise, (i) in favor of approval of the Merger (as defined in the
Voting Agreement dated the date hereof between the Stockholder and Parent (the
"VOTING AGREEMENT")) and the Agreement and Plan of Merger (the "MERGER
AGREEMENT") among Parent, a wholly-owned subsidiary of Parent and Company, (ii)
in favor of approval of an amendment to the Articles of Incorporation of the
Company which deletes Article VI.C of the Company's Articles of Incorporation
regarding a supermajority vote requirement in certain dispositions of assets of
the Company, and (iii) against approval of (a) any proposal made in opposition
to or in competition with consummation of the Merger, (b) any merger,
consolidation, sale of assets, reorganization or recapitalization with any party
other than Parent or its affiliates or (c) any liquidation or winding up of
Company. The Proxyholders may not exercise this proxy on any other matter. The
Stockholder may vote the Shares on all such other matters. The proxy granted by
the Stockholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Stockholder set
forth in Section 1 of the Voting Agreement, and is irrevocable and coupled with
an interest in such obligations and in the interests in Company to be purchased
and sold pursuant the Merger Agreement. This proxy will terminate upon the
termination of the Voting Agreement in accordance with its terms. Upon the
execution hereof, all prior proxies given by the undersigned with respect to the
Shares and any and all other shares or securities issued or issuable in respect
thereof on or after the date hereof are hereby revoked and no subsequent proxies
will be given until such time as this proxy shall be terminated in accordance
with its terms. Any obligation of the undersigned hereunder shall be binding
upon the successors and assigns of the undersigned. The undersigned stockholder
authorizes the Proxyholders to file this proxy and any substitution or
revocation of substitution with the Secretary of the Company and with any
Inspector of Elections at any meeting of the stockholders of the Company.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned. Dated: July 12, 1999.
___________________________________
Signature
___________________________________
Name (and Title)
Shares of Company Common Stock beneficially owned:
__________________
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