Exhibit 2.02
VOTING, CONSENT AND STOCK TRANSFER AGREEMENT
May 14, 2001
Gemstar-TV Guide International, Inc.
000 Xxxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Re: Voting, Consent and Stock Transfer Agreement
Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and the The Xxxxxx Xxxxxxx
Worsley and Christi Xxxxx Xxxxxxx Family Revocable Trust (such individuals and
such trust being collectively referred to hereinafter as "the undersigned") are
stockholders of SkyMall, Inc., a Nevada corporation (the "Company"). The
undersigned understand that (1) the Company and Gemstar-TV Guide International,
Inc., a Delaware corporation ("Gemstar"), have negotiated the terms of an
Agreement and Plan of Merger (the "Merger Agreement"), among Gemstar, GSky
Acquisition Sub, Inc., a Delaware corporation wholly owned by Gemstar ("Merger
Sub"), and the Company, pursuant to which the Company would merge with and into
Merger Sub, with Merger Sub being the surviving corporation (the "Merger"), and
(2) Gemstar has conditioned its willingness to enter into the Merger Agreement
upon Gemstar's receipt from the undersigned of the agreements and covenants set
forth in this letter. The undersigned are familiar with the Merger Agreement
and the terms and conditions thereof. In order to induce Gemstar to enter into
the Merger Agreement, and intending to be legally bound, each of the undersigned
hereby represents and warrants to and covenants and agrees with Gemstar as
follows:
1. Ownership. As of the date hereof, Schedule 1 hereto sets forth
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all of the shares of capital stock of the Company owned of record or
beneficially owned or held in any capacity by the undersigned or under the
control of the undersigned, including shares issuable upon the exercise or
conversion of options, warrants or convertible securities of the Company (the
"Shares").
2. Voting/Consent. If the Merger Agreement is executed and
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delivered by each of the parties thereto, and provided that the Merger Agreement
has not been terminated in accordance with its terms, the undersigned will vote
or cause to be voted at any stockholders meeting called for the purpose all of
the Shares, eligible to so vote, in favor of the approval of the Merger
Agreement and the Merger contemplated thereby, and against any inconsistent
proposals or transactions, which shall include, without limitation, (i) any
other merger, consolidation, share exchange, sale of all or substantially all of
the Company's assets, reorganization, recapitalization, dissolution, liquidation
or winding up of the Company or (ii) any amendment of the Articles of
Incorporation of the Company, which amendment would in any manner impede,
frustrate, prevent or nullify the Merger contemplated by the Merger Agreement
(such proposals and transactions, including those described in the immediately
preceding clauses (i) and (ii), collectively, "Inconsistent Transactions"). To
the extent any stockholder action with respect to the Merger Agreement is taken
by written consent, the undersigned shall provide his, her or its consent, as
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applicable, or cause a consent to be provided, with respect to all of the Shares
eligible to so consent, in favor of the approval of the Merger Agreement and the
Merger, and shall not provide such consent, or permit a consent to be provided,
with respect to the Shares to any Inconsistent Transaction.
3. Restriction on Transfer. During the period from the date hereof
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and continuing until the earlier of (i) the termination of the Merger Agreement
pursuant to its terms or (ii) the effective time of the Merger (the "Restricted
Period"), the undersigned will not (x) sell, transfer, pledge or otherwise
dispose of any of the Shares or any interest therein or agree to sell, transfer,
pledge or otherwise dispose of any of the Shares or any interest therein or (y)
take any other action that would in any way restrict, limit or interfere with
the performance of the undersigned's obligations under this letter agreement, in
each case without Gemstar's express written consent. The undersigned shall
affix or cause the following legend to be affixed to any certificates
representing Shares immediately following the undersigned's execution hereof:
"The shares represented by this certificate are subject to the transfer
restrictions contained in the Voting Agreement, Consent and Stock Transfer
Agreement dated as of ____, 2001, between the registered or beneficial holder
hereof and Gemstar and may not be transferred except in compliance therewith."
The undersigned shall promptly send to Gemstar evidence satisfactory to Gemstar
that the undersigned has complied with the provisions of the prior sentence.
4. Grant of Irrevocable Proxy; Appointment of Proxy.
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(a) In accordance with Section 78.355 of the Nevada Revised
Statutes ("NRS") and Article II, Section 12 of the Bylaws of the Company (the
"Company Bylaws"), each of the undersigned irrevocably grants to, and appoints,
Xxxxx Xxxx and Xxxxx Xxxxx, in their respective capacities as officers of
Gemstar, any individual who hereafter shall succeed to any such office of
Gemstar, and each of them individually, the undersigned's proxy and attorney-in-
fact (with full power of substitution) for and in the undersigned's name, place
and stead, to vote the Shares, or grant a consent or approval in respect of such
Shares, in accordance with the undersigned's covenants in Section 2 hereof.
(b) The undersigned represents that any proxies heretofore given
in respect of the Shares are not irrevocable, and that all such proxies are
hereby revoked. The undersigned further represents that this letter agreement
does not, and, during the Restricted Period, will not, violate any voting
agreement, voting trust or any other arrangement relating to the voting of the
Shares.
(c) The undersigned hereby affirms that the irrevocable proxy
set forth in this Section 4 is given as an inducement to Gemstar to enter into
the Merger Agreement with the Company, and that such irrevocable proxy is given
to secure the undersigned's performance under this letter agreement. The
undersigned hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked, in accordance with Section
78.355 of the NRS and Article II, Section 12 of the Company Bylaws. The
undersigned hereby ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof.
5. Termination. This letter agreement and the undersigned's
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obligations
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hereunder (including, without limitation, the proxy granted pursuant to Section
4 hereof) shall terminate on the earlier of (i) termination of the Merger
Agreement pursuant to its terms or (ii) the effective time of the Merger.
6. Effective Date; Succession. Upon Gemstar's acceptance and
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execution of this letter agreement, this letter agreement shall mutually bind
and benefit Gemstar and the undersigned, any of the undersigned's heirs,
successors and assigns and any of Gemstar's successors. Gemstar will not assign
the benefit of this letter agreement other than to a wholly owned subsidiary of
Gemstar.
7. Nature of Holdings; Shares. All references herein to the
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undersigned's holdings of the Shares shall be deemed to include any Shares held
or controlled by the undersigned, individually, jointly (as community property
or otherwise), or in any other capacity, and shall extend to any securities
issued to the undersigned in respect of the Shares.
8. Authority. The undersigned, if not a natural person, represents
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and warrants that it has full power and authority to execute this letter
agreement and that such letter agreement has been duly authorized by all
necessary action. The undersigned, if a natural person, represents and
warrants that he or she is legally competent to execute this letter agreement.
9. Specific Performance. The parties hereto agree that, in light of
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the irreparable damage that would occur in the event any provision of this
letter agreement were not performed in accordance with the terms hereof and the
inadequacy of damages as a remedy, the parties shall be entitled to specific
performance of the terms hereof, in addition to any other remedy at law or
equity.
10. Governing Law. This letter agreement shall be governed by and
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construed in accordance with the laws of the State of Nevada without regard to
the conflicts of law rules of such State.
11. Jurisdiction; Service of Process. Any suit, action or proceeding
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seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this letter agreement or the transactions contemplated hereby
shall be brought in any federal court located in the State of Nevada or any
Nevada state court, and each of the parties hereby consents to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party, whether within or without the
jurisdiction of any such court, by registered or certified mail.
12. Severability. In case any one or more of the provisions
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contained herein or in any instrument contemplated thereby, or any application
thereof, shall be invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
therein, and any other application thereof, shall not in any way be affected or
impaired
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thereby.
13. Release. Each of the undersigned hereby releases and discharges
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Gemstar and its successors and assigns, and its present and former employees,
officers, directors, parents, subsidiaries, shareholders, affiliated
corporations and agents, attorneys and other legal representatives from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, controversies, agreements, promises, variances, damages, judgments,
executions, claims, demands, obligations and liabilities whatsoever, in law or
in equity (including those based in negligence), which the undersigned and its
successors and assigns may have against Gemstar as a result of any action taken
by Gemstar pursuant to this agreement (including, without limitation, pursuant
to Section 4 hereof).
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: ___________________________________
Agreed and accepted as of the date first set forth above:
Gemstar-TV Guide International, Inc.
By:_________________________________
Name:_______________________________
Title:______________________________
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