EXHIBIT 99.1
MBO MEMBER AGREEMENT
--------------------
MBO MEMBER AGREEMENT dated December 21, 2000 (this "Agreement") between
Xxxx X. XxXxxx ("XxXxxx") and that individual or entity executing the signature
page hereto (the "MBO Member").
BACKGROUND
----------
XxXxxx is considering delivering to the Board of Directors of Netpliance,
Inc., a Delaware corporation (the "Corporation"), a letter requesting the
opportunity to open negotiations regarding a possible transaction in which all
shares of the common stock of the Corporation ("Common Stock") not owned by
XxXxxx and certain other stockholders of the Corporation (collectively, the
"Buyout Group") would be converted into the right to receive cash or other
consideration (the "Buyout").
The MBO Member desires to become a member of the Buyout Group and agrees to
be bound to the terms and conditions contained herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein and for the other good and valuable consideration, the receipt
and sufficiency of which hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. MBO MEMBERSHIP
--------------
(a) MBO Member agrees to become a member of the Buyout Group upon
acceptance of this Agreement by XxXxxx.
(b) MBO Member represents and warrants that the MBO Member owns of record
that number of shares of Common Stock set forth on the signature page
hereof.
(c) MBO Member agrees to not enter into any transaction to sell or to
purchase shares of Common Stock prior to the consummation of the
Buyout without the prior written consent of XxXxxx. MBO Member agrees
that MBO Member will notify XxXxxx in writing at least ten days in
advance if the MBO Member intends to enter into any transaction to
sell or to purchase shares of Common Stock, or execute any agreement
to enter into such a transaction, prior to the consummation of the
Buyout.
(d) MBO Member agrees to use all reasonable efforts, to the fullest extent
allowed by applicable law, to (i) take, or cause to be taken, all
appropriate action, and do, or cause to be done, all things necessary,
proper or advisable under applicable law or otherwise to consummate
and make effective the Buyout, as determined by XxXxxx; (ii) deliver
or obtain from third parties any consents, licenses, permits, waivers,
approvals, authorizations or orders required to be obtained or made by
XxXxxx, the Buyout Group, the Corporation or any of their respective
affiliates, as applicable, in connection with the authorization,
execution and delivery of this Agreement and the consummation of the
Buyout; and (iii) make all necessary filings, and thereafter make any
other required submissions, with respect to the
1
Buyout required under any applicable law. The MBO Member will furnish
all information required for any application or other filing to be
made pursuant to any applicable law in connection with the Buyout.
(e) MBO Member intends to vote the shares of Common Stock the MBO Member
owns of record in favor of any action of the stockholders of the
Corporation required or desirable to consummate the Buyout, as
instructed by XxXxxx.
2. MBO MEMBER'S REPRESENTATIONS AND WARRANTIES
-------------------------------------------
MBO Member represents and warrants that:
(a) XxXxxx has furnished or made available to MBO Member with all
documents and information regarding the Corporation that MBO Member
has requested;
(b) MBO Member has had the opportunities to ask questions of and received
answers from XxXxxx concerning the Corporation and the Common Stock
and to obtain any additional information necessary to verify the
accuracy of the information furnished;
(c) MBO Member has relied only on the foregoing information and documents
in determining to make the decision to become a member of the Buyout
Group;
(d) The information in this Agreement (including the information set forth
on the signature page hereto) is true, correct and complete at this
date;
(e) The information furnished or made available by XxXxxx do not
constitute investment, accounting, legal or tax advice and MBO Member
is relying on professional advisers for such advice;
(f) MBO Member recognizes that an investment in the Common Stock involves
substantial risks, including, but not limited to, those set forth
under "FACTORS THAT MAY AFFECT FUTURE OPERATING RESULTS" in the
Corporation's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 2000; and
(g) MBO Member understands, acknowledges and agrees that XxXxxx is relying
upon the representations and warranties made herein in determining to
permit MBO Member to be a member of the Buyout Group.
3. MISCELLANEOUS
-------------
(a) This Agreement and the rights and obligations of the parties hereunder
shall be interpreted in accordance with the laws of the State of Texas
without reference to its conflict of law rules.
2
(b) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but the several counterparts
together shall constitute but one and the same instrument.
(c) Each of the parties agrees to execute all such further instruments and
documents and to take all such further action as the other party may
reasonably require in order to effectuate the terms and purposes of
this Agreement.
(d) This Agreement will terminate at the earlier to occur of (i) when
XxXxxx terminates negotiations with the Corporation regarding the
Buyout and gives MBO Member written notice of such termination, or
(ii) upon consummation of the Buyout.
[signature page follows]
3
IN WITNESS WHEREOF, the undersigned hereby executes this Agreement on the
date first above written.
MBO MEMBER:
Individual:
-------------------------
(signature)
Corporation or Trust:
-------------------------
(name of entity)
By:
------------------
Name:
------------------
Title:
------------------
Partnership:
-------------------------
(name of partnership)
-------------------------
(name of general partner)
By:
------------------
Name:
------------------
Title:
------------------
Address:
----------------------------------------------
Street Name and Number
----------------------------------------------
City/State/ZIP Code
----------------------------------------------
Telephone Number
----------------------------------------------
Social Security/Taxpayer Identification Number
----------------------------------------------
Number of Shares of Common Stock Owned
4
The foregoing Agreement is hereby confirmed and accepted by XxXxxx as of
December 21, 2000.
XxXXXX:
-------------------------
Xxxx X. XxXxxx
5
