Exhibit 2.2
COMPANY STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made and entered into as
of July 13, 1999, between Xxxxxxx.xxx, Inc., a Washington corporation
("Company"), and Onsale, Inc., a Delaware corporation ("Parent"). Capitalized
terms used in this Agreement but not defined herein shall have the meanings
ascribed to such terms in the Merger Agreement (as defined below).
RECITALS
A. Concurrently with the execution and delivery of this Agreement,
Company, Parent and EO Corporation., a Washington corporation and a wholly owned
subsidiary of Parent ("Merger Sub"), are entering into an Agreement and Plan of
Merger (the "Merger Agreement"), that provides, among other things, upon the
terms and subject to the conditions thereof, for Company and Parent to enter
into a business combination transaction (the "Merger").
B. As a condition to Parent's willingness to enter into the Merger
Agreement, Parent has required that the Company agree, and the Company has so
agreed, to grant to Parent an option to acquire shares of Company Common Stock
("Company Shares"), upon the terms and subject to the conditions set forth
herein.
In consideration of the foregoing and of the mutual covenants and
agreements set forth herein and in the Merger Agreement and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Grant of Option. Company hereby grants to Parent an irrevocable option
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(the "Option"), exercisable following the occurrence of an Exercise Event (as
defined in Section 2(a)), to acquire up to a number of Company Shares equal to
19.9% of the shares of Company Common Stock issued and outstanding as of the
date, if any, upon which an Exercise Notice (as defined in Section 2(b) below)
shall have been delivered (the "Option Shares"), in the manner set forth below
by paying cash at a price of $12.06 per share (the "Exercise Price").
2. Exercise of Option; Maximum Proceeds
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(a) For all purposes of this Agreement, an "Exercise Event" shall mean
any of (ii) the occurrence of a Company Triggering Event (as such term is
defined in the Merger Agreement), (ii) a public announcement of an Option
Acquisition Proposal (as defined below) shall have been made prior to the date
the Merger Agreement is terminated pursuant to the terms thereof (the "Merger
Termination Date") and the occurrence of one or more of the following on or
after the date of the announcement of such Option Acquisition Proposal: (1)
the requisite vote of the shareholders of Company in favor of the Merger
Agreement and the Merger shall not have been obtained at the Company
Shareholders' Meeting (as such term is defined in the Merger Agreement); (2) a
tender offer or exchange offer for 15% or more of the outstanding shares of
Company Common Stock shall have been commenced (other than by Parent or an
affiliate of Parent); or (3) for any reason Company shall have failed to call
and hold the Company Shareholders' Meeting by the Outside Date (as defined in
the Merger
Agreement), or (iii) the commencement of a solicitation within the
meaning of Rule 14a-1(l) by any person or entity other than Parent or its
Board of Directors (or any person or entity acting on behalf of Parent or its
Board of Directors) seeking to alter the composition of Company's Board of
Directors. For purposes of this Agreement, "Option Acquisition Proposal"
shall mean any offer or proposal (other than an offer or proposal by Parent)
relating to any transaction or series of related transactions involving: (A)
any purchase from the Company or acquisition by any person or "group" (as
defined under Section 13(d) of the Exchange Act and the rules and regulations
thereunder) of more than a 10% interest in the total outstanding voting
securities of the Company or any of its subsidiaries or any tender offer or
exchange offer that if consummated would result in any person or "group" (as
defined under Section 13(d) of the Exchange Act and the rules and regulations
thereunder) beneficially owning 10% or more of the total outstanding voting
securities of the Company or any of its subsidiaries or any merger,
consolidation, business combination or similar transaction involving the
Company; (B) any sale, lease, exchange, transfer, license, acquisition or
disposition of more than 10% of the assets of the Company (other than in the
ordinary course of business); or (C) any liquidation or dissolution of the
Company.
(b) Parent may deliver to the Company a written notice (an "Exercise
Notice") specifying that it wishes to exercise and close a purchase of Option
Shares at any time following the occurrence of an Exercise Event and
specifying the total number of Option Shares it wishes to acquire. Unless
such Exercise Notice is withdrawn by Parent, the closing of a purchase of
Option Shares (a "Closing") specified in such Exercise Notice shall take place
at the principal offices of Company upon such date prior to the termination of
the Option as may be designated by Parent in writing.
(c) The Option shall terminate upon the earliest to occur of (i) the
Effective Time (as such term is defined in the Merger Agreement), (ii)
termination of the Merger Agreement pursuant to either Section 7.1(a) or
7.1(c) thereof, or (iii) 14 months following the termination of the Merger
Agreement under any other circumstances; provided, however, that if the Option
is exercisable but cannot be exercised by reason of any applicable government
order or because the waiting period related to the issuance of the Option
Shares under the HSR Act shall not have expired or been terminated, or because
any other condition to closing has not been satisfied, then the Option shall
not terminate until the tenth business day after such impediment to exercise
shall have been removed or shall have become final and not subject to appeal.
(d) If Parent receives proceeds in connection with any sales or other
dispositions of Option Shares (including by selling Option Shares to Company
pursuant to Section 6(a) hereof) or the Option, plus any dividends (or
equivalent distributions under Section 7(a) hereof) received by Parent
declared on Option Shares, less the Exercise Price multiplied by the number of
Company Shares purchased by Parent pursuant to the Option, which, taken
together with any Company Termination Fee payable pursuant to Section 7.3(c)
of the Merger Agreement, exceeds 5% of the Company Equity Value (determined as
of the close of business on the date immediately preceding the Closing), then
all proceeds to Parent in excess of such sum shall be promptly remitted in
cash by Parent to Company. For the
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purposes of this Agreement, "Company Equity Value" means the product of the
average closing price of Company Common Stock on the Nasdaq National Market
over the five (5) trading days prior to the Closing, and the sum of: (A) all
shares of Company Common Stock that are outstanding as of the close of
business on the date immediately preceding the Closing; (B) all shares of
Company Common Stock then issuable upon conversion of all shares of capital
stock that is convertible into shares of Company Common Stock; and (C) all
shares of Company Common Stock issuable upon conversion of all options and
warrants to acquire Company Common Stock that are then outstanding.
3. Conditions to Closing. The obligation of Company to issue Option
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Shares to Parent hereunder is subject to the conditions that (a) any waiting
period under the HSR Act applicable to the issuance of the Option Shares
hereunder shall have expired or been terminated; (b) all material consents,
approvals, orders or authorizations of, or registrations, declarations or
filings with, any Governmental Entity, if any, required in connection with the
issuance of the Option Shares hereunder shall have been obtained or made, as the
case may be; and (c) no preliminary or permanent injunction or other order by
any court of competent jurisdiction prohibiting or otherwise restraining such
issuance shall be in effect. It is understood and agreed that at any time
during which Parent shall be entitled to deliver to Company an Exercise Notice,
the parties will use their respective reasonable efforts to satisfy all
conditions to Closing, so that a Closing may take place as promptly as
practicable.
4. Closing. At any Closing, Company shall deliver to Parent a single
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certificate in definitive form representing the number of Company Shares
designated by Parent in its Exercise Notice consistent with this Agreement, such
certificate to be registered in the name of Parent and to bear the legend set
forth in Section 8 hereof, against delivery of payment by Parent to the Company
of the aggregate purchase price for the Company Shares so designated and being
purchased by delivery of a certified check, bank check or wire transfer of
immediately available funds.
5. Representations and Warranties of the Company. Company represents and
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warrants to Parent that (a) Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Washington and has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder; (b) the execution and delivery of this Agreement by
Company and consummation by Company of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of Company
and no other corporate proceedings on the part of Company are necessary to
authorize this Agreement or any of the transactions contemplated hereby; (c)
this Agreement has been duly executed and delivered by Company and constitutes a
legal, valid and binding obligation of Company and, assuming this Agreement
constitutes a legal, valid and binding obligation of Parent, is enforceable
against Company in accordance with its terms, except as enforceability may be
limited by bankruptcy and other similar laws affecting the rights of creditors
generally and general principles of equity; (d) except for any filings,
authorizations, approvals or orders required under the HSR Act and any required
filings of under state securities, or "blue sky" laws, Company has taken all
necessary corporate and other action to authorize and reserve for issuance and
to permit it to issue upon exercise of the Option, and at all times from the
date hereof until the termination of the Option will have reserved for issuance,
a sufficient number of unissued
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Company Shares for Parent to exercise the Option in full and will take all
necessary corporate or other action to authorize and reserve for issuance all
additional Company Shares or other securities which may be issuable pursuant to
Section 7(a) upon exercise of the Option, all of which, upon their issuance and
delivery in accordance with the terms of this Agreement and payment therefor by
Parent, will be validly issued, fully paid and nonassessable; (e) upon delivery
of the Company Shares and any other securities to Parent upon exercise of the
Option, Parent will acquire such Company Shares or other securities free and
clear of all material claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever, excluding those imposed by Parent;
(f) the execution and delivery of this Agreement by Company do not, and the
performance of this Agreement by the Company will not, (i) violate the Articles
of Incorporation or Bylaws of the Company, (ii) conflict with or violate any
order applicable to the Company or any of its subsidiaries or by which they or
any of their material property is bound or affected or (iii) result in any
breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give rise to any right of
termination, amendment, acceleration or cancellation of, or result in the
creation of a material lien or encumbrance on any material property or assets of
Company or any of its subsidiaries pursuant to, any material contract or
agreement to which Company or any of its subsidiaries is a party or by which
Company or any of its subsidiaries or any of their material property is bound or
affected; and (g) the execution and delivery of this Agreement by Company does
not, and the performance of this Agreement by Company will not, require any
consent, approval, authorization or permit of, or filing with, or notification
to, any Governmental Entity, except pursuant to the HSR Act.
6. Registration Rights
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(a) Following the termination of the Merger Agreement, Parent
(sometimes referred to herein as the "Holder") may by written notice (a
"Registration Notice") to Company (the "Registrant") request the Registrant to
register under the Securities Act all or any part of the shares acquired by
the Holder pursuant to this Agreement (such shares requested to be registered
the "Registrable Securities") in order to permit the sale or other disposition
of such shares pursuant to a bona fide firm commitment underwritten public
offering in which the Holder and the underwriters shall effect as wide a
distribution of such Registrable Securities as is reasonably practicable (a
"Permitted Offering"); provided, however, that any such Registration Notice
must relate to a number of shares equal to at least 2% of the outstanding
shares of Common Stock of the Registrant on a fully diluted basis and that any
rights to require registration hereunder shall terminate with respect to any
shares that may be sold pursuant to Rule 144(k) under the Securities Act or at
such time as all of the Registrable Securities may be sold in any three month
period pursuant to Rule 144 under the Securities Act. The Registration Notice
shall include a certificate executed by the Holder and its proposed managing
underwriter, which underwriter shall be an investment banking firm of
internationally recognized standing reasonably acceptable to Company (the
"Manager"), stating that (i) the Holder and the Manager have a good faith
intention to commence a Permitted Offering and (ii) the Manager in good faith
believes that, based on the then prevailing market conditions, it will be able
to sell the Registrable Securities at a per share price equal to at least 80%
of the per share average of the closing sale prices of the Registrant's Common
Stock on the Nasdaq National Market for the twenty trading days
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immediately preceding the date of the Registration Notice. The Registrant
shall thereupon have the option exercisable by written notice delivered to the
Holder within five business days after the receipt of the Registration Notice,
irrevocably to agree to purchase all (but not less than all) of the
Registrable Securities for cash at a price (the "Option Price") equal to the
product of (i) the number of Registrable Securities so purchased and (ii) the
per share average of the closing sale prices of the Registrant's Common Stock
on the Nasdaq National Market for the 20 trading days immediately preceding
the date of the Registration Notice. Any such purchase of Registrable
Securities by the Registrant hereunder shall take place at a closing to be
held at the principal executive offices of the Registrant or its counsel at
any reasonable date and time designated by the Registrant in such notice
within 10 business days after delivery of such notice. The payment for the
shares to be purchased shall be made by delivery at the time of such closing
of the Option Price in immediately available funds.
(b) If the Registrant does not elect to exercise its option to
purchase pursuant to Section 6(a) with respect to all Registrable Securities,
the Registrant shall use all reasonable efforts to effect, as promptly as
practicable, the registration under the Securities Act of the Registrable
Securities requested to be registered in the Registration Notice; provided,
however, that (i) the Holder shall not be entitled to more than an aggregate
of two effective registration statements hereunder, and provided further, that
if the Registrant withdraws a filed registration statement at the request of
the Holder (other than as the result of a material change in the Registrant's
business or the Holder's learning of new material information concerning the
Registrant), then such filing shall be deemed to have been an effective
registration for purposes of this clause (i), (ii) the Registrant will not be
required to file any such registration statement during any period of time
(not to exceed 45 days after a Registration Notice in the case of clause (A)
below or 90 days after a Registration Notice in the case of clauses (B) and
(C) below) when (A) the Registrant is in possession of material non-public
information which it reasonably believes would be detrimental to be disclosed
at such time and such information would have to be disclosed if a registration
statement were filed at that time; (B) the Registrant is required under the
Securities Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available for
inclusion in such registration statement; or (C) the Registrant determines, in
its reasonable judgment, that such registration would interfere with any
financing, acquisition or other material transaction involving the Registrant
and (iii) the Registrant will not be required to maintain the effectiveness of
any such registration statement for a period greater than 90 days. If
consummation of the sale of any Registrable Securities pursuant to a
registration hereunder does not occur within 180 days after the filing with
the SEC of the initial registration statement therefor, the provisions of this
Section 6 shall again be applicable to any proposed registration. The
Registrant shall use all reasonable efforts to cause any Registrable
Securities registered pursuant to this Section 6 to be qualified for sale
under the securities or blue sky laws of such jurisdictions as the Holder may
reasonably request and shall continue such registration or qualification in
effect in such jurisdictions until the Holder has sold or otherwise disposed
of all of the securities subject to the registration statement; provided,
however, that the Registrant shall not be required to qualify to do business
in, or consent to general service of process in, any jurisdiction by reason of
this provision.
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(c) The registration rights set forth in this Section 6 are subject to
the condition that the Holder shall provide the Registrant with such
information with respect to the Holder's Registrable Securities, the plan for
distribution thereof, and such other information with respect to the Holder
as, in the reasonable judgment of counsel for the Registrant, is necessary to
enable the Registrant to include in a registration statement all material
facts required to be disclosed with respect to a registration thereunder,
including the identity of the Holder and the Holder's plan of distribution.
(d) A registration effected under this Section 6 shall be effected at
the Registrant's expense, except for underwriting discounts and commissions
and the fees and expenses of counsel to the Holder, and the Registrant shall
use all reasonable efforts to provide to the underwriters such documentation
(including certificates, opinions of counsel and "comfort" letters from
auditors) as are customary in connection with underwritten public offerings
and as such underwriters may reasonably require. In connection with any
registration, the Holder and the Registrant agree to enter into an
underwriting agreement reasonably acceptable to each such party, in form and
substance customary for transactions of this type with the underwriters
participating in such offering.
(e) Indemnification
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(i) The Registrant will indemnify the Holder, each of its
directors and officers and each person who controls the Holder within the
meaning of Section 15 of the Securities Act, and each underwriter of the
Registrant's securities, with respect to any registration, qualification or
compliance which has been effected pursuant to this Agreement, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or
any amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they
were made, not misleading, or any violation by the Registrant of any rule
or regulation promulgated under the Securities Act applicable to the
Registrant in connection with any such registration, qualification or
compliance, and the Registrant will reimburse the Holder and, each of its
directors and officers and each person who controls the Holder within the
meaning of Section 15 of the Securities Act, and each underwriter for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage,
liability or action, provided that the Registrant will not be liable in any
such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission or
alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Registrant by the
Holder or director or officer or controlling person or underwriter seeking
indemnification, provided, however, that the indemnity agreement contained
in this subsection 6(e)(i) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability
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or action if such settlement is effected without the consent of the
Registrant, which consent shall not be unreasonably withheld.
(ii) The Holder will indemnify the Registrant, each of its
directors and officers and each underwriter of the Registrant's securities
covered by such registration statement and each person who controls the
Registrant within the meaning of Section 15 of the Securities Act, against
all claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Holder of any rule or
regulation promulgated under the Securities Act applicable to the Holder in
connection with any such registration, qualification or compliance, and
will reimburse the Registrant, such directors, officers or control persons
or underwriters for any legal or any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Registrant by the
Holder expressly for use therein, provided that in no event shall any
indemnity under this Section 6(e) exceed the gross proceeds of the offering
received by the Holder and provided further that the indemnity agreement
contained in this subsection 6(e)(ii) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld.
(iii) Each party entitled to indemnification under this Section
6(e) (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of
such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such party's expense; provided, however,
that the Indemnifying Party shall pay such expense if representation of the
Indemnified Party by counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel in such
proceeding, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Section 6(e) unless the failure to give such
notice is materially prejudicial to an Indemnifying Party's ability to
defend such action. No Indemnifying Party, in the defense of any such
claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or
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enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation. No
Indemnifying Party shall be required to indemnify any Indemnified Party
with respect to any settlement entered into without such Indemnifying
Party's prior consent (which shall not be unreasonably withheld).
7. Adjustment Upon Changes in Capitalization; Rights Plans
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(a) In the event of any change in the Company Shares by reason of
stock dividends, stock splits, reverse stock splits, mergers (other than the
Merger), recapitalizations, combinations, exchanges of shares and the like,
the type and number of shares or securities subject to the Option and the
Exercise Price shall be adjusted appropriately, and proper provision shall be
made in the agreements governing such transaction so that Parent shall
receive, upon exercise of the Option, the number and class of shares or other
securities or property that Parent would have received in respect of the
Company Shares if the Option had been exercised immediately prior to such
event or the record date therefor, as applicable.
(b) Prior to such time as the Option is terminated, and at any time
after the Option is exercised (in whole or in part, if at all), the Company
shall not (i) adopt (or permit the adoption of) a shareholders rights plan
that contains provisions for the distribution or exercise of rights thereunder
as a result of Parent or any affiliate or transferee being the beneficial
owner of shares of the Company by virtue of the Option being exercisable or
having been exercised (or as a result of beneficially owning shares issuable
in respect of any Option Shares), or (ii) take any other action which would
prevent or disable Parent from exercising its rights under this Agreement or
enjoying the full rights and privileges possessed by other holders of Company
Common Stock generally.
8. Restrictive Legends. Each certificate representing Option Shares
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issued to Parent hereunder (other than certificates representing shares sold in
a registered public offering pursuant to Section 6) shall include a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN
THE COMPANY STOCK OPTION AGREEMENT DATED AS OF JULY 13, 1999, A
COPY OF WHICH MAY BE OBTAINED FROM THE ISSUER.
9. Listing and HSR Filing. The Company, upon the request of Parent, shall
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promptly file an application to list the Company Shares to be acquired upon
exercise of the Option for quotation on the Nasdaq National Market and shall use
its reasonable efforts to obtain approval of such listing as soon as
practicable. Promptly after the date hereof, each of the parties hereto shall
promptly file with the Federal Trade Commission and the Antitrust Division of
the United States Department of Justice all required premerger notification and
report forms and other documents and exhibits required to be filed under the HSR
Act to permit the acquisition of
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the Company Shares subject to the Option at the earliest possible date.
10. Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and permitted
assigns. Nothing contained in this Agreement, express or implied, is intended
to confer upon any person other than the parties hereto and their respective
successors and permitted assigns any rights or remedies of any nature whatsoever
by reason of this Agreement.
11. Specific Performance. The parties recognize and agree that if for any
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reason any of the provisions of this Agreement are not performed in accordance
with their specific terms or are otherwise breached, immediate and irreparable
harm or injury would be caused for which money damages would not be an adequate
remedy. Accordingly, each party agrees that in addition to other remedies the
other party shall be entitled to an injunction restraining any violation or
threatened violation of the provisions of this Agreement. In the event that any
action shall be brought in equity to enforce the provisions of the Agreement,
neither party will allege, and each party hereby waives the defense, that there
is an adequate remedy at law.
12. Entire Agreement. This Agreement and the Merger Agreement (including
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the appendices and exhibits thereto) constitute the entire agreement between the
parties with respect to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
13. Further Assurances. Each party will execute and deliver all such
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further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
14. Severability. In the event that any provision of this Agreement or the
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application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
15. Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed given if delivered personally or by commercial
delivery service, or sent via telecopy (receipt confirmed) to the parties at the
following addresses or telecopy numbers (or at such other address or telecopy
numbers for a party as shall be specified by like notice):
If to Parent or Merger Sub, to: If to Company, to:
ONSALE, INC. XXXXXXX.XXX, INC.
0000 Xxxxxx Xxxx 000 X.X. Xxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer Attention: Chief Executive Officer
Telecopy No.: (000)000-0000 Telecopy No.: (000) 000-0000
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with a copy to: with a copy to:
Fenwick & West LLP Xxxxxxx Coie LLP
Two Palo Alto Square 0000 Xxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx Attention: Xxxxx XxXxxx
Xxxxx X. Xxxxxxxx Xx Xxxxxxxx
Telecopy No.: 000-000-0000 Telecopy No.: 000-000-0000
16. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Washington, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
17. Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
18. Expenses. Except as otherwise expressly provided herein or in the
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Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
19. Amendments; Waiver. This Agreement may be amended by the parties
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hereto and the terms and conditions hereof may be waived only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
20. Assignment. Neither Company nor Parent may sell, transfer, assign or
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otherwise dispose of (by operation of law or otherwise) any of its rights or
obligations under this Agreement or the Option created hereunder to any other
person, without the express written consent of the other. Any purported
assignment in violation of this Section shall be void. The rights and
obligations hereunder shall inure to the benefit of and be binding upon any
successor of a party hereto.
21. WAIVER OF JURY TRIAL. EACH OF PARENT AND COMPANY HEREBY IRREVOCABLY
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WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF PARENT OR COMPANY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
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In Witness Whereof, the parties hereto have caused this Agreement to be
executed by their duly authorized respective officers as of the date first
written above.
Xxxxxxx.xxx, inc.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
ONSALE, INC.
By: /s/ S. Xxxxxxx Xxxxxx
Name: S. Xxxxxxx Xxxxxx
Title: Chief Executive Officer and President
[Stock Option Agreement]
11
