EXHIBIT (7)(d)
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (this "Agreement") is made as of July 10,
1999, by and between Parent Company, a Delaware corporation ("Parent"), and
Xxxxxx X. Xxxxxx (the "Stockholder").
WHEREAS, Infoseek Corporation, a Delaware corporation (the
"Company"), Parent and Bingo Acquisition Company, a Delaware corporation (the
"Acquisition Company"), have entered into an Agreement and Plan of
Reorganization, dated as of the date hereof (as the same may be amended or
supplemented, the "Reorganization Agreement") providing for the merger of the
Acquisition Company with and into the Company (the "Merger"), upon the terms and
subject to the conditions set forth in the Reorganization Agreement;
WHEREAS, as of the date hereof, the Stockholder beneficially owns
the number of shares of common stock, par value $.001 per share ("Company Common
Stock"), of the Company set forth opposite his name on Schedule A attached
hereto (such shares of Company Common Stock, together with any other shares of
capital stock of the Company acquired (but excluding any shares disposed of
through any sale to a bona fide third party purchaser) by the Stockholder after
the date hereof and during the term of this Agreement, being collectively
referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the
Reorganization Agreement, Parent has requested that the Stockholder enter into
this Agreement pursuant to which the Stockholder shall, among other things, vote
in favor of the Merger.
NOW, THEREFORE, to induce Parent to enter into, and in consideration
of its entering into, the Reorganization Agreement, and in consideration of the
promises and the representations, warranties and agreements contained herein,
the parties agree as follows:
1. Representations and Warranties of Stockholder. The Stockholder
hereby represents and warrants to Parent as follows:
(a) Authority; No Conflict. The Stockholder has all requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder enforceable against the Stockholder in accordance with its
terms. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, result in any violation of, or constitute
(with or without notice of lapse of time or both) default under, any provision
of any material trust agreement, loan or credit agreement, bond, note, mortgage,
indenture, lease or other contract, agreement, obligation, commitment,
arrangement, understanding, instrument, permit, concession, franchise or license
or any statute, law, ordinance, rule, regulation, judgment, order, notice or
decree applicable to the Stockholder or to any of the Stockholder's property or
assets.
(b) The Subject Shares. The Stockholder is the record and beneficial
owner of, and has good and marketable title to, the Subject Shares, free and
clear of any Liens (as defined in the Reorganization Agreement) whatsoever. The
Stockholder does not own, of record or beneficially, any shares of capital stock
of the Company other than the Subject Shares set forth opposite his name on
Schedule A attached hereto. The Stockholder has the sole right to vote such
Subject Shares, and none of such Subject Shares is subject to any voting trust
or other agreement, arrangement or restriction with respect to the voting of
such Subject Shares, except as contemplated by this Agreement.
2. Representations and Warranties of Parent. Parent hereby represents
and warrants to the Stockholder that Parent has all requisite corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by Parent and constitutes a valid and binding obligation of Parent
enforceable against Parent in accordance with its terms. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not, conflict
with, result in any violation of, or constitute (with or without notice or lapse
of time or both) default under, any provisions of the Certificate of
Incorporation, as amended, or Bylaws of Parent or any material trust agreement,
loan or credit agreement, bond, note, mortgage, indenture, lease or other
contract, agreement, obligation, commitment, arrangement, understanding,
instrument, permit, concession, franchise or license or any statute, law,
ordinance, rule, regulation, judgment, order, notice or decree applicable to
Parent or any of Parent's property or assets.
3. Covenants of Stockholder. Subject to Section 6, the Stockholder
agrees as follows:
(a) Without in any way limiting the Stockholder's right to vote the
Subject Shares in his sole discretion on any other matters that may be submitted
to a stockholder vote, consent or other approval (including by written consent),
at any meeting of the stockholders of the Company called upon to vote upon the
Merger and the Reorganization Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including
written consent) with respect to the Merger and the Reorganization Agreement is
sought, the Stockholder shall vote (or cause to be voted) the Subject Shares
(which number of shares may be greater or less than the number of shares as of
the date hereof):
(i) in favor of the Merger, the approval and adoption by the
Company of the Reorganization Agreement and approval of the
other transactions contemplated by the Reorganization
Agreement; and
(ii) against (A) any merger agreement or merger (other than the
Merger and the Reorganization Agreement), consolidation,
combination, sale of substantially all of the Company's assets,
sale or issuance of securities of the Company or its
subsidiaries, reorganization, joint venture, recapitalization,
dissolution, liquidation or winding up of or by the Company or
its subsidiaries and (B) any amendment of the Company's
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Certificate of Incorporation or Bylaws or other proposal or
transaction involving the Company or any of its subsidiaries
which amendment or other proposal or transaction would or could
reasonably be expected to impede, frustrate, prevent, nullify or
result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under or with
respect to, the Merger, the Reorganization Agreement or any of
the transactions contemplated by the Reorganization Agreement or
by this Agreement.
(b) The Stockholder shall not, except as contemplated by this
Agreement, directly or indirectly, grant any proxies or powers of attorney with
respect to the Subject Shares, deposit the Subject Shares into a voting trust or
enter into a voting agreement with respect to the Subject Shares.
4. Certain Events. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Subject Shares and shall be binding
upon any person or entity (excluding any bona fide third party purchaser of
Subject Shares) to which legal or beneficial ownership of such Subject Shares
shall pass, whether by operation of law or otherwise, including the
Stockholder's successors. In the event of (a) any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Company Common Stock, or the acquisition
of additional shares of Company Common Stock or other voting securities of the
Company by the Stockholder or (b) any disposition of shares of Company Common
Stock or other voting securities of the Company by the Stockholder pursuant to
the terms hereof, the number of Subject Shares listed in Schedule A beside the
name of the Stockholder shall be adjusted appropriately and this Agreement and
the obligations hereunder shall attach to any additional or decreased shares of
Company Common Stock or other voting securities of the Company issued to or
acquired or disposed of by the Stockholder; provided, however, that the
obligations hereunder shall not attach to any such shares disposed of through a
sale to any bona fide third party purchaser thereof. Notwithstanding anything in
this Agreement to the contrary, Parent acknowledges and agrees that the
Stockholder may sell any or all of the Subject Shares at any time after the date
of this Agreement.
5. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by the Stockholder, on the one hand,
without the prior written consent of Parent nor by Parent, on the other hand,
without the prior written consent of the Stockholder, except that Parent may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to any direct or indirect wholly owned subsidiary of
Parent. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
6. Termination. This Agreement shall terminate, and the provisions
hereof shall be of no further force or effect, upon the earlier of (i) 180 days
from the date of this Agreement, (ii) effectiveness of the Merger or (iii)
termination of the Reorganization Agreement other than pursuant to Section
8.1(h) of the Reorganization Agreement.
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7. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notice. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery)
to Parent in accordance with Section 9.1 of the Reorganization Agreement and to
the Stockholder at his address set forth on the Company's stock ledger (or at
such other address for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to a
Section or Schedule, such reference shall be to a Section of or Schedule to this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other parties.
(e) Entire Agreement; No Third Party Beneficiaries. This Agreement
(i) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
8. Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity. Without limiting the
generality of the foregoing, the parties hereto expressly agree that the
obligations of the Stockholder set forth in Section 3 hereof shall be subject to
the foregoing provisions of this Section 8.
9. Public Announcements. Except as required by law, the Stockholder
shall not issue any press release or other public statement with respect to the
transactions contemplated by this Agreement and the Reorganization Agreement
without the prior written consent of Parent.
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10. Severability. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement shall continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with valid and enforceable
provision that will achieve, to the fullest extent possible, the original intent
of the parties.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
PARENT COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice-President
and Chief Financial Officer
STOCKHOLDER
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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SCHEDULE A
Schedule of Share Ownership
Xxxxxx X. Xxxxxx 456,000 Shares
