EXHIBIT (c)(2)
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT (this "Agreement"), dated January 11, 1999, by
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and among Compaq Computer Corporation, a Delaware Corporation ("Parent"), and
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Xxxxxx X. XxXxxxx (in his individual capacity, a "Shareholder").
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WHEREAS, the Shareholder is, as of the date hereof, the record and
beneficial owner of the shares of common stock, no par value (the "Common
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Stock"), and/or warrants and/or options to purchase Common Stock (collectively,
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the "Options") of Xxxxxxxx.xxx, a California corporation (the "Company"), set
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forth on Annex I hereto;
WHEREAS, Parent and the Company concurrently herewith are entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
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Agreement"), which provides, among other things, for the acquisition of the
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Company by Parent by means of a cash tender offer (the "Offer") for all of the
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outstanding shares of Common Stock and for the subsequent merger (the "Merger")
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of the Purchaser (as defined in the Merger Agreement) with and into the Company
upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, the Company is engaged in the business of retail sales on or
through the Internet (the "Business");
WHEREAS, the Shareholder is an officer of the Company and has
knowledge of trade secrets, customer information and other confidential and
proprietary information of the Company and, in order to protect the goodwill,
trade secrets and other confidential and proprietary information of the
Business, Parent has requested the Shareholder to enter into this Agreement;
WHEREAS, as an officer of the Company with a significant equity
interest therein, the Shareholder has a material economic interest in the
consummation of the Offer and the Merger and, in order to induce Parent to enter
into the Merger Agreement, Shareholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
execution and delivery by Parent of the Merger Agreement and the mutual
representations, warranties, covenants and agreements set forth herein and
therein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Representations and Warranties of the Shareholder. The
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Shareholder hereby represents and warrants to Parent as follows:
(a) Such Shareholder is the record and beneficial owner of the shares
of Common Stock (as may be adjusted from time to time pursuant to Section 6
hereof, the "Shares") and/or Options set forth opposite his name on Annex I to
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this Agreement.
(b) Such Shareholder has the legal capacity to execute and deliver
this Agreement and to consummate the transactions contemplated hereby.
(c) This Agreement has been validly executed and delivered by such
Shareholder and constitutes the legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
(d) Neither the execution and delivery of this Agreement nor the
consummation by such Shareholder of the transactions contemplated hereby will
violate any other agreement to which such Shareholder is a party.
(e) The Shares and/or Options and the certificates representing the
Shares owned by such Shareholder are now and at all times during the term hereof
will be held by such Shareholder, or by a nominee or custodian for the benefit
of such Shareholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising hereunder.
SECTION 2. Representations and Warranties of Parent. Parent hereby
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represents and warrants to the Shareholder as follows:
(a) Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and Parent has all
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby, and has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement.
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(b) This Agreement has been duly authorized, executed and delivered
by Parent and constitutes the legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting enforcement of creditors' rights
generally and (ii) the availability of the remedy of specific performance or
injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought.
(c) Neither the execution and delivery of this Agreement nor the
consummation by Parent of the transactions contemplated hereby will result in a
violation of, or a default under, or conflict with, any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any kind
to which Parent is a party or bound. The consummation by Parent of the
transactions contemplated hereby will not violate, or require any consent,
approval, or notice under, any provision of any judgment, order, decree,
statute, law, rule or regulation applicable to Parent, except for any necessary
filing under the HSR Act or state takeover laws.
SECTION 3. Purchase and Sale of the Shares. The Shareholder hereby
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agrees that it shall tender the Shares into the Offer promptly, and in any event
no later than the tenth business day following the commencement of the Offer
pursuant to Section 1.1 of the Merger Agreement, and that such Shareholder shall
not withdraw any Shares so tendered unless the Offer is terminated or has
expired. Parent shall cause Purchaser to agree to purchase all the Shares so
tendered at a price per Share equal to $19.00 per Share or any higher price that
may be paid in the Offer; provided, however, that Purchaser's obligation to
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accept for payment and pay for the Shares in the Offer is subject to all the
terms and conditions of the Offer set forth in the Merger Agreement and Annex A
thereto.
SECTION 4. Transfer of the Shares. Prior to the termination of this
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Agreement, except as otherwise provided herein, the Shareholder shall not: (i)
transfer (which term shall include, without limitation, for the purposes of this
Agreement, any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of the Shares; (ii) enter into any contract, option or
other agreement or understanding with respect to any transfer of any or all of
the Shares or any interest therein; (iii) grant any proxy, power-of-attorney or
other authorization or consent in or with respect to the Shares; (iv) deposit
the Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares, or (v) take any other action that would in any way
restrict, limit or interfere with the performance of such Shareholder's
obligations hereunder or the transactions contemplated hereby.
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SECTION 5. Grant of Irrevocable Proxy; Appointment of Proxy.
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(a) The Shareholder hereby irrevocably grants to, and appoints,
Parent and any nominee thereof, its proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of such Shareholder, to
vote the Shares, or grant a consent or approval in respect of the Shares, in
connection with any meeting of the shareholders of the Company (i) in favor of
the Merger, and (ii) against any action or agreement which would impede,
interfere with or prevent the Merger, including any other extraordinary
corporate transaction, such as a merger, reorganization or liquidation involving
the Company and a third party or any other proposal of a third party to acquire
the Company; provided, however, that such irrevocable proxy shall be immediately
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revoked if, in accordance with Section 1.1(d) of the Merger Agreement, Purchaser
waives the Minimum Condition (as defined in the Merger Agreement) and accepts
for payment the Revised Minimum Number of Shares (as defined in the Merger
Agreement).
(b) The Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 5 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of such Shareholder under this Agreement. Such Shareholder hereby
further affirms that the irrevocable proxy is coupled with an interest and,
except as set forth in Section 8 hereof, is intended to be irrevocable in
accordance with the provisions of Section 705 of the California General
Corporation Law.
SECTION 6. Certain Events. In the event of any stock split, stock
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dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by the Shareholder, the number of Shares shall be adjusted
appropriately, and this Agreement and the obligations hereunder shall attach to
any additional shares of Common Stock or other securities or rights of the
Company issued to or acquired by the Shareholder.
SECTION 7. Exercise of Company Common Stock. If requested by
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Parent, the Shareholder agrees to execute all documents and to take all actions
necessary to convert all Options to purchase shares of the Common Stock held by
such shareholder into that number of shares of Common Stock equal to the net
number of shares of Common Stock into which such Options would have been
convertible at the election of the Shareholder for cash or pursuant to the
cashless exercise procedure immediately prior to the Effective Time of the
Merger. Parent will cooperate with the Shareholder and the Company to permit
the cashless exercise of Options held by the Shareholder.
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SECTION 8. Certain Other Agreements. The Shareholder will notify
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Parent immediately if any proposals are received by, any information is
requested from, or any negotiations or discussions are sought to be initiated or
continued with such Shareholder or its officers, directors, employees,
investment bankers, attorneys, accountants or other agents, if any, in each case
in connection with any Acquisition Proposal (as such terms is defined in the
Merger Agreement) indicating, in connection with such notice, the name of the
person making such Acquisition Proposal and the terms and conditions of any
proposals or offers. The Shareholder agrees that it will immediately cease and
cause to be terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any Acquisition Proposal. Such
Shareholder agrees that it shall keep Parent informed, on a current basis, of
the status and terms of any Acquisition Proposal. Such Shareholder agrees that
it will not, directly or indirectly: (i) initiate, solicit or encourage, or
take any action to facilitate the making of, any offer or proposal which
constitutes or is reasonably likely to lead to any Acquisition Proposal, or (ii)
in the event of an unsolicited written Acquisition Proposal, engage in
negotiations or discussions with, or provide any information or data to, any
person (other than Parent, any of its affiliates or representatives and except
for information which has been previously publicly disseminated by the Company)
relating to any Acquisition Proposal. The foregoing shall not apply to the
extent it is inconsistent with any of Shareholder's duties as a director and/or
officer of the Company.
SECTION 9. Further Assurances. The Shareholder shall, upon request
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of Parent or the Purchaser, execute and deliver any additional documents and
take such further actions as may reasonably be deemed by Parent to be necessary
or desirable to carry out the provisions hereof and to vest the power to vote
the Shares as contemplated by Section 5 hereof in Parent.
SECTION 10. Termination. Subject to Section 5(a) hereof, this
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Agreement, and all rights and obligations of the parties hereunder, shall
terminate immediately upon the earlier of (a) six months following the
termination of the Merger Agreement in accordance with its terms, or (b) the
Effective Time (as defined in the Merger Agreement); provided, however, that
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Sections 8 and 10 shall survive any termination of this Agreement.
SECTION 11. Expenses. All fees and expenses incurred by any one
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party hereto shall be borne by the party incurring such fees and expenses;
provided, that if any legal action is instituted to enforce or interpret the
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terms of this Agreement, the prevailing party in such action shall be entitled,
in addition to any other relief to which the party is entitled, to reimbursement
of its actual attorneys fees.
SECTION 12. Public Announcements. The Shareholder and Parent each
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agree that it will not (and Parent agrees that it will cause the Purchaser to
not) issue any
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press release or otherwise make any public statement with respect to this
Agreement or the transactions contemplated hereby without the prior consent of
the other party, which consent shall not be unreasonably withheld or delayed;
provided, however, that such disclosure can be made without obtaining such
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prior consent if (i) the disclosure is required by law, and (ii) the party
making such disclosure has first used its best efforts to consult with the other
party about the form and substance of such disclosure.
SECTION 13. Non-Competition and Non-Disclosure.
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(a) Definitions. As used in this Section 13, terms defined in
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the preamble and recitals of this Agreement shall have the meanings set forth
therein and the following terms shall have the meanings set forth below.
(i) "Affiliate" shall mean, with respect to any person
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or entity, the subsidiaries of such person or entity and any other person or
entity which directly or indirectly controls, is controlled by or is under
common control with such person or entity;
(ii) "Business" shall have the meaning set forth in the
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Recitals;
(iii) "Confidential Information" shall mean all
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information respecting the business and activities of Parent and/or any
Affiliate, including, without limitation, the clients, customers, suppliers,
employees, consultants, computer or other files, projects, products, computer
disks or other media, computer hardware or computer software programs, marketing
plans, financial information, methodologies, know-how, processes, practices,
approaches, projections, forecasts, formats, systems, data gathering methods
and/or strategies of Parent and/or any Affiliate thereof. Notwithstanding the
immediately preceding sentence, Confidential Information shall not include (x)
any information that is, or becomes, a part of the public domain or generally
available to the public (unless such availability occurs as a result of any
breach by the Shareholder of any portion of this Agreement or any other
obligation the Shareholder owes to Parent and/or any Affiliate thereof) or (y)
any business knowledge and experience of the type usually acquired by persons
engaged in positions similar to the Shareholder's position as an officer of the
Company, to the extent such knowledge and experience is not specific to Parent
or any of its Affiliates and not proprietary to Parent or any of its Affiliates;
(iv) "Effective Date" shall mean the date of the
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consummation of the Merger;
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(v) "potential business" shall mean any current or
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reasonably foreseeable material commercial activity or any current or reasonably
foreseeable material commercial opportunities associated in any way with the
Business;
(vi) "potential client" or "potential customer" shall
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mean a person or entity that Parent, the Company or any of their Affiliates (i)
as of the date hereof, is, or in the reasonably foreseeable future can
reasonably be expected to be, soliciting (or has targeted for solicitation, or
can reasonably be expected to be so targeting in the reasonably foreseeable
future), and/or (ii) at any time or from time to time, within the 12-month
period prior to the date hereof, has been soliciting, in the case of each of
clause (i) or (ii) for or in respect of the Business;
(viii) "Restricted Area" shall mean each county in the
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continental United States where the Business is conducted;
(ix) "Term" shall mean the period commencing on the
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Effective Date and ending on the date that is eighteen months following the
Effective Time; and
(x) "Trade Secrets" shall mean the whole or any portion
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or phase of any scientific or technical information, design, process, procedure,
computer program, formula or improvement of Parent, the Company or any of their
Affiliates that is valuable and not generally known to the competitors of
Parent, the Company or any of their Affiliates, whether or not in written or
tangible form. Notwithstanding the immediately preceding sentence, Trade Secrets
shall not include (x) any information that is, or becomes, a part of the public
domain or generally available to the public (unless such availability occurs as
a result of any breach by Shareholder of this Agreement or any Affiliate
thereof) or (y) any business knowledge and experience of the type usually
acquired by persons engaged in positions similar to Shareholder's position as an
officer of the Company, to the extent such knowledge and experience is not
specific to Parent or any of its Affiliates and not proprietary to Parent or any
of its Affiliates.
(b) No Competitive Business. As an inducement for Parent to
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enter into the Merger Agreement, to agree to the Offer and to consummate the
transactions contemplated by the Merger Agreement, Shareholder agrees that,
during the Term (the "Specified Period"), at any time or for any reason,
Shareholder shall not, anywhere in the Restricted Area, directly or indirectly
(a) engage, without the prior express written consent of Parent, in any business
or activity, whether as an employee, consultant, partner, principal, agent,
representative, stockholder (except as a holder of less than 5% of the combined
voting power of the outstanding stock of a publicly held company) or in any
other individual,
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corporate or representative capacity, or render any services or provide any
advice to any business, activity, person or entity, if Shareholder knows or
reasonably should know that such business, activity, service, person or entity,
directly or indirectly, is similar to, or competes or is competitive in any
material manner with, the Business as it is currently defined (the business of
retail sales on or through the Internet), or (b) meaningfully assist, help or
otherwise support, without the prior express written consent of Parent, any
person, business, corporation, partnership or other entity or activity, whether
as an employee, consultant, partner, principal, agent, representative,
stockholder (except as a holder of less than 5% of the combined voting power of
the outstanding stock of a publicly held company) or in any other individual,
corporate or representative capacity, to create, commence or otherwise initiate,
or to develop, enhance or otherwise further, any business or activity if
Shareholder knows or reasonably should know that such business or activity, is
similar to, or directly or indirectly competes or is competitive with, the
Business.
(c) No Interference with the Business. As an inducement for
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Parent to enter into the Merger Agreement, to agree to the Offer and to
consummate the transactions contemplated by the Merger Agreement, Shareholder
agrees that for the Specified Period, at any time or for any reason, Shareholder
shall not directly or indirectly (a) with respect to the Business, take any
action to solicit or divert any business (or potential business) or clients or
customers (or potential clients or potential customers) away from Parent or any
Affiliate, (b) induce customers, potential customers, clients, potential
clients, suppliers, agents or other persons under contract or otherwise
associated or doing business with respect to the Business with Parent or any
Affiliate to terminate, reduce or alter any such association or business with
respect to the Business with or from Parent or any Affiliate, and/or (c)
knowingly induce any person in the employment of Parent or any Affiliate in the
Business to (i) terminate such employment, (ii) with respect to the Business,
interfere with the customers, suppliers, or clients of Parent or any Affiliate
in any manner or the business of Parent or any Affiliate in any manner.
(d) No Disclosure of Proprietary Information. Shareholder
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hereby agrees that he or she will not directly or indirectly disclose to any
person, or use or otherwise exploit for his own benefit or for the benefit of
any person, other than Parent and/or its Affiliates, any Confidential
Information or Trade Secrets other than any of the foregoing which becomes
public information without any breach of this Agreement by Shareholder.
(e) Shareholder represents and warrants that the provisions of
this Section 13 are reasonable and are necessary to protect the legitimate
business interests of Parent and the Company. Shareholder represents and
warrants that Shareholder has no right, title, interest or claim in, to or under
any Trade Secrets, Confidential Information or other property (other than the
Shares) that is the subject of the Merger Agreement. In consider-
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ation for the mutual promises contained herein, Shareholder agrees and covenants
that he or she will not request or otherwise pursue a determination that the
provisions of this Section 13 are unenforceable as written.
SECTION 14. Miscellaneous.
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(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to such terms in the
Merger Agreement.
(c) All notices and other communications hereunder shall be in
writing and shall be deemed given upon (i) transmitter's confirmation of a
receipt of a facsimile transmission, (ii) confirmed delivery by a standard
overnight carrier or when delivered by hand or (iii) the expiration of five
business days after the day when mailed in the United States by certified or
registered mail, postage prepaid, addressed at the following addresses (or at
such other address for a party as shall be specified by like notice):
(A) if to the Shareholder, to:
Xxxxxxxx.xxx
0000 Xxxx Xxxxx Xxxxxxx, Xxxxxx Xxxxx
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. XxXxxxx
(B) if to Parent or the Purchaser, to:
Compaq Computer Corporation
00000 Xxxxx Xxxxxxx 000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
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with a copy to:
Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(c) 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.
(d) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall be considered
one and the same agreement.
(e) This Agreement (including the Merger Agreement and any other
documents and instruments referred to herein) constitutes the entire agreement,
and supersedes all prior agreements and understandings, whether written and
oral, among the parties hereto with respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California without giving effect to
the principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties. 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, and the provisions of this Agreement are not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(h) If any term, provision, covenant or restriction herein is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable or against its regulatory policy, the remainder of the terms,
provisions, covenants and restric-
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tions of this Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
(i) Each of the parties hereto acknowledges and agrees that in
the event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (i) will waive, in any
action for specific performance, the defense of adequacy of a remedy at law, and
(ii) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement.
(j) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in writing
and signed by such party .
(k) On its formation, the Purchaser shall be an intended third-
party beneficiary of the provisions of this Agreement.
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IN WITNESS WHEREOF, Parent and the Shareholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
COMPAQ COMPUTER CORPORATION
By: /s/ Xxxx X. Xxxxx
_______________________________
Name: Xxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
/s/ Xxxxxx X. XxXxxxx
_______________________________
Xxxxxx X. XxXxxxx
ANNEX I
Ownership of Common Stock, Warrants or
Options to Purchase Common Stock
Common Stock 1,022,474
Options 200,000
Warrants 317,500
