EXHIBIT 2.05
COMPANY VOTING AGREEMENT
This Voting Agreement (this "Agreement") is entered into as of July 13,
1999 (the "Agreement Date") by and between Onsale, Inc., a Delaware corporation
("Parent"), and [name of stockholder] ("Stockholder").
RECITALS
A. Parent, Xxxxxxx.xxx, Inc., a Washington corporation (the "Company") and
EO Corporation, a Washington corporation and a wholly-owned subsidiary of Parent
("Sub") are entering into an Agreement and Plan of Merger dated as of July 13,
1999, as such may be hereafter amended from time to time (the "Plan") which
provides (subject to the conditions set forth therein) for the merger of Sub
with and into Company (the "Merger") with Company to survive the Merger. Upon
the effectiveness of the Merger, the outstanding shares of Company's Common
Stock will be converted into shares of the Common Stock of Parent and
outstanding options to purchase shares of Company's Common Stock will be assumed
by Parent, all as more particularly set forth in the Plan. Capitalized terms
used but not otherwise defined in this Agreement will have the same meanings
ascribed to such terms in the Plan.
B. As of the Agreement Date, Stockholder owns in the aggregate (including
shares held both beneficially and of record and other shares held either
beneficially or of record) the number of shares of Company's Common Stock set
forth below Stockholder's name on the signature page of this Agreement (all such
shares, together with any shares of Company's Common Stock or any other shares
of capital stock of Company that may hereafter be acquired by Stockholder, being
collectively referred to herein as the "Subject Shares"). If, between the
Agreement Date and the Expiration Date (as defined in Section 1.1 below), the
outstanding shares of Company's Common Stock are changed into a different number
or class of shares by reason of any stock split, stock dividend, reverse stock
split, reclassification, recapitalization or other similar transaction, then the
shares constituting the Subject Shares shall be appropriately adjusted, and
shall include any shares or other securities of Company issued on, or with
respect to, the Subject Shares in such a transaction.
C. As a condition to the willingness of Parent and Sub to enter into the
Plan, Parent and Sub have required that Stockholder agree, and in order to
induce Parent and Sub to enter into the Plan, Stockholder has agreed, to enter
into this Agreement.
In consideration of the facts recited above, the parties to this Agreement,
intending to be legally bound by this Agreement, now hereby agree as follows:
SECTION 1. TRANSFER OF SUBJECT SHARES
1.1 No Transfer of Voting Rights.
(a) Stockholder covenants and agrees that, prior to the Expiration
Date, Stockholder will not deposit any of the Subject Shares into a voting
trust or grant a proxy or enter into an agreement of any kind with respect to
any of the Subject Shares, except for the Proxy called for by Section 2.2 of
this Agreement and except for any other proxy granted by Stockholder to
Parent.
(b) As used in this Agreement, the term "Expiration Date" shall mean
the earlier of (i) the date upon which the Plan is validly terminated in
accordance with the provisions of Article VII of the Plan or (ii) the
Effective Time of the Merger.
1.2 Compliance with Company Affiliate Agreement. If Stockholder is party
to a Company Affiliate Agreement, Stockholder will comply with the terms of such
Company Affiliate Agreement.
SECTION 2. VOTING OF SUBJECT SHARES
2.1 Agreement. Stockholder hereby agrees that, prior to the Expiration
Date, at any meeting of the shareholders of Company, however called, and in any
action taken by the written consent of shareholders of Company without a
meeting, unless otherwise directed in writing by Parent, Stockholder shall vote
the Subject Shares:
(a) in favor of the Merger, the execution and delivery by Company of
the Plan and the adoption and approval of the terms thereof and in favor of
each of the other actions and transactions contemplated by the Plan and any
action required in furtherance hereof and thereof; and
(b) in favor of the waiver (by amendment of any such agreement or
otherwise), effective as of immediately prior to the effectiveness of the
Merger, of any rights of first refusal, rights of first offer, rights of
notice, rights of co-sale, tag-along rights, information rights, registration
rights, preemptive rights, rights of redemption or repurchase, or similar
rights of Stockholder under any agreement, arrangement or understanding
applicable to the Subject Shares, to the extent that the same may apply to the
Merger or any other actions or transactions contemplated by the Plan.
Prior to the Expiration Date, Stockholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any manner
inconsistent with clause "(a)" or "(b)" of this Section 2.1.
2.2 Proxy. Contemporaneously with the execution of this Agreement,
Stockholder shall deliver to Parent a proxy with respect to the Subject Shares
in the form attached hereto as Exhibit 1, which proxy shall be irrevocable to
the fullest extent permitted by applicable law (the "Proxy").
SECTION 3. WAIVERS
3.1 Appraisal Rights. Stockholder hereby agrees not to exercise any
rights of appraisal and any dissenters' rights that Stockholder may have
(whether under applicable law or otherwise) or could potentially have or acquire
in connection with the Merger.
3.2 Other Rights. Stockholder hereby waives any rights of first refusal,
rights of first offer, rights to notice, rights of co-sale, tag-along rights,
information rights, registration rights, preemptive rights, rights of redemption
or repurchase, and similar rights of Stockholder under any agreement,
arrangement of understanding applicable to the Subject Shares, in each case as
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the same may apply to the execution and delivery of the Plan and the
consummation of the Merger and the other actions and transactions contemplated
by the Plan.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
4.1 Due Organization, Authorization, etc. Stockholder has all requisite
power and capacity to execute and deliver this Agreement and to perform
Stockholder's obligations hereunder. This Agreement has been duly executed and
delivered by Stockholder and constitutes a legal, valid and binding obligation
of Stockholder, enforceable against Stockholder in accordance with its terms,
subject to (i) laws of general application relating to bankruptcy, insolvency
and the relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
4.2 No Conflicts, Required Filings and Consents.
(a) The execution and delivery of this Agreement by Stockholder do not,
and the performance of this Agreement by Stockholder will not: (i) conflict
with or violate any order, decree or judgment applicable to Stockholder or by
which Stockholder or any of Stockholder's properties or Subject Shares is
bound or affected; or (ii) result in any breach of or constitute a default
(with notice or lapse of time, or both) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of any lien, restriction, adverse claim, option on, right to acquire,
or any encumbrance or security interest in or to, any of the Subject Shares
pursuant to, any written, oral or other agreement, contract or legally binding
commitment to which Stockholder is a party or by which Stockholder or any of
Stockholder's properties (including but not limited to the Subject Shares) is
bound or affected.
(b) The execution and delivery of this Agreement by Stockholder do not,
and the performance of this Agreement by Stockholder will not, require any
written, oral or other agreement, contract or legally binding commitment of
any third party.
4.3 Title to Subject Shares. As of the Agreement Date, Stockholder
beneficially owns the Subject Shares set forth under Stockholder's name on the
signature page hereof and does not directly or indirectly own, either
beneficially or of record, any shares of capital stock of Company, or rights to
acquire any shares of capital stock of Company, other than the Subject Shares
set forth below Stockholder's name on the signature page hereof.
4.4 Other Rights. Stockholder is not entitled to any rights of first
refusal, rights of first offer, rights to notice, rights of co-sale, tag-along
rights, information rights, registration rights, preemptive rights, rights of
redemption or repurchase or similar rights of Stockholder under any agreement,
arrangement of understanding applicable to the Subject Shares, except as
disclosed in the Company Disclosure Letter and defined in the Merger Agreement.
4.5 Accuracy of Representations. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all
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respects at all times through the Expiration Date and will be accurate in all
respects as of the date of the consummation of the Merger as if made on that
date.
SECTION 5. MISCELLANEOUS
5.1 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
5.2 Governing Law. The internal laws of the State of Washington
(irrespective of its choice of law principles) will govern the validity of this
Agreement, the construction of its terms, and the interpretation and enforcement
of the rights and duties of the parties hereto.
5.3 Assignment, Binding Effect, Third Parties. Except as provided herein,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by either of the parties hereto (whether by operation of law
or otherwise) without the prior written consent of the other party. Subject to
the preceding sentence, this Agreement shall be binding upon and shall inure to
the benefit of (i) Stockholder and Stockholder's heirs, successors and assigns
and (ii) Parent and its successors and assigns. Notwithstanding anything
contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person or entity other than
the parties hereto or their respective heirs, successors and assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
5.4 Severability. If any provision of this Agreement, or the application
thereof, will for any reason and to any extent be invalid or unenforceable, then
the remainder of this Agreement and application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto.
5.5 Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
5.6 Amendment; Waiver. This Agreement may be amended by the written
agreement of the parties hereto. No waiver by any party hereto of any condition
or of any breach of any provision of this Agreement will be effective unless
such waiver is set forth in a writing signed by such party. No waiver by any
party of any such condition or breach, in any one instance, will be deemed to be
a further or continuing waiver of any such condition or breach or a waiver of
any other condition or breach of any other provision contained herein.
5.7 Notices. All notices and other communications required or permitted
under this Agreement will be in writing and will be either hand delivered in
person, sent by telecopier, sent by certified or registered first class mail,
postage pre-paid, or sent by nationally recognized express courier service.
Such notices and other communications will be effective upon receipt if hand
delivered or sent by telecopier, three (3) days after mailing if sent by mail,
and one (l) business day after dispatch if sent by express courier, to the
following addresses, or such other addresses as any party may notify the other
parties in accordance with this Section:
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If to Stockholder: If to Parent:
At the address set forth below Stockholder's ONSALE, INC.
signature on the signature page hereto; 0000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Chief Executive Officer
or to such other address as a party designates in a writing delivered to each of
the other parties hereto.
5.8 Entire Agreement. This Agreement and any documents delivered by the
parties in connection herewith constitute the entire agreement and understanding
between the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings between the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party hereto unless made in writing and
signed by both parties hereto. The parties hereto waive trial by jury in any
action at law or suit in equity based upon, or arising out of, this Agreement or
the subject matter hereof.
5.9 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that, in addition to any other remedy to which Parent
is entitled at law or in equity, Parent shall be entitled to injunctive relief
to prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any California court or in any other court of competent
jurisdiction.
5.10 Other Agreements. Nothing in this Agreement shall limit any of the
rights or remedies of Parent or any of the obligations of Stockholder under any
other agreement.
5.11 Construction. This Agreement has been negotiated by the respective
parties hereto and their attorneys and the language hereof will not be construed
for or against either party. Unless otherwise indicated herein, all references
in this Agreement to "Sections" refer to sections of this Agreement. The titles
and headings herein are for reference purposes only and will not in any manner
limit the construction of this Agreement which will be considered as a whole.
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement to be
executed as of the Agreement Date first written above.
PARENT STOCKHOLDER
By:__________________________ Name:__________________________
(Please Print)
Title:_______________________ By:____________________________
(Signature)
Title:_________________________
Number of Shares Owned:________
Address:_______________________
_______________________
_______________________
Facsimile: ( )______________
[Signature Page to Company Voting Agreement]
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EXHIBIT "1" TO VOTING AGREEMENT
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IRREVOCABLE PROXY
The undersigned shareholder of Xxxxxxx.xxx, Inc. a Washington corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes S. Xxxxxxx Xxxxxx, Xxxx X. Xxxxxxx and/or Onsale, Inc.,
a Delaware corporation ("Parent"), and each of them, the attorneys and proxies
of the undersigned, with full power of substitution and resubstitution, to the
fullest extent of the undersigned's rights with respect to (i) the shares of
capital stock of Company owned by the undersigned as of the date of this proxy,
which shares are specified on the final page of this proxy and (ii) any and all
other shares of capital stock of Company which the undersigned may acquire after
the date hereof. (The shares of the capital stock of Company referred to in
clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares"). Upon the execution hereof, all prior proxies
given by the undersigned with respect to any of the Shares (other than any
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proxies granted to Parent) are hereby revoked, and no subsequent proxies will be
given with respect to any of the Shares, except for such proxies as the
undersigned shareholder may give in connection with the Company's 1999 Annual
Meeting of Shareholders with respect to proposals or matters unrelated to the
Plan and the Merger.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with that certain Voting Agreement, dated as of the date hereof,
between Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger, dated as
of July 13, 1999, among Parent, EO Corporation., a Washington corporation and
wholly-owned subsidiary of Parent, and Company (the "Plan"). Capitalized terms
used but not otherwise defined in this proxy have the meanings ascribed to such
terms in the Plan.
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the Expiration Date (as defined
in the Voting Agreement) at any meeting of the shareholders of Company, however
called, or in any action by written consent of shareholders of Company:
(i) in favor of the Plan and the Merger, the execution and delivery
by Company of the Plan, the adoption and approval of the terms thereof and
in favor of each of the other actions contemplated by the Plan, and any
action required in furtherance hereof and thereof; and
(ii) in favor of the waiver (by amendment of any such agreement or
otherwise), effective immediately prior to the effectiveness of the Merger,
of any rights of first refusal, rights of first offer, rights of notice,
rights of co-sale, tag-along rights, information rights, registration
rights, preemptive rights, rights of redemption or repurchase, or similar
rights of Stockholder under any agreement, arrangement or
understanding applicable to the Shares, to the extent that the same may
apply to the Merger or any other actions or transactions contemplated by
the Plan.
The undersigned stockholder may vote the Shares on all other matters not
described in the foregoing subparagraph (i) and (ii) above.
Prior to the Expiration Date (as such term is defined in the Voting
Agreement), at any meeting of the shareholders of Company, however called, and
in any action by written consent of shareholders of Company, the attorneys and
proxies named above may, in their sole discretion, elect to abstain from voting
on any matter covered by the foregoing subparagraphs (i) and (ii) above.
This proxy and any obligation of the undersigned hereunder shall be binding
upon the heirs, successors and assigns of the undersigned (including any
transferee of any of the Shares).
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This proxy shall terminate upon the Expiration Date (as defined in the
Voting Agreement).
Dated: July 13, 1999
Name: ______________________________
By: ________________________________
Title (If Applicable):______________
