EXHIBIT 2.4
EXECUTION COPY
OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and entered
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into as of July 26, 2000, among InfoSpace, Inc., a Delaware corporation
("Parent"), and Go2Net, Inc., a Delaware corporation (the "Company").
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Capitalized terms used but not otherwise defined herein will have the meanings
ascribed to them in the Reorganization Agreement (as defined below).
RECITALS
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A. The Company, Merger Sub (as defined below) and Parent have entered
into an Agreement and Plan of Reorganization (the "Reorganization Agreement")
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which provides for the merger (the "Merger") of a wholly-owned subsidiary of
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Parent ("Merger Sub") with and into the Company. Pursuant to the Merger, all
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outstanding capital stock of the Company will be converted into the right to
receive Parent Common Stock.
B. As a condition to Parent's willingness to enter into the
Reorganization Agreement, Parent has requested that Company agree, and Company
has so agreed, to grant to Parent an option to acquire shares of Company's
Common Stock, $.01 par value per share (the "Company Shares"), upon the terms
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and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Reorganization Agreement
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Parent an
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irrevocable option (the "Option") to acquire up to a number of Company Shares
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equal to 19.9% of the issued and outstanding shares as of the date of this
Agreement (the "Option Shares"), in the manner set forth below by paying cash at
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a price per share equal to the product of the Exchange Ratio and the closing
price of one share of Parent Common Stock on the last completed Nasdaq trading
day prior to execution of this Agreement (the "Exercise Price").
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2. Exercise of Option.
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(a) The Option may be exercised by Parent, in whole or in part, at any
time or from time to time (i) after termination of the Reorganization Agreement
pursuant to Section 7.1(g) or 7.1(h) thereof or (ii) upon the occurrence of any
event causing the Termination Fee to become payable pursuant to Section
7.3(b)(ii) of the Reorganization Agreement (any of the events described in
clause (i) and (ii) of this sentence being referred to herein as an "Exercise
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Event"). In the event Parent wishes to exercise the Option, Parent will deliver
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to the Company a written notice (each an "Exercise Notice") specifying the total
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number of Option Shares it wishes to acquire. Each closing
of a purchase of Option Shares (a "Closing") will occur on a date and at a time
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prior to the termination of the Option designated by Parent in an Exercise
Notice delivered at least two (2) business days prior to the date of such
Closing, which Closing will be held at the principal offices of the Company.
(b) The Option will terminate upon the earliest of (i) the
Effective Time, (ii) twelve (12) months following the date on which the
Reorganization Agreement is terminated pursuant to Section 7.1(b) or 7.1(d)(i)
thereof, if no event causing the Termination Fee to become payable pursuant to
Section 7.3(b)(ii) of the Reorganization Agreement has occurred, (iii) twelve
(12) months following the date on which the Reorganization Agreement is
terminated pursuant to Section 7.1(g) or 7.1(h) thereof, (iv) in the event the
Reorganization Agreement has been terminated pursuant to Section 7.1(b) or
7.1(d)(i) thereof and the Termination Fee became payable pursuant to Section
7.3(b)(ii) thereof, twelve (12) months after payment of the Termination Fee; and
(v) the date on which the Reorganization Agreement is terminated other than
pursuant to Sections 7.1(b), 7.1(d)(i), 7.1(g) or 7.1(h); provided, however,
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that if the Option 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 will not have expired or been terminated, then the Option will
not terminate until the tenth business day after such impediment to exercise
will have been removed or will have become final and not subject to appeal.
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 will have expired or been terminated; (B) all material consents,
approvals, orders or authorizations of, or registrations, declarations or
filings with, any Federal, state or local administrative agency or commission or
other Federal state or local governmental authority or instrumentality, if any,
required in connection with the issuance of the Option Shares hereunder will
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 will be in effect. It is
understood and agreed that at any time during which the Option is exercisable,
the parties will use their respective best efforts to satisfy all conditions to
Closing, so that a Closing may take place as promptly as practicable.
4. Closing. At any Closing, (A) the Company will deliver to Parent a
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single certificate in definitive form representing the number of Company Shares
designated by Parent in its Exercise Notice, such certificate to be registered
in the name of Parent and to bear the legend set forth in Section 12 hereof,
against delivery of (B) 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 or bank check.
5. Representations and Warranties of the Company. Company represents
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and warrants to Parent that (A) Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware 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
the Company and consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of the Company and no other corporate proceedings on the part of the Company are
necessary to authorize this
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Agreement or any of the transactions contemplated hereby; (C) this Agreement has
been duly executed and delivered by the Company and constitutes a legal, valid
and binding obligation of the Company and, assuming this Agreement constitutes a
legal, valid and binding obligation of Parent, is enforceable against the
Company in accordance with its terms; (D) except for any filings required under
the HSR Act, the 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 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
11(a) upon exercise of the Option, all of which, upon their issuance and
delivery in accordance with the terms of this Agreement, 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 the Company do not, and the performance of this Agreement by the
Company will not, (i) conflict with or violate the Certificate of Incorporation
or Bylaws or equivalent organizational documents of the Company or any of its
subsidiaries, (ii) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to the Company or any of its subsidiaries or by
which its or any of their respective properties is bound or affected or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or impair the Company's or
any of its subsidiaries' rights or alter the rights or obligations of any third
party under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the properties or assets of the Company or any of its
subsidiaries pursuant to, any material note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or its or any of their respective
properties are bound or affected; and (G) the execution and delivery of this
Agreement by the Company does not, and the performance of this Agreement by the
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. Representations and Warranties of Parent. Parent represents and
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warrants to Company that (A) Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware 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
Parent and consummation by Parent of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of Parent and
no other corporate proceedings on the part of Parent are necessary to authorize
this Agreement or any of the transactions contemplated hereby; (C) this
Agreement has been duly executed and delivered by Parent and constitutes a
legal, valid and binding obligation of Parent and, assuming this Agreement
constitutes a legal, valid and binding obligation of the Company, is enforceable
against Parent in accordance with its terms; (D) the execution and delivery of
this Agreement by Parent do not, and the performance of this Agreement by Parent
will not, (i) conflict with or violate the Certificate of Incorporation or
Bylaws or equivalent organizational documents of Parent or any of its
subsidiaries, (ii) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to Parent
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or any of its subsidiaries or by which its or any of their respective properties
is bound or affected or (iii) result in any breach of or constitute a default
(or an event that with notice or lapse of time or both would become a default)
under, or impair Parent's or any of its subsidiaries' rights or alter the rights
or obligations of any third party under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the properties or assets of Parent
or any of its subsidiaries pursuant to, any material note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Parent or any of its subsidiaries is a party
or by which Parent or any of its subsidiaries or its or any of their respective
properties are bound or affected; and (E) the execution and delivery of this
Agreement by Parent does not, and the performance of this Agreement by Parent
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.
7. Certain Rights.
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(a) Parent Put. At the request of and upon notice by Parent (the "Put
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Notice"), at any time during the period during which the Option is exercisable
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pursuant to Section 2 (the "Purchase Period"), the Company (or any successor
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entity thereof) will purchase from Parent all or any portion of the Option, to
the extent not previously exercised, at the price set forth in subparagraph (i)
below, and all or any portion of the Option Shares, if any, acquired by Parent
pursuant thereto, at the price set forth in subparagraph (ii) below:
(i) The difference between the "Market/Tender Offer Price" for
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the Company Shares as of the date Parent gives notice of its intent to exercise
its rights under this Section 7(a) (defined as the higher of (A) the highest
price per share offered as of such date pursuant to any Acquisition Proposal
which was made prior to such date and (B) the highest closing sale price of
Company Shares then on the Nasdaq National Market during the twenty (20) trading
days ending on the trading day immediately preceding such date) and the Exercise
Price, multiplied by the number of Company Shares purchasable pursuant to the
Option, but only if the Market/Tender Offer Price is greater than the Exercise
Price. For purposes of determining the highest price offered pursuant to any
Acquisition Proposal which involves consideration other than cash, the value of
such consideration will be equal to the higher of (x) if securities of the same
class of the proponent as such consideration are traded on any national
securities exchange or by any registered securities association, a value based
on the closing sale price or asked price for such securities on their principal
trading market on such date and (y) the value ascribed to such consideration by
the proponent of such Acquisition Proposal, or if no such value is ascribed, a
value determined in good faith by the Board of Directors of the Company.
(ii) The Exercise Price paid by Parent for Company Shares acquired
pursuant to the Option plus the difference between the Market/Tender Offer Price
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and such Exercise Price (but only if the Market/Tender Offer Price is greater
than the Exercise Price) multiplied by the number of Company Shares so
purchased.
8. Payment and Redelivery of Option or Shares. In the event Parent
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exercises its rights under Section 7(a) by delivery of a Put Notice, the Company
will, within five (5) business days after Parent delivers such notice, pay the
required amount to Parent in immediately available funds and
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Parent will surrender to the Company all or such portion of the Option with
respect to which the Put Notice relates and the certificates evidencing the
Company Shares purchased by Parent pursuant to such Put Notice.
9. Registration Rights.
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(a) Following the termination of the Reorganization Agreement,
Parent (sometimes referred to herein as the "Holder") may by written notice (a
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"Registration Notice") to the Company (the "Registrant") request the Registrant
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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
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of any or all shares of the Registrable Securities that have been acquired by or
are issuable to Holder upon exercise of the Option in accordance with the
intended method of sale or other disposition stated by Holder, including a
"shelf" registration statement under Rule 415 under the Securities Act or any
successor provision. Holder agrees to cause, and to cause any underwriters of
any sale or other disposition to cause, any sale or other disposition pursuant
to such registration statement to be effected on a widely distributed basis so
that upon consummation thereof no purchaser or transferee will own beneficially
more than 5.0% of the then-outstanding voting power of Registrant. Upon a
request for registration, the Registrant will have the option exercisable by
written notice delivered to the Holder within ten (10) business days after the
receipt of the Registration Notice, irrevocably to agree to purchase all or any
part of the Registrable Securities for cash at a price (the "Option Price")
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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 ten (10) trading days
immediately preceding the date of the Registration Notice. Any such purchase of
Registrable Securities by the Registrant hereunder will take place at a closing
to be held at the principle executive offices of the Registrant or its counsel
at any reasonable date and time designated by the Registrant in such notice
within ten business days after delivery of such notice. The payment for the
shares to be purchased will 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 7(a) with respect to all Registrable Securities,
the Registrant will use all reasonable efforts to effect, as promptly as
practicable, the registration under the Securities Act of the unpurchased
Registrable Securities requested to be registered in the Registration Notice and
to keep such registration statement effective for such period not in excess of
120 calendar days from the day such registration statement first becomes
effective as may be reasonably necessary to effect such sale or other
disposition; provided, however, that the Holder will not be entitled to more
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than an aggregate of two (2) effective registration statements hereunder. The
obligations of Registrant hereunder to file a registration statement and to
maintain its effectiveness may be suspended for up to 120 calendar days in the
aggregate if the Board of Directors of Registrant shall have determined that the
filing of such registration statement or the maintenance of its effectiveness
would require premature disclosure of material nonpublic information that would
materially and adversely affect Registrant or otherwise interfere with or
adversely affect any pending or proposed offering of securities of Registrant or
any other material transaction involving Registrant. If consummation of the
sale of any Registrable Securities pursuant to a registration hereunder does not
occur within 120 days after the filing with the SEC of the initial registration
statement therefor, the provisions of this Section 9 will
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again be applicable to any proposed registration. The Registrant will use all
reasonable efforts to cause any Registrable Securities registered pursuant to
this Section 9 to be qualified for sale under the securities or blue sky laws of
such jurisdictions as the Holder may reasonably request and will continue such
registration or qualification in effect in such jurisdictions; provided,
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however, that the Registrant will not be required to qualify to do business in,
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or consent to general service of process in, any jurisdiction by reason of this
provision. If Registrant effects a registration under the Securities Act of
Company Common Stock for its own account or for any other stockholders of
Registrant (other than on Form S-4 or Form S-8, or any successor form), it will
allow Holder the right to participate in such registration by selling its
Registrable Securities, and such participation will not affect the obligation of
Registrant to effect demand registration statements for Holder under this
Section 9; provided that, if the managing underwriters of such offering advise
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Registrant in writing that in their opinion the number of shares of Company
Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering, Registrant will include the shares requested
to be included therein by Holder pro rata with the shares intended to be
included therein by Registrant.
(c) The registration rights set forth in this Section 9 are subject to
the condition that the Holder will 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 facts required to be
disclosed with respect to a registration thereunder.
(d) A registration effected under this Section 9 will 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 will 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
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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
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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 such Holder or director or officer or controlling
person or underwriter seeking indemnification.
(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 expenses, 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
for use therein; provided, that in no event will any indemnity under this
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Section 9(e) exceed the net proceeds of the offering received by the Holder.
(iii) Each party entitled to indemnification under this Section 9(e)
(the "Indemnified Party") will give notice to the party required to provide
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indemnification (the "Indemnifying Party") promptly after such Indemnified Party
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has actual knowledge of any claim as to which indemnity may be sought, and will
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided, that counsel for the Indemnifying
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Party, who will conduct the defense of such claim or litigation, will be
approved by the Indemnified Party (whose approval will not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense; provided, however, that the Indemnifying Party will pay such
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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, however, that the failure of
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any Indemnified Party to give notice as provided herein will not relieve the
Indemnifying Party of its obligations under this Section 9(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 will, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
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Indemnified Party of a release from all liability in respect to such claim or
litigation. No Indemnifying Party will be required to indemnify any Indemnified
Party with respect to any settlement entered into without such Indemnifying
Party's prior consent (which will not be unreasonably withheld).
10. Profit Limitation.
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(a) Notwithstanding any other provision in this Agreement or the
Reorganization Agreement, in no event shall Parent's Total Profit (as defined
below) exceed $120,000,000 (the "Maximum Profit") and, if Parent's Total Profit
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otherwise would exceed the Maximum Profit, Parent, at its sole discretion shall
either (i) reduce the number of Option Shares subject to the Option, (ii)
deliver to the Company for cancellation Option Shares (or other securities into
which such Option Shares are converted or exchanged) previously purchased by
Parent, (iii) pay cash to the Company, or (iv) any combination of the foregoing,
so that Parent's actual realized Total Profit shall not exceed the Maximum
Profit after taking into account the foregoing actions; provided, however, that
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to the extent the payment by the Company of cash to Parent in satisfaction of
the Termination Fee pursuant to Section 7.3 of the Reorganization Agreement
would cause Parent's Total Profit to exceed the Maximum Profit (after Parent has
had an opportunity to reduce Parent's Total Profit pursuant to this Section
10(a)), then the Company need not pay such cash portion of the Termination Fee.
(b) For purposes of this Agreement, "Total Profit" shall mean:
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(i) the aggregate amount of (A) any excess of (x) the net cash amounts or fair
market value of any property received by Parent pursuant to a sale of Option
Shares (or securities into which such shares are converted or exchanged) over
(y) Parent's aggregate purchase price for such Option Shares (or other
securities), plus (B) any amounts received by Parent on the repurchase of the
Option by the Company pursuant to Section 7, plus (C) any Termination Fee paid
by the Company and received by Parent pursuant to the Reorganization Agreement,
minus (ii) the amounts of any cash previously paid by Parent to the Company
pursuant to this Section 10 plus the value of the Option Shares (or other
securities) previously delivered to the Company for cancellation pursuant to
this Section 10.
(c) For purposes of Section 10(a) and clause (i) of Section
10(b), the value of any Option Shares delivered by Parent to the Company shall
be the Market/Tender Offer Price of such Options Shares.
11. Adjustment Upon Changes in Capitalization.
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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 will be adjusted appropriately, and proper provision will be made in the
agreements governing such transaction so that Parent will 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.
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(b) Without limiting the parties' relative rights and obligations
under the Reorganization Agreement if the number of outstanding shares of
Company Common Stock increases after the date of this Agreement (other than
pursuant to an event described in Section 11(a)), the number of shares of
Company Common Stock subject to the Option (including those Option Shares which
may have already been exercised) will be adjusted so that it equals 19.9% of the
number of shares of Company Common Stock then issued and outstanding, without
giving effect to any Option Shares.
12. Restrictive Legends. Each certificate representing Option Shares
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issued to Parent hereunder will 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 STOCK OPTION AGREEMENT DATED AS OF JULY 26, 2000, A COPY OF
WHICH MAY BE OBTAINED FROM THE ISSUER.
It is understood and agreed that (i) the reference to restrictions arising
under the Securities Act in the above legend will be removed by delivery of
substitute certificate(s) without such reference if such Option Shares have been
registered pursuant to the Securities Act, such Option Shares have been sold in
reliance on and in accordance with Rule 144 under the Securities Act or Holder
has delivered to Registrant a copy of a letter from the staff of the SEC, or an
opinion of counsel in form and substance reasonably satisfactory to Registrant
and its counsel, to the effect that such legend is not required for purposes of
the Securities Act and (ii) the reference to restrictions pursuant to this
Agreement in the above legend will be removed by delivery of substitute
certificate(s) without such reference if the Option Shares evidenced by
certificate(s) containing such reference have been sold or transferred in
compliance with the provisions of this Agreement under circumstances that do not
require the retention of such reference.
13. Listing and HSR Filing. The Company, upon the request of Parent, will
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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 will use
its best efforts to obtain approval of such listing as soon as practicable.
Promptly after the date hereof, each of the parties hereto will 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 the Company Shares subject to the Option at the
earliest possible date.
14. Binding Effect. This Agreement will 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. Any shares sold by a party in compliance with the
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provisions of Section 9 will, upon consummation of such sale, be free of the
restrictions imposed with respect to such shares by this Agreement and any
transferee of such shares will not be entitled to the rights of such party.
Certificates representing shares sold in a registered public offering pursuant
to Section 9 will not be required to bear the legend set forth in Section 12.
15. Specific Performance. The parties hereto recognize and agree
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that if for any 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 hereto agrees that in addition to
other remedies the other party hereto will be entitled to an injunction
restraining any violation or threatened violation of the provisions of this
Agreement or the right to enforce any of the covenants or agreements set forth
herein by specific performance. In the event that any action will be brought in
equity to enforce the provisions of the Agreement, neither party hereto will
allege, and each party hereto hereby waives the defense, that there is an
adequate remedy at law.
16. Entire Agreement. This Agreement and the Reorganization
----------------
Agreement (including the appendices thereto) constitute the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
between the parties hereto with respect to the subject matter hereof.
17. Further Assurances. Each party hereto will execute and deliver
------------------
all such further documents and instruments and take all such further action as
may be necessary in order to consummate the transactions contemplated hereby.
18. Validity. The invalidity or unenforceability of any provision of
--------
this Agreement will not affect the validity or enforceability of the other
provisions of this Agreement, which will remain in full force and effect. In
the event any Governmental Entity of competent jurisdiction holds any provision
of this Agreement to be null, void or unenforceable, the parties hereto will
negotiate in good faith and will execute and deliver an amendment to this
Agreement in order, as nearly as possible, to effectuate, to the extent
permitted by law, the intent of the parties hereto with respect to such
provision.
19. Notices. All notices and other communications hereunder will be
-------
in writing and will 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 will be specified by like notice):
(a) if to Parent, to:
InfoSpace, Inc.
000 000/xx/ Xxxxxx XX
Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
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with a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
Xxxxxxxx Xxxxxx, Esq.
Xxxxx Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
(b) if to the Company, to:
Go2Net, Inc.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx, a Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
20. Governing Law. This Agreement will be governed by and construed
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in accordance with the laws of the State of Delaware applicable to agreements
made and to be performed entirely within such State.
21. Expenses. Except as otherwise expressly provided herein or in
--------
the Reorganization Agreement, all costs and expenses incurred in connection with
the transactions contemplated by this Agreement will be paid by the party
incurring such expenses.
22. Amendments; Waiver. This Agreement may be amended by the parties
------------------
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.
23. Assignment. Neither of the parties hereto may sell, transfer,
----------
assign or otherwise dispose of 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 party, except that the rights and
obligations hereunder will inure to the benefit of and be binding upon any
successor of a party hereto.
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24. Counterparts. This Agreement may be executed in counterparts,
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each of which will be deemed to be an original, but both of which, taken
together, will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
INFOSPACE, INC.
By:____________________________________________________
Name: Xxxx Xxxxx
Title: Chief Executive Officer
GO2NET, INC.
By:____________________________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
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