EXHIBIT 2.5
PARENT VOTING AGREEMENT
This Voting Agreement (this "Agreement") is entered into as of July 13, 1999
(the "Agreement Date") by and between Xxxxxxx.xxx, Inc., a Washington
corporation (the "Company") and [name of stockholder] ("Stockholder").
RECITALS
A. Onsale, Inc., a Delaware corporation (the "Parent"), 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 Parent's Common Stock set
forth below Stockholder's name on the signature page of this Agreement (all such
shares, together with any shares of Parent's Common Stock or any other shares of
capital stock of Parent 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 Parent'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 Parent issued on, or with
respect to, the Subject Shares in such a transaction.
C. As a condition to the willingness of Company to enter into the Plan,
Company has required that Stockholder agree, and in order to induce Company 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
Company.
(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 Parent Affiliate Agreement. If Stockholder is a party
to a Parent Affiliate Agreement, Stockholder will comply with the terms of such
Parent 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 stockholders of Parent, however called, and in any
action taken by the written consent of stockholders of Company without a
meeting, unless otherwise directed in writing by Company, Stockholder shall vote
the Subject Shares:
(a) in favor of the issuance of the shares of Parent Common Stock
pursuant to the Merger and an amendment to Parent's Certificate of
Incorporation to change the name of Parent to "Xxxxxxx.xxx, Inc.," effective
at the Effective Time, and to increase the authorized number of shares of
Parent Common Stock so as to permit the transactions contemplated by the Plan,
subject to and upon consummation of the Merger and, to the extent that
approval by Parent's stockholders is required under the Delaware General
Corporation Law, in favor of the Plan and the Merger, the execution and
delivery by Parent of the Plan and 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
(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 Company a proxy with respect to the Subject Shares
in the form attached hereto as Exhibit 1, which proxy shall be irrevocable to
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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.
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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
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 Company 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 Parent or rights to
acquire any shares of capital stock of Parent, other than the Subject Shares set
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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 under any agreement, arrangement of
understanding applicable to the Subject Shares, except as disclosed in the
Parent Disclosure Letter (as defined in the Merger Agreement).
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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 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 Delaware
(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) Company 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 Company:
At the address set forth below Stockholder's XXXXXXX.XXX, INC.
signature on the signature page hereto; 000 X.X. Xxxxxxx Xxxxx
Xxxxxxxxx, 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 Company
is entitled at law or in equity, Company shall be entitled to injunctive relief
to prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any Washington 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 Company 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.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, Company and Stockholder have caused this Agreement to
be executed as of the Agreement Date first written above.
COMPANY STOCKHOLDER
By:___________________________ Name:______________________________
(Please Print)
Title:________________________ By:________________________________
(Signature)
Title:_____________________________
Number of Shares Owned:____________
Address:___________________________
___________________________
___________________________
Facsimile: ( )__________________
[Signature Page to Voting Agreement]
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EXHIBIT "1" TO VOTING AGREEMENT
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IRREVOCABLE PROXY
The undersigned stockholder of Onsale, Inc., a Delaware corporation (the
"Parent"), hereby irrevocably (to the fullest extent permitted by law) appoints
and constitutes Xxxxxx X. Xxxxx, Xxxxx Xxxxxx and/or Xxxxxxx.xxx, Inc., a
Washington corporation ("Company"), 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 Parent 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 Parent which the undersigned may acquire after
the date hereof. (The shares of the capital stock of Parent 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 Company) are hereby revoked, and no subsequent proxies will
be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with that certain Parent Voting Agreement, dated as of the date
hereof, between Company and the undersigned (the "Voting Agreement"), and is
granted in consideration of Company 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 ("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 stockholders of Parent, however
called, or in any action by written consent of stockholders of Parent:
(i) in favor of the issuance of the shares of Parent Common Stock
pursuant to the Merger and an amendment to Parent's Certificate of
Incorporation to change the name of Parent to "Entemann," effective at the
Effective Time, and to increase the authorized number of shares of Parent
Common Stock so as to permit the transactions contemplated by the Plan,
subject to and upon consummation of the Merger and, to the extent that
approval by Parent's stockholders is required under the Delaware General
Corporation Law, in favor of the Plan and the Merger, the execution and
delivery by Parent of the Plan and 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) 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
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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 stockholders of Parent, however called, and in
any action by written consent of stockholders of Parent, 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).
This proxy shall terminate upon the Expiration Date (as defined in the
Voting Agreement).
Dated: July 13, 1999
Name: ______________________________
By: ________________________________
Title (If Applicable):______________
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