Exhibit 5
Voting Agreement
This Voting Agreement (the "Agreement") is made and entered into as of July
12, 1999, between At Home Corporation, a Delaware corporation ("Parent"), and
the undersigned stockholder ("Stockholder") of iMall, Inc., a Nevada corporation
("Company").
Recitals
A. Concurrently with the execution of this Agreement, Parent, Company and
Shop Nevada, Inc., a Nevada corporation and a wholly-owned subsidiary of Parent
("Merger Sub"), are entering into an Agreement and Plan of Merger (the "Merger
Agreement") which provides for the merger (the "Merger") of Merger Sub with and
into Company. Pursuant to the Merger, shares of capital stock of Company will be
converted into shares of Series A Common Stock of Parent on the basis described
in the Merger Agreement. Capitalized terms used but not defined herein shall
have the meanings set forth in the Merger Agreement.
B. Stockholder is the record holder of such number of outstanding shares
of Company Common Stock as is indicated on the final page of this Agreement.
C. As a material inducement to enter into the Merger Agreement, Parent
desires Stockholder to agree, and Stockholder is willing to agree, to vote the
Shares (as defined below), and such other shares of capital stock of Company
over which Stockholder has voting power, so as to facilitate consummation of the
Merger.
Intending to be legally bound, the parties agree as follows:
1. Agreement to Vote Shares.
1.1 Definitions. For purposes of this Agreement:
"Shares" shall mean all issued and outstanding shares of Company Common
Stock owned of record or beneficially by Stockholder or over which Stockholder
exercises voting power, in each case, as of the record date for persons entitled
(a) to receive notice of, and to vote at the meeting of the stockholders of
Company called for the purpose of voting on the matters referred to in Section
1.2, or (b) to take action by written consent of the stockholders of Company
with respect to the matters referred to in Section 1.2. Stockholder agrees that
any shares of capital stock of Company that Stockholder purchases or with
respect to which Stockholder otherwise acquires beneficial ownership or over
which Stockholder exercises voting power after the execution of this Agreement
and prior to the date of termination of this Agreement pursuant to Section 3
below shall be subject to the terms and conditions of this Agreement to the same
extent as if they constituted Shares on the date hereof.
"Subject Securities" shall mean: (i) all securities of Company (including
all shares of Company Common Stock and all options, warrants and other rights to
acquire shares of Company Common Stock) beneficially owned by Stockholder as of
the date of this Agreement; and (ii) all additional securities of Company
(including all additional shares of Company Common Stock and all additional
options, warrants and other rights to acquire shares of Company Common Stock) of
which Stockholder acquires ownership during the period from the date of this
Agreement through the earlier of termination of this Agreement pursuant to
Section 3 below or the record date for the meeting at which stockholders of
Company are asked to vote upon approval of the Merger Agreement and the Merger
(the "Record Date").
Stockholder shall be deemed to have effected a "Transfer" of a security if
Stockholder directly or indirectly: (i) sells, pledges, encumbers, transfers or
disposes of, or grants an option with respect to, such security or any interest
in such security; or (ii) enters into an agreement or commitment providing for
the sale, pledge, encumbrance, transfer or disposition of, or grant of an option
with respect to, such security or any interest therein. Stockholder shall not
be deemed to have effected a "Transfer" of a security by virtue of entering into
a merger, consolidation or other business combination of any nature with another
entity or entities.
1.2 Agreement to Vote Shares. Until the termination of this Agreement
pursuant to Section 3 below, at every meeting of the stockholders of Company
called with respect to any of the following, and at every adjournment thereof,
and on every action or approval by written consent of the stockholders of
Company with respect to any of the following, Stockholder shall cause the Shares
to be voted (i) in favor of approval of the Merger Agreement and the Merger,
(ii) in favor of approval of an amendment to the Articles of Incorporation of
the Company which deletes Article VI.C of the Company's Articles of
Incorporation regarding a supermajority vote requirement in certain dispositions
of assets of the Company and (iii) against approval of (a) any proposal made in
opposition to or in competition with consummation of the Merger, (b) any merger,
consolidation, sale of assets, reorganization or recapitalization with any party
other than Parent or its affiliates or (c) any liquidation or winding up of
Company.
1.3 No Transfer of Subject Securities. Until the earlier of termination
of this Agreement pursuant to Section 3 below or the Record Date, except (A) as
may be required by (i) the foreclosure on any encumbrance secured by such
Subject Securities as of the date hereof or (ii) court order or (B) for
transfers to any subsidiary of First Data Corporation, provided that such
subsidiary agrees in writing to be bound by the terms of this Agreement as
though such subsidiary were a Stockholder, and that notice and a copy of such
agreement are provided to Parent prior to such transfer, Stockholder agrees not
to Transfer any of the Subject Securities.
1.4 Lockup. During the period beginning on the Effective Date (as defined
in the Merger Agreement) and ending on the date which is nine months after the
Effective Date, Stockholder shall not sell, pledge, transfer or otherwise
dispose of more than 1,610,000 shares of Parent Series A Common Stock, par value
$0.01 per share ("Parent Common Stock"), received by Stockholder (i) in
connection with shares of Company Common Stock issued upon consummation of the
Merger or (ii) pursuant to an exercise of the Parent Warrant (as defined in
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the Merger Agreement). Parent Stockholder understands that Parent may give
Parent's transfer agent stop transfer instructions in order to ensure compliance
with this provision.
1.5 Agreement to Register. At the Effective Time, Parent and Stockholder
shall enter into the Registration Rights Agreement in the form attached hereto
as Exhibit A. Stockholder agrees that the Registration Rights Agreement dated as
of October 30, 1998 between the Company and Stockholder and the Stockholders
Agreement dated as of October 30, 1998 among the Company, Stockholder and
certain other stockholders of the Company shall be terminated at the Effective
Time.
2. Representations and Warranties of Stockholder. Stockholder (i) is the
owner of record or beneficially or Stockholder exercises voting power of the
shares of Company Common Stock indicated on the final page of this Agreement,
which at the date hereof are free and clear of any liens, claims, options,
charges or other encumbrances that would adversely affect the ability of
Stockholder to carry out the terms of this Agreement, subject to the terms of
the Investment Agreement, dated as of October 30, 1998, as amended July 12,
1999, between the Company and First Data Merchant Services Corporation and the
Stockholders Agreement, dated as of October 30, 1998, among the Company, First
Data Merchant Services Corporation, Xxxxxxx X. Xxxxxxxxxx, Xxxx X. Xxxxx and
Xxxxx X. Xxxxxxxxx; and (ii) has the legal capacity or full corporate power and
authority to make, enter into and carry out the terms of this Agreement.
2.1 Public Disclosure. Parent and Stockholder will consult with each
other, and to the extent practicable, agree, before issuing any press release or
otherwise making any public statement with respect to this Agreement, the First
Data Agreements (as defined in the Merger Agreement) or the Merger and will not
issue any such press release or make any such public statement prior to such
consultation, except as may be required by law or any listing agreement with a
national securities exchange. The parties have agreed to the text of the joint
press release announcing the signing of this Agreement and the First Data
Agreements.
3. Termination. This Agreement shall terminate and shall have no further
force or effect as of such date and time as the Merger Agreement shall have been
terminated pursuant to Article VII thereof.
4. Miscellaneous.
4.1 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
4.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by
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either of the parties without prior written consent of the other. Any purported
assignment in violation of this Section shall be void.
4.3 Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
4.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
4.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or by commercial delivery service to the respective parties
as follows (or at such other address for a party as shall be specified by like
notice):
If to Parent:
At Home Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
If to Stockholder, to the address for notice set forth on the last
page hereof.
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
4.6 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of California,
without regard to the principles of conflict of laws thereof.
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4.7 Entire Agreement. This Agreement contains the entire understanding of
the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings, both oral and written, between the parties with
respect to such subject matter.
4.8 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
4.9 Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
* * * * *
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In Witness Whereof, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
AT HOME CORPORATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
Stockholder:
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President,
First Data Merchant Services
Stockholder's Address for Notice:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Shares of Company Common Stock
Beneficially Owned by Stockholder:
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[Voting Agreement]
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