EXHIBIT 9.2
VOTING AND FIRST OFFER AGREEMENT
VOTING AND FIRST OFFER AGREEMENT, dated as of January 24, 2000 (this
"AGREEMENT"), among Intel Corporation, a Delaware corporation (the "PRINCIPAL
STOCKHOLDER"), USANi Sub LLC, a Delaware limited liability company ("PARENT")
and Xxxxxxxxxx.xxx Inc., a California corporation (the "Company").
WHEREAS, the Company and Parent propose to enter into an Agreement and Plan
of Merger, dated as of the date hereof (the "MERGER AGREEMENT"), which provides
for, among other things, the merger of the Company (the "MERGER") with a wholly
owned subsidiary of a newly formed Delaware corporation ("NEWCO") and the
concurrent contribution by Parent to Newco of all of the outstanding limited
liability interests of Internet Shopping Network LLC, a Delaware limited
liability company;
WHEREAS, the Principal Stockholder is (a) the owner of one or more of the
following securities: (i) shares of common stock of the Company, no par value
("COMPANY COMMON STOCK") and (ii) warrants to acquire Company Common Stock, in
each case listed on Schedule 1, and (b) party to certain agreements with the
Company identified on Schedule 2 (the "COMPANY AGREEMENTS"); and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, the
Principal Stockholder has agreed to enter into this Agreement with respect to
(a) all the shares of Company Common Stock now owned, whether beneficially or of
record, and which may hereafter be acquired by the Principal Stockholder and any
shares of Company Common Stock over which the Principal Stockholder has
investment power or voting power, each within the meaning of Rule 13d-3(a) of
the Securities Exchange Act of 1934, as amended (the "SHARES"), and all warrants
to acquire Shares now owned and which may hereafter be acquired (the
"WARRANTS"), and (b) the Company Agreements to which the Principal Stockholder
is a party.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE 1
Section 1.1 VOTING AGREEMENT. The Principal Stockholder hereby agrees that
during the Restricted Period (as defined below) at any meeting of the
stockholders of the Company, however called, and in any action by consent of the
stockholders of the Company, the Principal Stockholder shall vote its Shares or
shall cause its Shares to be voted: (a) in favor of the Merger, the Merger
Agreement (as amended from time to time) and the transactions contemplated by
the Merger Agreement (the "PROPOSED TRANSACTIONS") and (b) against any proposal
(other than in respect of the Proposed Transaction) for any: (i) merger,
consolidation, share exchange, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the Company or any
other material corporate transaction, the consummation of which could reasonably
be expected to impede, interfere with, prevent or materially delay the Proposed
Transactions; (ii) a sale, lease, exchange, transfer or other disposition of 20%
or more of the assets of the Company in a single transaction or series of
transactions; or (iii) the acquisition by any person or "group" (as defined in
Section 13(d) of the Exchange Act) other than Parent or its affiliates (herein,
a "THIRD PARTY"), of "beneficial ownership" of 15% or more of the Company's
voting stock whether by tender offer or exchange offer or otherwise and
including a self tender offer, merger, sale of assets or other business
combination between the Company and any person or entity or any other action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or which could result in any of the conditions to the Company's
obligations under the Merger Agreement not being fulfilled. For purposes of this
Agreement, the term "RESTRICTED
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PERIOD" shall mean the time during which the Merger Agreement remains in effect
and for 12 months thereafter.
Section 1.2 ACKNOWLEDGMENT. The Principal Stockholder acknowledges receipt
and review of a copy of the Merger Agreement.
Section 1.3 WAIVER OF COMPANY AGREEMENTS. Subject to the terms and
conditions hereof, the Principal Stockholder hereby irrevocably and forever
waives, and agrees to the modifications of its rights under, the provisions of
the Company Agreements identified on Schedule 2 and as limited and qualified by
Schedule 2 and Schedule 4 which are incorporated herein by reference.
Section 1.4 WAIVER OF DISSENTERS' RIGHTS. The Principal Stockholder hereby
irrevocably and forever waives any rights the Principal Stockholder may have, as
a result of the Merger, to demand payment for any Shares beneficially owned by
the Principal Stockholder pursuant to Section 1300 et. seq. of California Law or
to otherwise qualify as a "dissenting shareholder" as such term is used in such
sections of California Law.
Section 1.5 TERMINATION OF WAIVERS. Notwithstanding the foregoing, the
waivers and modifications effected in Sections 1.3 and 1.4 shall be of no
further force and effect and shall be treated as if they had never been granted
if: (a) the Merger Agreement is not executed prior to February 15, 2000;
(b) the Merger is not consummated prior to July 31, 2000; (c) the Merger
Agreement is amended in a manner materially adverse to the Principal
Stockholder; (d) any party materially breaches its obligations under the Merger
Agreement and such breach has a material adverse effect on the Principal
Stockholder; or (e) the Merger Agreement is otherwise terminated pursuant to its
terms prior to the consummation of the Merger.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF THE PRINCIPAL STOCKHOLDER
The Principal Stockholder hereby represents and warrants to Parent as
follows:
Section 2.1 AUTHORITY RELATIVE TO THIS AGREEMENT. The Principal
Stockholder has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby and no other proceedings on the part of the
Principal Stockholder are necessary to authorize this Agreement or to consummate
such transactions. This Agreement has been duly and validly executed and
delivered by the Principal Stockholder and, assuming the due authorization,
execution and delivery by Parent and the Company, constitutes a legal, valid and
binding obligation of the Principal Stockholder, enforceable against the
Principal Stockholder in accordance with its terms.
Section 2.2 NO CONFLICT. (a) The execution and delivery of this Agreement
by the Principal Stockholder do not, and the performance of this Agreement by
the Principal Stockholder will not, (i) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to the Principal Stockholder or
by which the Shares or the Warrants are bound or affected or (ii) 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 give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a Lien (as defined below) on any of the Shares or the Warrants
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which the
Principal Stockholder is a party or by which the Principal Stockholder or the
Shares or the Warrants are bound or affected, except for any such conflicts,
violations, breaches, defaults or other occurrences which would not prevent or
delay the performance by the Principal Stockholder of its obligations under this
Agreement.
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(b) The execution and delivery of this Agreement by the Principal
Stockholder do not, and the performance of this Agreement by the Principal
Stockholder will not, require any consent, approval, authorization or permit of,
or filing with or notification to, any court or arbitrator or any governmental
body, agency or official except for applicable requirements, if any, of the
Securities Exchange Act of 1934, as amended, and except where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or delay the performance by the
Principal Stockholder of its obligations under this Agreement.
Section 2.3 TITLE TO THE SHARES. As of the date hereof, the Principal
Stockholder is the record and beneficial owner of, or has voting power or
investment power over, the Shares, and is the record and beneficial owner of the
Warrants, listed on Schedule 1. Such Shares and Warrants are all the securities
of the Company owned, either of record or beneficially, by the Principal
Stockholder or in which the Principal Stockholder has voting or investment power
and the Principal Stockholder owns no other rights or interests exercisable for
or convertible into any securities of the Company. Except as identified on
Schedule 3, all of the Shares and Warrants referred to above are owned free and
clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreement, limitations on the Principal Stockholder's voting
rights, charges and other encumbrances of any nature whatsoever, in each case as
imposed by or through the Principal Stockholder but excluding standard margin
rules applicable to the Shares (collectively, "LIENS") except, with respect to
the Warrants, the Warrant Agreements pursuant to which such Warrants were
issued. The Principal Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares.
Section 2.4 OTHER COMPANY AGREEMENTS. To the best knowledge of Intel's
management, the Principal Stockholder is not, as of the date hereof, a party to
any agreement or arrangement with the Company containing provisions similar to
those described on Schedule 2 other than the agreements listed on Schedule 2.
ARTICLE 3
COVENANTS OF THE PRINCIPAL STOCKHOLDER
Section 3.1 NO INCONSISTENT AGREEMENT. The Principal Stockholder hereby
covenants and agrees that it shall not enter into any agreement or grant a proxy
or power of attorney with respect to the Shares or Warrants which is
inconsistent with this Agreement.
Section 3.2 TRANSFER RESTRICTION.
(a) The Principal Stockholder hereby covenants and agrees that it shall not
sell, give, assign, hypothecate, pledge, encumber, grant a security interest in
or otherwise dispose of, whether by operation of law or by agreement or
otherwise (each a "TRANSFER"), from the date hereof until the termination of the
Merger Agreement, any Shares or Warrants, or any right, title or interest
therein or thereto; PROVIDED, HOWEVER, that, notwithstanding the foregoing, the
Principal Stockholder may engage in ordinary course hedging transactions.
(b) Notwithstanding the foregoing, the Principal Stockholder may Transfer
any Shares or Warrants, or any right, title or interest therein or thereto, to
any of its subsidiaries or controlled affiliates; PROVIDED that, prior to such
Transfer, any transferee thereof shall execute and deliver an agreement by which
it shall become a party to and be bound by the applicable terms and provisions
of this Agreement, in form and substance reasonably satisfactory to Parent.
(c) Notwithstanding the foregoing, if Parent permits Xxxxx Xxxxxxxx,
Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxxx, Castle Creek Partners, L.L.C., Xxxxxxxx
Capital Management, Inc., or Winfield Capital Corp. (each, a "TRANSFERRING
STOCKHOLDER") to Transfer any Shares, Warrants or options to purchase Company
Common Stock (the "OPTIONS") after the date hereof and prior to the termination
of the Merger Agreement, which Transfer would otherwise be prohibited by an
agreement between such
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Transferring Stockholder and Parent containing transfer restrictions similar to
the restrictions contained herein, then Parent shall permit the Principal
Stockholder, upon its request to Transfer a number of Shares or Warrants equal
to the product of (i) the number of Shares, Warrants or Options Transferred by
the Transferring Stockholder divided by the number of Shares, Warrants or
Options owned by the Transferring Stockholder as of the date of such Transfer,
and (ii) the number of Shares or Warrants owned by the Principal Stockholder as
of the date of such Transfer, in each case, treating all Options and Warrants as
Shares on an as-converted basis (without giving effect to restrictions or
limitations on the exercise of such Options or Warrants).
Section 3.3 RIGHT OF FIRST OFFER. The Principal Stockholder hereby
covenants and agrees that following the termination of the Merger Agreement and
during the remainder of the Restricted Period, it shall not Transfer any Shares
or Warrants except pursuant to the following provisions:
(a) OFFERING NOTICE. If the Principal Stockholder wishes to Transfer (other
than pursuant to the Merger) all or any portion of its Shares or Warrants to any
person or entity (a "THIRD PARTY PURCHASER"), the Principal Stockholder shall
first offer such Shares or Warrants to Parent, by sending written notice (an
"OFFERING NOTICE") to Parent, which shall state (i) the number of Shares or
Warrants proposed to be transferred (the "OFFERED SECURITIES"); (ii) whether
such sale (with respect to Shares only) will be effected in an open market
transaction that complies with Rule 144(f) of the Securities Act of 1933 (a
"PUBLIC SALE") or otherwise (a "PRIVATE SALE") and (iii) the proposed purchase
price for the Offered Securities (the "OFFER PRICE") which, with respect to a
Public Sale, may not be at a per share price in excess of the closing price of
shares of Company Common Stock on the NASDAQ for the trading day immediately
prior to the date on which the Offering Notice is given. Upon delivery of the
Offering Notice, such offer shall be irrevocable unless and until the rights of
first offer provided for herein shall have been waived or shall have expired;
(b) PARENT OPTION. For a period of three business days after the giving of
the Offering Notice pursuant to Section 3.3(a) (the "OPTION PERIOD"), Parent
shall have the right (the "OPTION") but not the obligation to purchase all (but
not less than all) of the Offered Securities at a purchase price equal to the
Offer Price. If the consideration to be paid pursuant to such Private Sale is
not in the form of cash, Parent may, at its election, exercise the Option by
paying cash in the amount equal to the fair market value of the consideration to
be paid to the Principal Stockholder. The parties, each acting through one or
more senior officers of the rank of Vice President or higher as its
representative, shall negotiate in good faith and alone (except for one
assistant for each party) to determine such fair market value. If no agreement
can be reached by such senior managers, then such fair market value shall be
determined by a neutral arbitrator under the Commercial Arbitration Rules of the
American Arbitration Association. No sale may be made until a determination as
to such fair value is reached, and such determination shall be made within
30 days of the Offering Notice. The right of Parent to purchase any or all of
the Offered Securities under this Section 3.3(b) shall be exercisable by
delivering written notice of the exercise thereof (the "ACCEPTANCE"), prior to
the expiration of the Option Period, to the Principal Stockholder, which notice
shall state the number of Offered Securities proposed to be purchased by Parent.
The failure of Parent to respond within the Option Period shall be deemed to be
a waiver of the Option; PROVIDED that Parent may waive its rights under this
Section 3.3(b) prior to the expiration of the Option Period by giving written
notice to the Principal Stockholder (the date any such written waiver is
received by the Principal Stockholder or, if no written waiver is given, the
last date of the Option Period is referred to as the "WAIVER DATE");
(c) CLOSING. The closing of the purchase of Offered Securities subscribed
for by Parent under Section 3.3(b) shall be held at the executive offices of
Parent at 11:00 a.m., local time, on the later of (i) the 10th day after the
Acceptance pursuant to Section 3.3(b) and (ii) two days following the date on
which all governmental or regulatory approvals (including the expiration of any
waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act) with
respect to such transaction, if any, have been obtained or at such other time
and place as the parties to the transaction may agree. At such closing,
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the Principal Stockholder shall deliver certificates representing the Offered
Securities, duly endorsed for transfer and accompanied by all requisite transfer
taxes, if any, and such Offered Securities shall be free and clear of any Liens
(other than those arising hereunder) and the Principal Stockholder shall so
represent and warrant, and shall further represent and warrant that it is the
sole beneficial and record owner of such Offered Securities. Parent shall
deliver at the closing payment in full in immediately available funds for the
Offered Securities purchased. In connection with such sale the parties to the
transaction shall execute such additional documents and take all reasonable
steps as are otherwise necessary or appropriate to effectuate such transaction;
and
(d) SALE TO A THIRD PARTY PURCHASER. If Parent does not elect to purchase
all of the Offered Securities under Section 3.3(b), the Principal Stockholder
may sell all, but not less than all, of the Offered Securities that Parent
elected not to purchase (i) with respect to a Private Sale to a Third Party
Purchaser on terms and conditions no less favorable to the Principal Stockholder
than those set forth in the Offering Notice; PROVIDED, HOWEVER, that such sale
is bona fide and not undertaken for the purpose of avoiding the Principal
Stockholder's obligations hereunder and made pursuant to a contract entered into
within 10 days after the Waiver Date and (ii) with respect to a Public Sale,
such sale is effected within five days following the Waiver Date at the market
price in effect at the time of such sale. If such sale is not consummated within
five days after the Waiver Date with respect to a Public Sale or 45 days after
the Waiver Date with respect to a Private Sale, then the restrictions provided
for herein shall again become effective, and no transfer of such Offered
Securities may be made thereafter by the Principal Stockholder without again
offering the same to Parent in accordance with this Section 3.3.
(e) Notwithstanding the foregoing, the provisions of this Section 3.3 shall
be of no further force and effect if: (a) the Merger Agreement is not executed
prior to February 15, 2000; (b) any party materially breaches its obligations
under the Merger Agreement and such breach has a material adverse effect on the
Principal Stockholder; or (c) the Merger Agreement is amended in a manner
materially adverse to the Principal Stockholder.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF PARENT AND THE COMPANY
Section 4.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Each of Parent and the
Company has full right, power and authority to enter into and perform this
Agreement and this Agreement has been duly authorized, executed and delivered by
each of Parent and the Company and is a valid and binding agreement of each of
Parent and the Company and enforceable against each of Parent and the Company in
accordance with its terms.
Section 4.2 NO CONFLICT. (a) The execution and delivery of this Agreement
by each of Parent and the Company do not, and the performance of this Agreement
by each of Parent and the Company will not, (i) conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to Parent or the
Company, as applicable or (ii) 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 give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien (as defined below) pursuant
to any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Parent or the
Company is a party or by which the Parent or the Company are bound or affected,
except for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Parent or
the Company of their obligations under this Agreement.
(b) The execution and delivery of this Agreement by each of Parent and the
Company do not, and the performance of this Agreement by each of Parent and the
Company will not, require any consent,
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approval, authorization or permit of, or filing with or notification to, any
court or arbitrator or any governmental body, agency or official except for
applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended, and except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent or delay the performance by Parent or the Company, as applicable, of its
obligations under this Agreement.
Section 4.3 OTHER AGREEMENTS. Concurrently with the execution hereof,
Parent and the Company are entering into separate agreements with Xxxxx
Xxxxxxxx, Xxx Xxxxxxxx and Xxxxxxxx Xxxxxxxxx containing restrictions on voting
and transfer similar to the restrictions contained herein. The restrictions on
voting and transfer contained in such agreements are not materially more
favorable to such other parties than the restrictions on voting and transfer
applicable to the Principal Stockholder hereunder. Concurrently with the
execution hereof, Parent is entering into separate waiver agreements with Castle
Creek Partners, L.L.C., Xxxxxxxx Capital Management, Inc. and Winfield Capital
Corp. waiving certain provisions of agreements between such parties and the
Company similar to the waivers contained in Schedule 2. Such waivers are not
materially more favorable to such other parties than the waivers applicable to
the Principal Stockholder hereunder. Following the date hereof, neither Parent
nor the Company shall enter into an agreement (or amend an existing agreement)
containing waivers similar to the waivers contained in Schedule 2 that are more
favorable to the other party (when taken as a whole) than those applicable to
the Principal Stockholder hereunder, unless Parent and the Company also offer
such more favorable terms to the Principal Stockholder.
ARTICLE 5
MISCELLANEOUS
Section 5.1 TERMINATION. This Agreement shall terminate upon the earliest
to occur of (i) the Closing, (ii) the 12-month anniversary following termination
of the Merger Agreement and (iii) the termination of the Merger Agreement by
Parent pursuant to Section 7.1(c) of such Agreement; PROVIDED that (x) the
representations and warranties contained herein shall survive the termination
hereof and (y) subject to Section 1.5, Section 1.3 hereof shall survive the
consummation of the Merger; PROVIDED, FURTHER, that the agreements of the
Company and Parent set forth in Schedule 2 and 4 hereof, respectively relating
to the extension of the Warrants and cashless exercise shall survive the
termination hereof or the consummation of the Merger as the case may be.
Section 5.2 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
Section 5.3 DEFINITIONS. Unless otherwise defined herein, all capitalized
terms shall have the definitions assigned to such terms in the Merger Agreement.
Section 5.4 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among Parent, the Company and the Principal Stockholder with respect
to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
Section 5.5 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 5.6 SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule or law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
this Agreement is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the
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parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in a mutually acceptable manner in order that
the terms of this Agreement remain as originally contemplated.
Section 5.7 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law.
Section 5.8 JURISDICTION. Each party to this Agreement hereby irrevocably
agrees that any legal action or proceeding arising out of or relating to this
Agreement or any agreements or transactions contemplated hereby shall be brought
in the courts of the State of New York and hereby expressly submits to the
personal jurisdiction and venue of such courts for the purposes thereof and
expressly waives any claim of improper venue and any claim that such courts are
an inconvenient forum.
IN WITNESS WHEREOF, Parent and the Principal Stockholder have caused this
Agreement to be duly executed on the date hereof.
USANi SUB LLC
By: /s/ XXXX XXXXXXXXXXXX
------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Vice President
INTEL CORPORATION
By: /s/ XXXXXX XXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President and Treasurer
XXXXXXXXXX.XXX INC.
By: /s/ XXXXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: President and Co-Chief
Executive Officer
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SCHEDULE 1
NUMBER OF
SHARES
OWNED BENEFICIALLY NUMBER OF
OR OF RECORD(1) WARRANTS OWNED
--------------------- --------------
455,218....... 664,990
------------------------
(1) Other than Shares issuable upon exercise of Warrants, which are listed in
the next column.
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