EXHIBIT 2.2
OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "AGREEMENT") is made and entered into
as of July 26, 2000, among InfoSpace, Inc., a Delaware corporation ("PARENT"),
and Go2Net, Inc., a Delaware corporation (the "COMPANY"). Capitalized terms used
but not otherwise defined herein will have the meanings ascribed to them in the
Reorganization Agreement (as defined below).
RECITALS
A. The Company, Merger Sub (as defined below) and Parent have entered
into an Agreement and Plan of Reorganization (the "REORGANIZATION AGREEMENT")
which provides for the merger (the "MERGER") of a wholly-owned subsidiary of
Parent ("MERGER SUB") with and into the Company. Pursuant to the Merger, all
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
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
irrevocable option (the "OPTION") to acquire up to a number of Company Shares
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 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").
2. EXERCISE OF OPTION.
(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 EVENT"). In the event Parent wishes to exercise the
Option, Parent will deliver to the Company a written notice (each an
"EXERCISE NOTICE") specifying the total 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 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, 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
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
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
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
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.
(a) PARENT PUT. At the request of and upon notice by Parent (the
"PUT NOTICE"), at any time during the period during which the Option is
exercisable pursuant to Section 2 (the "PURCHASE PERIOD"), the Company (or
any successor 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 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 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
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.
(a) Following the termination of the Reorganization Agreement,
Parent (sometimes referred to herein as the "HOLDER") may by written notice
(a "REGISTRATION NOTICE") to the Company (the "REGISTRANT") request the
Registrant 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 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") 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
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,
HOWEVER, that the Registrant will not be required to qualify to do business
in, 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 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.
(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 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 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 indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party 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 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 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 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.
(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 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 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:
(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.
(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
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 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 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
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 000xx 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
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,
each of which will be deemed to be an original, but both of which, taken
together, will constitute one and the same instrument.
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
