Exhibit B
STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT (the "Agreement"), dated as of this 19th
day of December, 2002, is entered into by and among USA Interactive, a
Delaware corporation ("Parent"), Xxxxxxxx Xxx Xxxxxx ("Xxxxxx"), an
individual, and Atlas Trust Company (Jersey) Limited, a Jersey trust
company, as trustee of Internet Investments Inc. Employee Shares Trust
("Atlas" and, together with Xxxxxx, the "Stockholders").
W I T N E S S E T H:
WHEREAS, Parent, Geffen Acquisition Sub Inc., a Delaware corporation
and a wholly-owned subsidiary of Parent ("Merger Sub"), xXxxx.xxx, Inc., a
Delaware corporation (the "Company"), and, for purposes of Section 7.8 and
Articles X and XI thereof, the Stockholders, have entered into an Agreement
and Plan of Merger of even date herewith (the "Merger Agreement"), pursuant
to which the parties thereto have agreed, upon the terms and subject to the
conditions set forth therein, to merge Merger Sub with and into the Company
(the "Merger");
WHEREAS, as of the date hereof, each Stockholder is the record owner
of the number of shares of common stock, par value $.001 per share, of the
Company (the "Company Common Stock") set forth next to such Stockholder's
name on Schedule I attached hereto; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that the Stockholders agree, and the
Stockholders are willing to agree, to the matters set forth herein. Except
as specified herein, terms defined in the Merger Agreement are used herein
as defined therein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. For purposes of this Agreement:
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(a) "AFFILIATE" of any Person means another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such first Person.
(b) "BENEFICIALLY OWN" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) including pursuant to any agreement,
arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned
by all other Persons (who are Affiliates of such Person excluding officers
and directors of the Company) who together with such Person would
constitute a "group" within the meaning of Section 13(d)(3) of the Exchange
Act.
(c) "PERSON" shall mean an individual, corporation, limited liability
company, partnership, joint venture, association, trust, unincorporated
organization or other entity.
(d) "SHARES" shall mean shares of the Company Common Stock.
(e) "STOCKHOLDER'S SHARES" shall mean all Shares held of record or
Beneficially Owned by a Stockholder, whether currently issued or
hereinafter acquired, and shall also include, without duplication, any
securities convertible into, or exercisable or exchangeable for, Shares,
including, without limitation, any Options and Warrants held of record or
Beneficially Owned by such Stockholder.
(f) "TERMINATION DATE" shall mean the date that the Merger Agreement
has been terminated pursuant to Section 9.1 thereof.
Capitalized terms used but not defined herein shall have the meanings
ascribed thereto in the Merger Agreement.
2. PROVISIONS CONCERNING COMMON STOCK. Concurrently with this Agreement,
each Stockholder has duly executed and delivered an irrevocable proxy in
the form attached as EXHIBIT A hereto (the "IRREVOCABLE PROXY") appointing
Parent and any of its authorized representatives as such Stockholder's
proxy with the power to vote, at any meeting of the holders of Shares,
however called, or in any other circumstance upon which the vote or other
approval of holders of Company Common Stock is sought, all of such
Stockholder's Shares: (x) in favor of the adoption of the Merger Agreement
and any actions required in furtherance of the transactions contemplated
thereby and hereby; (y) against any action or agreement that would result
in a breach in any material respect of any covenant, representation or
warranty or any other material obligation or agreement of the Company under
the Merger Agreement; and (z) against the following actions (other than the
Merger and the transactions contemplated by the Merger Agreement): (A) any
Takeover Proposal other than an Takeover Proposal with Parent or any
Affiliate thereof and (B) to the extent that such (1) are intended to, or
could reasonably be expected to, impede, interfere with, delay, postpone,
or materially adversely affect the Merger or the transactions contemplated
by the Merger Agreement or this Agreement or (2) are intended to, or could
reasonably be expected to, implement or lead to any Takeover Proposal
(other than an Takeover Proposal with Parent or any Affiliate thereof): (I)
any change in a majority of the persons who constitute the board of
directors of the Company; (II) any change in the present capitalization of
the Company or any amendment of the Company's Certificate of Incorporation
or Bylaws; or (III) any other material change in the Company's corporate
structure or business. In addition to the other covenants and agreements of
Stockholder provided for elsewhere in this Agreement, from the execution of
this Agreement until the first to occur of the Effective Time or the
Termination Date, neither of the Stockholders shall enter into any
agreement, arrangement or understanding with any Person or entity to take
any of the actions described in clause (y) or (z) of the foregoing
sentence, or the effect of which would be inconsistent with or violate the
provisions and agreements contained in this Section 2. Nothing in this
Agreement shall in any way restrict or limit any Stockholder from taking
any action in his capacity as a director or officer of the Company or
otherwise fulfilling his fiduciary obligations as a director or officer of
the Company.
3. Capture.
(a) If the Merger Agreement is terminated pursuant to Section 9.1(f)
or 9.1(g) of the Merger Agreement (a "TRIGGERING TERMINATION") and any of a
Stockholder's Shares are sold, transferred, exchanged, canceled or disposed
of in connection with, or as a result of, any Takeover Proposal that is in
existence on, or that has been otherwise made prior to, the nine month
anniversary of the date of the Triggering Termination (an "ALTERNATIVE
DISPOSITION") then, within three business days after the closing of such
Alternative Disposition, such Stockholder shall tender and pay to, or shall
cause to be tendered and paid to, Parent, or its designee, in immediately
available funds, the Profit realized from such Alternative Disposition. As
used in this Section 3(a), "PROFIT" shall mean an amount equal to the
excess, if any, of (i) the Alternative Transaction Consideration over (ii)
the Current Transaction Consideration. As used in this Section 3,
"Alternative Transaction Consideration" shall mean all cash, securities,
settlement or termination amounts, notes or other debt instruments, and
other consideration received or to be received, directly or indirectly, by
such Stockholder and his Affiliates in connection with or as a result of
such Alternative Disposition or any agreements or arrangements (including,
without limitation, any employment agreement (except a bona fide employment
agreement pursuant to which such Stockholder is required to devote, and
under which such Stockholder in good faith agrees to devote, substantially
all of his business time and effort to the performance of executive
services for the Company in a manner substantially similar to the current
employment arrangements of the Company's executive officers), consulting
agreement, non-competition agreement, confidentiality agreement, settlement
agreement and/or release agreement) entered into, directly or indirectly,
by such Stockholder or any of his Affiliates as a part of or in connection
with the Alternative Disposition or associated Takeover Proposal. As used
in this Agreement, "CURRENT TRANSACTION CONSIDERATION" shall mean all
amounts payable directly or indirectly by Parent to the Stockholder in
respect of his Shares pursuant to Article II of the Merger Agreement,
determined based on the average closing price of Parent Common Stock on the
NASDAQ National Market System for the seven trading day period ending on
the trading day prior to the date of the Triggering Termination.
(b) For purposes of determining Profits under this Section 3: (i) all
non-cash items shall be valued based upon the fair market value thereof as
determined by an independent expert selected by Parent and who is
reasonably acceptable to the Stockholders, (ii) all deferred payments or
consideration shall be discounted to reflect a market rate of net present
value thereof as determined by the above-referenced independent expert,
(iii) all contingent payments will be assumed to have been paid and (iv) if
less than all of a Stockholder's Shares are subject to the Alternative
Disposition, then the Current Transaction Consideration shall be deemed to
be an amount equal to the Current Transaction Consideration multiplied by a
fraction, the numerator of which is the number of such Stockholder's Shares
sold, transferred, exchanged, canceled or disposed of in such Alternative
Disposition and the denominator of which is the total number of such
Stockholder's Shares. In the event any contingent payments included in the
determination of Profits ultimately are not paid pursuant to an Alternative
Disposition, then Parent shall reimburse such Stockholder for any amounts
paid to Parent hereunder in respect of such uncollected contingent payments
promptly after receipt of written notice of such non-payment, unless the
Stockholder has not used its best efforts to receive such contingent
payments.
(c) In the event that, after the date of this Agreement, Parent agrees
with the Company and/or its stockholders to increase the amount of the
Merger Consideration to be paid by Parent for the Shares (a "SECOND
TRANSACTION"), then, as may be requested by Parent, (i) the Stockholders
shall, and each shall cause each of its Affiliates who Beneficially Own any
of such Stockholder's Shares, to either execute and deliver to Parent such
documents or instruments as may be necessary to waive the right to receive
the amount of such increase to the extent that such increase would result
in any Profit or (ii) the Stockholders shall each tender and pay, or cause
to be tendered and paid, to Parent, or its designee, in immediately
available funds and promptly after receipt thereof, the Profit realized
from such Second Transaction. As used in this Section 3(c), "PROFIT" shall
mean an amount equal to the excess, if any, of (y) the SECOND TRANSACTION
CONSIDERATION over (z) the Current Transaction Consideration. As used in
this Agreement, "Second Transaction Consideration" shall mean all cash,
securities, settlement or termination amounts, notes or other debt
instruments, and other consideration received or to be received, directly
or indirectly, by the Stockholders and their Affiliates in connection with
or as a result of the Second Transaction or any agreements or arrangements
(including, without limitation, any employment agreement (except a bona
fide employment agreement pursuant to which such Stockholder is required to
devote, and under which such Stockholder in good faith agrees to devote,
substantially all of his business time and effort to the performance of
executive services for the Company in a manner substantially similar to the
current employment arrangements of the Company's executive officers),
consulting agreement, non-competition agreement, confidentiality agreement,
settlement agreement and/or release agreement) entered into, directly or
indirectly, by a Stockholder or any of his Affiliates with the Company as a
part of or in connection with the Second Transaction.
4. Covenants, Representations and Warranties of the Stockholders.
(a) Each Stockholder hereby represents, warrants and covenants to
Parent and Merger Sub as follows:
(i) Ownership. Such Stockholder is either (A) the record and
Beneficial Owner of, or (B) the Beneficial Owner but not the record
holder of, the number of issued and outstanding Shares set forth next
to such Stockholder's name on Part I of Schedule I hereto and the
Company Options and Warrants set forth on Part II of Schedule I
hereto. As of the date of this Agreement, the Shares set forth on Part
I of Schedule I hereto constitute all of the issued and outstanding
Shares owned of record or Beneficially Owned by such Stockholder.
Except as otherwise set forth in Part I to Schedule I, such
Stockholder has sole power of disposition, sole power of conversion,
sole power to demand appraisal rights and sole power to agree to all
of the matters set forth in this Agreement, in each case with respect
to all of the Shares set forth next to his, her or its name on Part I
of Schedule I hereto, with no material limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and
the terms of this Agreement.
(ii) Power; Binding Agreement. The Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement (including under the
Irrevocable Proxy). This Agreement (including the Irrevocable Proxy)
has been duly and validly executed and delivered by the Stockholder
and constitutes a valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its terms.
There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which such Stockholder is trustee whose
consent is required for the execution and delivery of this Agreement
(including the Irrevocable Proxy) or the consummation by such
Stockholder of the transactions contemplated hereby. If the
Stockholder is married and such Stockholder's Shares constitute
community property, this Agreement (including the Irrevocable Proxy)
has been duly authorized, executed and delivered by, and constitutes a
valid and binding agreement of, the Stockholder's spouse, enforceable
against such person in accordance with its terms.
(iii) No Conflicts. Except for any filings with the Securities
and Exchange Commission under Section 13(d) of the Securities Exchange
Act of 1934, no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is
necessary for the execution of this Agreement (including the
Irrevocable Proxy) by such Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby, except where the
failure to obtain such consent, permit, authorization, approval or
filing would not interfere with the Stockholder's ability to perform
his, her or its obligations hereunder, and none of the execution and
delivery of this Agreement (including the Irrevocable Proxy) by the
Stockholder, the consummation by the Stockholder of the transactions
contemplated hereby or compliance by the Stockholder with any of the
provisions hereof shall (A) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default
(or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which the Stockholder
is a party or by which the Stockholder or any of his, her or its
properties or assets may be bound or (B) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to such Stockholder or any of his, her or its properties or
assets, in each such case except to the extent that any conflict,
breach, default or violation would not interfere with the ability of
the Stockholder to perform the obligations hereunder.
(iv) No Encumbrances. Except (A) as required by Section 2 hereof
and (B) items listed in Part I to Schedule I which shall be released
or modified to comply with this Agreement not later than 10 business
days after the date hereof, at all times thereafter during the term
hereof, all of the Stockholder's Shares will be held by such
Stockholder, an Affiliate of such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any liens, claims, understandings or
arrangements that do not limit or impair the Stockholder's ability to
perform his obligations under this Agreement.
(v) Restriction on Transfer, Proxies and Non-Interference. From
and after the date of this Agreement, except pursuant to this
Agreement, Stockholder shall not, and shall cause each of his
Affiliates who Beneficially Own any of Stockholder's Shares not to,
directly or indirectly without the consent of Parent, in respect of
any Takeover Proposal or otherwise: (A) offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding
with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any
or all of such Stockholder's Shares or any interest therein or enter
into any agreement or arrangement providing for any actions described
in this clause (A), (B) grant any proxies or powers of attorney,
deposit any of such Stockholder's Shares into a voting trust or enter
into a voting agreement with respect to any of such Stockholder's
Shares, or enter into any agreement or arrangement providing for any
of the actions described in clause (B) or (C) take any action that
could reasonably be expected to have the effect of preventing or
disabling the Stockholder from performing such Stockholder's
obligations under this Agreement.
(vi) Waiver of Appraisal Rights. The Stockholder hereby waives,
and shall cause any of its Affiliates who hold of record any of such
Stockholder's Shares to waive, any rights of appraisal or rights to
dissent from the Merger that such Stockholder or such Affiliate may
have.
(vii) Further Assurances. From time to time, at Parent's request
and without further consideration, the Stockholder shall execute and
deliver such additional documents as may be necessary or desirable to
consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
(viii) Release.
(1) From and after the Effective Time, Stockholder finally
and forever releases Parent and the Company, and their respective
successors, assigns, officers, directors, agents, servants, employees
and all affiliates and Subsidiaries, past and present, of Parent and
the Company (the "Releasees") from each and every agreement,
commitment, indebtedness, obligation and claim of every nature and
kind whatsoever, known or unknown, suspected or unsuspected (each, a
"Claim" and collectively, the "Claims") that (A) Stockholder may have
had in the past, may have as of the date hereof or, to the extent
arising from or in connection with any act, omission or state of facts
taken or existing on or prior to the date hereof, may have after the
date hereof against any of the Releasees and (B) has arisen or arises
directly out of, or relates directly to, Stockholder's interest as a
stockholder, director, officer and/or employee of the Company or any
of its Subsidiaries, except (x) such Claims as are contemplated by
this Agreement, the Merger Agreement, the Escrow Agreement and the
transactions contemplated hereby and thereby, (y) Claims for
indemnification that Stockholder may have under the Company
Certificate or Company By-laws or any indemnification agreements
between such Stockholder and the Company, and (z) claims for the
reimbursement of costs and expenses in accordance with the Company's
policies incurred by Stockholder in his capacity as a director of the
Company (all such Claims being the "Released Claims"). Stockholder
acknowledges his, her or its understanding that the facts in respect
of which this release is given may hereafter be determined to be other
than or different from the facts now known or believed by Stockholder,
and Stockholder hereby accepts and assumes the risks of the facts
being different and agrees that this release shall be and remain, in
all respects, effective and not subject to termination or rescission
by reason of any such difference in facts. The parties hereto intend
that the provisions regarding the Released Claims be construed as
broadly as possible, and incorporate herein similar federal, state or
other laws, all of which, with respect to the Released Claims, are
similarly waived by Stockholder.
(2) From and after the Effective Time, Stockholder covenants
and agrees to waive and release the right to receive any and all
amounts due to Stockholder pursuant to liabilities of the Company or
any of its Subsidiaries by reason of any agreement between the Company
or any of its Subsidiaries, on the one hand, and Stockholder, on the
other, on or before the Closing Date or otherwise. Stockholder shall
have caused all indebtedness owed to the Company or any of its
Subsidiaries by Stockholder or any Affiliate of Stockholder to be paid
in full prior to the Closing. In addition, Stockholder covenants and
agrees to take any and all actions as may be necessary to effect the
release of indebtedness contemplated hereby, in form reasonably
satisfactory to Parent.
(3) Except as provided in the Merger Agreement with respect
to any Stockholder's right, as of the Effective Time, to receive
Merger Consideration in exchange for his, her or its Shares and, if
applicable, In-The-Money Options, Stockholder hereby acknowledges
that, as of the Effective Time, Stockholder will have no ongoing
interest in the Company, financial or otherwise, by reason of
ownership of the capital stock of the Company or otherwise.
(ix) Restricted Parent Common Stock. Each Stockholder
acknowledges that, except for any shares that will comprise the Escrow
Amount, the shares of Parent Common Stock issued to such Stockholder
by virtue of the Merger (all of such shares being the "Parent Shares")
will be subject to a lock-up and agrees that he, she or it will not
offer to sell, contract to sell, or otherwise sell, dispose of, loan,
pledge or grant any rights with respect to his, her or its Parent
Shares for a period commencing on the Closing Date and continuing
until the date that is the three-month anniversary of the Closing Date
(the "Lock-Up Period"). Each Stockholder consents to the entry of stop
transfer instructions by Parent's transfer agent and registrar
prohibiting the transfer of any Parent Shares during the Lock-Up
Period. It is understood by such Stockholder that each certificate
representing Parent Shares shall be stamped or otherwise imprinted
with a legend substantially in the following form:
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY
AND RESALE PURSUANT TO A LOCK-UP AGREEMENT AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THAT CERTAIN
STOCKHOLDERS' AGREEMENT, DATED AS OF DECEMBER __, 2002, BY AND
AMONG USA INTERACTIVE, XXXXXXXX XXX XXXXXX AND ATLAS TRUST
COMPANY(JERSEY) LIMITED, AS TRUSTEE OF THE INTERNET INVESTMENTS
INC. EMPLOYEE BENEFITS AND SHARES TRUST.
The legend set forth above shall be removed by Parent from any certificate
evidencing Parent Shares as promptly as practicable, and in any event
within three Business Days upon the transfer of such Parent Shares
subsequent to the expiration of the Lock-Up Period. The expiration of the
Lock-Up Period shall not release such Stockholder's Parent Shares from any
other provision of this Agreement that remains applicable to such Parent
Shares.
(b) Parent hereby represents, warrants and covenants to the Stockholders as
follows:
(i) Organization, Standing and Corporate Power. Each of Parent and
Merger Sub is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, with adequate corporate
power and authority to own its properties and carry on its business as
presently conducted. Each of Parent and Merger Sub has the corporate power
and authority to enter into and perform all of its obligations under this
Agreement and to consummate the transactions contemplated hereby.
(ii) No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by either Parent or Merger
Sub and the consummation by Parent and Merger Sub of the transactions
contemplated hereby, except where the failure to obtain such consent,
permit, authorization, approval or filing would not interfere with its
ability to perform its obligations hereunder, and none of the execution and
delivery of this Agreement by Parent or Merger Sub, the consummation by
Parent or Merger Sub of the transactions contemplated hereby or compliance
by Parent and Merger Sub with any of the provisions hereof shall (A)
conflict with or result in any breach of any applicable organizational
documents applicable to Parent or Merger Sub, (B) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both)
a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which Parent or Merger Sub is
a party or by which Parent or Merger Sub or any of Parent's or Merger Sub's
properties or assets may be bound or (C) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable
to Parent or Merger Sub or any of Parent's or Merger Sub's properties or
assets, in each such case except to the extent that any conflict, breach,
default or violation would not interfere with the ability of Parent or
Merger Sub to perform its obligations hereunder.
(iii) Execution, Delivery and Performance by Parent and Merger Sub.
The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by the Boards of Directors of Parent and Merger Sub, and each of
Parent and Merger Sub has taken all other actions required by law, its
Certificate of Incorporation and its Bylaws to consummate the transactions
contemplated by this Agreement. This Agreement constitutes the valid and
binding obligations of Parent and Merger Sub and is enforceable in
accordance with its terms, except as enforceability may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally.
5. STOP TRANSFER. From and after the date of this Agreement through the
term of this Agreement, no Stockholder will request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of Stockholder's Shares, except as
expressly permitted or contemplated hereby.
6. RECAPITALIZATION. In the event of a stock dividend or distribution, or
any change in the Shares by reason of any split-up, recapitalization,
combination, merger, consolidation, exchange of shares or the like, the
term "Shares" shall include, without limitation, all such stock dividends
and distributions and any shares into which or for which any or all of the
Shares (or any class thereof) may be changed or exchanged a may be
appropriate to reflect such event.
7. STOCKHOLDER CAPACITY. No Stockholder makes any agreement or
understanding herein in such Stockholder's capacity as a director or
officer of the Company and nothing herein shall limit or affect any action
taken by such Stockholder in such capacity.
8. MISCELLANEOUS.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
(b) Termination. This Agreement shall terminate and be of no
further force and effect (i) upon the written mutual consent of the parties
hereto, (ii) with respect to Sections 2 and 4(a)(v)(B) hereof and the
Irrevocable Proxy, upon the first to occur of the Effective Time or the
Termination Date, (iii) with respect to all Sections of this Agreement
other than Sections 2 and 4(a)(v)(B) hereof and the Irrevocable Proxy, upon
compliance by the Stockholders with their obligations arising under Section
3 hereof, or (iv) automatically and without any required action of the
parties hereto, upon the Effective Time. No such termination of this
Agreement shall relieve any party hereto from any liability for any breach
of this Agreement prior to termination.
(c) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except
upon the execution and delivery of a written agreement executed by the
parties hereto; provided that no amendment may be made to Section 8(b)(ii)
without the consent of the Company, which consent shall not be unreasonably
withheld.
(d) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any courier service, such
as Federal Express, providing proof of delivery. All communications
hereunder shall be delivered to the respective parties at the following
addresses or the addresses set forth on the signature pages hereto:
If to Xxxxxx: Xxxxxxxx Xxx Xxxxxx
0000 0/0 Xxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
If to Atlas: Atlas Trust Company (Jersey) Limited
X.X. Xxx 000
Xxxxx 0, 0 Xxxxxxxxx Xxxxx
Xx. Xxxxxx, Xxxxxx XX0 0XX
Channel Islands
Attention: Xxx Xxxxxxxx
Fax: (000 00) 0000 000000
copy to: Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
If to Parent: USA Interactive
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
and: Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
If to the Company: xXxxx.xxx, Inc.
New Xxxxxxxxxx Xxxxx
Xx. Xxxxxx Xxxxxx
Xxxxx XX0 0XX
United Kingdom
Fax: x00 (0)00 0000 0000
Attention: Xx. Xxx Xxxxxx, Chief Executive Officer
copy to: Xxxx and Xxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(e) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
(f) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by Stockholder of any covenants or agreements
contained in this Agreement will cause the Parent and Merger Sub to sustain
damages for which they would not have an adequate remedy at law for money
damages, and therefore each of the parties hereto agrees that in the event
of any such breach the Parent or Merger Sub shall be entitled to the remedy
of specific performance of such covenants and agreements and injunctive and
other equitable relief in addition to any other remedy to which they may be
entitled, at law or in equity.
(g) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(i) No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity
who or which is not a party hereto; provided that, in the event of
Stockholder's death, the benefits and obligations of Stockholder hereunder
shall inure to his successors and heirs.
(j) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(k) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware to
the fullest extent permitted by applicable law and, to the extent not so
permitted, to the exclusive jurisdiction of the courts sitting in the State
of Delaware, in any action, suit or proceeding arising in connection with
this Agreement, and agrees that any such action, suit or proceeding shall
be brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein); provided, however,
that such consent to jurisdiction is solely for the purpose referred to in
this paragraph and shall not be deemed to be a general submission to the
jurisdiction of said Court or in the State of Delaware other than for such
purposes. Each party hereto hereby waives any right to a trial by jury in
connection with any such action, suit or proceeding. Any service of process
to be made in such action, suit or proceeding may be made by delivery of
process in accordance with the notice provisions contained in Section 8(d).
(l) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement. This Agreement shall
not be effective as to any party hereto until such time as this Agreement
or a counterpart thereof has been executed and delivered by each party
hereto.
(n) Trust Funds. In the event that any party hereto should receive any
funds that are to be paid to another party pursuant to the terms of this
Agreement, then the receiving party shall hold such funds in trust for the
benefit of the party entitled to receive such funds and shall promptly pay
such funds to the party entitled to receive such funds in accordance with
this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by Stockholder and a duly authorized officer of Parent on the day
and year first written above.
PARENT:
USA INTERACTIVE
By: /s/ Xxxxxx X. Marriott
-------------------------------
Print Name: Xxxxxx X. Marriott
Title: SVP
XXXXXXXX XXX XXXXXX
/s/ Xxxxxxxx Xxx Xxxxxx
----------------------------------
The COMMON SEAL of ATLAS TRUST
COMPANY (JERSEY) LIMITED As
TRUSTEES OF THE INTERNET
INVESTMENTS INC. EMPLOYEE
SHARES TRUST was hereunto
affixed in the presence of:
/s/ Xxx X. Xxxxxxxx
----------------------------------
Director
Print Name: Xxx X. Xxxxxxxx
/s/ Xxx X. Xxxx
----------------------------------
Director/Authorised Signatory
Print Name: Xxx X. Xxxx
EXHIBIT A
---------
IRREVOCABLE PROXY
-----------------
By its execution hereof, and in order to secure its obligations under
the Stockholders' Agreement (the "AGREEMENT") of even date herewith among
USA Interactive, a Delaware corporation ("PARENT"), [Xxxxxxxx Xxx Xxxxxx]
[Atlas Trust Company (Jersey) Limited (as trustee of Internet Investments
Inc. Employee Benefits and Shares Trust)] and the undersigned (the
"STOCKHOLDER"), Stockholder hereby irrevocably constitutes and appoints
Parent and its successors and assigns, with full power of substitution and
resubstitution, from the date hereof to the termination of the Agreement,
as such Stockholder's true and lawful attorney and proxy (its "PROXY"), for
and in such Stockholder's name, place and stead to vote all of the Shares
of such Stockholder as such Stockholder's Proxy at every annual, special or
adjourned meeting of Stockholders of the Company, and to sign on behalf of
such Stockholder (as a Stockholder of the Company) any ballot, proxy,
consent, certificate or other document relating to the Company that law
permits or requires, in a manner consistent with Section 2 of the
Agreement. This Proxy is coupled with interest and Stockholder intends this
Proxy to be irrevocable to the fullest extent permitted by law. Stockholder
hereby revokes any proxy previously granted by such Stockholder with
respect to such Stockholder's Shares. Capitalized terms used but not
defined herein shall have the meaning set forth in the Agreement.
Stockholder shall perform such further acts and execute such further
documents and instruments as may reasonably be required to vest in Parent
or any of its nominees, the power to carry out and give effect to the
provisions of this Proxy. The Proxy will terminate on the earlier to occur
of the Effective Time or the Termination Date (as defined in the
Agreement).
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable
Proxy this ____ day of December __, 2002.
STOCKHOLDER:
--------------------------
By:
Print name:
SCHEDULE I
----------
PART I: SHARES
STOCKHOLDER: SHARES HELD: PERCENTAGE OF VOTING SHARES*:
Xxxxxxxx Xxx Xxxxxx 6,100,505 24.16%
Atlas Trust Company (Jersey) Limited 10,224,331 40.50%
*calculated assuming 25,251,163 shares outstanding as of the date of this
Agreement
Exception to the ownership representation in Section 4(a)(i):
Atlas: Includes 37,500 shares as to which Xxxxx Xxxxxxxx has a
non-transferable, non-assignable warrant (expiring August 15, 2010) to
acquire. Also includes 37,500 shares as to which X.X. Xxxxxxx & Co., Inc.
has a non-transferable, non-assignable warrant (expiring August 15, 2010)
to acquire.
PART II: OPTIONS AND WARRANTS:
OPTION (WARRANT) HOLDER: OPTIONS/WARRANTS HELD: PERCENTAGE (FULLY DILUTED):
Xxxxxxxx Xxx Xxxxxx None 0
Atlas Trust Company (Jersey) Limited None 0
