EXHIBIT 2.7
SHAREHOLDER AGREEMENT (this "Agreement") dated as of June 18, 1998,
among Infoseek Corporation, a California corporation ("Parent," which term
shall include Infoseek Corporation, a Delaware corporation and wholly owned
subsidiary of Parent formed for purposes of consummating the transactions
contemplated hereby ("HoldCo")), and Disney Enterprises, Inc., a Delaware
corporation ("Shareholder").
WHEREAS, Parent, Holdco, Shareholder, and Starwave Corporation, a
Washington corporation (the "Company"), have entered into an Agreement and Plan
of Reorganization dated as of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") (capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement) providing for
the merger of Merger Sub B with and into the Company (the "Merger"), upon the
terms and subject to the conditions set forth in the Merger Agreement; and
WHEREAS, as of the date hereof Shareholder beneficially owns the number of
shares of common stock of the Company ("Company Common Stock") set forth
opposite his name on Schedule A attached hereto (such shares of Company Common
Stock, together with any other shares of capital stock of the Company acquired
by Shareholder after the date hereof and during the term of this Agreement
(including through the exercise of any stock options, warrants or similar
instruments), being collectively referred to herein as "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that certain shareholders of the Company
including Shareholder enter into voting agreements with Parent, each of which is
together with each other a single agreement.
NOW, THEREFORE, to induce Parent to enter into, and in consideration of its
entering into, the Merger Agreement, and in consideration of the promises and
the representations, warranties and agreements contained herein, the parties
agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Shareholder hereby
represents and warrants to Parent as of the date hereof in respect of itself as
follows:
(a) AUTHORITY. The Shareholder has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the
Shareholder in accordance with its terms. Except for the expiration or
termination of the waiting periods under the HSR Act and informational filings
with the SEC, the execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, (i) conflict with, or result in any violation of, or
default (with or without notice of lapse of time or both) under any provision of
the Articles of Incorporation or Bylaws (or other comparable organizational
documents, if any) of the Shareholder any trust agreement, loan or credit
agreement, bond, note, mortgage, indenture, lease or other contract, agreement,
obligation, commitment,
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arrangement, understanding, instrument, permit, concession, franchise, license,
statute, law, ordinance, rule, regulation, judgment, order, notice or decree,
applicable to the Shareholder or to the Shareholder's property or assets, (ii)
require any filing with, or permit, authorization, consent or approval of, any
Federal, state or local government or any court, tribunal, administrative agency
or commission or other governmental or regulatory authority or agency, domestic
or foreign or (iii) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to the Shareholder or any of the Shareholder's
properties or assets, including the Subject Shares. No trust of which the
Shareholder is a trustee requires the consent of any beneficiary to the
execution and delivery of this Agreement or to the consummation of the
transactions contemplated hereby.
(b) THE SUBJECT SHARES. The Shareholder is the beneficial owner of, and on
or prior to the date hereof will be the record owner of, or is trustee of a
trust that is the record holder of, and whose beneficiaries are the beneficial
owners of, and has good and marketable title to, the Subject Shares set forth
opposite his or its name on Schedule A attached hereto, free and clear of any
Liens whatsoever. The Shareholder does not own, of record or beneficially, any
shares of capital stock of the Company other than the Subject Shares set forth
opposite his or its name on Schedule A attached hereto. The Shareholder has the
sole right to vote such Subject Shares, and none of such Subject Shares is
subject to any voting trust or other agreement, arrangement or restriction with
respect to the voting of such Subject Shares, except as contemplated by this
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent hereby represents and
warrants to Shareholder that Parent has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by Parent and constitutes a valid and binding obligation of Parent
enforceable against Parent in accordance with its terms. Except for the
expiration or termination of the waiting periods under the HSR Act and
informational filings with the SEC, the execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby and
compliance with the terms hereof will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time or both) under
any provisions of, the Articles of Incorporation or Bylaws of Parent, any trust
agreement, loan or credit agreement, bond, note, mortgage, indenture, lease or
other contract, agreement, obligation, commitment, arrangement, understanding,
instrument, permit, concession, franchise, license, statute, law, ordinance,
rule, regulation, judgment, order, notice or decree applicable to the Parent or
the Parent's property or assets.
3. COVENANTS OF SHAREHOLDER. Subject to Section 7, Shareholder agrees as
follows:
(a) Without in any way limiting the Shareholder's right to vote
the Subject Shares in its sole discretion on any other matters that may be
submitted to a shareholder vote, consent or other approval (including by written
consent), at any meeting of the shareholders of the Company called upon to vote
upon the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including
written consent) with respect to the Merger and the Merger Agreement is sought,
the Shareholder shall vote (or cause to be voted) the Subject Shares (and each
class thereof):
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(i) in favor of the Merger, the approval and adoption by the
Company of the Merger Agreement and approval of the other
transactions contemplated by the Merger Agreement; and
(ii) against (A) any merger agreement or merger (other than the
Merger and the Merger Agreement), consolidation, combination, sale
of substantial assets, sale or issuance of securities of the
Company or its subsidiaries, reorganization, joint venture,
recapitalization, dissolution, liquidation or winding up of or by
the Company or its subsidiaries and (B) any amendment of the
Company's Articles of Incorporation or bylaws or other proposal or
transaction involving the Company or any of its subsidiaries which
amendment or other proposal or transaction would in any manner
impede, frustrate, prevent, nullify or result in a breach of any
covenant, representation or warranty or any other obligation or
agreement of the Company under or with respect to, the Merger, the
Merger Agreement or any of the transactions contemplated by the
Merger Agreement or by this Agreement.
(b) The Shareholder shall not, except as contemplated by this
Agreement, directly or indirectly, grant any proxies or powers of attorney with
respect to the Subject Shares, deposit the Subject Shares into a voting trust or
enter into a voting agreement with respect to the Subject Shares.
(c) The Shareholder, and any beneficiary of a revocable trust for
which the Shareholder serves as trustee, shall not take any action to revoke or
terminate such trust or take any other action which would restrict, limit or
frustrate the Shareholder's right to vote the Subject Shares on behalf of such
trust in accordance with this Agreement.
(d) The Shareholder shall cause this Agreement to be filed with
the Secretary of the Company.
(e) Subject to Section 7, Shareholder shall not transfer, sell or
otherwise dispose of any Subject Shares.
(f) Each Certificate representing Subject Shares now or hereafter
owned by Shareholder shall be endorsed with a legend conspicuously noting the
existence of this Agreement, until such time as this Agreement is terminated.
4. GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
(a) Without in any way limiting the Shareholder's right to vote
the Subject Shares in its sole discretion on any other matters that may be
submitted to a shareholder vote, consent or other approval (including by written
consent), Shareholder hereby irrevocably grants to, and appoints, Xxxxx X. Xxxxx
and Xxxxxx X. Xxxxxx, in their respective capacities as officers of
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Parent, any individual who shall hereafter succeed to any such office of Parent,
and each of them individually, the Shareholder's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of the
Shareholder, to vote the Shareholder's Subject Shares, or grant a consent or
approval in respect of such Subject Shares, in favor of adoption of the Merger
Agreement and the Merger.
(b) The Shareholder represents that any proxies heretofore given
in respect of the Shareholder's Subject Shares are not irrevocable, and that all
such proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of the Shareholder under this Agreement. The Shareholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. The Shareholder hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section RCW 23B.07.220 of the laws of the
State of Washington (the "WCL").
5. CERTAIN EVENTS. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to Shareholder's Subject Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Subject Shares shall pass, whether by operation of law or otherwise, including
Shareholder's successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Company Common Stock, or the acquisition
of additional shares of Company Common Stock or other voting securities of the
Company by the Shareholder, the number of Subject Shares listed in Schedule A
beside the name of the Shareholder shall be adjusted appropriately and this
Agreement and the obligations hereunder shall attach to any additional shares of
Company Common Stock or other voting securities of the Company issued to or
acquired by the Shareholder.
6. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by the Shareholder, on the
one hand, without the prior written consent of Parent nor by Parent, on the
other hand, without the prior written consent of the Shareholder, except that
Parent may assign, in its sole discretion, any or all of its rights, interests
and obligations hereunder to any direct or indirect wholly owned subsidiary of
Parent. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
7. TERMINATION. This Agreement shall terminate, and the provisions
hereof shall be of no further force or effect, upon the earlier of (i) 180 days
from the date of this Agreement, (ii) effectiveness of the Merger or (iii)
termination of the Merger Agreement.
8. GENERAL PROVISIONS.
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(a) AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) NOTICE. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery)
to Parent in accordance with Section 9.1 of the Merger Agreement and to the
Shareholder at his respective address set forth on the Company's stock ledger
(or at such other address for a party as shall be specified by like notice).
(c) INTERPRETATION. When a reference is made in this Agreement to a
Section or Schedule, such reference shall be to a Section of or Schedule to this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other parties.
(e) ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement
(including the documents and instruments referred to herein including all of the
voting agreements referenced herein between the shareholders of the Company and
Parent) (i) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(f) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with the laws of the State of Washington, regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
9. ENFORCEMENT. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically,
as provided by RCW 23B.07.310, the terms and provisions of this Agreement in any
court of the United States located in the State of Washington or in a Washington
state court, this being in addition to any other remedy to which they are
entitled at law or in equity. Without limiting the generality of the foregoing,
the parties hereto expressly agree that the obligations of Shareholder set forth
in Section 3 hereof shall be subject to the foregoing provisions of this Section
9. In addition, each of the parties hereto (i) consents to submit such party to
the personal jurisdiction of any court of the United States located in the State
of California or any California court in the event any dispute arises out of
this Agreement or any of the transactions contemplated hereby, (ii) agrees that
such party will not attempt to deny or defeat such personal jurisdiction by
motion or other request
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for leave from any such court, (iii) agrees that such party will not bring any
action related to this Agreement or the transactions contemplated hereby in any
court other than a court of the United States located in the State of California
or a California court and (iv) waives any right to trial by jury with respect to
any claim or proceeding related to or arising out of this Agreement or any of
the transactions contemplated hereby.
10. PUBLIC ANNOUNCEMENTS. Except as required by law, no Shareholder
shall issue any press release or other public statement with respect to the
transactions contemplated by this Agreement and the Merger Agreement without the
prior written consent of Parent.
11. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the 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 an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
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IN WITNESS WHEREOF, Parent has caused this Agreement to be signed by its
officer thereunto duly authorized and Shareholder has signed this Agreement, all
as of the date first written above.
"PARENT"
INFOSEEK CORPORATION
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
. "SHAREHOLDER"
DISNEY ENTERPRISES, INC
By: /s/ Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
S-1
SCHEDULE A
SCHEDULE OF SHARE OWNERSHIP
Disney Enterprises, Inc. 88,550,088
Schedule A-1
