EXHIBIT 2.6
SHAREHOLDER AGREEMENT (this "Agreement") dated as of June 16, 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 the individual listed on the signature
page hereto ("Shareholder").
WHEREAS, Parent, HoldCo, Disney Enterprises, Inc., a Delaware corporation
("DEI"), 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 a wholly owned subsidiary
of Parent with and into the Company (the "Merger"), upon the terms and subject
to the conditions set forth in the Merger Agreement;
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 himself 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 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 any trust agreement,
loan or credit agreement, bond, note, mortgage, indenture, lease
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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 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. If the Shareholder is married, and the
Shareholder's Subject Shares constitute community property or otherwise need
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly executed and delivered by, and constitutes a valid
and binding agreement of, the Shareholder's spouse, enforceable against such
spouse in accordance with its terms. 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:
(a) AUTHORITY. 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.
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(b) EXCHANGE PROCEDURES. At the Effective Time, each share of Company
Capital Stock issued and outstanding immediately prior to the Effective Time
shall be converted into the right to receive, upon surrender of the certificate
representing such share of Company Capital Stock in the manner provided for in
the Merger Agreement, that number of shares of Parent Common Stock equal to the
Exchange Ratio. The "Exchange Ratio" shall equal the quotient obtained by
dividing (i) 28,138,000 by (ii) the sum of (x) the aggregate number of Total
Outstanding Company Shares and (y) the aggregate number of shares of Company
Capital Stock subject to Company Options outstanding as of the Effective Time.
3. COVENANTS OF SHAREHOLDER WITH RESPECT TO THE MERGER AND ANY COMPETING
TRANSACTION. 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):
(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.
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(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) 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 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").
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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 heirs, guardians, administrators or 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 other than pursuant to Section 8.1(j) of the
Merger Agreement.
8. GENERAL PROVISIONS.
(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).
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(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 1(b) 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 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
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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:______________________________________
Name: Xxxxx X. Xxxxx
Title: President and Chief
Executive Officer
"SHAREHOLDER"
_________________________________________
Name:
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SCHEDULE A
SCHEDULE OF SHARE OWNERSHIP
Xxxx Xxxxx 421,876
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SCHEDULE A
SCHEDULE OF SHARE OWNERSHIP
Xxxxxxx Xxxxx 1,668,752
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SCHEDULE A
SCHEDULE OF SHARE OWNERSHIP
Xxxxxxx Xxxxxxxx 219,000
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SCHEDULE A
SCHEDULE OF SHARE OWNERSHIP
Xxx Xxxxxxxx 356,100
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ACKNOWLEDGMENT AND AGREEMENT OF SPOUSE
The undersigned, being the spouse of _____________, acknowledges that she
has read and understands the terms of this Shareholder Agreement and hereby
agrees to be bound by the terms hereof to the extent she has a community
property or other interest in the Subject Shares.
________________________________________
Name:
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