Exhibit (d)(1)(ii)
FIRST AMENDMENT TO
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TENDER AGREEMENT
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This First Amendment to Tender Agreement (the "Amendment"), dated as of
October 31, 2001, amends the Tender Agreement, dated as of October 29, 2001 (the
"Agreement"), among Fir Tree Value Fund, L.P. ("FTVF"), Fir Tree Institutional
Value Fund, L.P. ("FTIVF"), Fir Tree Value Partners, LDC ("FTVP"), Fir Tree
Recovery Master Fund, L.P. ("FTRF, and collectively with FTVF, FTIVF, and FTVP,
the "Holder") and Internet Capital Group, Inc., a Delaware corporation (the
"Purchaser");
WHEREAS, the Purchaser has commenced a cash tender offer (as such offer may
be amended or supplemented from time to time, the "Offer") for its 5 1/2%
Convertible Subordinated Notes due 2004 (the "Convertible Notes"), as described
in its Offer to Purchase dated October 1, 2001 (the "Offer to Purchase") within
the purchase price range of $200 to $250 per $1,000 principal amount of
Convertible Notes;
WHEREAS, on October 22, 2001, Purchaser waived the condition to the Offer
that "the United States shall not have declared war or a national emergency and
the commencement or escalation of armed hostilities directly or indirectly
involving the United States shall not have occurred," with respect to the past
and current armed hostilities involving the United States and Afghanistan;
WHEREAS, the Holder is the beneficial owner (as defined below) of
approximately $110 million principal amount of Convertible Notes (the "Notes");
WHEREAS, as a condition to its willingness to extend the Offer and amend
its terms, including increasing the price for which the Purchaser will accept
Convertible Notes to $295 per $1,000 principal amount of Convertible Notes, and
increasing the maximum sought in the Offer to up to $300,000,000 aggregate
principal amount of Convertible Notes (the "Amended Offer"), the Purchaser and
the Holder have entered into the Agreement; and
WHEREAS, the parties hereto desire to amend the terms of the Agreement as
provided herein.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements contained herein, the parties agree as follows:
1. Section 4 of the Agreement is hereby amended in its entirety as follows:
"Section 4. Restrictions on Transfer of the Notes. During the term of this
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Agreement, except as otherwise expressly contemplated herein, the Holder agrees
it will not (a) tender into any tender or exchange offer other than the Offer or
otherwise sell, transfer, pledge, assign, hypothecate or otherwise dispose of,
or encumber with any Lien, any of the Notes, (b) acquire any securities of the
Purchaser (other than purchases by Holder of the common stock, par value $.001
per share, of Purchaser ("Purchaser Common Stock"), up to an aggregate amount of
3,174,700 shares of Purchaser Common Stock, in order to close out, or cover,
Holder's "short position" with respect to Purchaser Common Stock as of the date
hereof ("Covering Purchases"), (c) enter into any contract, option or other
arrangement (including any profit sharing arrangement) or undertaking with
respect to the direct or indirect acquisition or sale, transfer, pledge,
assignment, hypothecation or other disposition of any interest in or the voting
of any Notes or any other securities of the Company (other than Covering
Purchases) or (d) take any other action that would in any way restrict, limit or
interfere with the performance of such Holder's obligations hereunder or the
transactions contemplated hereby or which would otherwise diminish the benefits
of this Agreement to the Purchaser. As used herein, "short position" means
shares of Purchaser Common Stock that the Holder has sold short and has not yet
closed out, or covered, as of the date hereof.
2. This Amendment may not be amended, changed, supplemented, waived or otherwise
modified, except upon the delivery of a written agreement executed by the
parties hereto.
3. This Amendment will be governed by and construed in accordance with the laws
of the State of New York, without regard to the conflicts of laws principles
thereof.
4. This Amendment may be executed in any number of counterparts, each of which
will be deemed to be an original, but all of which together will constitute one
agreement.
5. All capitalized terms used and not defined herein shall have the meanings
ascribed to them in the Tender Agreement.
6. Except as expressly provided herein, the terms of the Agreement are ratified
and confirmed by the parties.
[signatures on next page]
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IN WITNESS WHEREOF, each of the Holder and the Purchaser has caused
this Amendment to be signed by its officer or director thereunto duly
authorized, all as of the date first written above.
INTERNET CAPITAL GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. Nassau
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Name: ▇▇▇▇▇ ▇. Nassau
Title: Managing Director
FIR TREE VALUE FUND, L.P.
FIR TREE RECOVERY FUND MASTER, L.P.
FIR TREE INSTITUTIONAL VALUE FUND, L.P.
FIR TREE VALUE PARTNERS, LDC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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