EXHIBIT 2.2
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
by and between
INFOSEEK CORPORATION
a Delaware Corporation
and
THE ▇▇▇▇ DISNEY COMPANY
a Delaware Corporation
June 18, 1998
TABLE OF CONTENTS
Page
1. Issuance and Sale of the Securities...................................................... 1
1.1 Issuance and Sale of Common Stock and Warrants........................................... 1
1.2 Sale Closing............................................................................. 2
1.3 Sale Closing Deliveries.................................................................. 2
2. Representations and Warranties of the Company..................................................... 3
2.1 Organization, Standing and Power......................................................... 3
2.2 Authority................................................................................ 3
2.3 Representations and Warranties Contained in the Merger Agreement......................... 4
3. Representations and Warranties of the Purchaser................................................... 4
3.1 Organization and Standing................................................................ 4
3.2 Authority................................................................................ 4
3.3 No Conflicts............................................................................. 4
3.4 Brokers' and Finder's Fees............................................................... 5
3.5 Purchase Entirely for Own Account........................................................ 5
3.6 Accredited Investor; Investment Experience............................................... 5
3.7 Restricted Securities.................................................................... 5
3.8 Governance Agreement..................................................................... 6
3.9 Legends.................................................................................. 6
4. Conditions to the Issuance and Sale of the Securities............................................. 6
4.1 Conditions to Obligations of the Parties................................................. 6
4.2 Additional Conditions of Purchaser's Obligations at Sale Closing......................... 7
4.3 Additional Conditions of the Company's Obligations at the Sale Closing................... 7
5. Additional Agreements............................................................................. 8
5.1 Conduct of Company Prior to Closing...................................................... 8
5.2 Confidentiality.......................................................................... 8
5.3 Expenses. .............................................................................. 8
5.4 Public Disclosure........................................................................ 8
5.5 Regulatory Filings; Reasonable Efforts................................................... 8
5.6 Additional Documents and Further Assurances.............................................. 9
6. Termination....................................................................................... 9
7. Miscellaneous..................................................................................... 9
7.1 Survival of Warranties................................................................... 9
7.2 Transfer, Successors and Assigns......................................................... 9
7.3 Governing Law............................................................................ 9
7.4 Counterparts............................................................................. 9
7.5 Titles and Subtitles; Headings........................................................... 9
7.6 Notices.................................................................................. 9
TABLE OF CONTENTS
(CONTINUED)
Page
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7.7 Attorneys' Fees.......................................................................... 11
7.8 Amendments and Waivers................................................................... 11
7.9 Severability............................................................................. 11
7.10 Entire Agreement......................................................................... 11
7.11 Remedies................................................................................. 11
7.12 Extension; Waiver........................................................................ 11
7.13 Mutual Drafting.......................................................................... 11
EXHIBITS
EXHIBIT A FORM OF WARRANT
EXHIBIT B FORM OF PROMISSORY NOTE
EXHIBIT C FORM OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT D FORM OF TAX SHARING AGREEMENT
EXHIBIT 2.2
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
THIS COMMON STOCK AND WARRANT PURCHASE AGREEMENT (the "AGREEMENT") is made
as of June 18, 1998 by and between Infoseek Corporation, a Delaware corporation
(the "COMPANY") and The ▇▇▇▇ Disney Company, a Delaware corporation (the
"PURCHASER").
WITNESSETH
WHEREAS, Company and Disney Enterprises, Inc., a Delaware corporation
("DEI") and a subsidiary of Purchaser, have entered into that certain Agreement
and Plan of Reorganization by and among DEI, the Company, Infoseek Corporation,
a California corporation ("INFOSEEK") and Starwave Corporation ("STARWAVE"), a
Washington corporation, of even date herewith (the "MERGER AGREEMENT") pursuant
to which, among other things, certain transactions contemplated therein,
including the execution of this Agreement, are contemplated.
WHEREAS, upon the terms and subject to the conditions set forth herein, the
Company wishes to issue and sell to the Purchaser, and the Purchaser wishes to
purchase from the Company, two million six hundred forty-two thousand
(2,642,000) newly issued shares of Common Stock of the Company, no par value
(the "SHARES") and a warrant to purchase fifteen million seven hundred twenty
thousand (15,720,000) shares of Common Stock of the Company in substantially the
form attached hereto as EXHIBIT A with terms and conditions as set forth therein
(the "WARRANT") which Warrant shall be subject to the restrictions on exercise
contained therein and contain an exercise price determined in accordance with
the terms of the Warrant, in exchange for the Cash Consideration (as defined
herein) payable in cash at the Sale Closing (as defined herein) and the Note
Consideration (as defined herein) to be delivered at the Sale Closing.
WHEREAS, the Company and the Purchaser desire to make certain
representations and warranties in connection with the transactions contemplated
hereby.
NOW, THEREFORE, in consideration of the foregoing premises, the
representations and warranties, covenants and other agreements hereinafter set
forth, the mutual benefits to be gained by the performance thereof, and other
good and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged and accepted, the parties hereto hereby agree as follows:
1. ISSUANCE AND SALE OF THE SECURITIES.
1.1 ISSUANCE AND SALE OF COMMON STOCK AND WARRANTS. On the
Sale Closing Date and effective as of the Sale Closing (each as defined in
SECTION 1.2 hereof), upon the terms and subject to the conditions of this
Agreement, the Company shall issue and sell to the Purchaser, and the Purchaser
shall purchase from the Company, the Shares and the Warrant in exchange for an
aggregate purchase price of (a) cash consideration equal to the product of (i)
two million six hundred forty-two thousand (2,642,000) and (ii) the Price Per
Share (the "CASH CONSIDERATION") and (b) a
promissory note in the principal amount of one hundred thirty-nine million
dollars ($139,000,000) (the "NOTE CONSIDERATION") in the form attached hereto as
EXHIBIT B with terms and conditions as set forth therein. The Shares and the
Warrant shall hereinafter be referred to collectively as the "SECURITIES." The
"PRICE PER SHARE" shall be equal to $26.50.
1.2 SALE CLOSING. Subject to the satisfaction or waiver of the conditions
set forth in Section 4 hereof and effective upon the Closing (as such term is
defined in the Merger Agreement), the consummation of the transactions
contemplated hereby pursuant to the terms and provisions hereof (the "SALE
CLOSING") shall take place simultaneously with the Closing at the offices of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, located at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, unless another place or time is agreed to in
writing by the Company and the Purchaser. The date upon which the Sale Closing
occurs shall be referred to herein as the "SALE CLOSING DATE."
1.3 SALE CLOSING DELIVERIES.
(a) PURCHASER. At the Sale Closing, on the terms and subject to
the conditions set forth herein and in reliance on the representations and
warranties, covenants and other agreements set forth herein, the Purchaser
shall deliver, or cause to be delivered, to the Company each of the
following:
(i) the Cash Consideration payable by wire transfer of
immediately available funds to an account or accounts designated in
writing by the Company;
(ii) the Note Consideration; and
(iii) such other agreements, instruments, certificates and
other documents as may be necessary or reasonably appropriate to
effectuate completely the transactions contemplated hereby.
(b) COMPANY. At the Sale Closing, on the terms and subject to
the conditions set forth herein and in reliance on the representations and
warranties, covenants and other agreements set forth herein, the Company
shall deliver, or cause to be delivered, to the Purchaser each of the
following:
(i) a certified copy of the Company's current Certificate
of Incorporation as filed with the Secretary of State of Delaware and
a Certificate of Good Standing for the Company from the Secretary of
State of Delaware;
(ii) an executed copy of the certificate signed by the
Chief Executive Officer of the Company described in Section 4.2(c);
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(iii) certificate(s) representing the Shares, validly
executed by the appropriate duly authorized officers of the Purchaser
registered in the name of the Purchaser or any Purchaser Controlled
Corporation as such term is defined in that certain Governance
Agreement by and among the Company, Infoseek, DEI and the Purchaser of
even date herewith (the "GOVERNANCE AGREEMENT");
(iv) the executed Warrant;
(v) a Registration Rights Agreement by and between the
Company and the Purchaser (the "REGISTRATION RIGHTS AGREEMENT") and
Tax Sharing Agreement by and between the Company and the Purchaser
(the "TAX SHARING AGREEMENT") substantially in the forms attached
hereto as EXHIBIT C and EXHIBIT D, respectively, duly executed by the
parties thereto; and
(vi) such other agreements, instruments, certificates and
other documents as may be necessary or reasonably appropriate to
effectuate completely the transactions contemplated hereby.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Purchaser as follows:
2.1 ORGANIZATION, STANDING AND POWER. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company has the corporate power to own its properties
and to carry on its business as now being conducted and is duly qualified to do
business and is in good standing in each jurisdiction in which the failure to be
so qualified would have a Material Adverse Effect (as such term in defined in
the Merger Agreement) on the ability of the Company to consummate the
transactions contemplated hereby. The Company has made available a true and
correct copy of the Certificate of Incorporation and Bylaws of the Company, as
amended to date, to counsel for the Purchaser.
2.2 AUTHORITY. The Company has all requisite corporate power and
authority to enter into this Agreement and, upon the Sale Closing, the Warrant
and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and, upon the Sale Closing, the Warrant
and the consummation of the transactions contemplated hereby and thereby have
been duly authorized by all necessary corporate action on the part of the
Company, and no further action is required on the part of Parent to authorize
the Agreement, the Warrant and the transactions contemplated hereby and thereby,
subject only to the approval of this Agreement by the Company's stockholders.
This Agreement has been duly executed and delivered by the Company and
constitutes or, in the case of the Warrant, when executed will constitute, a
valid and binding obligation of the Company, enforceable in accordance with
their respective terms, except as such enforceability may be limited by
principles of public policy and subject to the laws of general application
relating to bankruptcy, insolvency and the relief of debtors and to rules of law
governing specific performance, injunctive relief or other equitable remedies.
The execution and delivery by the Company of this Agreement and, upon the Sale
Closing, the Warrant do not, and the performance
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and consummation of the transactions contemplated hereby and thereby will not
result in any conflict with (i) any provisions of its Certificate of
Incorporation or Bylaws, (ii) any mortgage, indenture, lease, contract or other
agreement or instrument, permit, concession, franchise or license to which the
Company is subject or (iii) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to the Company or its properties or
assets. No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Body (as such term is
defined in the Merger Agreement) is required by or with respect to the Company
in connection with the execution and delivery of this Agreement or the Warrant
or the consummation of the transactions contemplated hereby or thereby, except
(x) such consents, waivers, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable federal and state
securities laws, and (y) any applicable filings required under the HSR Act (as
such term is defined in the Merger Agreement).
2.3 REPRESENTATIONS AND WARRANTIES CONTAINED IN THE MERGER AGREEMENT.
The Company herein makes the representation and warranties made in Sections 3.2,
3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12 and 3.15 of the Merger Agreement
as if such Representations and Warranties were set forth in this Agreement, each
as qualified by the Parent Disclosure Schedule provided in connection with the
Merger Agreement, and each using the defined terms as set forth in the Merger
Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Company that:
3.1 ORGANIZATION AND STANDING. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
3.2 AUTHORITY. The Purchaser has all requisite power and authority
to enter into this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby. The execution and delivery by
the Purchaser of this Agreement, the performance by the Purchaser of its
obligations hereunder, and the consummation by the Purchaser of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
on the part of the Purchaser. This Agreement has been duly executed and
delivered by the Purchaser, and constitutes the valid and binding obligation of
the Purchaser enforceable against it in accordance with the terms hereof, except
as such enforceability may be limited by principles of general application
relating to bankruptcy, insolvency, creditor's rights, and the relief of
debtors, and rules of law governing specific performance, injunctive relief or
other equitable remedies.
3.3 NO CONFLICTS. The execution and delivery by the Purchaser of
this Agreement, the performance by the Purchaser of its obligations hereunder,
and the consummation by the Purchaser of the transactions contemplated hereby,
will not (i) give rise to any conflict, violation, default, termination,
cancellation, modification, acceleration or loss under (A) any provision of the
Restated Certificate of Incorporation or Bylaws of the Purchaser, or (B) any
mortgage, indenture, lease, contract or other agreement or instrument, permit,
concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to the Purchaser or its properties
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or assets, other than any such conflicts, violations, defaults, terminations,
cancellations, modifications, accelerations or losses which would not have a
material adverse effect on the ability of the Purchaser to consummate the
transactions contemplated hereby, or (ii) violate any order, injunction,
judgment, ruling, law or regulation of any governmental authority applicable to
the Purchaser or any of its properties or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, any governmental
authority or any third party, including, without limitation, a party to any
agreement with the Purchaser, is required by or with respect to the Purchaser in
connection with the execution and delivery by the Purchaser of this Agreement,
the performance by the Purchaser of its obligations hereunder, and the
consummation by the Purchaser of the transactions contemplated hereby, except
for (x) such consents, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable state and federal
securities and antitrust laws and (y) such other consents, authorizations,
filings, approvals and registrations which if not obtained or made would not
have a material adverse effect on the ability of the Purchaser to consummate the
transactions contemplated hereby.
3.4 BROKERS' AND FINDER'S FEES. The Purchaser has not incurred, nor
will it incur, directly or indirectly, any liability for brokerage or finders'
fees or agents' commissions or any similar charges in connection with this
Agreement, or the consummation of the transactions contemplated hereby.
3.5 PURCHASE ENTIRELY FOR OWN ACCOUNT. Securities to be acquired by
the Purchaser will be acquired for investment for the Purchaser's own account,
not as a nominee or agent, and not with a view to the resale, distribution or
offering of any part thereof, and the Purchaser has no present intention of
selling, granting any participation in, or otherwise distributing the same. The
Purchaser does not presently have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities.
3.6 ACCREDITED INVESTOR; INVESTMENT EXPERIENCE. The Purchaser has
such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the prospective investment in the
Securities, it is able to bear the economic consequences thereof, and it
qualifies as an "accredited investor" as such term is defined in Rule 501 of
Regulation D promulgated under the Securities Act. Purchaser is experienced in
evaluating and investing in securities of emerging publicly traded high
technology companies and acknowledges that it can bear the economic risk of its
investment. Purchaser is a "U.S. Person" as that term is defined in the
Internal Revenue Code of 1986, as amended, and has not been formed for the
specific purpose of acquiring the Securities.
3.7 RESTRICTED SECURITIES. Purchaser understands that the Securities
have not been, and will not be, registered under the Securities Act or any state
securities ("BLUE SKY") law, by reason of a specific exemption from the
registration provisions of the Securities Act and the applicable Blue Sky laws,
which depend upon, among other things, the bona fide nature of the investment
intent and the accuracy of such Purchaser's representations as expressed herein.
Such Purchaser understands that as such the Securities are characterized as
"restricted securities" under the
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Securities Act and that under the Securities Act and applicable regulations such
Securities may be resold without registration under the Securities Act only in
certain limited circumstances. In this connection, such Purchaser represents
that it is familiar with Rule 144 promulgated under the Securities Act, as
presently in effect, and understands the resale limitations imposed thereby and
by the Securities Act.
3.8 GOVERNANCE AGREEMENT. The Securities shall be subject to the
restrictions contained in the Governance Agreement.
3.9 LEGENDS. It is understood that the Securities, and any
securities issued in respect thereof or exchange therefor, may bear one or all
of the following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM. THE COMPANY MAY REQUIRE AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT THAT A PROPOSED TRANSFER OR SALE
IS IN COMPLIANCE WITH THE ACT, EXCEPT THAT NO SUCH OPINION SHALL BE REQUIRED FOR
TRANSFERS OR SALES PURSUANT TO REGISTRATION UNDER THE ACT. COPIES OF THE
AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDERS OF RECORD OF
THIS SECURITY TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE CORPORATION."
(b) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER AND VOTING CONTAINED IN A GOVERNANCE
AGREEMENT WHICH MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS SECURITY TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL
OFFICES OF THE CORPORATION."
(c) Any legend required by the laws of the State of Delaware or
the State of California, including any legend required by the California
Department of Corporations.
(d) Any legend required by the Blue Sky laws of any other state
to the extent such laws are applicable to the shares represented by the
certificate so legended.
4. CONDITIONS TO THE ISSUANCE AND SALE OF THE SECURITIES.
4.1 CONDITIONS TO OBLIGATIONS OF THE PARTIES. The respective
obligations of each party to this Agreement shall be subject to the satisfaction
at or prior to the Sale Closing Date of the following conditions:
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(a) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No temporary
restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal restraint
or prohibition preventing the consummation of the transactions
contemplated by this Agreement shall be in effect, nor shall any
proceeding brought by an administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign,
seeking any of the foregoing be pending; nor shall there be any action
taken, or any statute, rule, regulation or order enacted, entered,
enforced or deemed applicable to the sales contemplated hereby, which
makes the consummation of such sales unlawful, void, voidable or
unenforceable under applicable law, rules and regulations of any
governmental authority, domestic or foreign.
(b) GOVERNMENT APPROVALS. The Company and Purchaser shall have
obtained all other authorizations, consents, orders and approvals
required from or of, or declarations or filings with, or expirations
of waiting periods imposed by, any Governmental Body required for the
consummation of the transactions contemplated by this Agreement.
(c) GOVERNANCE AGREEMENT. The Governance Agreement shall
continue to be in full force and effect.
(d) STOCKHOLDER APPROVAL. This Agreement and the Warrant shall
have been approved and adopted, and the issuance of the securities
shall have been duly approved, by the requisite vote under applicable
law, by the shareholders of Infoseek, a California corporation.
4.2 ADDITIONAL CONDITIONS OF PURCHASER'S OBLIGATIONS AT SALE CLOSING.
The obligations of the Purchaser to the Company under this Agreement are
additionally subject to the fulfillment on or before the Closing, of each of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true in all
material respects on and as of the Sale Closing Date with the same
effect as though such representations and warranties had been made on
and as of the Sale Closing Date.
(b) PERFORMANCE. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on
or before the Sale Closing Date.
(c) OFFICER'S CERTIFICATE. The Company shall have provided a
certificate signed by the Chief Executive Officer of the Company to
the effect that the conditions contained in Sections 4.2(a) and 4.2(b)
have been met.
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(d) MERGER COMPLETED. The conditions of DEI's obligations in the
Merger Agreement shall have been satisfied or waived and the Merger (as defined
in the Merger Agreement) shall have been effected.
4.3 ADDITIONAL CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE SALE
CLOSING. The obligations of the Company to the Purchaser under this Agreement
are subject to the fulfillment, on or before the Sale Closing, of each of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser contained in Section 3 shall be true in all material
respects on and as of the Sale Closing Date with the same effect as though such
representations and warranties had been made on and as of the Sale Closing Date.
(b) MERGER COMPLETED. The conditions of the Company's obligations in
the Merger Agreement shall have been satisfied or waived and the Merger (as
defined in the Merger Agreement) shall have been effected.
5. ADDITIONAL AGREEMENTS.
5.1 CONDUCT OF COMPANY PRIOR TO CLOSING. The Company agrees that it
shall not take any action inconsistent with Infoseek obligations under
subsection 4.1(b) of the Merger Agreement.
5.2 CONFIDENTIALITY. Both parties hereby agree that the information
obtained in any investigation pursuant to Section 5.3 of the Merger Agreement,
or pursuant to the negotiation and execution of this Agreement or any of the
transactions contemplated hereby shall be governed by the terms of the
Confidential Disclosure Agreement effective as of on or about February 17, 1998
by and between the Purchaser and Infoseek.
5.3 EXPENSES. Except as expressly set forth in the Merger Agreement
and the Registration Rights Agreement, whether or not this Agreement and the
transactions contemplated hereby are consummated, all expenses incurred by party
in connection with the transactions contemplated by this transactions
contemplated hereby, including without limitation, all legal, accounting,
financial advisory, consulting and all other fees and expenses of third parties
("THIRD PARTY EXPENSES") incurred by a party in connection with the negotiation
and effectuation of the terms and conditions of this Agreement and the
transactions contemplated hereby, shall be the obligation of the respective
party incurring such fees and expenses.
5.4 PUBLIC DISCLOSURE. The Company and the Purchaser shall consult
with each other and DEI and Starwave (and in accordance with Section 5.6 of the
Merger Agreement) before issuing any press release or otherwise making any
public statements with respect to the Merger Agreement, the Merger (as such
term is defined in the Merger Agreement), this Agreement or any of the
transactions contemplated by the foregoing and shall not issue any such press
release or make any such public statement prior to such consultation, except as
may be required by law, the Nasdaq Stock
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Market (as such term is defined in the Merger Agreement), or any listing
agreement with a national securities exchange.
5.5 REGULATORY FILINGS; REASONABLE EFFORTS. The Company and the
Purchaser will participate in and assist in the preparation of the filings and
actions contemplated by Section 5.14 of the Merger Agreement, including with
respect to the transactions contemplated herein. The parties hereto each shall
promptly (a) supply DEI and Starwave and each other with any information which
may be required to effectuate such filings and (b) supply any additional
information which reasonably may be required by the FTC, the DOJ, or the
competition or merger control authorities of any other jurisdiction and which
the parties may reasonably deem appropriate.
5.6 ADDITIONAL DOCUMENTS AND FURTHER ASSURANCES. Each party hereto,
at the request of the other party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be necessary or
desirable for effecting completely the consummation of this Agreement and the
transactions contemplated hereby.
6. TERMINATION. This Agreement shall terminate and the transactions
contemplated hereby abandoned at any time prior to the Closing if the Merger
Agreement is terminated pursuant to its terms, in such case the termination of
this Agreement shall be as of the time of such termination.
7. MISCELLANEOUS.
7.1 SURVIVAL OF WARRANTIES. The warranties, representations and
covenants of the Company and the Purchasers contained in or made pursuant to
this Agreement shall not survive the execution and delivery of this Agreement
and the Sale Closing and shall in no way be affected by any investigation of the
subject matter thereof made by or on behalf of the Purchaser or the Company.
7.2 TRANSFER, SUCCESSORS AND ASSIGNS. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
7.3 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
7.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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7.5 TITLES AND SUBTITLES; HEADINGS. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. The table of contents and headings
contained in this Agreement are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement, or any of the
terms and provisions hereof.
7.6 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or by a recognized
commercial overnight delivery service, or mailed by registered or certified mail
(return receipt requested) or sent via facsimile (with acknowledgment of
complete transmission) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(i) if to the Purchaser, to: The ▇▇▇▇ Disney Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: The ▇▇▇▇ Disney Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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(ii) if to the Company, to: Infoseek Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
7.7 ATTORNEYS' FEES. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
7.8 AMENDMENTS AND WAIVERS. Any term of this Agreement
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Purchaser.
Any amendment or waiver effected in accordance with this Section shall be
binding upon each transferee of any Securities, each future holder of all such
Securities, and the Company.
7.9 SEVERABILITY. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
7.10 ENTIRE AGREEMENT. This Agreement and the exhibits hereto,
together with that certain Governance Agreement between the Company and the
Purchaser of even date herewith, the Warrant, the Note, the Registration Rights
Agreement and the Tax Sharing Agreement, constitute the entire Agreement between
the parties hereto pertaining to the purchase of the Securities.
7.11 REMEDIES. The Purchaser and the Company agree that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and each hereby agrees to waive
the defense in any action for specific performance that a remedy at law would be
adequate. Accordingly, it is agreed that the Company or the Purchaser, as the
case may be, shall be entitled to an injunction, restraining order or other
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equitable relief to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof. Such remedies shall be
cumulative and non-exclusive and shall be in addition to any other rights and
remedies the parties may have under the Agreement.
7.12 EXTENSION; WAIVER. At any time, the Purchaser and the Company
may, to the extent legally allowed, (i) extend the time for the performance of
any of the obligations of the other party hereto, (ii) waive any inaccuracies in
the representations and warranties made to such party contained herein or in any
document delivered pursuant hereto, and (iii) waive compliance with any of the
agreements or conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
7.13 MUTUAL DRAFTING. Both parties waive the application of any law,
resolution, holding or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Common Stock and Warrant
Purchase Agreement as of the date first above written.
COMPANY:
INFOSEEK CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
PURCHASER:
THE ▇▇▇▇ DISNEY COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇
Vice President
[COMMON STOCK AND WARRANT PURCHASE AGREEMENT]
EXHIBIT A
FORM OF WARRANT
EXHIBIT B
FORM OF PROMISSORY NOTE
EXHIBIT C
FORM OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT D
FORM OF TAX SHARING AGREEMENT
