EXHIBIT 99.1
AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT ("Amendment No. 1"), dated as of January 20,
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1999, by and between Compaq Computer Corporation ("Parent") and Shopping.com
(the "Company").
RECITALS
WHEREAS, Parent and the Company have entered into an Agreement and
Plan of Merger, dated as of January 11, 1999 (the "Merger Agreement").
WHEREAS, Parent and the Company have agreed to amend the Merger
Agreement as set forth below.
NOW THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined in
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this Amendment No. 1 shall have the respective meanings assigned to such terms
in the Merger Agreement.
2. Per Share Amount. The third recital of the Merger Agreement
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shall be deleted and replaced in its entirety as follows:
"WHEREAS, in furtherance thereof, it is proposed that Purchaser make a
cash tender offer to acquire all of the issued and outstanding shares of common
stock, no par value, of the Company for $18.25 per share, net to the seller in
cash; and"
3. Capitalization. Section 3.2 (a) of the Merger Agreement shall be
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deleted and replaced in it entirety as follows:
"(a) The authorized capital stock of the Company consists of
25,000,000 Shares. As of the date hereof, (i) 8,897,234 Shares are issued and
outstanding, (ii) no shares of Company Preferred Stock are issued and
outstanding, (iii) pursuant to California law, no Shares are issued and held in
the treasury of the
Company, (iv) 2,727,200 Shares are reserved for issuance pursuant to outstanding
Company Options, and (v) 4,189,276 Shares are reserved for issuance pursuant to
outstanding warrants of the Company. All the outstanding shares of the Company's
capital stock are, and all Shares which may be issued pursuant to the exercise
of outstanding Company Options will be, when issued in accordance with the
respective terms thereof, duly authorized, validly issued, fully paid and
non-assessable. There is no Voting Debt of the Company issued and outstanding.
Except as set forth above and except for the Transactions, as of the date
hereof, (i) there are no shares of capital stock of the Company authorized,
issued or outstanding; (ii) there are no existing options, warrants, calls,
pre-emptive rights, subscriptions or other rights, agreements, arrangements or
commitments of any character, relating to the issued or unissued capital stock
of the Company, obligating the Company to issue, transfer or sell or cause to be
issued, transferred or sold any shares of capital stock or Voting Debt of, or
other equity interest in, the Company or securities convertible into or
exchangeable for such shares or equity interests, or obligating the Company to
grant, extend or enter into any such option, warrant, call, subscription or
other right, agreement, arrangement or commitment and (iii) there are no
outstanding contractual obligations of the Company to repurchase, redeem or
otherwise acquire any Shares, or the capital stock of the Company or Affiliate
of the Company or to provide funds to make any investment (in the form of a
loan, capital contribution or otherwise) in any other entity."
4. Representations and Warranties of the Company. The Company
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represents and warrants to Parent and Purchaser as follows:
(a) The Company has full corporate power and authority to execute and
deliver this Amendment No. 1. The execution, delivery and performance by the
Company of this Amendment No. 1 have been duly authorized by the Company Board
of Directors and, except for obtaining the approval of its shareholders as
contemplated by Section 1.9 of the Merger Agreement, no other corporate action
on the part of the Company is necessary to authorize the execution and delivery
by the Company of this Amendment No. 1. This Amendment No. 1 has been duly
executed and delivered by the Company and, assuming due and valid authorization,
execution and delivery thereof by Parent, this Amendment No. 1 is a valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms; and
(b) The Company Board of Directors, at a meeting duly called and held
or by unanimous written consent, has (i) unanimously determined that the Offer
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Price, as adjusted pursuant to this Amendment No. 1, is fair to and in the best
interests of the shareholders of the Company, and (ii) resolved to recommend
that the shareholders of the Company accept the Offer, tender their Shares to
Purchaser pursuant to the Offer and approve and adopt this Amendment No. 1 and
the Merger, and none of the aforesaid actions by the Company Board of Directors
has been amended, rescinded or modified; and
(c) The Company has received the opinion of Trautman Kramer & Company
dated the date hereof, to the effect that, as of such date, the consideration to
be received in the Offer and the Merger by the Company's shareholders is fair to
the Company's shareholders from a financial point of view, and the copy of such
opinion is manually signed, accurate and complete. The Company has been autho
rized by Trautman Kramer & Company to permit the inclusion of such opinion in
its entirety in the Offer Documents and the Schedule 14D-9 and the Proxy
Statement, so long as such inclusion is in form and substance reasonably
satisfactory to Trautman Kramer & Company and its counsel.
5. Definitions. "Offer Price" appearing in Section 8.1 of the Merger
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Agreement shall be deleted and replaced in its entirety as follows:
"Offer Price" shall mean $18.25 per Share net to the seller in cash,
or such increased amount, if any, as Purchaser may offer to pay as contemplated
by Section 1.1(a).
6. Miscellaneous.
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(a) The headings contained in this Amendment No. 1 are for
reference purposes only and shall not effect in any way the meaning or
interpreta tion of this Amendment No. 1.
(b) This Amendment No. 1 may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
be considered one and the same agreement.
(c) This Amendment No. 1 shall be governed by, and construed in
accordance with, the laws of the State of California without giving effect to
the principles of conflicts of laws thereof.
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(d) Except as specifically provided herein, the Merger Agreement shall
remain in full force and effect. In the event of any inconsistency between the
provisions of this Amendment No. 1 and any provision of the Merger Agreement,
the terms and provisions of this Amendment No. 1 shall govern and control.
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IN WITNESS WHEREOF, Parent and the Company have caused this Amendment
No. 1 to the Merger Agreement be duly executed and delivered as of the date
first written above.
COMPAQ COMPUTER CORPORATION
By: /s/ Earl L. Mason
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Earl L. Mason
Senior Vice President and Chief Financial Officer
SHOPPING.COM
By: /s/ Frank W. Denny
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Frank W. Denny
President and Chief Executive Officer
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