Exhibit (d)(3)
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STOCKHOLDER TENDER AGREEMENT
STOCKHOLDER TENDER AGREEMENT, dated as of October 11, 2000
(the "Agreement"), between Deutsche Acquisition Corp., a Delaware corporation
("Purchaser"), and each of the persons listed as Stockholders on the signature
pages hereto (each, a "Stockholder" and, collectively, the "Stockholders").
RECITALS:
WHEREAS, concurrently with the execution and delivery of this
Agreement, [Parent], an Aktiengesellschaft organized under the laws of the
Federal Republic of Germany ("Parent"), Purchaser, a wholly-owned subsidiary of
Parent, and National Discount Brokers Group, Inc., a Delaware corporation (the
"Company"), are entering into an Agreement and Plan of Merger (the "Merger
Agreement"), which provides, among other things, for the acquisition of the
Company by Parent by means of a cash tender offer (the "Offer") by Purchaser for
all outstanding Shares (as defined in the Merger Agreement) and for the
subsequent merger of Purchaser with and into the Company (the "Merger"), all on
the terms and subject to the conditions set forth in the Merger Agreement; and
WHEREAS, as of the date hereof, each Stockholder beneficially
owns and is entitled to dispose of (or to direct the disposition of) and to vote
(or to direct the voting of) the number of Shares set forth below such
Stockholder's name on the signature pages hereto; and
WHEREAS, as an inducement and a condition to their willingness
to enter into the Merger Agreement, Parent and Purchaser have requested that
each Stockholder agrees, and each Stockholder has agreed, to enter into this
Agreement; and
WHEREAS, the Board of Directors of the Company has approved
this Agreement and the transactions contemplated hereby on or prior to the date
hereof.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
I. CERTAIN DEFINITIONS
For purposes of this Agreement:
"Adverse Proposal" means any (a) Acquisition Proposal (as
defined in the Merger Agreement), (b) proposal or action that would reasonably
be expected to result in a breach of any covenant, agreement, representation or
warranty of the Company set forth in the Merger Agreement, or (c) the following
actions (other than the Offer, the Merger and the other transactions
contemplated by the Merger Agreement): (i) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or its Subsidiaries; (ii) a sale, lease or transfer of a
material amount of assets of the Company or one of its Subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the
Company or any of its Subsidiaries; (iii) (1) any change in a majority of the
persons who constitute the board of directors of the Company as of the date
hereof; (2) any change in the present capitalization of the Company or any
amendment of the Company's certificate of incorporation or bylaws, as amended to
date; (3), any other material change in the Company's corporate structure or
business; or (4) any other action that, in the case of each of the matters
referred to in clauses (iii)(1), (2) and (3), is intended, or could reasonably
be expected, to impede, interfere with, delay, postpone, or adversely affect the
Offer or the Merger and the other transactions contemplated by this Agreement
and the Merger Agreement or increase the likelihood that such transactions will
not be consummated.
"beneficially owned" or "beneficial ownership" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act of 1934, as amended
(the "Exchange Act")), including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
"Common Stock" shall mean the Common Stock, $.01 par value, of
the Company.
Capitalized terms used and not defined herein, but defined in the Merger
Agreement, shall have the respective meanings ascribed to them in the Merger
Agreement.
II. AGREEMENT TO TENDER
2.01 Agreement to Tender Shares. In order to induce Parent and
Purchaser to enter into the Merger Agreement, each Stockholder hereby agrees to
validly tender (or cause the record owner of such shares to validly tender)
pursuant to and in accordance with the terms of the Offer and Section 14d-2
under the Securities Exchange Act of 1934, not later than the seventh business
day after commencement of the Offer and will cause to remain validly tendered
and not withdrawn until termination of this Agreement, all shares of Common
Stock which are beneficially owned by such Stockholder as of the date hereof
(other than Shares for which unexercised options are exercisable unless such
options have been exercised, the "Existing Shares"), the number of which is set
forth below each Stockholder's name on the signature pages hereto. If a
Stockholder acquires beneficial ownership of any shares of Common Stock other
than the Existing Shares in any capacity after the date hereof and prior to the
termination of this Agreement by means of purchase, dividend, distribution,
exercise of options, warrants or other rights to acquire Common Stock or in any
other way ("Additional Shares" and, together with the Existing Shares, the
"Subject Shares"), such Stockholder shall validly tender (or cause the record
owner of such shares to validly tender) pursuant to and in accordance with the
terms of the Offer not later than the later of the seventh business day after
commencement of the Offer and the second business day after such acquisition and
not withdraw all of such Additional Shares. Each Stockholder hereby acknowledges
and agrees that Purchaser's obligation to accept for payment, purchase and pay
for shares of Common Stock in the Offer, including the Subject Shares, is
subject to the terms and conditions of the Offer set forth in the Merger
Agreement. Notwithstanding the provisions of the first sentence of this Section
2.01, in the event that any Subject Shares are for any reason withdrawn from the
Offer or are not purchased pursuant to the Offer, such Subject Shares will
remain subject to the terms of this Agreement. Nothing in this Agreement shall
obligate any Stockholder to exercise any option to purchase Shares.
2.02 Publication and Disclosure. Each Stockholder hereby
permits Parent and Purchaser to publish and disclose in its filings with the SEC
under the Exchange Act, including the Offer Documents, and, if approval of the
Company's stockholders is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the SEC), such Stockholder's
identity and ownership of the Subject Shares and the nature of such
Stockholder's commitments, arrangements and understandings under this Agreement.
III. ADDITIONAL AGREEMENTS
3.01 Agreement to Vote Subject Shares. From the date hereof
until this Agreement is terminated pursuant to Section 6.03, at any meeting of
the stockholders of the Company called to consider and vote upon the adoption of
the Merger Agreement (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of the
adoption of the Merger Agreement by written consent of stockholders of the
Company, each Stockholder will vote or cause to be voted (including by written
consent, if applicable) all of such Stockholder's Subject Shares which it has
the right to vote in favor of the adoption of the Merger Agreement and in favor
of any other matter necessary for the consummation of the transactions
contemplated by the Merger Agreement that is considered and voted upon at any
such meeting or made the subject of any such written consent, as applicable. At
any meeting of the stockholders of the Company called to consider and vote upon
any Adverse Proposal (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of any
Adverse Proposal by written consent of stockholders of the Company, each
Stockholder will vote or cause to be voted (including by written consent, if
applicable) all of such Stockholder's Subject Shares which it has the right to
vote against the adoption of such Adverse Proposal except to the extent that any
Stockholder is appointed to act for management of the Company under proxy of the
stockholders at any meeting thereof.
3.02 Irrevocable Proxy. (a) Grant of Proxy. Each Stockholder
hereby irrevocably grants to, and appoints, Purchaser and any designee of
Purchaser, each of them individually, such Stockholder's proxy and
attorney-in-fact, with full power of substitution and resubstitution, to vote or
act by written consent with respect to all of such Stockholder's Subject Shares
which it has the right to vote (i) in accordance with Section 3.01 hereof and
(ii) to sign its name (as a stockholder) to any consent, certificate or other
document relating to the Company that the law of the State of Delaware may
permit or require in connection with any matter referred to in Section 3.01.
This proxy is given to secure the performance of the duties of such
Stockholder under this Agreement and its existence will not be deemed to relieve
the Stockholders of their obligations under Section 3.01. Each Stockholder
affirms that this proxy is coupled with an interest and is irrevocable until
termination of this Agreement pursuant to Section 6.03, whereupon such proxy and
power of attorney shall automatically terminate. Each Stockholder will take such
further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy. For Subject Shares as to which the
Stockholder is the beneficial but not the record owner, the Stockholder will
cause any record owner of such Subject Shares to grant to Purchaser a proxy to
the same effect as that contained herein.
(b) Other Proxies Revoked. Each Stockholder represents that
any proxy heretofore given in respect of such Stockholder's Subject Shares is
not irrevocable, and hereby revokes any and all such proxies.
IV. REPRESENTATIONS AND WARRANTIES
4.01 Certain Representations and Warranties of the
Stockholders. Each Stockholder, severally and not jointly, represents and
warrants to Purchaser, as of the date hereof and as of the Closing Date, as
follows:
(a) Ownership. Such Stockholder is the record and beneficial
owner of the number of Shares set forth below such Stockholder's name on the
signature pages hereto, and has full and unrestricted power to dispose of and to
vote such Shares. Such Stockholder is the record and beneficial owner of the
number of options to purchase Shares set forth below such Stockholder's name on
the signature pages hereto (the "Existing Options") and will, upon exercise,
have full and unrestricted power to dispose of and to vote any Shares for which
the Existing Options are exercisable ("Option Shares"). Such Shares are now, and
at all times during the term hereof will be, and such Option Shares will upon
exercise and at all times thereafter during the term hereof be, held by such
Stockholder, or by a nominee or custodian for the benefit of such Stockholder,
free and clear of all liens and proxies, except for any liens or proxies arising
hereunder. The transfer by such Stockholder of its Subject Shares to Purchaser
pursuant to the Offer, respectively, will pass to and unconditionally vest in
Purchaser good and valid title to those Subject Shares, free and clear of all
liens other than restrictions set forth under applicable securities laws. Except
as set forth below the Stockholder's name on the signature pages hereto, such
Stockholder (i) does not beneficially own any securities of the Company on the
date hereof; (ii) does not, directly or indirectly, beneficially own or have any
option, warrant or other right to acquire any securities of the Company that are
or may by their terms become entitled to vote or any securities that are
convertible or exchangeable into or exercisable for any securities of the
Company that are or may by their terms become entitled to vote, nor is the
Stockholder subject to any contract, commitment, arrangement, understanding or
relationship (whether or not legally enforceable), other than this Agreement,
that allows or obligates him to vote, dispose of or acquire any securities of
the Company; and (iii) holds exclusive power to vote the Subject Shares and has
not granted a proxy to any other Person to vote the Subject Shares, subject to
the limitations set forth in this Agreement.
(b) Power and Authority; Execution and Delivery. Each
Stockholder that is not a natural person is a limited partnership or corporation
duly organized, validly existing and in good standing under the laws of the
State of its organization. The Stockholder has all requisite partnership,
corporate or individual, as applicable, power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
and has taken all necessary action to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance with its
terms.
(c) No Conflicts. The execution and delivery of this Agreement
do not, and, subject to compliance with the HSR Act and appropriate filings
under securities laws, to the extent applicable, the consummation of the
transactions contemplated hereby and compliance with the provisions hereof will
not, conflict with, result in a violation or breach of, or constitute a default
(or an event that, with notice or lapse of time or both, would result in a
default) or give rise to any right of termination, amendment, cancellation,
notice or acceleration under, (i) the Stockholder's articles of organization,
partnership agreement or similar constituent documents, (ii) any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which the Stockholder is a party or by which the Stockholder is bound, (iii) any
injunction judgment, writ, decree, order or ruling applicable to the Stockholder
or (iv) any law, statute, rule or regulation applicable to the Stockholder;
except in the case of clauses (ii) and (iii) for conflicts, violations, breaches
or defaults that would not (1) impair the ability of the Stockholder to perform
its obligations under this Agreement or (2) prevent or delay the consummation of
any of the transactions contemplated hereby.
(d) Receipt; Reliance. Such Stockholder has received and
reviewed a copy of the Merger Agreement. Such Stockholder understands and
acknowledges that Parent and Purchaser are entering into the Merger Agreement in
reliance upon such Stockholder's execution and delivery of this Agreement.
(e) Brokers. Except as set forth in Section 4.08 of the Merger
Agreement, no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement or the Merger Agreement based upon arrangements
made by or on behalf of the Stockholder that is or will be payable by the
Company or any of its Subsidiaries.
4.02 Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to each Stockholder, as of the date hereof and as
of the Closing Date, that:
(a) Organization; Authority. Purchaser is a corporation duly
organized and validly existing under the laws of the jurisdiction of its
incorporation. Purchaser has the requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement.
(b) Execution and Delivery. This Agreement has been duly
executed and delivered by Purchaser and, assuming that this Agreement
constitutes a valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, except that (i) such enforcement may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws, now or hereinafter in effect, affecting creditor's rights
generally and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings thereof may be brought.
V. CERTAIN COVENANTS OF STOCKHOLDERS
5.01 Restriction on Transfer of Subject Shares, Proxies and
Noninterference. Each Stockholder hereby covenants and agrees that, it shall
not, directly or indirectly: (a) except pursuant to the terms of this Agreement
and for the conversion of Subject Shares at the Effective Time pursuant to the
terms of the Merger Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of such Stockholder's Subject Shares other than any
sale, transfer or assignment to members of such Stockholder's family, a family
trust of such Stockholder or a charitable institution if the transferee of such
Subject Shares agrees in writing to be bound by the terms hereof and notice of
such sale, transfer or assignment, including the name and address of the
purchaser, transferee or assignee, is delivered to Purchaser pursuant to Section
5.07. hereof; (b) except pursuant to the terms of this Agreement, grant any
proxies or powers of attorney, deposit any Subject Shares into a voting trust or
enter into a voting agreement with respect to any Subject Shares; or (c) take
any action that would reasonably be expected to make any of its representations
or warranties contained herein untrue or incorrect or have the effect of
impairing the ability of such Stockholder to perform such Stockholder's
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
5.02 Adjustments. (a) In the event (i) of any stock dividend,
stock split, recapitalization, reclassification, combination or exchange of
shares of capital stock or other securities of the Company on, of or affecting
the Shares or the like or any other action that would have the effect of
changing a Stockholder's ownership of the Company's capital stock or other
securities or (ii) a Stockholder becomes the beneficial owner of any additional
Shares or other securities of the Company, then the terms of this Agreement will
apply to the shares of capital stock held by the Stockholder immediately
following the effectiveness of the events described in clause (i) or the
Stockholder becoming the beneficial owner thereof, as described in clause (ii),
as though they were Shares hereunder.
(b) Each Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Purchaser of the number of any new Shares acquired by
the Stockholder, if any, after the date hereof.
5.03 No Solicitation. Each Stockholder hereby agrees that
neither such Stockholder nor (if such Stockholder is not a natural person) any
of its affiliates (other than the Company), officers, directors, employees,
agents or representatives (including any investment banker, financial advisor,
attorney or accountant for such Stockholder) (together "Representatives") shall,
directly or indirectly, encourage, solicit, initiate or participate in any way
in any discussions or negotiations with, or provide any information to, or
afford any access to the properties, books or records of the Company or any of
its Subsidiaries, or otherwise take any other action to assist or facilitate,
any Person or group (other than Parent or Purchaser or any affiliate or
associate of Parent or Purchaser) concerning any Acquisition Proposal. Each
Stockholder will, and will cause its Representatives to, immediately cease any
existing activities, discussions or negotiations conducted heretofore with
respect to any Acquisition Proposal. Each Stockholder will promptly communicate
to Purchaser the material terms of any Acquisition Proposal (or any discussion,
negotiation or inquiry with respect thereto) and the identity of the Person
making such Acquisition Proposal or inquiry which it may receive.
5.04 Waiver of Appraisal Rights. Each Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger that such
Stockholder may have.
5.05 Nonexercise of Rights of First Refusal. No Stockholder
will exercise any purchase right or right of first refusal that it may have with
respect to any Shares of any other Person in connection with any tender by such
other Person of such Shares pursuant to the Offer.
5.06 Cooperation. Each Stockholder will cooperate fully with
Parent, Purchaser and the Company in connection with their respective reasonable
best efforts to fulfill the conditions to (a) the Offer set forth in Annex I to
the Merger Agreement and (b) the Merger set forth in Article II of the Merger
Agreement.
5.07 Stop Transfer. At the request of Purchaser, each
Stockholder shall request that the Company not register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any of
the Subject Shares beneficially owned by such Stockholder, unless such transfer
is made in compliance with this Agreement.
5.08 Fiduciary Duties. Nothing in this Agreement shall be
construed to prohibit a Stockholder who is a member of the Board of Directors of
the Company from taking any action solely in his or her capacity as a member of
the Board of Directors of the Company or from taking any action with respect to
any Acquisition Proposal as a member of such Board of Directors to the
extent specifically permitted by the Merger Agreement.
VI. MISCELLANEOUS
6.01 Fees and Expenses. Each party hereto will pay its own
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
6.02 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
6.03 Termination. This Agreement will terminate on the
earliest to occur of (a) the consummation of the purchase of all the Subject
Shares pursuant to the Offer, (b) the Effective Time or (c) the date which is
sixty days after the date on which the Merger Agreement is terminated in
accordance with its terms. This Agreement may be earlier terminated by the
mutual consent of the Board of Directors of Purchaser and the Stockholders
representing a majority of the Subject Shares subject to this Agreement. Except
as set forth below, in the event of termination of this Agreement pursuant to
this Section 6.03, this Agreement will become null and void and of no effect
with no liability on the part of any party hereto and all proxies granted hereby
will be automatically revoked; provided, however, that no such termination will
relieve any party hereto from any liability for any breach of this Agreement
occurring prior to such termination. Notwithstanding anything to the contrary
contained in this Agreement, (a) if this Agreement is terminated for any reason,
Sections 6.01, 6.02, 6.06, 6.16 and 6.17 and this Section 6.03 will survive any
termination of this Agreement indefinitely.
6.04 Extension; No Waiver. Any agreement on the part of a
party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, will be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise will not
constitute a waiver of such rights. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed as a waiver of
any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of a right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
6.05 Entire Agreement; No Third-Party Beneficiaries. This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. This Agreement is not intended to confer upon any person
other than the parties hereto any rights or remedies.
6.06 Governing Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of Delaware regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
6.07 Notices. Any notice required to be given hereunder will
be sufficient if in writing, and sent by facsimile transmission or by courier
service (with proof of service), hand delivery or certified or registered mail
(return receipt requested and first-class postage prepaid), addressed as
follows:
If to Purchaser:
Deutsche Acquisition Corp.
c/o Deutsche Bank AG
31 West 52nd Street
New York, New York 10019
Attn: General Counsel
Fax No.: 212-469-4668
With copies to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attn: William A. Groll
Fax No.: 212-225-3999
If to any Stockholder:
At the addresses and facsimile numbers set forth set
forth below such Stockholder's name on the signature
pages hereto.
or to such other address as any party specifies by written notice, such notice
being deemed to have been delivered as of the date so telecommunicated,
personally delivered or mailed.
6.08 Assignment. Neither this Agreement nor any of the rights,
interests, or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any Stockholder without
the prior written consent of Purchaser or by Purchaser without the consent of
the applicable Stockholder (and then only with respect to such Stockholder), and
any such assignment or delegation that is not consented to will be null and
void; provided that this Agreement, together with any rights, interests, or
obligations of Purchaser hereunder, may be assigned or delegated, in whole or in
part, by Purchaser to any direct or indirect wholly owned subsidiary of Parent
without the consent of or any action by any Stockholder upon notice by Purchaser
to each Stockholder affected thereby as herein provided; provided further,
however, that any such assignment shall not relieve Purchaser of its obligations
hereunder. 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 (including, without limitation, any Person to
whom any Subject Shares are sold, transferred or assigned).
6.09 Further Assurances. Each Stockholder will execute and
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Purchaser
in order to ensure that Parent and Purchaser receive the full benefit of this
Agreement.
6.10 Publicity. Parent, Purchaser, the Company and
each Stockholder will consult with each other party before issuing any press
release or otherwise making any public statements with respect to this Agreement
or the transactions contemplated hereby or thereby and will not issue any such
press release or make any such public statement before such consultation, except
as may be required by law or applicable stock exchange rules.
6.11 Enforcement. 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. Accordingly, the parties
will be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy to which they are entitled
at law or in equity.
6.12 Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such a manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
6.13 Counterparts. This Agreement may be executed in one or
more counterparts, all of which will be considered one and the same instrument
and will become effective when one or more counterparts have been signed by each
party and delivered to the other parties.
6.14 Headings. The descriptive headings contained herein are
for convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
6.15 Remedies Not Exclusive. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity will be cumulative and not alternative, and the exercise of any
thereof by either party will not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
6.16 Jurisdiction; Consent to Service of Process. (a) Each
party hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of either (i) the Chancery or other
courts of the State of Delaware (a "Delaware Court") or (ii) Federal Courts in
the District of Delaware, and any appellate court from any such court, in any
suit, action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment resulting from any suit, action or
proceeding, and each party hereby irrevocably and unconditionally agrees that
all claims in respect of any such suit, action or proceeding may be heard and
determined in a Delaware Court.
(b) It will be a condition precedent to each party's right to
bring any such suit, action or proceeding that such suit, action or proceeding,
in the first instance, be brought in a Delaware Court (unless such suit, action
or proceeding is brought solely to obtain discovery or to enforce a judgment),
and if each such court refuses to accept jurisdiction with respect thereto, such
suit, action or proceeding may be brought in any other court with jurisdiction.
(c) No party may move to (i) transfer any such suit, action or
proceeding from a Delaware Court to another jurisdiction, (ii) consolidate any
such suit, action or proceeding brought in a Delaware Court with a suit, action
or proceeding in another jurisdiction, or (iii) dismiss any such suit, action or
proceeding brought in a Delaware Court for the purpose of bringing the same in
another jurisdiction.
(d) Each party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, (i) any objection
which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in a Delaware Court,
(ii) the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court, and (iii) the right to object, with
respect to such suit, action or proceeding, that such court does not have
jurisdiction over such party. Each party irrevocably consents to service of
process in any manner permitted by law.
6.17 Waiver of Jury Trial. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
DEUTSCHE ACQUISITION CORP.
By: /s/ Kevin E. Parker
------------------------------
Name: Kevin E. Parker
Title: President
By: /s/ Thomas A. Curtis
------------------------------
Name: Thomas A. Curtis
Title: Vice President
STOCKHOLDERS
/s/ Arthur Kontos
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ARTHUR KONTOS
10 Exchange Place Centre
Jersey City, NJ 07302
Facsimile: 201-946-xxxx
Shares: 1,357,854
Options: 197,387
/s/ Vickie Kontos
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VICTORIA KONTOS
10 Exchange Place Centre
Jersey City, NJ 07302
Facsimile: 201-946-xxxx
Shares: 453,197
STOCKHOLDERS
THE ARTHUR KONTOS FOUNDATION
By: /s/ Arthur Kontos
----------------------------------
Name: Arthur Kontos
10 Exchange Place Centre
Jersey City, NJ 07302
Facsimile: 201-946-xxxx
Shares: 125,000
STOCKHOLDERS
/s/ Peter R. Kellogg
----------------------------------
PETER R. KELLOGG
120 Broadway
New York, NY 10271
Facsimile: 212-xxx-xxxx
Shares: 730,942
IAT REINSURANCE SYNDICATE LTD.
By: /s/ Peter R. Kellogg
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Name: Peter R. Kellogg
120 Broadway
New York, NY 10271
Facsimile: 212-xxx-xxxx
Shares: 1,850,000
THE CYNTHIA AND PETER
KELLOGG FOUNDATION
By: /s/ Peter R. Kellogg
----------------------------------
Name: Peter R. Kellogg
120 Broadway
New York, NY 10271
Facsimile: 212-xxx-xxxx
Shares: 346,500
STOCKHOLDERS
THE J.C. KELLOGG FOUNDATION
By: /s/ Peter R. Kellogg
----------------------------------
Name: Peter R. Kellogg
120 Broadway
New York, NY 10271
Facsimile: 212-xxx-xxxx
Shares: 12,780
STOCKHOLDERS
/s/ Thomas W. Neumann
----------------------------------
THOMAS W. NEUMANN
10 Exchange Place Centre
Jersey City, NJ 07302
Facsimile: 201-946-xxxx
Shares: 121,477
Options: 117,674
/s/ Dennis Marino
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DENNIS MARINO
10 Exchange Place Centre
Jersey City, NJ 07302
Facsimile: 201-946-xxxx
Shares: 116,132
Options: 75,266
STOCKHOLDERS
GO2NET, INC.
By: /s/ Russell C. Horowitz
------------------------------
Name: Russell C. Horowitz, CEO
Pier 70
2801 Alaskan Way, Suite 200
Seattle, WA 98121
Facsimile: (206) 357-4950
Shares: 260,000
VULCAN VENTURES INCORPORATED
By: /s/ William D. Savoy
------------------------------
Name: William D. Savoy, President
110-110th Avenue, NE,
Suite 550
Bellevue, WA 98004
Facsimile: (425) 453-1985
Shares: 740,000