Exhibit (d)(1)(i)
TENDER AGREEMENT
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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"); and
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 has requested that the Holder enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, the parties agree
as follows:
Section 1. Certain Definitions. Capitalized terms used but not
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otherwise defined herein have the meanings ascribed to such terms in the Offer
to Purchase.
Section 2. Representations and Warranties of the Holder. The Holder
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represents and warrants to Purchaser as follows:
(a) Each Holder has the requisite 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.
(b) The Holder is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which meaning will apply
for all purposes of this Agreement) of, and has good title to the Notes, free
and clear of any mortgage, pledge, hypothecation, rights of others, claim,
security interest, charge, encumbrance, title defect, title retention agreement,
voting trust agreement, interest, option, lien, charge or similar restriction or
limitation, including any restriction on the right to vote, sell or otherwise
dispose of the Notes (each, a "Lien"), and the Holder does not own any other
Notes.
(c) This Agreement has been duly executed and delivered by
each Holder and, assuming due authorization, execution and delivery of this
Agreement by the Purchaser, is a valid and binding obligation of each Holder
enforceable against the Holder in accordance with its terms.
(d) Neither the execution and delivery of this Agreement nor
the performance by the Holder of the Holder's obligations hereunder will
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, or
acceleration or result in the creation of any Lien on the Notes under, (i) its
certificate of incorporation or bylaws (or similar organizational documents),
(ii) any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Holder is a party or by which the Holder is
bound or (iii) any injunction, judgment, writ, decree, order or ruling
applicable to the Holder; except in the case of clauses (ii) and (iii) for
conflicts, violations, breaches, defaults, terminations, amendments,
cancellations, accelerations or Liens that would not individually or in the
aggregate be reasonably expected to prevent or materially impair or delay the
consummation by the Holder of the transactions contemplated hereby.
(e) Neither the execution and delivery of this Agreement nor
the performance by the Holder of the Holder's obligations hereunder will violate
any law, decree, statute, rule or regulation applicable to the Holder or require
any order, consent, authorization or approval of, filing or registration with,
or declaration or notice to, any court, administrative agency or other
governmental body or authority.
(f) 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 as a result of any actions taken by
Holder.
Section 3. Representations and Warranties of the Purchaser. The
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Purchaser represents and warrants to the Holder as follows:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of Delaware, 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) This Agreement has been duly executed and delivered by the
Purchaser and, assuming the due authorization, execution and delivery of this
Agreement by the Holder, is
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a valid and binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms.
(c) Neither the execution and delivery of this Agreement nor
the performance by the Purchaser of Purchaser's obligations hereunder will
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, or
acceleration under, (i) its certificate of incorporation or bylaws (or similar
organizational documents), (ii) any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which the Purchaser is
a party or by which the Purchaser is bound or (iii) any injunction, judgment,
writ, decree, order or ruling applicable to the Purchaser; except in the case of
clauses (ii) and (iii) for conflicts, violations, breaches or defaults that
would not individually or in the aggregate be reasonably expected to prevent or
materially impair or delay the consummation by the Purchaser of the transactions
contemplated hereby.
(d) Neither the execution and delivery of this Agreement nor
the performance by the Purchaser of its respective obligations hereunder will
violate any law, decree, statute, rule or regulation applicable to the Purchaser
or require any order, consent, authorization or approval of, filing or
registration with, or declaration or notice to, any court, administrative agency
or other governmental body or authority.
Section 4. Restrictions on Transfer of the Notes. During the term of
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this 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, (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 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.
Section 5. Tender of the Notes. The Holder hereby agrees that it will
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validly tender (or cause the record owner of such Notes to validly tender) and
sell (and not withdraw) approximately $110 million aggregate principal amount of
Notes, at a price of $295 per $1,000 principal amount of Notes pursuant to and
in accordance with the terms of the Amended Offer, not later than the earlier of
the tenth business day after amendment of the Offer or the Expiration Date.
Subject to the terms hereof, upon the purchase by Purchaser of all of the Notes
beneficially owned by the Holder pursuant to the Offer in accordance with this
Section 5 or the expiration of fifteen days from the date hereof, (or such later
date as the Offer may be extended solely to (i) satisfy any of the conditions to
the Purchaser's obligations to purchase the Convertible Notes set forth in the
Offer to Purchase, provided that such extension shall be for a period not to
exceed 15 business days, and (ii) comply with any rule, regulation,
interpretation or
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position of the SEC or the staff thereof applicable to the Offer) this Agreement
will terminate, other than with respect to Sections 7, 8, 9, 10, and 11 hereof
which shall survive indefinitely. The Holder acknowledges that the Purchaser's
obligation to accept for payment and pay for the tendered Notes in the Offer is
subject to all of the terms and conditions of the Offer. The Purchaser agrees to
accept and pay for the tendered Notes, subject to the terms of the Offer.
Section 6. Restrictions on Amendment. Purchaser hereby agrees that it
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will not, without the consent of the Holder, (a) decrease the price at which the
Purchaser will accept Convertible Notes pursuant to the terms of the Amended
Offer, (b) offer any form of consideration other than cash for the Convertible
Notes, (c) decrease the maximum principal amount of Convertible Notes sought in
the Offer or (d) amend the conditions to the Offer from the conditions
established in the Offer to Purchase of Purchaser dated October 1, 2001, as
heretofore waived.
Section 7. Release. Subject to the purchase of all Notes that are
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tendered at the Offer price, Holder, on behalf of itself and its affiliates,
fully releases and discharges Purchaser and Purchaser's officers and directors,
and their respective successors and assigns of and from any and all now existing
or hereafter arising claims, demands, causes, damages and actions whatsoever, at
law, in equity or otherwise arising from or in connection with Holder's purchase
or ownership of the Notes.
Section 8. Expenses. Except as otherwise expressly provided herein,
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all costs and expenses incurred by any of the parties hereto will be borne by
the party incurring such costs and expenses. The Purchaser, on the one hand, and
the Holder on the other hand, will indemnify and hold harmless the other from
and against any and all claims or liabilities for finder's fees or brokerage
commissions or other like payments incurred by reason of action taken by
Purchaser or Holder, respectively.
Section 9. Further Assurances. Each party hereto will execute and
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deliver all such further documents and instruments and take all such further
action as may be reasonably necessary in order to consummate the transactions
contemplated hereby. The Holder acknowledges and agrees that Purchaser may
describe this Agreement in a press release, and further agrees to reasonably
cooperate in issuing a statement by press release endorsing the Amended Offer.
Section 10. Enforcement. The Holder acknowledges that irreparable
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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 Purchaser will be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity. Each party further agrees to waive
any requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief. The provisions of
this paragraph are without prejudice to any other rights that another party
hereto may have against the another party hereto for any failure to perform its
obligations under this
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Agreement. In addition, each party hereby (i) consents to submit such party to
the personal jurisdiction of any Federal court located in the State of New York
or any New York state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) agrees not to
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (iii) agrees not to bring any action relating to
this Agreement or any of the transactions contemplated hereby in any court other
than a Federal court located in the state of New York or a New York state court
and (iv) waives any right to 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. Each party hereby irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in the courts of the State of New York or of the United States of America
located in the State of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
Section 11. Miscellaneous.
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(a) All representations, warranties, covenants and agreements
made herein will survive until the payment by the Purchaser for the Notes
purchased pursuant to the Offer.
(b) Any provision of this Agreement may be waived at any time
by the party that is entitled to the benefits thereof. No such waiver, amendment
or supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be 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 the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(c) This Agreement, constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements among the parties with respect to such matters. This Agreement
may not be amended, changed, supplemented, waived or otherwise modified, except
upon the delivery of a written agreement executed by the parties hereto.
(d) This Agreement 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.
(e) 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. Wherever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." Words in the singular include the plural, and
words in the plural include the singular.
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(f) All notices and other communications hereunder will be in
writing and will be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by telecopy, or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to Purchaser to:
Internet Capital Group, Inc.
435 Devon Park Drive
600 Building
Wayne, PA 19087
Attn: Henry N. Nassau
Telecopy: 610-989-0111
with copies to:
Dechert
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: Christopher G. Karras
Telecopy: 215-994-2222
If to the Holder:
Fir Tree Investment Partners
535 Fifth Avenue
31/st/ Floor
New York, NY 10017
Attention: Jeffrey D. Tannenbaum
Telecopy:
with a copy to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue
Suite 4100
Dallas, TX 75201
Attention: Eliot D. Raffkind
Telecopy: 214-969-4343
or to such other address as any party may have furnished to the other parties
in writing in accordance herewith.
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(g) This Agreement 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.
(h) This Agreement is binding upon and is solely for the
benefit of the parties hereto and their respective successors, legal
representatives and assigns. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement will be assigned by any of the
parties hereto without the prior written consent of the other parties, except
that the Purchaser will have the right to assign to any direct or indirect
wholly owned subsidiary of the Purchaser any and all rights and obligations of
the Purchaser under this Agreement, provided that any such assignment will not
relieve the Purchaser from any of its obligations hereunder.
(i) In the event any term or provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other terms and provisions of this Agreement will
nevertheless remain in full force and effect. Upon any such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto will negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated by this
Agreement are consummated to the fullest extent possible.
(j) 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.
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IN WITNESS WHEREOF, each of the Holder and the Purchaser has
caused this Agreement 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/ Henry N. Nassau
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Name: Henry N. 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/ Jeffrey D. Tannenbaum
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Name: Jeffrey D. Tannenbaum
Title: Authorized Person
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