Purchase and Contribution Agreement [Amendment No. 1] - Compaq Computer Corp., Digital Equipment Corp., AltaVista Co. and CMGI Inc.
AMENDMENT NO. 1
TO
PURCHASE AND CONTRIBUTION AGREEMENT
This Amendment, dated as of August 18, 1999, amends the Purchase and
Contribution Agreement (the "Agreement"), dated as of June 29, 1999, by and
among Compaq Computer Corporation, a Delaware corporation ("Compaq"), Digital
Equipment Corporation, a Massachusetts corporation and a wholly owned subsidiary
of Compaq ("Digital"), AltaVista Company, a Delaware corporation and a wholly
owned subsidiary of Digital ("AV"), CMGI, Inc., a Delaware corporation ("CMGI"),
and Zoom Newco Inc., a Delaware corporation and a wholly owned subsidiary of
CMGI ("Newco").
WHEREAS, the parties to the Agreement desire to amend the Agreement in
order to provide for the transfer of certain assets from Digital and Compaq to
AltaVista Limited, an Irish corporation and an indirect wholly owned subsidiary
of Newco, and to make other changes to the Agreement;
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties,
intending to be legally bound, hereby agree as follows:
1. Section 1.1 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.1 Purchase and Sale of Assets. Subject to and upon the terms and
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conditions of this Agreement, at the closing of the transactions
contemplated by this Agreement (the "Closing"), Digital or Compaq shall
sell, transfer, convey, assign and deliver to CMGI, and CMGI shall purchase
from Digital or Compaq, such number of shares of capital stock of
Shopping.com, a California corporation ("SDC"), and, if necessary, such
number of shares of capital stock of Zip2 Corp., a California corporation
("ZIP2") (collectively, the "Digital Assets"), as have an aggregate fair
market value, as of the Closing, as determined by Valuation Counselors,
equal to $220,000,000. In consideration for the Digital Assets, CMGI shall
deliver to Compaq or Digital, as directed, a promissory note, on
substantially the terms set forth on Exhibit A attached hereto, in the
principal amount of $220,000,000.
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2. Section 1.2 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.2 Contributions by CMGI and Digital; Purchase by AV Irish.
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Subject to and upon the terms and conditions of this Agreement, at the
Closing, immediately following the consummation of the transaction
contemplated by Section 1.1:
(a) CMGI shall contribute to Newco (i) the Digital Assets, (ii)
18,994,975 shares of common stock, par value $0.01, of CMGI ("CMGI Common
Stock"), and (iii) 18,090.45 shares of preferred stock of CMGI to be
designated as Series D Preferred Stock, par value $0.01 per share (the
"Series D Preferred Stock"), which shall have the rights and preferences
described on Exhibit B attached hereto, in exchange for the issuance by
Newco to CMGI of 81,495,016 shares of common stock, par value $0.01 per
share, of Newco ("Newco Common Stock"); and
(b) Compaq and Digital shall contribute to Newco (i) the
properties, assets and other rights and interests to be transferred
pursuant to the Domestic Assignment Agreement attached hereto as Exhibit C-
1 (the "Domestic Assignment Agreement") and (ii) all of the outstanding
shares of capital stock of SDC and ZIP2 not owned by Newco, if any, after
giving effect to the transaction described in Sections 1.1 and 1.2(a)
(collectively, the "Domestic Assigned Assets"), in exchange for (A) the
issuance by Newco to Digital or Compaq, as directed, of 18,504,884 shares
of Newco Common Stock, (B) the transfer by Newco to Digital or Compaq, as
directed, of such number of shares of CMGI Common Stock as is equal to
18,994,975 minus the International Share Amount (as defined in Section
1.2(c) below), and (C) the transfer by Newco to Digital or Compaq, as
directed, 18,090.45 shares of Series D Preferred Stock; and
(c) Compaq and Digital shall sell, transfer, convey, assign and
deliver, and CMGI shall cause Kasempa Limited, an Irish single-member
private company and indirect subsidiary of CMGI ("AV Irish"), to purchase,
the properties, assets and other rights and interests to be sold,
transferred, conveyed, assigned and delivered pursuant to the International
Assignment Agreement attached hereto as Exhibit C-2 (the "International
Assignment Agreement", and together with the Domestic Assignment Agreement,
the "Assignment Agreement") (such properties, assets and other rights and
interests, the "International Assigned Assets", and together with the
Domestic Assigned Assets, the "Assigned Assets"), in exchange for the
transfer by AV Irish to Digital or Compaq, as directed, of such number
(rounded to the nearest whole number) of shares of CMGI Common Stock as is
equal to (i) the aggregate fair market value, as of the Closing, as
determined by Valuation Counselors, of the International Assigned Assets
divided by (ii) the closing price per share of CMGI Common Stock on the
trading day that is two trading days prior to the Closing
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Date (such number of shares of CMGI Common Stock, the "International Share
Amount").
3. Section 1.3(c) of the Agreement is hereby deleted in its entirety and
replaced with the following:
(c) The Certificate of Incorporation of the Surviving Corporation
immediately following the Effective Time shall be the same as the Certificate of
Incorporation of Newco immediately prior to the Effective Time, except that the
name of the corporation set forth therein shall be changed to the name of AV.
The By-laws of the Surviving Corporation immediately following the Effective
Time shall be the same as the By-laws of Newco immediately prior to the
Effective Time, except that the name of the corporation set forth therein shall
be changed to the name of AV.
4. Section 7.2(e) of the Agreement is hereby deleted in its entirety and
replaced with the following:
(e) Assignment Agreements. The Domestic Assignment Agreement and the
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International Assignment Agreement shall have been executed and delivered
by Compaq.
5. Section 7.3(f) of the Agreement is hereby deleted in its entirety and
replaced with the following:
(f) Assignment Agreements. The Domestic Assignment Agreement shall
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have been executed and delivered by Newco. The International Assignment
Agreement shall have been executed and delivered by AV Irish.
6. Except as expressly amended herein, the Agreement shall remain in full
force and effect.
the next page is the signature page
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CMGI, INC.
By: /s/ Andrew J. Hajducky III
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Andrew J. Hajducky III
Executive Vice President
COMPAQ COMPUTER CORPORATION
By: /s/ William D. Strecker
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William D. Strecker
Senior Vice President
DIGITAL EQUIPMENT CORPORATION
By: /s/ Linda S. Auwers
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Linda S. Auwers
Vice President & Assistant
Secretary/Assistant Clerk
ALTAVISTA COMPANY
By: /s/ Kenneth R. Barber
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Kenneth R. Barber
Vice President
ZOOM NEWCO INC.
By: /s/ Andrew J. Hajducky III
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Andrew J. Hajducky III
Vice President
signature page to amendment no. 1 to purchase and contribution agreement