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SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_] Preliminary Proxy Statement [_] Confidential, for Use of the
Commission Only (as permitted by
Rule 14a-6(e)(2))
[_] Definitive Proxy Statement
[X] Definitive Additional Materials
[_] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
WEBTV NETWORKS, INC.
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(Name of Registrant as Specified In Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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Notes:
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MEMORANDUM
TO: WebTV Networks, Inc. Shareholders
FROM: WebTV Networks, Inc.
DATE: July 17, 1997
SUBJECT: Modified Recapitalization Documents
_______________________________________________________________________
This memorandum and the enclosed documents are being provided in
connection with the special meeting of shareholders of WebTV Networks, Inc.
("WNI") to be held on July 30, 1997 (the "Special Meeting"), where the
shareholders of WNI will be asked to consider and vote upon the matters
described in the Proxy Statement/Prospectus (the "Proxy Statement") dated June
24, 1997 previously provided to you. The enclosed documents modify documents
included in the Proxy Statement, and we want each shareholder to have copies of
the documents in advance of the Special Meeting. The Company believes that
these modifications do not adversely alter the rights of WNI shareholders
following the Recapitalization, if it is approved.
The two modified documents include (i) an amendment (the "Amendment") to
the Agreement and Plan of Recapitalization included as Appendix A to the Proxy
Statement, and (ii) a revised form of Amended and Restated Articles of
Incorporation of WNI (the "Articles"), modifying and superseding the proposed
Amended and Restated Articles of Incorporation included as Appendix E to the
Proxy Statement. If the Recapitalization is approved at the Special Meeting,
both the Amendment and the Articles will be deemed approved.
Both of the enclosed documents concern, but do not adversely alter, the
exchange rights that apply to Exchangeable Shares held by WNI shareholders
following the Recapitalization, if it is approved. As modified by the
Amendment, the exchange rights are in the Agreement and Plan of Recapitalization
rather than in the Articles of Incorporation as originally proposed, to comply
with requirements of the California Secretary of State for filing the Articles
of Incorporation.
Additionally, to comply with further California Secretary of State filing
requirements regarding the Articles of Incorporation, the class call right of
Microsoft commencing five years and six months following the Effective Date set
forth in the proposed Articles has been modified to provide that WNI, not
Microsoft, is the holder of such class call right. Because Microsoft will
control 80% of the voting power of WNI following the Recapitalization if the
Recapitalization is approved and consummated, Microsoft will possess the power
to cause the class call right to be exercised by WNI. WNI shareholders will
continue to be bound by such class call right. Finally, the modified Articles
now provide that WNI may satisfy the class call right by paying either in
Microsoft Common Shares or cash in an equivalent value to the Microsoft Common
Shares, rather than solely in Microsoft Common Shares as previously provided.
If you have any questions regarding these modifications, please do not
hesitate to call Rocky Pimentel at (415) 326-3240 at any time prior to the
Special Meeting. Whether or not you
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expect to attend the Special Meeting in person, please complete, date and sign
the proxy provided with the Proxy Statement and return it without delay. If you
attend the Special Meeting, you may then withdraw your proxy and vote in person.
You may revoke a completed proxy at any time prior to the Special Meeting by
following the instructions on page 24 of the Proxy Statement under "Voting of
Proxies." We encourage each shareholder to attend the Special Meeting to be held
at the principal executive offices of WNI, 305 Lytton Avenue, Palo Alto,
California, on July 30, 1997 at 2 p.m. local time.
<PAGE>
FORM OF
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF RECAPITALIZATION
This First Amendment (the "Amendment") dated as of July 16, 1997 to the
Agreement and Plan of Recapitalization (the "Agreement") dated as of April 5,
1997 among Microsoft Corporation, a Washington corporation ("Microsoft"), WebTV
Networks, Inc., a California corporation (the "Company"), and certain
shareholders of the Company (the "Principal Shareholders"), is entered into by
and among Microsoft, the Company and the Principal Shareholders. All capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
them in the Agreement.
RECITALS
--------
WHEREAS, Microsoft, the Company and the Principal Shareholders have
heretofore entered into the Agreement providing for the reorganization of the
capital of the Company,
WHEREAS, the Agreement contemplates that each of the Company Common Shares,
other than vested Company Common Shares of holders who elect to receive cash
pursuant to Section 1.3.2 of the Agreement, shall, at the Effective Time, be
converted into a number of Company Class A Common Shares having certain exchange
rights as described in Section 4 of the Form of Recapitalization Documents
attached as Exhibit 1.1 to the Agreement (the "Exchange Rights"),
WHEREAS, such Exchange Rights may not, under California law, be provided
for in the Certificate of Amended and Restated Articles of Incorporation of the
Company, and
WHEREAS, Microsoft, the Company and the Principal Shareholders wish to
provide for the Exchange Rights by contract for the express benefit of certain
shareholders of the Company as intended third party beneficiaries of such
Exchange Rights, and to make certain other changes to the Agreement as set forth
herein,
NOW THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants and agreements contained in the Agreement
and herein, and in order to effectuate the intentions of the parties in the
Agreement, the parties agree as follows:
1. Status of the Agreement. Except as specifically set forth herein, the
-----------------------
Agreement shall remain in full force and effect and shall not be waived,
modified, superseded or otherwise affected by this Amendment. This Amendment is
not to be construed as a release, waiver or modification of any of the terms,
representations, warranties, covenants, rights or remedies set forth in the
Agreement, except as specifically set forth herein.
2. Exchange Rights. A new Section 1.10 shall be added to the Agreement.
---------------
Such new Section 1.10 shall read in its entirety as follows:
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"1.10 EXCHANGE RIGHTS. Holders of Class A Shares shall initially have the
---------------
right to exchange each Class A Share held into one share of fully paid and non-
assessable Microsoft Common Shares, par value $.000025 ("Microsoft Common
Shares"). The right to exchange and the exchange ratio is subject to the
following rights, adjustments and limitations:
1.10.1 VOLUNTARY EXCHANGE. Any share of Class A Shares may, at the option
------------------
of the holder, be exchanged at any time prior to the end of fifty one months
after the Effective Time. Upon satisfaction of the procedures identified in
Section 1.10.6, the Company shall, or shall cause Microsoft to, exchange each
share of Class A Shares for, at the Company's election or Microsoft's or such
other person's election as appropriate, either (i) such number of Microsoft
Common Shares as are equal to the product obtained by multiplying the Class A
Exchange Rate (as defined herein) in effect at the time the exchange procedure
is initiated in accordance with Section 1.10.6, by the number of shares of Class
A Shares being exchanged; or (ii) an amount in immediately available funds equal
to the Current Market Value of the Microsoft Common Shares issuable upon
exchange of the Class A Shares (taking into account the Class A Exchange Rate
then in effect) (the "Cash Equivalent Amount"). In the event that the Company
shall cause Microsoft to exchange pursuant to the above sentence, then Microsoft
shall acquire the Class A Shares delivered by the holder pursuant to this
Section.
The "Current Market Value" of Microsoft Common Shares shall be the closing
price as publicly reported by the Nasdaq Stock Market as of 4:00 p.m. (Eastern
time) as of the date on which the Exchange Notice is received by the Secretary
as provided for in Section 1.10.6.
1.10.2 CLASS A EXCHANGE RATE. The exchange rate (the "Class A Exchange
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Rate") shall initially be 1.0 Microsoft Common Share for each Class A Share and
shall be subject to adjustment as provided in this Section 1.10.
1.10.3 ADJUSTMENTS TO CLASS A EXCHANGE RATE UPON SPECIAL EVENT. Upon the
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happening of a Special Event (as defined below) after the Effective Time, the
Class A Exchange Rate shall, simultaneously with the happening of such Special
Event, be adjusted by multiplying the then effective Class A Exchange Rate by a
fraction, the numerator of which shall be the number of Microsoft Common Shares
outstanding immediately after such Special Event and the denominator of which
shall be the number of Microsoft Common Shares outstanding immediately prior to
such Special Event, and the product so obtained shall thereafter be the Class A
Exchange Rate. The Class A Exchange Rate, as so adjusted, shall be readjusted in
the same manner upon the happening of any successive Special Event or Events.
"Special Event" shall mean (i) the issue of additional Microsoft Common
Shares as a dividend or other distribution on outstanding Microsoft Common
Shares, (ii) a subdivision or split of outstanding Microsoft Common Shares into
a greater number of Microsoft Common Shares, or (iii) a combination of
outstanding Microsoft Common Shares into a smaller number of Microsoft Common
Shares.
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1.10.4 CAPITAL REORGANIZATION OR RECLASSIFICATION. If the Microsoft
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Common Shares issuable upon the exchange of Class A Shares shall be changed into
the same or a different number of shares of any class or classes of shares,
whether by capital reorganization, reclassification, merger, consolidation or
otherwise (other than a Special Event provided for elsewhere herein)
(collectively referred to as a "Reorganization"), then and in each such event
the holder of each Class A Share shall have the right thereafter to exchange
each Class A Share into the kind and amount of shares and other securities and
property receivable upon such Reorganization, as a holder of a Microsoft Common
Share immediately prior to such Reorganization.
1.10.5 COMPANY'S CERTIFICATE AS TO ADJUSTMENTS. In each case of an
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adjustment or readjustment of the Class A Exchange Rate after the Effective
Time, the Company and Microsoft will furnish each holder of Class A Shares with
a certificate, prepared by the Company in conjunction with Microsoft, showing
such adjustment or readjustment, and stating in detail the facts upon which such
adjustment or readjustment is based.
1.10.6 EXERCISE OF EXCHANGE RIGHT AND PROCEDURE FOR EXCHANGE. To exercise
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its exchange right, a holder of Class A Shares shall surrender to the Secretary
of the Company, or other person designated by the Company, the certificate or
certificates (each a "Certificate") representing the Class A Shares being
exchanged, duly endorsed, and accompanied by a written notice (the "Exchange
Notice") that such holder elects to exchange such shares. The exchange shall be
deemed effective on the day the Certificate and Exchange Notice are received by
the Secretary of the Company, or other person designated by the Company.
Thereafter, the rights of the holder in the Class A Shares shall cease and the
holder (or such other person or persons in whose name or names the Cash
Equivalent Amount or any certificate or certificates for Microsoft Common Shares
shall be issuable upon such exchange) shall be deemed to have become the holder
or holders of record of the Microsoft Common Shares represented thereby (unless
the Company shall elect to pay the Cash Equivalent Amount in the exchange, in
which event the holder shall be deemed to have a claim against the Company for
the Cash Equivalent Amount).
1.10.7 PAYMENT IN ABSENCE OF COMPANY EXERCISE OF CALL RIGHTS. The Company
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OR Microsoft shall, within three (3) business days after the Secretary receives
the Exchange Notice, cause to be delivered to the holder of Class A Shares being
exchanged one or more certificates for Microsoft Common Shares issuable upon the
exchange of such Class A Shares or the payment of the Cash Equivalent Amount in
immediately available funds as provided for in Section 1.10.1.
1.10.8 FRACTIONAL SHARES. No fractional Microsoft Common Shares shall be
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issued upon the exchange of Class A Shares. In lieu of such issuance, all
Microsoft Common Shares issued to the holders of Class A Shares pursuant to the
terms of these Articles shall be rounded to the closest whole Microsoft Common
Share.
1.10.9 PARTIAL EXCHANGE. In the event some but not all of the Class A
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Shares represented by a Certificate or Certificates surrendered by a holder are
exchanged, the Company
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shall execute and deliver to the holder a new certificate representing the
number of Class A Shares that were not exchanged.
1.10.10 INTENDED THIRD-PARTY BENEFICIARIES. Microsoft and the Company
----------------------------------
further acknowledge and agree that the Exchange Rights described in this Section
1.10 are expressly intended to benefit the holders of Class A Shares (as defined
in the Amended and Restated Articles of Incorporation of the Company to be filed
in connection with the consummation of the Recapitalization) of the Company (the
"Beneficiaries"). The Exchange Rights shall inure to the benefit of the
Beneficiaries as intended third-party beneficiaries and shall be enforceable by
the Beneficiaries at law or in equity."
3. Amendment. The terms of this Amendment may not be modified or
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amended, or any provisions hereof waived, temporarily or permanently, except by
an instrument in writing signed on behalf of each of the parties hereto;
provided, however, that the terms of Section 2 may not be modified or amended
except with the written consent of the holders of a majority in interest of the
then-remaining holders of Class A Shares (those Beneficiaries still holding
Class A Shares).
4. Miscellaneous. Subject to Section 11 above and to the restatement of
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Section 9.1 pursuant to the next sentence, the provisions of Article 9 of the
Agreement shall apply to this Amendment in their entirety. Section 9.1 shall be
amended to read in its entirety as follows, with defined terms given the
meanings ascribed to them in this Amendment:
"9.1 ENTIRE AGREEMENT.
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The Agreement, the Amendment, and the exhibits and schedules delivered
pursuant to the Agreement, and any confidentiality agreement between the
parties, contain all of the terms and conditions agreed upon by the parties
relating to the subject matter of the Agreement and supersede all prior
agreements, negotiations, correspondence, undertakings, and communications of
the parties, whether oral or written, respecting that subject matter."
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SIGNATURE PAGE--FIRST AMENDMENT TO
AGREEMENT AND PLAN OF RECAPITALIZATION
IN WITNESS WHEREOF, Microsoft, the Company, and the Principal Shareholders
have executed this Amendment as of the date first written above.
MICROSOFT CORPORATION COMPANY
By: ____________________ By: ____________________
Title: ____________________ Title: ____________________
PRINCIPAL SHAREHOLDERS
____________________________ ______________________________
Stephen G. Perlman Philip Y. Goldman
____________________________
Bruce A. Leak
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APPENDIX E
CERTIFICATE
OF
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
WEBTV NETWORKS, INC.
The undersigned hereby certify that:
1. They are the President and Secretary, respectively, of WebTV Networks,
Inc., a California corporation.
2. Pursuant to Section 910 of the California General Corporation Law, the
Articles of Incorporation of WebTV Networks, Inc. are amended and restated
in its entirety to read as follows:
ARTICLE I
Name
The name of this corporation is WebTV Networks, Inc. (the "COMPANY").
ARTICLE II
Purpose
The purpose of this corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III
Capital Shares
3.1 Authorized Shares. The total number of capital shares which the Company
shall have authority to issue is shares, which shall consist of shares
of Class A Shares, $.01 par value per share ("CLASS A SHARES") and shares
of Class B Shares, $.01 par value per share ("CLASS B SHARES"). Effective upon
the filing of these Articles of Incorporation: (i) each outstanding share of
preferred stock of the Company shall be converted, automatically and without
further action of the holder thereof, into the right to receive $13.686 per
share (determined on an as-if-converted to common stock basis), on the terms
and conditions set forth in that certain Agreement and Plan of
Recapitalization dated April 5, 1997, as amended by the First Amendment
thereto dated as of July 16, 1997, by and among the Company, Microsoft
Corporation and certain shareholders of the Company (together the
"Recapitalization Agreement"), and (ii) each outstanding share of common stock
of the Company (other than shares held by persons exercising dissenters'
rights in connection with the transactions contemplated by Recapitalization
Agreement in accordance with Chapter 13 of the California General Corporation
Law, except as otherwise provided in the Recapitalization Agreement) shall be
converted, automatically and without further action of the holder thereof,
into Class A Shares of the Company.
3.2 Terms of Class A Shares and Class B Shares.
The Class A Shares and Class B Shares shall have the following rights,
privileges, restrictions and conditions.
3.2.1 Dividends.
(a) The Board of Directors may declare in its discretion from time to
time, and the Company shall pay, dividends out of the assets of the Company
properly available to the payment of dividends; provided
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that, so long as any share of either class is outstanding, any dividend
that shall be declared and paid with respect to each share of Class A
Shares and Class B Shares shall be identical in amount and character.
(b) Such dividends shall have record and payment dates as may be
determined in the discretion of the Board of Directors, subject to
compliance with the requirements of Section 3.2.5.
3.2.2 Liquidation
In the event of the liquidation, dissolution or winding-up of the Company
or other similar distribution of assets of the Company including the filing
of a petition for involuntary liquidation or other proceeding in
bankruptcy, of the Company (collectively, a "LIQUIDATION"), the Company
shall pay to the holders of the Class A Shares and the Class B Shares from
the assets of the Company available for distribution, for each Class A
Share or Class B Share outstanding on the effective date ("LIQUIDATION
DATE") of such Liquidation, an amount that, with respect to each share of
Class A Shares and Class B Shares, is identical in amount and character.
The Company shall immediately give notice to Microsoft Corporation
("MICROSOFT") of any proposed Liquidation and shall also comply with the
notice to shareholders requirements of Section 3.2.5.
3.2.3 Company Voting Rights.
The holders of the Class A Shares and Class B Shares shall be entitled to
vote for directors and such other matters as may be submitted to the
shareholders. Except to the extent required by applicable law, each Class A
Share shall have one (1) vote per Class A Share. Each Class B Share shall
have ten (10) votes per Class B Share. Except to the extent required by
applicable law, the Class A Shares and Class B Shares shall vote as one
class. Each holder of Class A Shares and Class B Shares shall be entitled
to receive notice of, and to attend, any meetings of shareholders of the
Company.
3.2.4 Class Call Right of the Company.
The Company shall have the right to acquire all, but not less than all,
outstanding Class A Shares (the "Class Call"), either for Microsoft Common
Shares, or for the Cash Equivalent Amount (as defined in the
Recapitalization Agreement), upon delivery of an irrevocable written notice
by the Company to the holders of Class A Shares at any time during the
period commencing five years and six months after the Effective Date and
ending six years after the Effective Date. The Company's right to acquire
the Class A Shares pursuant to this paragraph may be effected without any
further action by the holders of the Class A Shares. The Company may, as a
condition to payment require holders of the Class A Shares to surrender the
Certificates representing the Class A Shares to the Company or its
Secretary. In settlement of its obligations under this Section 3.2.4, the
Company shall deliver to each holder of Class A Shares such number of
Microsoft Common Shares as are equal to the product obtained by multiplying
the Class A Exchange Rate (as defined in the Recapitalization Agreement) in
effect at the time the Company shall deliver its written notice to the
holders of Class A Shares of its election to exercise the Class Call by the
number of shares of Class A Shares then held by such holder.
3.2.5 Notices to Shareholders. The Company shall provide each holder of
Class A Shares written notice of (1) adoption of a plan of Liquidation by
the Company; (2) declaration of a dividend record date by the Company; (3)
exercise of call rights by the Company pursuant to Section 3.2.4, in each
case specifying a date for the taking of the foregoing actions not more
than sixty (60) and not less than fifteen (15) days prior thereto. Any
notice required by this Article III shall be sent by first class mail to
the address of each holder of Class A Shares on the stock records of the
Company as maintained by the Secretary.
3.2.6 Payments to Shareholders.
Whenever required by this Article III, the Company shall pay or deliver,
or cause Microsoft or another person to pay or deliver, the dollar amounts
or certificates representing the Microsoft Common Shares specified by this
Article III (collectively, the "CONSIDERATION"). The Company's obligations
hereunder shall be satisfied by delivering, or causing Microsoft or another
person to deliver, to each holder, at the address of the holder recorded in
the securities register of the Company for the Class A Shares or Class B
Shares, the Consideration. On and after receipt of a notice of exercise of
the Company's call rights under
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Section 3.2.4, the holders of the Class A Shares shall cease to be holders
of such Class A Shares and shall not be entitled to exercise any of the
rights of holders in respect thereof, other than the right to receive the
Consideration payable to them. In the event of any Liquidation or exercise
of the Company's rights pursuant to Section 3.2.4, the Company shall have
the right to deposit or cause to be deposited the Consideration payable in
respect of the Class A Shares represented by Certificates that have not at
such date been surrendered by the holders thereof in a custodial account
with any national bank or trust company. Upon such deposit being made, the
rights of the holders of Class A Shares after such deposit shall be limited
to receiving their proportionate part of the Consideration (less any tax
required to be deducted and withheld therefrom) for such Class A Shares so
deposited, against presentation and surrender of the said Certificates held
by them, respectively, in accordance with the foregoing provisions.
3.2.7 Rights Reserved to Class B Shares.
Except as specifically provided in this Article III, the holders of the
Series B Shares shall be entitled to all residual rights in the Company.
3.2.8 Amendment and Approval.
Any amendment of the rights, privileges, restrictions and conditions
applicable to the Class A Shares shall require the approval of the holders
of a majority of the Class A Shares of the Company.
3.2.9 No Reissuance.
In the event any Class A Shares or Class B Shares shall be reacquired by
the Company (within the meaning of Section 510(d) of the California General
Corporation Law), the shares so reacquired shall be canceled and shall not
be issuable by the Company.
ARTICLE IV
Limitation of Liability
The liability of the directors of the Company for monetary damages shall be
eliminated to the fullest extent permissible under California law as the same
exists or may hereafter be amended.
ARTICLE V
Indemnification
The Company is authorized to provide indemnification of agents (as defined
in Section 317 of the California General Corporation Law) for breach of duty
to the Company and its stockholders through bylaw provisions or through
agreements with the agents, or both, in excess of the indemnification
otherwise permitted by Section 317 of the California General Corporation Law,
subject to the limits on such excess indemnification set forth in Section 204
of the California General Corporation Law.
3. The foregoing Restated Articles of Incorporation of the corporation
have been duly approved by the Board of Directors of the corporation.
4. The foregoing Restated Articles of Incorporation have been duly
approved by the required vote of shareholders in accordance with Section
902 and 903 of the California General Corporation Law. The total number of
outstanding shares of the corporation is Common Shares, 1,510,533
Series A Convertible Preferred Shares (entitled to vote 1,661581 shares),
6,316,705 Series B Convertible Preferred Shares, 6,316,705 Series C
Convertible Preferred Shares, and 1,343,570 Series D Convertible Preferred
Shares.
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5. The number of shares voting in favor of the amendment equaled or
exceeded the vote required. The percentage vote required for the amendment
was: (i) more than fifty percent (50%) of the Common Shares and Series A,
B, C, and D Convertible Preferred Shares voting together as a single class;
(ii) more than fifty percent (50%) of the Series A, B, C and D Convertible
Preferred Shares voting together as a single class; (iii) more than fifty
percent (50%) of the Common Shares voting as a single class; and (iv) more
than fifty percent (50%) of the Series A, B, and D Convertible Preferred
Shares voting together as a single class.
_____________________________________
Stephen G. Perlman
President
_____________________________________
Bruce A. Leak
Secretary
The undersigned declare under penalty of perjury that the matters set forth
in the foregoing certificate are true and correct of our own knowledge.
Executed in Palo Alto, California on , 1997
_____________________________________
Stephen G. Perlman, President
_____________________________________
Bruce A. Leak, Secretary
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