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EXHIBIT 10.10
EXHIBIT 10.10. Letter of Intent from BuyItNow.com, Incorporated dated June 8,
2000
LETTER OF INTENT
[LOGO]
June 8, 2000
Netdirect Corporation International
6690 Shady Oak Road
Eden Prairie, Minnesota 55344
Attention: Mr. Gregory A. Appelhof
President and Chief Executive Officer
Ladies and Gentlemen:
This letter summarizes the understanding between BuyItNow.com,
Incorporated ("BIN") and Virtual Technology Corporation (d/b/a Netdirect
Corporation International) ("ND"), with respect to the principal terms and
conditions of BIN's proposal to enter into a transaction pursuant to which BIN
would merge with and into, or be acquired by, ND as further described herein
(the "Transaction"). For purposes of the Transaction, BIN is assumed to have a
fully-diluted value of $350 million and ND is assumed to have a fully-diluted
value of $93 million. Post-Transaction, the combined company is assumed to have
a valuation of $443 million. Upon Closing (as defined in Section 9 below), BIN
shareholders will own 79% and ND shareholders will own 21%, respectively, of the
fully-diluted equity (as determined in accordance with the treasury method of
accounting) of the combined company (the "Surviving Corporation"). The
Transaction is subject to ND's due diligence investigation and receipt of an
independent appraisal. Because this letter is being submitted prior to a
detailed review by each party of the other's respective businesses and assets,
this proposal is subject to a thorough due diligence examination by BIN and ND
and to the approval of their respective boards of directors. The general terms
and conditions of the proposed Transaction are as follows:
1. The Transaction. In order to timely effect closing of the
Transaction, ND's Board of Directors would create a special class of convertible
preferred stock for issuance to BIN's shareholders and option and warrantholders
in exchange for all of the outstanding capital
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June 8, 2000
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stock, and options and warrants to acquire capital stock, of BIN. This
convertible preferred stock would have the same rights and preferences as ND's
outstanding common stock, except that the convertible preferred stock would give
BIN's shareholders the same voting power of ND's outstanding capital stock on a
fully-diluted basis as provided for BIN above on all shareholder matters. Within
thirty (30) days of the Closing, ND shall prepare and file with the U.S.
Securities and Exchange Commission (the "SEC") a proxy statement, and within
thirty (30) days of SEC approval of its proxy statement, ND would call a
shareholder meeting for the purpose of increasing the number of authorized
shares of its common stock so that the preferred stock issued (or issuable upon
exercise of options and warrants) to the BIN shareholders can (and by its terms,
will automatically be) converted into a number of shares of ND common stock
representing, as of the Closing, the same percentage of ND's outstanding common
stock as described for BIN above on a fully-diluted basis. Thereafter, BIN shall
immediately merge with and into ND, and ND shall be the surviving corporation in
accordance with applicable state law (the "Merger"). The ND preferred and common
shares will be issued pursuant to an exemption from the registration
requirements of the Securities Act of 1933, as amended. The Transaction shall be
structured to accomplish a tax-free transaction for BIN, ND and their respective
shareholders and option and warrantholders.
2. Recapitalization of Surviving Corporation. Immediately following the
Merger, the Surviving Corporation shall seek to recapitalize its balance sheet,
including the implementation of a reverse stock split of at least 1 for 5 (or
such other ratio as agreed to by the Board of Directors).
3. Newco Warrants. Within thirty (30) days of Closing, the Surviving
Corporation shall grant to former employees and officers of BIN, and to
employees and officers of ND, 10-year common stock purchase warrants to purchase
up to an agreed number of shares of the Surviving Corporation's common stock.
Such warrants shall have an exercise price equal to $0.50 per share (or such
other agreed to exercise price), and such warrants shall vest in equal annual
installments based on continued employment with the Surviving Corporation over
three (3) years whereby one-third (1/3) shall vest at Closing (as defined
below). The warrants shall be subject to certain "change of control" provisions
whereby such warrants shall vest upon the sale of substantially all of the
assets or more than fifty percent (50%) of the common equity of the Surviving
Corporation.
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4. Registrable Rights. During the five years commencing 24 months after
the Closing, a majority in interest of the former BIN shareholders and the
executive officers of the Surviving Corporation can demand that ND register
their shares (including shares underlying options and warrants), unless such
shares are freely marketable pursuant to SEC Rule 144 or a similar exemption
from registration of such shares to be sold pursuant to such Rule 144 or a
similar adopted SEC rule. ND shall utilize commercially reasonable efforts to
keep in effect such registration statement until the shares are sold.
5. Lock-Up Agreement. For a period commencing on the Closing date and
continuing through and including one (1) year thereafter, BIN and ND insiders
comprising current BIN and ND executive officers, directors and 5% or greater
shareholders shall agree to a lock-up with respect to any sale, short-sale, and
"hedge" of their shares. However, this lockup period shall be shortened to the
lesser of 180 days or the balance of the above one-year period for any of ND's
current executive officers that do not continue in the employ of the Surviving
Corporation for the full year following the Closing.
6. Transaction Costs. BIN and ND shall each pay their respective costs
associated with the Transaction, including attorney, financial advisory,
investment banking, finders fees and brokerage commissions of any kind. However,
BIN shall pay the filing fees, if any, for review of the Transaction and Merger
by the Federal Trade Commission and the Antitrust Division of the U.S.
Department of Justice pursuant to the Hart-Scott-Rodino Antitrust Improvements
Act (the "HSN Filing Fees"). Notwithstanding the foregoing, ND shall be
responsible and shall promptly reimburse BIN for any HSN Filing Fees paid by BIN
on behalf of ND if the Closing does not occur due to a material breach of any
representation or warranty made by ND in the Definitive Agreement referred to in
Section 15 below.
7. Board of Directors. There shall be a eleven (11) member board of
directors, eight members of which shall be designated by BIN and three members
by ND. As a condition of Closing, the principal shareholders of BIN and ND shall
enter into a voting agreement to effectuate the foregoing.
8. Employment Agreement(s). ND shall negotiate employment agreements
with certain "key" executives of both BIN and ND on terms that are mutually
agreeable between the parties.
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9. Closing. The "Closing" refers to the issuance of the convertible
preferred stock to BIN's shareholders and is intended to occur on or before July
31, 2000. The parties shall use "best efforts" to complete definitive
documentation of the Transaction and subsequent Merger. Any final, definitive
agreement, however, shall be subject to completion of due diligence by both
parties (to be completed on or before July 31, 2000), BIN and ND board of
directors' approval, ND and BIN shareholder approvals, if required, and
regulatory approvals (if any).
10. Access and Information. Prior to the execution of the definitive
agreement, each party will provide the other and its representatives with
reasonable access to the books, records, facilities and personnel of their
company, and permit its respective representatives to review the business,
assets and operations of each respective company. Each of the parties agrees to
provide the other with information reasonably requested by it regarding such
business, assets and operations.
11. Conduct of Business; Notification. During the period in which this
letter of intent remains in effect, each party will use reasonable efforts to
conduct its business and operations in the usual and ordinary course and will
use reasonable efforts to preserve the goodwill thereof and to encourage its key
employees and customers to continue their relationships with their respective
company. From the last date of signature below until the closing of the
transaction contemplated hereby (or earlier termination of this letter of
intent), each party will notify the other in writing within five business days
of any material adverse change in the business or operations of their respective
company. ND shall use its best efforts between the date hereof and the Closing
to effect a settlement of its disputes with Lycos, Inc. and Cnet, Inc.
12. Consents. The contemplated transaction shall be conditioned upon
obtaining all required consents, including prior approval of any requisite
federal, state or local regulatory agencies, or of any customer, lender or
lessor of each party.
13. Confidentiality. The parties hereto agree that the existence and
contents of this letter and the nature and status of the transaction and related
matters described in this letter are confidential and subject to the Mutual
Confidentiality Agreement dated on or about April 30, 2000. In addition, the
parties hereto agree to hold in confidence all information learned or discovered
during the course of negotiations. The timing and content of any announcements,
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press releases or other public statements concerning the proposed acquisition
will occur upon, and be determined by, mutual agreement and consent of the
parties. The foregoing notwithstanding, nothing herein shall prohibit any party
from making any public disclosure regarding this letter and the nature and
status of the transaction contemplated herein if in the opinion of counsel to
such party such disclosure is required under applicable laws.
14. Expenses; Finders' Fees. Except as otherwise provided in this
letter, each party hereto shall bear its own costs and expenses associated with
the transaction contemplated hereby. Each party represents to the other that
there are no agents' or finders' fees due in connection with the transaction
contemplated hereby except for a fee owing by ND upon Closing to Graybox LLC (to
the extent paid in equity, such fee shall proportionate dilute the BIN and ND
interests Post-Transaction), which fee and any underlying agreement shall be
subject to BIN's reasonable and prior approval. Each party agrees to indemnify,
defend and hold harmless the other (and its affiliates) from any and all claims
or liabilities from any breach of the foregoing representation, including any
legal or other expenses incurred in connection with the defense of any such
claims.
15. Definitive Agreement. The terms and provisions governing the
transaction described herein are subject in all respects to, and will be
contained in, a definitive agreement to be negotiated in good faith by the
parties hereto by July 31, 2000 that will contain conditions customary in
transactions of this type for legal, tax, accounting and other relevant purposes
("Definitive Agreement"). The completion of the transaction contemplated by this
letter will be subject to receipt of approval by BIN and ND from their
respective Board of Directors and shareholders, if required, of the Definitive
Agreement prior to the Closing. The Definitive Agreement may provide that a
condition of Closing is ND's receipt of at least $2 million of additional equity
funding on or after the date of this letter and a best efforts commitment from
an acceptable source thereafter to seek an additional $3 million of additional
equity funding.
17. No Shop Agreement. For the purpose of this section, "Acquisition
Proposal" shall mean any offer or proposal relating to any "Acquisition
Transaction." "Acquisition Transaction" shall mean any transaction or series of
related transactions other than the transactions contemplated by this letter
involving: (A) any acquisition or purchase from a party hereto by any person or
"group" (as defined under Section 13(d) of the Exchange Act and the rules and
regulations thereunder) of more than a 10% interest in the total outstanding
voting securities of such party or any of its respective subsidiaries or any
tender offer or
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exchange offer that if consummated would result in any person or "group" (as
defined under Section 13(d) of the Exchange Act and the rules and regulations
thereunder) beneficially owning 10% or more of the total outstanding voting
securities of such party or any of its respective subsidiaries or any merger,
consolidation, business combination or similar transaction involving such party
pursuant to which the stockholders of such party immediately preceding such
transaction hold less than 90% of the equity interests in the surviving or
resulting entity of such transaction; (B) any sale, lease (other than in the
ordinary course of business), exchange, transfer, license (other than in the
ordinary course of business), acquisition or disposition of more than 10% of the
assets of such party; or (C) any liquidation, dissolution, recapitalization or
other significant corporate reorganization of such party.
(a) For a period extending through the earlier of (i) July 31, 2000,
(ii) the date of execution of the Definitive Agreement or (iii) the date that
BIN notifies ND in writing that BIN is abandoning the proposed Transaction (the
"Exclusivity Period"), ND shall not, and shall not authorize or permit any of
its officers, directors or any investment banker, financial advisor, or other
representative retained by it to, directly or indirectly, (i) solicit, initiate
or encourage (including by way of furnishing non-public information), or take
any other action to facilitate, any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, an Acquisition Proposal
or (ii) participate in any discussions or negotiations regarding an Acquisition
Proposal; provided, however, that if, at any time prior to Closing, the Board of
Directors of ND determines in good faith, based on the advice of ND's outside
counsel, that failure to do so would be reasonably likely to constitute a breach
of its fiduciary duties to the ND shareholders under applicable law, ND, in
response to a written Acquisition Proposal that (I) was unsolicited or that did
not otherwise result in a breach of this paragraph, and (II) is reasonably
likely to lead to an Acquisition Transaction on terms proposed that provides a
greater value to the stockholders of ND than the Transaction (a "ND Superior
Proposal"), may upon prior written notice to BIN (x) furnish non-public
information with respect to ND to the person who made such Acquisition Proposal
pursuant to a customary confidentiality agreement and (y) participate in
negotiations regarding such Acquisition Proposal.
(b) During the Exclusivity Period, BIN shall not, and shall not
authorize or permit any of its officers, directors or any investment banker,
financial advisor, or other representative retained by it to, directly or
indirectly, (i) solicit, initiate or encourage (including by way of furnishing
non-public information), or take any other action to facilitate, any inquiries
or the making of any proposal that constitutes, or may reasonably be expected to
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lead to, a material Acquisition Proposal or (ii) participate in any discussions
or negotiations
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regarding a material Acquisition Proposal, which in BIN's reasonable judgment
would prohibit the Closing from being consummated on or before July 31, 2000, or
result in a lower assumed valuation of ND; provided, however, that if, at any
time prior to the Closing, the Board of Directors of BIN determines in good
faith, based on the advice of BIN's outside counsel, that failure to do so would
be reasonably likely to constitute a breach of its fiduciary duties to the BIN
shareholders under applicable law, BIN, in response to a written Acquisition
Proposal that (I) was unsolicited or that did not otherwise result in a breach
of this paragraph, and (II) is reasonably likely to lead to a material
Acquisition Transaction on terms proposed that provides a greater value to the
stockholders of BIN than the Transaction (a "BIN Superior Proposal"), may upon
prior written notice to ND (x) furnish non-public information with respect to
BIN to the person who made such Acquisition Proposal pursuant to a customary
confidentiality agreement and (y) participate in negotiations regarding such
Acquisition Proposal.
(c) During the Exclusivity Period, the Board of Directors of ND shall
not (1) approve or recommend, or propose to approve or recommend, an Acquisition
Proposal that is not a ND Superior Proposal or (2) cause ND to enter into any
letter of intent, agreement in principle, acquisition agreement or other
agreement with respect to an Acquisition Proposal that is not a ND Superior
Proposal unless the Board of Directors of ND shall have determined in good
faith, based on the advice of outside counsel, that failure to do so would be
reasonably likely to constitute a breach of its fiduciary duty to ND's
stockholders under applicable law.
(d) During the Exclusivity Period, the Board of Directors of BIN shall
not (1) approve or recommend, or propose to approve or recommend, an Acquisition
Proposal that is not a BIN Superior Proposal or (2) cause BIN to enter into any
letter of intent, agreement in principle, acquisition agreement or other
agreement with respect to an Acquisition Proposal that is not a BIN Superior
Proposal unless the Board of Directors of BIN shall have determined in good
faith, based on the advice of outside counsel, that failure to do so would be
reasonably likely to constitute a breach of its fiduciary duty to BIN's
stockholders under applicable law.
(e) The parties acknowledge and agree that the monetary damages to each
party in the case of a breach by the other of this paragraph 16, or the
consummation of an Acquisition Transaction are difficult to quantify and,
therefore, each party agrees that if the provisions of this paragraph 16 are
breached by it or if the other consummates an Acquisition Proposal (whether
permitted by paragraph 16 or otherwise), then the party consummating the
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Acquisition Proposal shall pay the other party $5 million within five (5) days
of demand. Notwithstanding the foregoing, each party shall be entitled to seek
injunctive relief to prevent
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or cure a breach of this paragraph 16 and to enforce specifically the terms and
provisions of this paragraph 16.
18. Legal Effect. It is understood that this is a non-binding letter
of intent only and, while the parties hereby agree to negotiate in good faith
the terms of the Definitive Agreement, neither of the parties has any legal
obligation to the other as a result of this letter except with respect to the
agreements contained in paragraphs 10, 11, 13, 14 and 16 above. Accordingly,
except to the extent set forth in the preceding sentence, this letter does not
constitute a binding agreement, nor does it constitute an agreement to enter
into an agreement. The signing of this letter of intent does not foreclose any
party from raising additional issues within its parameters.
If you are in agreement in principle with the terms and conditions of
the proposal herein, please so acknowledge by executing an original of this
letter and returning it to the undersigned. This letter of intent may be
executed in several counterparts, each of which shall be deemed to be an
original and such counterparts together shall constitute one and the same
instrument.
[continued on next page]
We look forward to working with you and developing and executing the
formal legal documents necessary to accomplish the proposed transaction.
Very truly yours,
BUYITNOW.COM, INCORPORATED
a Delaware corporation
By /s/ Daniel M. Yukelson
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Daniel M. Yukelson
Executive Vice President and
Chief Financial Officer
VIRTUAL TECHNOLOGY CORPORATION
(d/b/a Netdirect Corporation International)
a Minnesota corporation
By /s/ Gregory A. Appelhof
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Gregory A. Appelhof
President and Chief Executive Officer
