Shopping Com – ‘8-K’ for 1/21/99 – EX-99.1

As of:  Tuesday, 1/26/99   ·   For:  1/21/99   ·   Accession #:  929624-99-118   ·   File #:  0-29518

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Current Report   —   Form 8-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                         4     11K 
 2: EX-99.1     Amendment No. 1 to Agreement and Plan of Merger        5     16K 

EX-99.1   —   Amendment No. 1 to Agreement and Plan of Merger

EX-99.1
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                                                                    EXHIBIT 99.1

AMENDMENT NO. 1 TO THE  
AGREEMENT AND PLAN OF MERGER  

     THIS FIRST AMENDMENT ("Amendment No. 1"), dated as of January 20,
 ---------------
1999, by and between Compaq Computer Corporation ("Parent") and Shopping.com    
(the "Company").                                                                

RECITALS

      WHEREAS, Parent and the Company have entered into an Agreement and
Plan of Merger, dated as of January 11, 1999 (the "Merger Agreement").          

   WHEREAS, Parent and the Company have agreed to amend the Merger
Agreement as set forth below.                                                   

   NOW THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, and other good and valuable consideration, the     
receipt and sufficiency of which are hereby acknowledged, the parties hereto    
agree as follows:                                                               

         1.  Definitions.  Capitalized terms used and not otherwise defined in
-----------                                         
this Amendment No. 1 shall have the respective meanings assigned to such terms  
in the Merger Agreement.                                                        

     2.  Per Share Amount.  The third recital of  the Merger Agreement
----------------                                    
shall be deleted and replaced in its entirety as follows:                       

          "WHEREAS, in furtherance thereof, it is proposed that Purchaser make a
cash tender offer to acquire all of the issued and outstanding shares of common 
stock, no par value, of the Company for $18.25 per share, net to the seller in  
cash; and"                                                                      

         3.  Capitalization.  Section 3.2 (a) of the Merger Agreement shall be
--------------                                      
deleted and replaced in it entirety as follows:                                 

"(a) The authorized capital stock of the Company consists of
25,000,000 Shares.  As of the date hereof, (i) 8,897,234 Shares are issued and  
outstanding, (ii) no shares of Company Preferred Stock are issued and           
outstanding, (iii) pursuant to California law, no Shares are issued and held in 
the treasury of the                                                             

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Company, (iv) 2,727,200 Shares are reserved for issuance pursuant to outstanding
Company Options, and (v) 4,189,276 Shares are reserved for issuance pursuant to 
outstanding warrants of the Company. All the outstanding shares of the Company's
capital stock are, and all Shares which may be issued pursuant to the exercise  
of outstanding Company Options will be, when issued in accordance with the      
respective terms thereof, duly authorized, validly issued, fully paid and       
non-assessable. There is no Voting Debt of the Company issued and outstanding.  
Except as set forth above and except for the Transactions, as of the date       
hereof, (i) there are no shares of capital stock of the Company authorized,     
issued or outstanding; (ii) there are no existing options, warrants, calls,     
pre-emptive rights, subscriptions or other rights, agreements, arrangements or  
commitments of any character, relating to the issued or unissued capital stock  
of the Company, obligating the Company to issue, transfer or sell or cause to be
issued, transferred or sold any shares of capital stock or Voting Debt of, or   
other equity interest in, the Company or securities convertible into or         
exchangeable for such shares or equity interests, or obligating the Company to  
grant, extend or enter into any such option, warrant, call, subscription or     
other right, agreement, arrangement or commitment and (iii) there are no        
outstanding contractual obligations of the Company to repurchase, redeem or     
otherwise acquire any Shares, or the capital stock of the Company or Affiliate  
of the Company or to provide funds to make any investment (in the form of a     
loan, capital contribution or otherwise) in any other entity."                  

   4.  Representations and Warranties of the Company.  The Company
---------------------------------------------       
represents and warrants to Parent and Purchaser as follows:                     

         (a) The Company has full corporate power and authority to execute and
deliver this Amendment No. 1.  The execution, delivery and performance by the   
Company of this Amendment No. 1 have been duly authorized by the Company Board  
of Directors and, except for obtaining the approval of its shareholders as      
contemplated by Section 1.9 of the Merger Agreement, no other corporate action  
on the part of the Company is necessary to authorize the execution and delivery 
by the Company of this Amendment No. 1.  This Amendment No. 1 has been duly     
executed and delivered by the Company and, assuming due and valid authorization,
execution and delivery thereof by Parent, this Amendment No. 1 is a valid and   
binding obligation of the Company enforceable against the Company in            
accordance with its terms; and                                                  

         (b) The Company Board of Directors, at a meeting duly called and held
or by unanimous written consent, has (i) unanimously determined that the Offer  

2 

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Price, as adjusted pursuant to this Amendment No. 1, is fair to and in the best 
interests of the shareholders of the Company, and (ii) resolved to recommend    
that the shareholders of the Company accept the Offer, tender their Shares to   
Purchaser pursuant to the Offer and approve and adopt this Amendment No. 1 and  
the Merger, and none of the aforesaid actions by the Company Board of Directors 
has been amended, rescinded or modified; and                                    

         (c) The Company has received the opinion of Trautman Kramer & Company
dated the date hereof, to the effect that, as of such date, the consideration to
be received in the Offer and the Merger by the Company's shareholders is fair to
the Company's shareholders from a financial point of view, and the copy of such 
opinion is manually signed, accurate and complete. The Company has been autho   
rized by Trautman Kramer & Company to permit the inclusion of such opinion in   
its entirety in the Offer Documents and the Schedule 14D-9 and the Proxy        
Statement, so long as such inclusion is in form and substance reasonably        
satisfactory to Trautman Kramer & Company and its counsel.                      

          5.  Definitions.  "Offer Price" appearing in Section 8.1 of the Merger
-----------                                         
Agreement shall be deleted and replaced in its entirety as follows:             

        "Offer Price" shall mean $18.25 per Share net to the seller in cash,
or such increased amount, if any, as Purchaser may offer to pay as contemplated 
by Section 1.1(a).                                                              

6.  Miscellaneous.                                          
-------------                                       

      (a) The headings contained in this Amendment No. 1 are for
reference purposes only and shall not effect in any way the meaning or          
interpreta tion of this Amendment No. 1.                                        

   (b) This Amendment No. 1 may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall  
be considered one and the same agreement.                                       

           (c) This Amendment No. 1 shall be governed by, and construed in
accordance with, the laws of the State of California without giving effect to   
the principles of conflicts of laws thereof.                                    

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          (d) Except as specifically provided herein, the Merger Agreement shall
remain in full force and effect.  In the event of any inconsistency between the 
provisions of this Amendment No. 1 and any provision of the Merger Agreement,   
the terms and provisions of this Amendment No. 1 shall govern and control.      

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         IN WITNESS WHEREOF, Parent and the Company have caused this Amendment
No. 1 to the Merger Agreement be duly executed and delivered as of the date     
first written above.                                                            

 COMPAQ COMPUTER CORPORATION

By: /s/ Earl L. Mason     
                              --------------------------------------------------
Earl L. Mason     
                               Senior Vice President and Chief Financial Officer

SHOPPING.COM              

By: /s/ Frank W. Denny    
                              --------------------------------------------------
Frank W. Denny    
                   President and Chief Executive Officer

5 

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘8-K’ Filing		Date		First		Last			Other Filings
Filed on:		1/26/99
For Period End:		1/21/99							SC 13D/A,  SC 14D1/A,  SC 14D9/A
		1/11/99		1					8-K
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