RESTATED VOTING AGREEMENT
THIS RESTATED VOTING AGREEMENT is made and entered into as of May 1,
2000 (this "Agreement") between SOFTBANK Capital Partners LP, a Delaware limited
partnership ("SOFTBANK Capital Partners"), SOFTBANK Capital Advisors Fund LP, a
Delaware limited partnership ("SOFTBANK Advisors" and, together with SOFTBANK
America and SOFTBANK Capital Partners, "SOFTBANK"), and Xxxxxxx X. Xxxxx (the
"Principal Stockholder"). This Agreement amends and restates the Voting
Agreement dated as of June 10, 1999 (the "Prior Agreement"), between SOFTBANK
America Inc. ("SOFTBANK America") and the Principal Stockholder.
The Prior Agreement is hereby terminated in its entirety and restated
herein. Such termination and restatement is effective upon execution of this
Agreement by the parties listed on the signature page hereto.
RECITALS
WHEREAS, on June 10, 1999, Global Sports, Inc., a Delaware corporation
(the "Company"), and SOFTBANK America entered into a purchase agreement pursuant
to which SOFTBANK America acquired 6,153,850 shares of the Company's common
stock, par value $0.01 per share (the "Common Stock");
WHEREAS, SOFTBANK America subsequently assigned its 6,153,850 shares of
Common Stock of the Company to SOFTBANK Capital Partners and SOFTBANK Advisors;
WHEREAS, on April 27, 2000, the Company, SOFTBANK Capital Partners and
SOFTBANK Advisors entered into a purchase agreement (the "Purchase Agreement"),
pursuant to which SOFTBANK intends to acquire an additional 2,500,000 shares of
the Company's Common Stock; and
WHEREAS, as an inducement and a condition to consummating the Purchase
Agreement, SOFTBANK has required that the Principal Stockholder agree, and the
Principal Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the covenants set forth herein, and
for other good and valuable consideration, intending to be legally bound hereby,
the parties agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act.
(b) "Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
2. Stockholder Meetings.
2.1 Stockholder Votes. The Principal Stockholder agrees that it shall,
at any meeting of stockholders of the Company, however called, or in connection
with any written consent of stockholders of the Company, vote (or cause to be
voted) the shares (if any) of capital stock of the Company (the "Capital Stock")
then held of record or Beneficially Owned by such Principal Stockholder, (i)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Purchase Agreement; (ii) in favor of election to the Board
of Directors of the directors which SOFTBANK is entitled to designate upon
consummation of the Purchase Agreement and which have been identified by
SOFTBANK as nominees for such purpose; and (iii) except as otherwise agreed to
in writing
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in advance by SOFTBANK, against the following actions (other than the Purchase
(as defined in the Purchase Agreement) and the transactions contemplated by the
Purchase Agreement): (A) a dissolution of the Company or (B) any material change
in the present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or By-laws, in each case, which is intended, or
could reasonably be expected, to impede, delay or adversely affect the Purchase
and the transactions contemplated by this Agreement and the Purchase Agreement.
The Principal Stockholder agrees that it shall not enter into any agreement or
understanding with any Person the effect of which would be inconsistent or
violative of the provisions and agreements contained in this Section 2.
2.2 Irrevocable Proxy. The Principal Stockholder, in furtherance of the
transactions contemplated hereby and by the Purchase Agreement, and in order to
secure the performance by the Principal Stockholder of its duties under this
Agreement, shall, if and when requested by SOFTBANK, promptly execute and
deliver to SOFTBANK an irrevocable proxy, substantially in the form of Exhibit A
hereto, and irrevocably appoint Purchaser or its designees, with full power of
substitution, its attorney, agent and proxy to vote (or cause to be voted) or,
if applicable, to give consent with respect to, all of the shares of Common
Stock Beneficially Owned by such Principal Stockholder, together with any shares
acquired by such Principal Stockholder in any capacity after the date hereof in
the manner, and with respect to the matters, set forth in Section 2.1 hereof.
The Principal Stockholder acknowledges that the proxy executed and delivered by
it shall be coupled with an interest, shall constitute, among other things, an
inducement for SOFTBANK to enter into the Purchase Agreement, shall be
irrevocable and binding on any successor in interest of such Principal
Stockholder and shall not be terminated by operation of law upon the occurrence
of any event, including, without limitation, the death or incapacity of such
Principal Stockholder. Such proxy shall operate to revoke and render void any
prior proxy as to the shares heretofore granted by such Principal Stockholder.
Such proxy shall terminate on the Expiration Date.
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3. Composition and Nomination of Board of Directors.
3.1 Board Composition Requirements. The parties hereto intend that the
Board of Directors of the Company shall consist of seven (7) members. SOFTBANK
shall have the right, (i) (A) so long as SOFTBANK and the SOFTBANK Entities (as
defined in the Purchase Agreement) collectively own 50% or more of the Common
Stock (on an as if exercised basis) held immediately after consummation of the
Purchase (as defined in the Purchase Agreement), to designate three (3) members
of the Company's Board of Directors, (B) so long as SOFTBANK and the SOFTBANK
Entities collectively own 25% or more of the Common Stock (on an as if exercised
basis) held immediately after consummation of the Purchase, to designate two (2)
members of the Company's Board of Directors, and (C) so long as SOFTBANK and the
SOFTBANK Entities collectively own 5% or more of the Common Stock (on an as if
exercised basis) held immediately after consummation of the Purchase, to
designate one (1) member of the Company's Board of Directors (collectively, the
"Board Composition Requirement"); and (ii) so long as SOFTBANK and the SOFTBANK
Entities collectively own 35% or more of the Common Stock (on an as if exercised
basis) held immediately after consummation of the Purchase, to designate one (1)
member of each committee of the Company's Board of Directors. At any meeting of
stockholders at which directors are to be elected and with respect to any
written consent of stockholders of the Company in lieu of meeting relating to
the election of directors, the Principal Stockholder shall vote, or execute and
deliver a written consent with respect to, all shares of Common Stock and any
other voting securities of the Company held of record or Beneficially Owned by
it in favor of a slate of directors meeting the Board Composition Requirement
and nominated as contemplated by Section 3.2 hereof and against any slate of
directors that does not satisfy the Board Composition Requirements or the
nomination procedures contemplated by Section 3.2.
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3.2 Nominating Procedures. In connection with each meeting of
stockholders of the Company at which directors of the Company are to be elected,
the parties hereto shall cause their designees on the Board to nominate a slate
of nominees for director which meets the Board Composition Requirements for so
long as this Agreement remains in effect.
The nominees so selected by the Board of Directors shall be presented
and voted upon at the meeting of stockholders as a slate.
3.3 Removal of Directors. Except as otherwise provided in this Section
3.3, the Principal Stockholder agrees not to take any action to remove, with or
without cause, any director of the Company designated by SOFTBANK.
Notwithstanding the foregoing, SOFTBANK shall at all times have the right to
remove and to cause the Principal Stockholder to remove, with or without cause,
any or all of the directors designated by SOFTBANK.
3.4 Vacancies. If a vacancy is created on the Board of Directors by
reason of the death, disability, removal or resignation of any one of the
directors, the Principal Stockholder shall promptly take all necessary and
appropriate action, including, to the extent it has power to do so, calling a
special meeting of stockholders or executing a written consent of stockholders
in lieu of meeting and voting, or executing and delivering a written consent
with respect to, the shares of Common Stock and any other voting securities of
the Company then held of record or Beneficially Owned in such a manner to ensure
that such vacancy is filled in a manner consistent with the Board Composition
Requirements.
4. Action to Reconstitute Board of Directors. If at any time and for any
reason the Board of Directors shall fail to satisfy the Board Composition
Requirements, then, at the written request of SOFTBANK, the Principal
Stockholder shall, to the extent it has power to do so, cause to be called a
special meeting of the stockholders to be held for the purpose of taking
whatever action may be necessary to
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ensure that the Board is constituted so as to satisfy the Board Composition
Requirements as promptly as practicable.
5. Certificate of Incorporation and Bylaws. The Principal Stockholder
shall vote all shares of Common Stock and any other voting securities of the
Company then held of record or Beneficially Owned and shall take all other
actions necessary and appropriate (including, without limitation, removing any
director) to ensure that the Company's Certificate of Incorporation and Bylaws
do not at any time conflict with the provisions of this Agreement.
6. No Transfer of Capital Stock. The Principal Stockholder hereby agrees
that during the period ending six (6) months after the date hereof, such
Principal Stockholder shall not sell, transfer or pledge his Capital Stock to
another Person or otherwise engage in any act which would decrease the Principal
Stockholder's percentage of Common Stock ownership on the date hereof
("Dispose"), except if such sale, transfer or pledge is consummated in
accordance with Rule 144 under the Securities Act of 1933, as amended. In
addition, the Principal Stockholder shall not Dispose of his Capital Stock,
except, if the transferee agrees in writing to be bound by the provisions of
this Agreement.
7. Miscellaneous.
7.1 Modification and Waiver. No amendment or modification of the terms
or provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed to or shall constitute a waiver of
any other provisions hereof. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof.
7.2 Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof. Any
previous agreement or understandings between the parties regarding the subject
matter hereof are merged into and superseded by this Agreement.
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7.3 Severability. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
7.4 No Implied Rights. Nothing herein, express or implied, is intended
to or shall be construed to confer upon or give to any person, firm, corporation
or legal entity, other than the parties hereto, any interest, rights, remedies
or other benefits with respect to or in connection with any agreement or
provision contained herein or contemplated hereby.
7.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to the conflict
of law provisions thereof.
7.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
7.7 Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
7.8 Notices. All notices and other communications under this Agreement
shall be in writing, and shall be deemed to have been duly given on the date of
delivery if delivered personally or on the third business day after mailing or
if mailed to the party to whom notice is to be given by first class mail,
registered or certified, postage prepaid, return receipt requested, and
addressed as follows (until any such address is changed by notice duly given):
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(a) if to SOFTBANK, to:
c/o SOFTBANK Capital Partners LP
00 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Administrative Member
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
00xx Xxxxx
xXX Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
(b) if to the Principal Stockholder, to:
Global Sports, Inc.
0000 Xxxxx Xxxxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
Blank Rome Xxxxxxx & XxXxxxxx LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SOFTBANK CAPITAL PARTNERS LP
By: SOFTBANK Capital Partners LLC
Its General Partner
By:
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Name:
Title:
SOFTBANK CAPITAL ADVISORS FUND LP
By: SOFTBANK Capital Partners LLC
Its General Partner
By:
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Name:
Title:
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XXXXXXX X. XXXXX
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EXHIBIT A
Irrevocable Proxy
In order to secure the performance of the duties of the undersigned
pursuant to the Voting Agreement, dated as of May 1, 2000 (the "Voting
Agreement"), between the undersigned, SOFTBANK Capital Partners LP and SOFTBANK
Capital Advisors Fund LP, the undersigned hereby irrevocably appoints Xxxxxx X.
Xxxxxx and Xxxxxx Xxxxxx, and each of them, the attorneys, agents and proxies,
with full power of substitution in each of them, for the undersigned, and in the
name, place and stead of the undersigned, to vote (or cause to be voted) or, if
applicable, to give consent, in such manners each such attorney, agent and proxy
or his substitute shall in his sole discretion deem proper to record such vote
(or consent) in the manner, and with respect to the matters, set forth in
Section 2 of the Voting Agreement with respect to all shares of Common Stock and
voting securities of Global Sports, Inc., a Delaware corporation (the
"Company"), which the undersigned is or may be entitled to vote at any meeting
of the Company held after the date hereof, whether annual or special and whether
or not an adjourned meeting, or if applicable, to given written consent with
respect thereto. This Proxy is coupled with an interest, shall be irrevocable
and binding on any successor in interest of the undesigned and shall not be
terminated by operation of law upon the occurrence of any event, including,
without limitation, the death or incapacity of the undersigned. This Proxy shall
operate to revoke and render void any prior proxy as to the shares of Common
Stock and voting securities heretofore granted by the undersigned.
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Xxxxxxx X. Xxxxx
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