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EXHIBIT 99.3
EXECUTION COPY
VOTING AGREEMENT, dated as of July 19, 2000 (this
"Agreement"), among CNET Networks, Inc., a Delaware corporation ("CNET"),
SOFTBANK America Inc., a Delaware corporation ("SOFTBANK"), the holder of at
least a majority of the issued and outstanding shares of Z-D Common Stock and TD
Merger Sub, Inc., a Delaware corporation that is a direct wholly owned
subsidiary of CNET ("Merger Sub").
RECITALS
CNET, Merger Sub and ▇▇▇▇-▇▇▇▇▇ Inc., a Delaware corporation
("Z-D") propose to enter into an Agreement and Plan of Merger, dated as of July
19, 2000 (the "Merger Agreement"; capitalized terms used without definition
herein having the meanings assigned to them in the Merger Agreement), pursuant
to which Merger Sub would be merged (the "Merger") with and into Z-D.
As a condition of its entering into the Merger Agreement, CNET
has requested that SOFTBANK agree, and SOFTBANK has agreed, to enter into this
Agreement.
As of the date hereof, SOFTBANK is the record and beneficial
owner of 71,619,355 shares of Z-D Common Stock (the "Existing Shares" and,
together with any shares of Z-D Common Stock or other voting capital stock of
Z-D acquired after the date hereof, whether upon the exercise of warrants,
options, conversion of convertible securities or otherwise, SOFTBANK's
"Shares"), representing in the aggregate 69.10% of the aggregate issued and
outstanding shares of Z-D Common Stock.
Prior to the date hereof, CNET and SOFTBANK had no agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of the Shares.
In consideration for the agreements contained herein, prior to
the date hereof, the board of directors of Z-D has approved the agreement of
SOFTBANK to vote as provided in this Agreement.
ARTICLE I
VOTING
1.1 Agreement to Vote. SOFTBANK hereby agrees during the term
of this Agreement that it shall, and shall cause the holder of record on any
applicable record date to, at the request of CNET, at any meeting (whether
annual or special and whether or not an adjourned or postponed meeting) of
stockholders of Z-D, however called, or in connection with any written consent
of the holders of Z-D Common Stock, (a) if a meeting is held, appear at such
meeting or otherwise cause the Shares to be counted as present thereat for
purposes of establishing a quorum, and (b) vote or consent (or cause to be voted
or consented), in person or by proxy, all Shares, and any other voting
securities of Z-D (whether acquired heretofore or hereafter) that are
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beneficially owned or held of record by SOFTBANK or as to which SOFTBANK has,
directly or indirectly, the right to vote or direct the voting (collectively,
the "Subject Shares"), in favor of the approval and adoption of the Merger
Agreement, the Merger and the transactions contemplated thereby. SOFTBANK
further agrees to use its reasonable good faith efforts to cause the
shareholders of Z-D to approve the Merger and the transactions and matters
contemplated in connection therewith and to not, directly or indirectly, solicit
or encourage any offer from any party concerning the possible disposition of all
or any substantial portion of its business, assets or capital stock. In the
event Z-D's board of directors does not call a meeting of its stockholders to
approve the Merger and the transactions and matters contemplated in connection
therewith, SOFTBANK agrees to take all action permitted under the amended and
restated certificate of incorporation and bylaws of Z-D and under Delaware law
necessary to call a meeting of its stockholders to approve the Merger and the
transactions and matters contemplated in connection therewith. Nothing in this
Agreement shall be deemed to interfere with the consummation of the Spin-Off,
the payment of the Cash Dividend or any steps or actions that SOFTBANK must take
in connection with the consummation of such transactions.
1.2 Proxy. SOFTBANK hereby agrees to grant to CNET a proxy to
vote the Subject Shares as indicated in Section 1.1 above if SOFTBANK fails for
any reason to vote the Subject Shares in accordance with Section 1.1. SOFTBANK
agrees that such a proxy would be irrevocable and would be coupled with an
interest and agrees that it will take such further action or execute such other
instruments as may be necessary or desirable to effectuate the intent of such a
proxy and hereby revokes any proxy previously granted by it with respect to the
Subject Shares.
1.3 No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in CNET any direct or indirect ownership or incidence of
ownership of or with respect to any Subject Shares. All rights, ownership and
economic benefits of and relating to the Subject Shares shall remain vested in
and belong to SOFTBANK, and CNET shall have no authority to manage, direct,
superintend, restrict, regulate, govern, or administer any of the policies or
operations of Z-D or exercise any power or authority to direct SOFTBANK in the
voting of any of the Subject Shares, except as otherwise provided herein, or in
the performance of SOFTBANK's duties or responsibilities as a stockholder of
Z-D.
1.4 No Inconsistent Agreements. SOFTBANK hereby covenants and
agrees that, except as contemplated by this Agreement and the Merger Agreement,
SOFTBANK (a) has not entered, and shall not enter at any time while this
Agreement remains in effect, into any voting agreement or voting trust with
respect to the Shares and (b) has not granted, and shall not grant at any time
while this Agreement remains in effect, a proxy or power of attorney with
respect to the Shares, in either case, which is inconsistent with SOFTBANK's
obligations pursuant to this Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
SOFTBANK
SOFTBANK hereby represents and warrants to CNET as follows:
2.1 Authorization; Validity of Agreement; Necessary Action.
SOFTBANK has full power and authority to execute and deliver this Agreement, to
perform SOFTBANK's obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by SOFTBANK of this
Agreement and the consummation by it of the transactions contemplated hereby
have been duly and validly authorized by SOFTBANK and no other actions or
proceedings on the part of SOFTBANK are necessary to authorize the execution and
delivery by it of this Agreement and the consummation by it of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
SOFTBANK, and, assuming this Agreement constitutes a valid and binding
obligation of CNET, constitutes a valid and binding obligation of SOFTBANK,
enforceable against it in accordance with its terms, except that (i) such
enforcement may be subject to applicable bankruptcy, insolvency or other similar
laws, now or hereafter in effect, affecting creditors' rights generally, and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
2.2 Shares. The Existing Shares are, and all of SOFTBANK's
Shares from the date hereof through and on the Closing Date have been and will
be, owned beneficially and of record by SOFTBANK (subject to any dispositions of
Shares permitted by Section 4.1(a) hereof). As of the date hereof, the Existing
Shares constitute all of the Shares owned of record or beneficially by SOFTBANK.
SOFTBANK has or will have sole voting power, sole power of disposition, sole
power to issue instructions with respect to the matters set forth in Article I
hereof, and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Shares and with
respect to all of the Shares on the Closing Date, with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement.
2.3 No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by SOFTBANK and the
consummation by SOFTBANK of the transactions contemplated hereby (other than (i)
filings under the DGCL required to effect the Merger, (ii) the filing of a
pre-merger notification and report form by Z-D under the HSR, (iii) the filing
of the Form S-4 and the Joint Proxy Statement/Prospectus by CNET and Z-D in
connection with the Merger, or (iv) as otherwise contemplated by the Merger
Agreement) and neither the execution and delivery of this Agreement by SOFTBANK
nor the consummation by SOFTBANK of the transactions contemplated hereby nor
compliance by SOFTBANK with any of the provisions hereof shall conflict with or
result in any breach of any organizational documents applicable to SOFTBANK,
result in a violation or breach of, or constitute (with or without notice or
lapse of
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time or both) a default (or give rise to any third-party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which SOFTBANK is a party or by which its
properties or assets may be bound or violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to SOFTBANK or
any of its properties or assets.
2.4 No Liens. The Existing Shares are held by SOFTBANK, or by
a nominee or custodian for the exclusive benefit of SOFTBANK, free and clear of
all liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any encumbrances arising hereunder and agreements existing prior to the date
hereof between SOFTBANK and Z-D, as the same may be amended pursuant to this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CNET AND MERGER SUB
3.1 Representations and Warranties of CNET and Merger Sub.
CNET and Merger Sub jointly and severally represent and warrant to Softbank as
follows:
3.2 Power: Binding Agreement. CNET and Merger Sub have full
corporate power and authority to execute and deliver this Agreement and to
perform all of their respective obligations under this Agreement. This Agreement
has been duly and validly executed and delivered by CNET and Merger Sub and
constitutes a valid and binding agreement of CNET and Merger Sub, enforceable
against each of them in accordance with its terms, except that (i) such
enforcement may be subject to applicable bankruptcy, insolvency or other similar
laws, now or hereafter in effect, affecting creditors' rights generally, and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
3.3 No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by CNET or Merger Sub
and the consummation by CNET or Merger Sub of the transactions contemplated
hereby and neither the execution and delivery of this Agreement by CNET or
Merger Sub nor the consummation by CNET or Merger Sub of the transactions
contemplated hereby nor compliance by CNET or Merger Sub with any of the
provisions hereof shall conflict with or result in any breach of any
organizational documents applicable to CNET or Merger Sub, as the case may be,
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third-party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which CNET or
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Merger Sub is a party or by which CNET's or Merger Sub's properties or assets
may be bound or violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to CNET or Merger Sub or any of CNET's or
Merger Sub's properties or assets.
ARTICLE IV
OTHER COVENANTS
4.1 Further Agreements of SOFTBANK.
(a) SOFTBANK hereby agrees, while this Agreement is in
effect, and except as contemplated hereby, not to sell, transfer, pledge,
encumber, assign or otherwise dispose of (collectively, a "Transfer") or enforce
or permit the execution of the provisions of any redemption, share purchase or
sale, recapitalization or other agreement with Z-D or enter into any contract,
option or other arrangement or understanding with respect to the offer for sale,
sale, transfer, pledge, encumbrance, assignment or other disposition of, any of
its Existing Shares, any Shares acquired after the date hereof, any securities
exercisable for or convertible into Z-D Common Stock, any other capital stock of
Z-D or any interest in any of the foregoing with any Person, except to a Person
who agrees in writing, in an instrument reasonably acceptable to CNET, to be
bound by this Agreement as a Stockholder and be subject to Section 1.1 and
except for the Transfer to Z-D of not more than 165,000 Existing Shares in
connection with the exercise of certain Z-D Stock Options which were issued in
exchange for SOFTBANK stock options.
(b) In the event of a stock dividend or distribution, or
any change in Z-D Common Stock by reason of any stock dividend or distribution,
or any change in Z-D Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any securities into which or for which any or
all of the Shares may be changed or exchanged or which are received in such
transaction, other than the stock dividend contemplated by the Spin-Off.
4.2 Rights of First Refusal. SOFTBANK hereby covenants and
agrees that it hereby waives, and will cause each of its Affiliates to waive,
any right of first refusal, termination provision or similar right under the the
Joint Venture Agreement dated as of January 1, 2000 by and between Softbank
Media & Marketing Corp, ▇▇▇▇-▇▇▇▇▇ Inc., through its ZDNet Division, and Yahoo!
Japan Corporation that would otherwise become exercisable upon execution of the
Merger Agreement and/or consummation of the Merger or the other transactions
contemplated thereby. In addition, SOFTBANK hereby covenants and agrees that it
will not exercise, and will cause each of its Affiliates not to exercise, any
registration rights with respect to Z-D Common Stock or Z-D Net Common Stock
from the date of this Agreement through the Effective Date.
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4.3 Acquisition Proposals. Without limitation on any of its other
obligations under this Agreement, SOFTBANK hereby covenants and agrees that
neither it nor any of its Subsidiaries nor any of the officers and directors of
it or its Subsidiaries (including, without limitation, Z-D) shall, and that it
shall use its reasonable best efforts to cause its and its Subsidiaries'
employees, agents and representatives (including any investment banker, attorney
or accountant retained by it or any of its Subsidiaries) not to, directly or
indirectly, (i) initiate, solicit, encourage or knowingly facilitate any
inquiries or the making of any proposal or offer with respect to, or a
transaction to effect, an Acquisition Proposal with respect to Z-D or any of its
Significant Subsidiaries, (ii) have any discussion with or provide any
confidential information or data to any Person relating to an Acquisition
Proposal, or engage in any negotiations concerning an Acquisition Proposal, or
knowingly facilitate any effort or attempt to make or implement an Acquisition
Proposal, in each case with respect to Z-D or any of its Significant
Subsidiaries, (iii) approve, vote in favor of, consent to or recommend, or
propose publicly to approve or recommend, any Acquisition Proposal with respect
to Z-D or any of its Significant Subsidiaries or (iv) approve, vote in favor of,
consent to or recommend, or propose to approve or recommend, or execute or enter
into, any letter of intent, agreement in principle, merger agreement,
acquisition agreement, option agreement or other similar agreement or propose
publicly or agree to do any of the foregoing related to any Acquisition Proposal
with respect to Z-D or any of its Significant Subsidiaries. SOFTBANK agrees that
it will promptly keep the other party informed of the status and terms of any
such proposals. SOFTBANK further agrees that it will, and will cause its
officers, directors and representatives to, immediately cease and cause to be
terminated any activities, discussions or negotiations existing as of the date
of this Agreement with any parties conducted heretofore with respect to any
Acquisition Proposal with respect to Z-D or any of its Significant Subsidiaries
and that it will use reasonable best efforts to promptly inform its directors,
officers, key employees, agents and representatives of the obligations
undertaken in this Section 4.3.
ARTICLE V
MISCELLANEOUS
5.1 Termination. This Agreement shall terminate and no party shall have
any rights or duties hereunder upon the earlier of (a) the Effective Time or (b)
termination of the Merger Agreement pursuant to Section 7.1 thereof. Nothing in
this Section 5.1 shall relieve or otherwise limit any party of liability for
breach of this Agreement. Upon any termination of this Agreement, this Agreement
shall thereupon become void and of no further force and effect, and there shall
be no liability in respect of this Agreement or of any transactions contemplated
hereby on the part of any party hereto or any of its directors, officers,
partners, members, stockholders, employees, agents, advisors, representatives or
affiliates; provided, however, that nothing herein shall relieve any party from
any liability for such party's material breach of this Agreement; and provided
further that nothing in this Section 5.1 shall limit, restrict, impair, amend or
otherwise modify the rights, remedies, obligations or liabilities of any person
under any other contract or agreement, including, without limitation, the Merger
Agreement.
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5.2 Further Assurances. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or appropriate to consummate the transactions contemplated by this Agreement.
5.3 Noninterference. SOFTBANK hereby agrees and covenants that it shall
not, directly or indirectly, take any action that would make any representation
or warranty contained herein untrue or incorrect or have the effect of
preventing or disabling SOFTBANK from performing its obligations under this
Agreement.
5.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (a) on the date of delivery if delivered
personally, or by telecopy or facsimile, upon confirmation of receipt, (b) on
the first Business Day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the tenth Business Day following
the date of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
(a) if to CNET to:
Cnet Networks, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇ ▇▇▇
General Counsel
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) if to SOFTBANK to:
Softbank America Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
5.5 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
5.6 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without regard to conflicts
of laws principles thereof.
5.7 Submission to Jurisdiction; Waivers. Each of SOFTBANK and CNET
irrevocably agrees that any legal action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereof
brought by the other party hereto or its successors or assigns may be brought
and determined in the Chancery or other Courts of the State of Delaware, and
each of CNET and SOFTBANK hereby irrevocably submits with regard to any such
action or proceeding for itself and in respect to its property, generally and
unconditionally, to the exclusive jurisdiction of the aforesaid courts. Each of
SOFTBANK and CNET hereby irrevocably waives, and agrees not to assert, by way of
motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement, (a) any claim that it is not personally subject
to the jurisdiction of the above-named courts for any reason other than the
failure to lawfully serve process, (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
(c) to the fullest extent permitted by applicable law, that (i) the suit, action
or proceeding in any such court is brought in an inconvenient forum, (ii) the
venue of such suit, action or proceeding is improper and (iii) this Agreement,
or the subject matter hereof, may not be enforced in or by such courts and (d)
any right to a trial by jury.
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5.8 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
5.9 Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the parties
shall be entitled to specific performance of the terms hereof, this being in
addition to any other remedy to which they are entitled at law or in equity,
including without limitation injunctive relief.
5.10 Entire Agreement. This Agreement constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, CNET, SOFTBANK and Merger Sub have caused
this Agreement to be signed by their respective officers or other authorized
persons thereunto duly authorized as of the date first written above.
CNET NETWORKS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
SOFTBANK AMERICA INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
TD MERGER SUB, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
