EXHIBIT 99.2
CKS STOCK OPTION AGREEMENT
THIS CKS STOCK OPTION AGREEMENT dated as of September 1, 1998 (the
"Agreement") is entered into by and between USWeb Corporation, a Delaware
corporation ("USWeb"), and CKS Group, Inc., a Delaware corporation ("CKS").
RECITALS
Concurrently with the execution and delivery of this Agreement, CKS, USWeb
and USWeb Acquisition Corporation 134, a Delaware corporation and a wholly
owned subsidiary of USWeb ("Merger Sub"), are entering into an Agreement and
Plan of Reorganization (the "Merger Agreement"), which provides that, among
other things, upon the terms and subject to the conditions thereof, Merger Sub
will be merged with and into CKS (the "Merger") with CKS continuing as the
surviving corporation and as a wholly owned subsidiary of USWeb.
As a condition and inducement to USWeb's willingness to enter into the
Merger Agreement, USWeb has required that CKS agree, and CKS has so agreed, to
grant to USWeb an option to acquire shares of CKS Common Stock, par value
$0.001 per share ("CKS Common Stock") upon the terms and subject to the
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option
On the terms and subject to the conditions set forth in this Agreement, CKS
hereby grants to USWeb an irrevocable option (the "Option") to acquire a
number of the authorized but unissued shares of CKS Common Stock (the "Option
Shares") equal to 19.9% of the number of shares of CKS Common Stock issued and
outstanding on the date the Option is first exercised for any Option Shares,
in the manner set forth below, at a price per share equal to the lower of (i)
the Exchange Ratio (as defined in the Merger Agreement) times closing price of
USWeb Common Stock on the last trading day before the date of this Agreement
or (ii) the average closing price of CKS Common Stock on the five trading days
immediately prior to the first public announcement or disclosure of a CKS
Alternative Proposal (as defined in the Merger Agreement) (the "Exercise
Price"), payable in cash. Capitalized terms used in this Agreement but not
defined herein shall have the meanings ascribed thereto in the Merger
Agreement.
2. Exercise of Option
The Option may only be exercised by USWeb, in whole or in part, at any time
or from time to time, from and after (i) the commencement of a tender or
exchange offer for 25% or more of any class of CKS's capital stock, or (ii)
the failure to obtain the required vote of CKS stockholders for approval of
the Merger and approval and adoption of the Merger Agreement upon a vote taken
at a meeting of CKS stockholders duly convened therefor (or at any adjournment
thereof) if at the time of such failure a CKS Alternative Proposal (as defined
in the Merger Agreement) shall have been publicly announced or otherwise
publicly disclosed, or (iii) the occurrence of any of the events specified in
Sections 7.1(f) or 7.1(h) of the Merger Agreement (any of the events specified
in clauses (i), (ii) and (iii) of this sentence being referred to herein as an
"Exercise Event"). In the event USWeb wishes to exercise the Option, USWeb
shall deliver to CKS a
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written notice (an "Exercise Notice") specifying the total number of Option
Shares it wishes to acquire. Each closing of a purchase of Option Shares
hereunder (a "Closing") shall occur on a date and at a time designated by
USWeb in an Exercise Notice delivered to CKS at least five (5) business days
prior to the date of such Closing, which Closing shall be held at the offices
of counsel to USWeb. The Option shall terminate upon the earliest to occur of
(i) the Effective Time, (ii) sixty (60) days following the termination of the
Merger Agreement pursuant to Article VII thereof, if an Exercise Event shall
have occurred on or prior to the date of such termination, (iii) the date on
which the Merger Agreement is terminated pursuant to Article VII thereof if an
Exercise Event shall not have occurred on or prior to such date, and (iv) the
termination of the Merger Agreement pursuant to Section 7.1(a) or 7.1(c)
thereof; provided, however, with respect to the preceding clause (ii) of this
sentence, that if the Option cannot be exercised by reason of any applicable
government order or because the waiting period related to the issuance of the
Option Shares under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), if applicable, shall not have expired or been
terminated, then the Option shall not terminate until the tenth business day
after such impediment to exercise shall have been removed or shall have become
final and not subject to appeal. Notwithstanding the foregoing, but subject to
the further limitations set forth in Section 7(a), (i) the Option may not be
exercised if USWeb is in breach in any material respect of any of its
covenants or agreements contained in the Merger Agreement; and (ii) in the
event USWeb receives more than an aggregate of (x) eighteen million dollars
($18,000,000) plus (y) the Exercise Price multiplied by the Number of Option
Shares purchased by USWeb pursuant to the Option minus (z) any amounts paid to
USWeb by CKS pursuant to Section 7.3(b) of the Merger Agreement, in connection
with a sale or other disposition of the Option Shares, all proceeds in excess
of such amount shall be remitted to CKS.
3. Conditions to Closing
The obligation of CKS to issue the Option Shares to USWeb hereunder is
subject to the conditions that (a) any waiting period under the HSR Act
applicable to the issuance of the Option Shares hereunder shall have expired
or been terminated; (b) all consents, approvals, orders or authorizations of,
or registrations, declarations or filings with, any federal, state or local
administrative agency or commission or other federal state or local
governmental authority or instrumentality, if any, required in connection with
the issuance of the Option Shares hereunder shall have been obtained or made,
as the case may be; and (c) no preliminary or permanent injunction or other
order by any court of competent jurisdiction prohibiting or otherwise
restraining such issuance shall be in effect.
4. Closing
At any Closing, (a) CKS shall deliver to USWeb a single certificate in
definitive form representing the number of Option Shares designated by USWeb
in its Exercise Notice, such certificate to be registered in the name of USWeb
and to bear the legend set forth in Section 11 hereof, and (b) USWeb shall pay
to CKS the aggregate purchase price for the Option Shares so designated and
being purchased by wire transfer of immediately available funds or by delivery
of a certified check or bank check. At any Closing at which USWeb is
exercising the Option in part, USWeb shall present and surrender this
Agreement to CKS, and CKS shall deliver to USWeb an executed new agreement
with the same terms as this Agreement evidencing the right to purchase the
balance of the Option Shares purchasable hereunder.
5. Representations and Warranties of CKS
CKS represents and warrants to USWeb that (a) CKS is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware and has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder; (b) the execution and
delivery of this Agreement by CKS and consummation by CKS of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of CKS and no other corporate proceedings on the part of
CKS are necessary to authorize this Agreement or any of the transactions
contemplated hereby; (c) this Agreement has been duly executed and delivered
by CKS and constitutes a legal, valid and binding
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obligation of CKS and, assuming this Agreement constitutes a legal, valid and
binding obligation of USWeb, is enforceable against CKS in accordance with its
terms, except as enforceability may be limited by bankruptcy and other laws
affecting the rights and remedies of creditors generally and general
principles of equity; (d) except for any filings as may be required under the
HSR Act and foreign antitrust or similar laws, CKS has taken all necessary
corporate and other action to authorize and reserve for issuance and to permit
it to issue upon exercise of the Option, and at all times from the date hereof
until the termination of the Option will have reserved for issuance, a
sufficient number of unissued Option Shares for USWeb to exercise the Option
in full and will take all necessary corporate or other action to authorize and
reserve for issuance all additional Option Shares or other securities which
may be issuable pursuant to Section 10 upon exercise of the Option, all of
which, upon their issuance and delivery in accordance with the terms of this
Agreement, will be validly issued, fully paid and nonassessable; (e) upon
delivery of the Option Shares and any other securities to USWeb upon exercise
of the Option, USWeb will acquire such Option Shares or other securities free
and clear of all material claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever, excluding those imposed by USWeb;
(f) the execution and delivery of this Agreement by CKS does not, and the
performance of this Agreement by CKS will not, (i) violate the Certificate of
Incorporation or Bylaws of CKS, (ii) conflict with or violate any order
applicable to CKS or any of its subsidiaries or by which they or any of their
property is bound or (iii) result in any breach of or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give rise to any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the property or assets of CKS or any of its subsidiaries pursuant to, any
contract or agreement to which CKS or any of its subsidiaries is a party or by
which CKS or any of its subsidiaries or any of their property is bound,
except, in the case of clauses (ii) and (iii) above, for violations,
conflicts, breaches, defaults, rights of termination, amendment, acceleration
or cancellation, liens or encumbrances which would not, individually or in the
aggregate, have a Material Adverse Effect on CKS; and (g) the execution and
delivery of this Agreement by CKS does not, and the performance of this
Agreement by CKS will not, require any consent, approval, authorization or
permit of, or filing with, or notification to, any Governmental Entity except
as may be required pursuant to the HSR Act, foreign antitrust or similar laws,
and Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
6. Representations and Warranties of USWeb
USWeb represents and warrants to CKS that (a) USWeb is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder; (b) the execution and
delivery of this Agreement by USWeb and the consummation by USWeb of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of USWeb and no other corporate proceedings on
the part of USWeb are necessary to authorize this Agreement or any of the
transactions contemplated hereby; (c) this Agreement has been duly executed
and delivered by USWeb and constitutes a legal, valid and binding obligation
of USWeb and, assuming this Agreement constitutes a legal, valid and binding
obligation of CKS, is enforceable against USWeb in accordance with its terms,
except as enforceability may be limited by bankruptcy and other laws affecting
the rights and remedies of creditors generally and general principles of
equity; (d) the execution and delivery of this Agreement by USWeb do not, and
the performance of this Agreement by USWeb will not, (i) violate the
Certificate of Incorporation or Bylaws of USWeb, (ii) conflict with or violate
any order applicable to USWeb or any of its subsidiaries or by which they or
any of their property is bound or (iii) result in any breach of or constitute
a default (or an event which with notice or lapse of time or both would become
a default) under, or give rise to any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the property or assets of USWeb or any of its
subsidiaries pursuant to, any contract or agreement to which USWeb or any of
its subsidiaries is a party or by which USWeb or any of its subsidiaries or
any of their property is bound, except, in the case of clauses (ii) and (iii)
above, for violations, conflicts, breaches, defaults, rights of termination,
amendment, acceleration or cancellation, liens or encumbrances which would
not, individually or in the aggregate, have a Material Adverse Effect on
USWeb; (e) the execution and delivery of
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this Agreement by USWeb does not, and the performance of this Agreement by
USWeb will not, require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Entity except as may be
required pursuant to the HSR Act, foreign antitrust or similar laws, and
Section 13(d) of the Exchange Act; and (f) any Option Shares acquired upon
exercise of the Option will not be acquired by USWeb with a view to the public
distribution thereof and USWeb will not sell or otherwise dispose of such
shares in violation of applicable law or this Agreement.
7. Certain Rights
(a) Put. At the request of USWeb at any time during the period during which
the Option is exercisable pursuant to Section 2, provided that an event
specified in Sections 7.1(f) or 7.1(h) of the Merger Agreement shall have
occurred and the CKS Termination Fee (as defined in the Merger Agreement) has
become payable pursuant to Section 7.3(b) of the Merger Agreement (the
"Purchase Period"), CKS (or any successor entity thereof) shall purchase from
USWeb the Option Shares, if any, acquired by USWeb pursuant to this Agreement,
at a price equal to the sum of (i) the Exercise Price paid by USWeb for the
Option Shares acquired pursuant to the Option plus (ii) the difference between
the "Market Price" for such Option Shares as of the date USWeb gives notice of
its intent to exercise its rights under this Section 7(a) and such Exercise
Price (but only if the Market Price is greater than the Exercise Price),
multiplied by the number of Option Shares so purchased. Notwithstanding any
other provision of this Agreement, CKS shall not be required pursuant to this
Section 7 to pay USWeb any amount in excess of an aggregate of (x) twelve
million dollars ($12,000,000) plus (y) the Exercise Price paid by USWeb for
the Option Shares acquired pursuant to the Option minus (z) any amounts paid
to USWeb by CKS pursuant to Sections 7.3(b) of the Merger Agreement. For
purpose of this Section 7(a), "Market Price" means the average closing sale
price of CKS Common Stock on the Nasdaq National Market during the five (5)
trading days ending on the trading day immediately preceding such date).
(b) Payment and Redelivery of Option or Shares. In the event USWeb exercises
its rights under Section 7(a), CKS shall, within ten (10) business days after
USWeb delivers notice pursuant to Section 7(a) (which notice may be delivered
prior to consummation of the exercise of the Option), pay the required amount
to USWeb in immediately available funds and USWeb shall surrender to CKS the
certificates evidencing the Option Shares purchased by USWeb pursuant thereto,
and USWeb shall represent and warrant that such shares are then free and clear
of all claims, liens, charges, encumbrances and security interests of any kind
or nature whatsoever.
8. Certain Restrictions
(a) Restrictions on Transfer. Prior to the fifth anniversary of the date
hereof (the "Expiration Date"), USWeb shall not directly or indirectly, by
operation of law or otherwise, sell, assign, pledge, or otherwise dispose of
or transfer any shares of capital stock of CKS acquired by USWeb pursuant to
this Agreement, ("Restricted Shares"), other than (i) pursuant to Section 7 or
(ii) in accordance with Sections 8(b) or 9.
(b) Permitted Sales. Following the termination of the Merger Agreement,
USWeb shall be permitted to sell any Restricted Shares beneficially owned by
it if such sale is made (i) pursuant to a tender or exchange offer or other
business combination transaction that has been approved or recommended, or
otherwise determined to be fair to and in the best interests of the holders of
CKS Common Stock, by a majority of the members of the Board of Directors of
CKS, or (ii) subject to Section 8(c) or (d) as the case may be, to a person
who, immediately following such sale, would beneficially own (within the
meaning of Rule 13d-3 promulgated under the Exchange Act), either alone or as
part of a "group" (as used in Rule 13d-5 under the Exchange Act), not more
than ten percent (10%) of CKS's outstanding voting securities, which person is
a passive institutional investor who would be eligible under Rule 13d-1(b)(1)
under the Exchange Act to report such holdings of Restricted Shares on
Schedule 13G under the Exchange Act.
(c) CKS's Right of First Refusal. At any time after the first occurrence of
a Exercise Event and prior to the Expiration Date, if USWeb shall desire to
sell, assign, transfer or otherwise dispose of all or any of the
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Option Shares acquired pursuant to this Agreement, it shall give CKS written
notice of the proposed transaction (an "USWeb Offer Notice"), identifying the
proposed transferee, accompanied by a copy of a binding offer to purchase such
shares or other securities signed by such transferee and setting forth the
terms of the proposed transaction. A USWeb Offer Notice shall be deemed an
offer by USWeb to CKS, which may be accepted within five (5) business days of
the receipt of such USWeb Offer Notice, on the same terms and conditions and
at the same price at which USWeb is proposing to transfer such shares or other
securities to such transferee. The purchase of any such shares or other
securities by CKS shall be settled within five (5) business days of the date
of the acceptance of the offer and the purchase price shall be paid to USWeb
in immediately available funds. In the event of the failure or refusal of CKS
to purchase all the shares or other securities covered by a USWeb Offer
Notice, USWeb may sell all, but not less than all, of such shares or other
securities to the proposed transferee at no less than the price specified and
on terms no more favorable to the transferee than those set forth in the USWeb
Offer Notice as long as such sale is completed within ninety (90) days of the
receipt by CKS of the applicable USWeb Offer Notice; provided that the
provisions of this sentence shall not limit the rights USWeb may otherwise
have in the event CKS has accepted the offer contained in the USWeb Offer
Notice and wrongfully refuses to purchase the shares or other securities
subject thereto.
(d) Additional Restrictions. Prior to any permitted sales of any Restricted
Shares under Section 8(b)(ii), the holder thereof shall give written notice to
the issuer of such Restricted Shares of its intention to effect such transfer.
Each such notice shall describe the manner of the proposed transfer and, if
requested by the issuer of such Restricted Shares, shall be accompanied by an
opinion of counsel satisfactory to such issuer (it being agreed that each of
Xxxx Xxxx Xxxx & Freidenrich LLP, and Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, shall be satisfactory) to the effect that such sale
may be effected without registration under the Securities Act and any
applicable state securities laws. Each certificate for Restricted Shares
transferred as above provided shall bear the legend set forth in Section 11,
except that such certificate shall not bear such legend if (i) such transfer
is in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or (ii) the opinion
of counsel referred to above is to the further effect that the transferee and
any subsequent transferee would be entitled to transfer such securities in a
public sale without registration under the Securities Act and any applicable
state securities laws. The restrictions provided for in this Section 8(d)
shall not apply to securities which are not required to bear the legend
prescribed by Section 11 in accordance with the provisions of this Agreement.
The foregoing restrictions on transferability shall terminate as to any
particular shares when such shares shall have been effectively registered
under the Securities Act and any applicable state securities laws and sold or
otherwise disposed of in accordance with the registration statement covering
such shares.
(e) Voting of Shares. Following the date hereof and prior to the Expiration
Date, USWeb (i) shall vote all Restricted Shares, on each matter submitted to
a vote of the stockholders of CKS, for and against such matter in the same
proportion as all other shares of the same class of capital stock of CKS are
voted (whether by proxy or otherwise) for and against such matter, and (ii)
shall execute written consents with respect to the Restricted Shares in the
same proportion as written consents are executed by other holders of such
class of capital stock of CKS. Before acquiring any Restricted Shares
hereunder, USWeb shall execute and deliver a proxy to CKS authorizing CKS to
vote and execute written consents with respect to all Restricted Shares held
by USWeb in accordance with the provisions of this paragraph.
9. Registration Rights
(a) Following the termination of the Merger Agreement, USWeb may by written
notice (a "Registration Notice") to CKS request CKS to register under the
Securities Act all or any part of the shares acquired by USWeb pursuant to
this Agreement (the "Registrable Securities") in order to permit the sale or
other disposition of such shares pursuant to a bona fide firm commitment
underwritten public offering in which USWeb and the underwriters shall effect
as wide a distribution of such Registrable Securities as is reasonably
practicable and shall use reasonable efforts to prevent any person or group
from purchasing through such offering shares representing more than 1% of the
outstanding shares of Common Stock of CKS
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on a fully diluted basis; provided, however, that any such Registration Notice
must relate to a number of shares equal to at least 2% of the outstanding
shares of Common Stock of CKS on a fully diluted basis and that any rights to
require registration hereunder shall terminate with respect to any shares that
may be sold pursuant to Rule 144(k) under the Securities Act.
(b) CKS shall use commercially reasonable best efforts to effect, as
promptly as practicable, the registration under the Securities Act of the
Registrable Securities; provided, however, that (i) USWeb shall not be
entitled to more than an aggregate of two effective registration statements
hereunder and (ii) CKS will not be required to file any such registration
statement during any period of time (not to exceed 40 days after a
Registration Notice in the case of clause (A) below or 90 days after a
Registration Notice in the case of clauses (B) and (C) below) when (A) CKS is
in possession of material non-public information which it reasonably believes
would be detrimental to be disclosed at such time and, in the written opinion
of counsel to CKS, such information would have to be disclosed if a
registration statement were filed at that time; (B) CKS is required under the
Securities Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available for
inclusion in such registration statement; or (C) CKS determines, in its
reasonable judgment, that such registration would interfere with any
financing, acquisition or other material transaction involving CKS. If
consummation of the sale of any Registrable Securities pursuant to a
registration hereunder does not occur within 180 days after the filing with
the SEC of the initial registration statement therefor, the provisions of this
Section 9 shall again be applicable to any proposed registration, it being
understood that USWeb shall not be entitled to more than an aggregate of two
effective registration statements hereunder. CKS shall use commercially
reasonable best efforts to cause any Registrable Securities registered
pursuant to this Section 9 to be qualified for sale under the securities or
blue sky laws of such jurisdictions as USWeb may reasonably request and shall
continue such registration or qualification in effect in such jurisdictions;
provided, however, that CKS shall not be required to qualify to do business
in, or consent to general service of process in, any jurisdiction by reason of
this provision.
(c) The registration rights set forth in this Section 9 are subject to the
condition that USWeb shall provide CKS with such information with respect to
USWeb's Registrable Securities, the plan for distribution thereof, and such
other information with respect to USWeb as, in the reasonable judgment of
counsel for CKS, is necessary to enable CKS to include in a registration
statement all material facts required to be disclosed with respect to a
registration thereunder.
(d) A registration effected under this Section 9 shall be effected at CKS's
expense, except for underwriting discounts and commissions and the fees and
expenses of counsel to USWeb, and CKS shall provide to the underwriters such
documentation (including certificates, opinions of counsel and "comfort"
letters from auditors) as are customary in connection with underwritten public
offerings and as such underwriters may reasonably require. In connection with
any registration, the parties agree (i) to indemnify each other and the
underwriters in the customary manner and (ii) to enter into an underwriting
agreement in form and substance customary for transactions of this type with
the underwriters participating in such offering.
10. Adjustment Upon Changes in Capitalization
In the event of any change in the Option Shares by reason of stock
dividends, split-ups, mergers (other than the Merger), recapitalizations,
combinations, exchanges of shares and the like, the type and number of shares
or securities subject to the Option, the Exercise Price shall be adjusted
appropriately, and proper provision shall be made in the agreements governing
such transaction so that USWeb shall receive, upon exercise of the Option, the
number and class of shares or other securities or property that USWeb would
have received in respect of the Option Shares if the Option had been exercised
immediately prior to such event or the record date therefor, as applicable.
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11. Restrictive Legends
Each certificate representing Option Shares issued to USWeb hereunder shall
include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR SOLD
ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE STOCK OPTION AGREEMENT DATED AS OF AUGUST 31,
1998, A COPY OF WHICH MAY BE OBTAINED FROM CKS CORPORATION.
12. Listing and HSR Filing
CKS, upon the request of USWeb, shall promptly file an application to list
the Option Shares to be acquired upon exercise of the Option for quotation on
the Nasdaq National Market and shall use its best efforts to obtain approval
of such listing as soon as practicable. Promptly after the date such a filing
is permitted to be made, each of the parties hereto shall file with the
Federal Trade Commission and the Antitrust Division of the United States
Department of Justice all required premerger notification and report forms and
other documents and exhibits required to be filed under the HSR Act, if any,
to permit the acquisition of the Option Shares subject to the Option at the
earliest possible date.
13. Binding Effect
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Nothing
contained in this Agreement, express or implied, is intended to confer upon
any person other than the parties hereto and their respective successors and
permitted assigns any rights or remedies of any nature whatsoever by reason of
this Agreement. Any shares sold by a party in compliance with the provisions
of Section 9 shall, upon consummation of such sale, be free of the
restrictions imposed with respect to such shares by this Agreement and any
transferee of such shares shall not be entitled to the rights of such party.
Certificates representing shares sold in a registered public offering pursuant
to Section 9 shall not be required to bear the legend set forth in Section 11.
14. Specific Performance
The parties recognize and agree that if for any reason any of the provisions
of this Agreement are not performed in accordance with their specific terms or
are otherwise breached, immediate and irreparable harm or injury would be
caused for which money damages would not be an adequate remedy. Accordingly,
each party agrees that in addition to other remedies the other party shall be
entitled to an injunction restraining any violation or threatened violation of
the provisions of this Agreement. In the event that any action shall be
brought in equity to enforce the provisions of the Agreement, neither party
will allege, and each party hereby waives the defense, that there is an
adequate remedy at law.
15. Entire Agreement
This Agreement and the Merger Agreement (including the appendices thereto)
constitute the entire agreement between the parties with respect to the
subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
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16. Further Assurances
Each party will execute and deliver all such further documents and
instruments and take all such further action as may be necessary in order to
constitute the transactions contemplated hereby.
17. Validity
The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of the other provisions of this
Agreement, which shall remain in full force and effect. In the event any
Governmental Entity of competent jurisdiction holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall
negotiate in good faith and shall execute and deliver an amendment to this
Agreement in order, as nearly as possible, to effectuate, to the extent
permitted by law, the intent of the parties hereto with respect to such
provision.
18. Notices
All notices and other communications hereunder shall be in writing and shall
be deemed given if delivered personally or by commercial delivery service, or
sent via telecopy (receipt confirmed) to the parties at the following
addresses or telecopy numbers (or at such other address or telecopy numbers
for a party as shall be specified by like notice):
(a) if to USWeb, to:
USWeb Corporation
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy at the same address to the
attention of the General Counsel, and
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telephone No. (000) 000-0000
Telecopy No.: (000) 000-0000
(b) if to CKS, to:
CKS Group, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone No.: (00) 000-0000
Telecopy No.: (000) 000-0000
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with a copy at the same address to the
attention of the General Counsel, and
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxx.
Xxxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
19. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to agreements made and to be
performed entirely within such State.
20. Counterparts
This Agreement may be executed in two counterparts, each of which shall be
deemed to be an original, but both of which, taken together, shall constitute
one and the same instrument.
21. Expenses
Except as otherwise expressly provided herein or in the Merger Agreement,
all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses.
22. Amendments; Waiver
This Agreement may be amended by the parties hereto and the terms and
conditions hereof may be waived only by an instrument in writing signed on
behalf of each of the parties hereto, or, in the case of a waiver, by an
instrument signed on behalf of the party waiving compliance.
23. Assignment
Neither of the parties hereto may sell, transfer, assign or otherwise
dispose of any of its rights or obligations under this Agreement or the Option
created hereunder to any other person, without the express written consent of
the other party, except that USWeb may assign its rights and obligations
hereunder to Merger Sub.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first
above written.
USWEB CORPORATION
/s/ Xxxxxxx X. Aver
By: _________________________________
Name: Xxxxxxx X. Aver
Title: Executive Vice President and
Chief Financial Officer
CKS GROUP, INC.
/s/ Xxxx X. Xxxxxx
By: _________________________________
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer and
Chairman of the Board
*CKS STOCK OPTION AGREEMENT*
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