EXHIBIT E
VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into as of June 10, 1999
(this "Agreement") between SOFTBANK America Inc., a Delaware corporation
("SOFTBANK" or the "Purchaser"), and Xxxxxxx X. Xxxxx (the "Principal
Stockholder").
RECITALS
WHEREAS, on June 10, 1999, Global Sports, Inc., a Delaware
corporation (the "Company"), and SOFTBANK entered into a Purchase Agreement (the
"Purchase Agreement"), pursuant to which SOFTBANK intends to acquire 6,153,850
shares of the Company's Common Stock, par value $0.01 per share (the "Common
Stock"); and
WHEREAS, as an inducement and a condition to consummating the Purchase
Agreement, the Purchaser 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.
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(b) "Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
2. The Second Purchase.
2.1 Approval of the Second Purchase. During the period commencing on
the date hereof and continuing until the earlier to occur of (i) consummation of
the Second Closing (as defined in the Purchase Agreement) or (ii) the 90th day
after the date of the Purchase Agreement (such earlier date, the "Expiration
Date"), 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) in favor of the
purchase of shares of Common Stock to be purchased at the Second Closing
pursuant to the Purchase Agreement (the "Second Purchase"); (ii) in favor of the
amendment of the Certificate of Incorporation of the Company to increase the
authorized number of shares of Common Stock to 30,000,000; (iii) 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; (iv) in favor of election to the Board of
Directors of the directors which SOFTBANK is entitled to designate upon
consummation of the Second Purchase (as defined in the Purchase Agreement) and
which have been identified by SOFTBANK as nominees for such purpose; and (v)
except as otherwise agreed to in writing in advance by the Purchaser, against
the following actions (other than the Second Purchase 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
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adversely affect the Second 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 the Purchaser 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 the Purchaser 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.
3. Composition and Nomination of Board of Directors.
3.1 Board Composition Requirements. The parties hereto intend that
SOFTBANK shall have the right to designate (i) a number of members of the
Company's Board of Directors equal to the product of (A) the total number of
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authorized directors and (B) the aggregate Proportionate Share (as defined in
the Purchase Agreement) of the Purchaser and the SOFTBANK Entities (as defined
in the Purchase Agreement) on the Company's Board of Directors, rounded up to
the nearest whole number, but not to exceed two directors (the "Board
Composition Requirement"), and (ii) so long as the Purchaser and the SOFTBANK
Entities collectively own 50% or more of the Shares theretofore purchased
hereunder, the Purchaser shall have the right to designate one director to be a
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.
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
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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 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 Common Stock. From the date hereof until the
Expiration Date, the Principal Stockholder shall not sell, transfer or pledge
his Common 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, except, in each such case, if
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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.
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.
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.
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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):
(a) if to SOFTBANK, to:
SOFTBANK AMERICA Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
SOFTBANK Holdings Inc.
00 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
.Vice Chairman
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:
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Global Sports, Inc.
000 Xxxxx Xxxxxxxxx Xxxx
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: Xxxxxx Xxxxxx, 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 AMERICA INC.
By:___________________________________
Name:
Title:
______________________________________
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 June 10, 1999 (the "Voting
Agreement"), between the undersigned and SOFTBANK America Inc., 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. This Proxy shall terminate upon the Expiration Date (as
defined in the Voting Agreement).
___________________________
Xxxxxxx X. Xxxxx
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