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EXHIBIT 99.2
Execution Copy
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of July 19, 2000, among CNET
NETWORKS, INC., a Delaware corporation (together with its successors, "CNET"),
SOFTBANK AMERICA INC., a Delaware corporation ("Softbank") and SOFTBANK CORP.,
a Japanese corporation ("Softbank Japan").
RECITALS
Concurrently herewith, CNET, TD MERGER SUB, INC., a Delaware
corporation and a direct wholly owned subsidiary of CNET ("Merger Sub"), and
XXXX-XXXXX INC., a Delaware corporation ("Z-D") are entering into an Agreement
and Plan of Merger (as such agreement may hereafter be amended from time to
time, the "Merger Agreement"; capitalized terms used and not defined herein
have the respective meanings ascribed to them in the Merger Agreement),
pursuant to which Merger Sub will be merged with and into Z-D (the "Merger").
Softbank owns at least a majority of the issued and
outstanding shares of Z-D Common Stock and Softbank Japan owns, directly or
indirectly, all of the outstanding common stock of Softbank.
As an inducement and a condition to CNET entering into the
Merger Agreement, CNET has required that Softbank and Softbank Japan agree, and
CNET has agreed, to enter into this Agreement and the parties hereto deem it in
their best interests and in the best interests of CNET to provide for certain
matters with respect to the governance of CNET and the ownership of Common
Stock and desire to enter into this Agreement in order to effectuate that
purpose.
AGREEMENT
Accordingly, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the
following terms shall have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other
Person that directly or indirectly controls, is controlled by, or is
under common control with, such Person. As used in this definition,
"control" of a Person (including its correlative meanings, "controlled
by" and "under common control with") means the possession, directly or
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indirectly, of power to direct or cause the direction of the
management or policies of such Person (whether through ownership of
voting securities or voting partnership or other ownership interests,
by contract or otherwise).
"Agreement" means this Agreement as in effect on the date
hereof and as hereafter from time to time amended, modified or
supplemented in accordance with the terms hereof.
"Assumption Agreement" means a writing reasonably
satisfactory in form and substance to CNET whereby a Permitted
Transferee of shares of Common Stock becomes a party to, and agrees to
be bound by, to the same extent as its transferor by the terms of,
this Agreement.
"Beneficially Own" or "Beneficial Ownership" shall have the
meanings set forth in Rule 13d-3 under the Exchange Act, except that a
Person shall be deemed to "Beneficially Own" or have "Beneficial
Ownership" of all securities that such Person has a right to acquire,
whether such right is exercisable immediately or only after the
passage of time (and without any additional condition).
"Board of Directors" means the Board of Directors of CNET as
from time to time hereafter constituted.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in the State of California or the
State of New York are authorized or required by law to close.
"Change of Control of CNET" means any of the following: (i) a
merger, consolidation or other business combination or transaction to
which CNET is a party if the outstanding Voting Stock (or any Voting
Stock into which such stock is converted or exchanged) of CNET
immediately prior to the effective date of such merger, consolidation
or other business combination or transaction, does not represent a
majority of the Total Current Voting Power of the surviving
corporation (or its parent corporation) following such merger,
consolidation or other business combination or transaction; (ii) an
acquisition by any Person (other than the Restricted Parties and their
Affiliates or any 13D Group to which any of them is a member) of
Beneficial Ownership of Voting Stock of CNET representing a majority
of the Total Current Voting Power of CNET; (iii) a sale of all or
substantially all the consolidated assets of CNET to any Person or
Persons (other than Restricted Parties and their Affiliates or any 13D
Group to which any of them is a member); or (iv) a liquidation or
dissolution of CNET.
"Common Stock" means the common stock, par value $0.001 per
share, of CNET and any securities of CNET into which such Common Stock
may be reclassified, exchanged or converted.
"Designee" shall have the meaning set forth in Section
2.1(c).
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"Disinterested Shareholders" means any shareholder of CNET
who is not a Restricted Party or an Affiliate of a Restricted Party or
a member of a 13D Group in which a Restricted Party or an Affiliate of
a Restricted Party is also a member.
"Effective Time" shall have the meaning ascribed to such term
in the Merger Agreement.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Holder" means Softbank and any other Restricted Party that
holds Registrable Securities and, other than Softbank Japan, has
executed and delivered to CNET an Assumption Agreement.
"Lower Percentage" shall have the meaning set forth in
Section 3.5.
"Outstanding Common Stock" means, at any time, the total
number of shares of Common Stock issued and outstanding at such time.
"Permitted Transferees" means any Restricted Party to whom
shares of Common Stock are Transferred in a Transfer not in violation
of this Agreement and, other than Softbank Japan, who executes and
delivers to CNET an Assumption Agreement.
"Person" means an individual, corporation, unincorporated
association, partnership, group (as defined in Section 13(d)(3) of the
Exchange Act), trust, joint stock company, joint venture, business
trust or unincorporated organization, limited liability company, any
governmental entity or any other entity of whatever nature.
"Put Equivalent Position" means a "put equivalent position"
as defined in Rule 16a-1 under the Exchange Act.
"Registrable Securities" means any Common Stock acquired by
Softbank from CNET in the Merger, any Common Stock or convertible or
exchangeable security which may be issued or distributed in respect
thereof by way of stock dividend or stock split or other distribution,
recapitalization or reclassification or any shares of Common Stock
acquired by Softbank that are treated as "control shares" by virtue of
Softbank's status as an "affiliate" of CNET within the meaning of such
terms under the Securities Act at the time of such acquisition. As to
any particular Registrable Securities, once issued, such Registrable
Securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale by the Holder of such
securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such
registration statement, (ii) such securities shall have been
distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (iii) all Common Stock held by
the Restricted Parties can be sold within three months pursuant to
Rule 144 of the Securities Act and, at such time, the Restricted
Parties collectively hold less than three percent (3%) of the
Outstanding Common Stock, (iv) such securities shall have been
otherwise transferred, new certificates for such securities not
bearing a legend restricting further transfer shall have been
delivered by CNET and
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subsequent disposition of such securities shall not require
registration or qualification of such securities under the Securities
Act or any state securities or blue sky law then in force, or (v) such
securities shall have ceased to be outstanding.
"Registration Expenses" means any and all expenses incident
to performance of or compliance with this Agreement, including,
without limitation, (i) all SEC and stock exchange or National
Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees (including, if applicable, the fees and expenses of any
"qualified independent underwriter," as such term is defined in
Schedule E to the By-laws of the NASD, and of its counsel), (ii) all
fees and expenses of complying with securities or blue sky laws
(including fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv)
all fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange pursuant to clause
(viii) of Section 4.3, (v) the fees and disbursements of counsel for
CNET and of its independent public accountants, including the expenses
of any special audits and/or "cold comfort" letters required by or
incident to such performance and compliance, and (vi) the reasonable
fees and disbursements not to exceed $20,000 of one counsel selected
pursuant to Section 4.6 hereof by the Holders of the Registrable
Securities being registered to represent such Holders in connection
with each such registration, provided that Registration Expenses will
not include underwriting discounts and commissions and transfer taxes,
if any.
"Registration Statement" means a registration statement of
CNET under the Securities Act filed pursuant to Article IV.
"Representatives" means, with respect to any Person, such
Person's directors, officers, employees, agents and other
representatives acting in such capacity.
"Restricted Parties" means each of Softbank, Softbank Japan
and each of their respective direct and indirect Subsidiaries.
"Revised Percentage" shall have the meaning set forth in
Section 3.5.
"Securities Act" means the Securities Act of 1933, as
amended.
"Softbank Tender Offer" means a bona fide public tender offer
subject to the provisions of Regulation 14D under the Exchange Act, by
a Restricted Party (or any 13D Group that includes a Restricted Party)
to purchase or exchange for cash or other consideration any Voting
Stock and which consists of an offer to acquire 100% of the Total
Current Voting Power of CNET then in effect (other than Voting Stock
owned by Restricted Parties or any Affiliate of a Restricted Party)
and is conditioned (which condition may not be waived) on a majority
of the shares of Voting Stock held by Disinterested Shareholders being
tendered and not withdrawn with respect to such offer.
"Standstill Limit" means Beneficial Ownership of the
Applicable Percentage (as defined below) of the Total Current Voting
Power of CNET; provided that upon a
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Standstill Reinstatement Event, if the Standstill Revised Limit is
greater than the Standstill Limit, then the Standstill Revised Limit
shall thereafter be deemed to be the Standstill Limit; provided,
further, that the Standstill Limit shall be subject to adjustment in
accordance with Section 3.5. As used herein, "Applicable Percentage"
means twenty percent (20%).
"Standstill Period" means the period beginning on the date
hereof and ending on the occurrence of a Standstill Termination Event,
provided that the Standstill Period shall recommence immediately upon
the occurrence of a Standstill Reinstatement Event.
"Standstill Reinstatement Event" means the occurrence of any
of the following: (a) the Standstill Period has terminated pursuant to
clause (iii) of the definition of "Standstill Termination Event" and
such Third Party Tender Offer is withdrawn or terminated (without
having been consummated) at any time during which a Softbank Tender
Offer is not then pending, (b) the Standstill Period has terminated
pursuant to clause (iv) of the definition of "Standstill Termination
Event" due to a Change of Control identified in clause (ii) of the
definition of "Change of Control" and, within twelve months after the
occurrence of such Change of Control, the Person whose Beneficial
Ownership of Voting Stock triggered such Change of Control no longer
Beneficially Owns a majority of the Total Current Voting Power of CNET
or (c) the Standstill Period has terminated pursuant to clause (ii) of
the definition of "Standstill Termination Event," the relevant
agreement that would have otherwise resulted in a Change of Control
has been terminated without a Change of Control having occurred and
(x) subsequent to the occurrence of such Standstill Termination Event
but prior to the termination of such agreement the Restricted Parties
have not acquired actual ownership of Voting Stock representing in the
aggregate a majority of the Total Current Voting Power of CNET, and
(y) at the time such agreement is terminated no Softbank Tender Offer
is then pending. Notwithstanding the foregoing, a Standstill
Reinstatement Event will not occur if prior to the occurrence of the
event specified in clause (a), (b) or (c) above that would otherwise
result in a Standstill Reinstatement Event, another Standstill
Termination Event occurs for which there has not been a related
Standstill Reinstatement Event.
"Standstill Revised Limit" means the percentage of Total
Current Voting Power of CNET represented by the Voting Stock of CNET
Beneficially Owned by the Restricted Parties as of the occurrence of a
Standstill Reinstatement Event.
"Standstill Termination Event" means the earliest to occur of
the following: (i) the four year anniversary of the Effective Time,
(ii) the date CNET enters into a definitive agreement providing for a
transaction that if consummated will result in a Change of Control of
CNET, (iii) a Third Party Tender Offer, (iv) any Change of Control of
CNET occurs or (v) a reduction in the Restricted Parties' aggregate
Beneficial Ownership of Voting Stock to less than 7.5% of the Total
Current Voting Power of all outstanding Voting Stock; provided, that
the Standstill Period will be immediately reinstated upon the
occurrence of a Standstill
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Reinstatement Event; provided further that, upon a Standstill
Reinstatement Event, if the Standstill Revised Limit is greater than
the Standstill Limit, then the Standstill Revised Limit and not the
Standstill Limit shall thereafter be deemed the Standstill Limit for
all purposes hereunder.
"Subsidiary" means, as to any Person, a corporation,
partnership, limited liability company, joint venture or other entity
of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned,
directly or indirectly through one or more intermediaries (including,
without limitation, other Subsidiaries), or both, by such Person.
"Third Party Tender Offer" means a bona fide public offer
subject to the provisions of Regulation 14D under the Exchange Act, by
a Person (which is not made by and does not include any of Softbank, a
Restricted Party or any Affiliate of any of them or any 13D Group that
includes Softbank, a Restricted Party or any Affiliate of them) to
purchase or exchange for cash or other consideration any Voting Stock
and which consists of an offer to acquire a majority of the then Total
Current Voting Power of CNET.
"13D Group" means any "group" (within the meaning of Section
13(d) of the Exchange Act) formed for the purpose of acquiring,
holding, voting or disposing of Voting Stock of the Company.
"Total Current Voting Power" means, with respect to any
corporation the total number of votes which may be cast in the
election of members of the Board of Directors of the corporation if
all securities entitled to vote in the election of such directors
(excluding shares of preferred stock that are entitled to elect
directors only upon the occurrence of customary events of default) are
present and voted.
"Transfer" shall have the meaning set forth in Section 3.2.
"Transferred Owner" shall have the meaning set forth in
Section 3.4.
"Voting Stock" means shares of the Common Stock and any other
securities of CNET having the ordinary power to vote in the election
of members of the Board of Directors or the board of directors of any
Subsidiary of CNET.
ARTICLE II
CORPORATE GOVERNANCE
Section 2.1 Board of Directors.
(a) At the Effective Time, CNET will appoint one designee of
Softbank as a director of CNET. The director designated by Softbank shall be
subject to the reasonable approval of a majority of the members of the Board of
Directors.
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(b) To the extent that (i) any prior Designee (defined below)
is up for election or (ii) Softbank does not have any Designee on the Board of
Directors, Softbank will be entitled to designate one person for election as a
director as specified in Section 2.1(d) below.
(c) Any individual so designated by Softbank pursuant to
paragraph (b) of this Section 2.1 (the "Designee") that has not previously
served as a member of the Board of Directors shall be subject to the reasonable
approval of a majority of the members of the Board of Directors.
(d) For so long as Softbank is entitled to designate a
nominee for election as a director pursuant to this Section 2.1, CNET shall
nominate such Designee for election as a director as part of the management
slate that is included in the proxy statement (or consent solicitation or
similar document) of CNET relating to the election of directors, and shall
provide the same support for the election of such Designee as it provides to
other persons standing for election as directors of CNET as part of CNET's
management slate.
(e) Subject to applicable law, in the event that any Designee
on the Board of Directors shall cease to serve as a director for any reason
(other than the failure of the shareholders of CNET to elect such person as
director), the vacancy resulting therefrom shall be filled by another Designee.
(f) The rights and obligations of Softbank pursuant to this
Section 2.1 shall terminate on the date on which the Restricted Parties
Beneficially Own Voting Stock of CNET representing less than 7.5% of the Total
Current Voting Power of CNET.
Section 2.2 Reimbursement of Expenses; Attendance at Board
Meetings; Indemnification. CNET will reimburse each Designee that serves as a
director for its costs and expenses (including travel expenses) incurred in
connection with such director's attendance at meetings of the Board or any
committee of the Board upon which such director serves if and to the same
extent as the other non-management directors of CNET. CNET will pay such
director any annual fees and fees for attending Board or committee meetings to
the same extent as the other non-management directors of CNET. CNET shall
indemnify each such director to the same extent it indemnifies its other
directors pursuant to its organizational documents and applicable law.
Section 2.3 Board Committees. As long as Softbank has the
right to designate at least one nominee to the Board of Directors, each
committee of the Board of Directors (other than the audit committee, the
compensation committee and any committee established for matters in which
Softbank has a conflict of interest due to it or its Subsidiaries having an
interest in the matter other than as a stockholder of CNET) shall at all times
include at least one Designee of Softbank.
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Section 2.4 Voting. For as long as Softbank can designate a
nominee for election as a director pursuant to Section 2.1, the Restricted
Parties will vote (or execute a written consent in lieu of) all of their Voting
Stock on all matters involving the election of members of the Board of
Directors, at the discretion of each Restricted Party either (x) for the entire
slate of directors proposed by the Board of Directors in CNET's proxy statement
(or consent solicitation or other similar document) relating to such
shareholder vote or (y) in the same proportion as all votes cast by
Disinterested Shareholders on such matters.
ARTICLE III
STANDSTILL AGREEMENTS
Section 3.1 Standstill Agreement.
(a) During the Standstill Period, no Restricted Party will,
directly or indirectly, nor will it authorize or permit any of its
Representatives to, in each case unless specifically requested to do so in
writing in advance by the Board of Directors:
(i) acquire or agree, offer, seek or propose to acquire,
or cause to be acquired, ownership of any assets or businesses of CNET
or any of its Subsidiaries having a fair market value in excess of 10%
of the fair market value of all of CNET's and its Subsidiaries'
assets, or any rights or options to acquire any such ownership
(including from a third party);
(ii) acquire or agree, offer, seek or propose to acquire,
or cause to be acquired, Beneficial Ownership of any Voting Stock of
CNET or any of its Subsidiaries, or any options, warrants or other
rights (including, without limitation, any convertible or exchangeable
securities) to acquire any such Voting Stock (other than through any
stock dividend, combination, split or other similar changes to CNET's
capital structure); provided, however, that the Restricted Parties may
acquire or agree, offer, seek or propose to acquire, or cause to be
acquired, shares of Voting Stock of CNET or options, warrants or other
rights (or any convertible or exchangeable securities) to acquire any
such Voting Stock if such acquisition would not increase the
Restricted Parties aggregate Beneficial Ownership of shares of Voting
Stock to more than the Standstill Limit;
(iii) make, or in any way participate in, any
"solicitation" of "proxies" (as such terms are used in the proxy rules
of the SEC) with respect to the voting of any securities of CNET or
any of its Subsidiaries;
(iv) form, join, or in any way become a member of a 13D
Group with respect to any voting securities of CNET or any of its
Subsidiaries (other than a "group" consisting solely of Restricted
Parties);
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(v) arrange any financing for, or provide any financing
commitment for, the purchase of any voting securities or securities
convertible or exchangeable into or exercisable for any voting
securities of CNET or any of its Subsidiaries;
(vi) seek to propose or propose, whether alone or in
concert with others, any tender offer, exchange offer, merger,
business combination, restructuring, liquidation, recapitalization or
similar transaction involving CNET or any of its Subsidiaries;
(vii) nominate any person as a director of CNET who is not
nominated by the then incumbent directors, or propose any matter to be
voted upon by the shareholders of CNET; provided that the Restricted
Entities may nominate directors in accordance with Section 2.1;
(viii) solicit, initiate, encourage or knowingly or
intentionally facilitate the taking of any action by any Affiliate of
a Restricted Party (that is not itself a Restricted Party) that would
be prohibited by this Section 3.1 if that Affiliate were a Restricted
Party; or
(ix) publicly announce or disclose any intention, plan or
arrangement inconsistent with the foregoing.
(b) During the Standstill Period, no Restricted Party will,
nor will they authorize or permit any of their respective Representatives to,
take any action that could require CNET to make a public announcement regarding
any of the matters set forth in Section 3.1(a).
(c) Anything in this Section 3.1 to the contrary
notwithstanding, if at any time during the Standstill Period, (i) the Board of
Directors has determined to pursue a Change of Control of CNET and the Board of
Directors has not determined to stop pursuing such Change of Control of CNET or
(ii) the Board of Directors or CNET has engaged in any material negotiations
with any Person (other than a Restricted Party or any Affiliate thereof or any
13D Group of which any Restricted Party or any Affiliate thereof is a member)
with respect to a potential Change of Control of CNET and the Board of
Directors has not determined to terminate all such negotiations, then, for so
long as such condition continues to apply, the Restricted Parties may make a
non-public proposal offer to effect a Change of Control of CNET to the Board of
Directors that the Restricted Parties do not publicly disclose (but the
Restricted Parties will remain subject to all other provisions of this
Agreement).
(d) Anything in this Section 3.1 to the contrary
notwithstanding, this Section 3.1 shall not prohibit or restrict any of the
following: (x) actions taken by Softbank's Designees on the Board of Directors
in such capacity or (y) any disclosure pursuant to the Securities Act or the
Exchange Act which a Restricted Party reasonably believes, based on the advice
of outside counsel, is required in connection with any action taken by a
Restricted Party.
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Section 3.2 Transfer Restrictions.
(a) During the period commencing at the Effective Time and
ending on the 180-day anniversary of the Effective Time, the Restricted Parties
shall not, directly or indirectly (x) sell, transfer, pledge, hypothecate or
otherwise dispose of (collectively, "Transfer") any shares of Voting Stock
Beneficially Owned by such Persons or any legal or beneficial interest therein
or (y) establish or acquire any Put Equivalent Position in the Voting Stock, in
each case except for the following Transfers of Voting Stock: (i) to Restricted
Parties who have executed and delivered to CNET an Assumption Agreement, (ii)
which have been consented to in writing by CNET, (iii) pursuant to a Third
Party Tender Offer that is either (x) recommended by the Board of Directors or
(y) not effectively prohibited from closing by any stockholder rights plan of
CNET or (iv) pursuant to a merger, consolidation or reorganization to which
CNET is a party.
(b) During the period beginning on the 180-day anniversary of
the Effective Time and ending on the earlier of (x) the four year anniversary
of the Effective Time or (y) the first date on which the Restricted Parties do
not Beneficially own in the aggregate Voting Stock of CNET representing 7.5% or
more of the Total Current Voting Power of CNET, the Restricted Parties shall
not, directly or indirectly, Transfer any of the shares of Voting Stock of CNET
Beneficially Owned by such Persons or any legal or beneficial interest therein,
except for the following Transfers of Voting Stock: (i) to Restricted Parties
who have executed and delivered to CNET an Assumption Agreement, (ii) which
have been consented to in writing by CNET, (iii) pursuant to a Third Party
Tender Offer that is either (x) recommended by the Board of Directors or (y)
not effectively prohibited from closing by any stockholder rights plan of CNET,
(iv) pursuant to a merger, consolidation or reorganization to which CNET is a
party, (v) in a bona fide underwritten public offering (pursuant to the
exercise of rights granted pursuant to Article IV hereof), (vi) pursuant to
Rule 144 of the Securities Act ("Rule 144") or Rule 145 of the Securities Act
("Rule 145") in an aggregate amount during any three month period not in excess
of 2.5% of the Outstanding Common Stock at the beginning of such period; or
(vii) in any private sale not effected through any securities exchange in which
the purchaser represents that it is acquiring such Voting Stock for its own
account and not for resale; provided that, in the case of any Transfer pursuant
to clauses (vi) or (vii), such Transfer does not result in, to the knowledge of
the Restricted Parties after reasonable inquiry, any other Person (other than
an underwriter, selling agent or other securities professional that acquires
such shares with a view to the resale thereof) acquiring, after giving effect
to such Transfer, Beneficial Ownership, individually or in the aggregate with
such Person's Affiliates, of Voting Stock of CNET representing more than 7.5%
of the Total Current Voting Power of CNET. For purposes of this Section 3.2(b)
the establishment or acquisition of a Put Equivalent Position will be
considered a Transfer pursuant to clause (vi).
(c) If any Restricted Party decides to dispose of any Voting
Stock, each Restricted Party understands and agrees that it may do so only
pursuant to an effective registration statement under the Securities Act or
pursuant to an exemption from registration under the Securities Act. Each
Restricted Party agrees to the imprinting, so long as appropriate, of
substantially the following legend on certificates representing any of the
securities referenced in the preceding sentence:
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NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE
SECURITIES ISSUABLE UPON EXERCISE OF THE SECURITIES REPRESENTED HEREBY
HAVE BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW, AND SUCH
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS OF A STOCKHOLDER AGREEMENT, DATED AS OF JULY 19,
2000, AMONG CNET NETWORKS, INC., A DELAWARE CORPORATION, SOFTBANK
AMERICA INC., A DELAWARE CORPORATION AND SOFTBANK CORP., A JAPANESE
CORPORATION.
The legend set forth above shall be removed by CNET if and
when (i) the securities represented by such certificate are disposed of
pursuant to an effective registration statement under the Securities Act or
(ii) the relevant Restricted Party delivers to CNET an opinion of counsel
reasonably acceptable to CNET to the effect that such legend is no longer
necessary.
Section 3.3 Certain Permitted Transactions and
Communications. Notwithstanding the foregoing, this Agreement shall not
prohibit (i) the acquisition or holding of securities or rights in the ordinary
course of business by any employee benefit plan whose trustees, investment
managers or similar advisors are not Affiliates of any Restricted Party, (ii)
the consummation of any transaction expressly provided for in the Merger
Agreement or (iii) officers, advisors and employees of the Restricted Parties
from communicating with each other and with officers of CNET or its Affiliates
on matters related to or governed by the Merger Agreement, this Agreement or
other operational matters.
Section 3.4 Certain Actions Deemed Transfers. The
consummation of any transaction in which a Person (the "Transferred Owner")
that was a Restricted Party ceases to be a Restricted Party shall be deemed to
be a Transfer of any Voting Stock of CNET owned by such Transferred Owner.
Section 3.5 Certain Adjustments to Standstill Limit. In the
event that the percentage of Beneficial Ownership of the Total Current Voting
Power of CNET held by Restricted Parties (such percentage plus 1%, the "Revised
Percentage") exceeds the Standstill Limit due to any Restricted Party acquiring
additional shares of Voting Stock of CNET due to CNET's acquisition of any
other Person, then the Revised Percentage shall thereafter be deemed to be the
Standstill Limit (unless and until further adjusted in accordance with this
Agreement). Following such an event, if Restricted Parties Transfer Voting
Stock of CNET such that the percentage of Beneficial Ownership of the Total
Current Voting Power of CNET held by Restricted Parties plus 1% (the "Lower
Percentage") is less than the Standstill Limit then in effect, then the Lower
Percentage (or, if greater, the Applicable Percentage) shall thereafter be
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deemed to be the Standstill Limit (unless and until further adjusted in
accordance with this Agreement).
ARTICLE IV
REGISTRATION RIGHTS
Section 4.1 Incidental Registrations.
(a) Right to Include Registrable Securities. If CNET at any
time after the date hereof proposes to register its Common Stock (or any
security which is convertible into or exchangeable or exercisable for Common
Stock) under the Securities Act (other than a registration on Form S-4 or S-8,
or any successor or other forms promulgated for similar purposes), whether or
not for sale for its own account, for sale in an underwritten public offering
and in a manner which would permit registration of Registrable Securities for
sale to the public under the Securities Act, it will, at each such time, give
prompt written notice to all Holders of Registrable Securities of its intention
to do so and of such Holders' rights under this Section 4.1. Upon the written
request of any such Holder made within 15 days after the receipt of any such
notice (which request shall specify the Registrable Securities intended to be
disposed of by such Holder), CNET will use its reasonable best efforts to
effect the registration under the Securities Act of all Registrable Securities
which CNET has been so requested to register by the Holders thereof, to the
extent required to permit the disposition of the Registrable Securities so to
be registered; provided that (i) if, at any time after giving written notice of
its intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, CNET shall
determine for any reason not to proceed with the proposed registration of the
securities to be sold by it or others, CNET may, at its election, give written
notice of such determination to each Holder of Registrable Securities and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith), (ii) all Holders of
Registrable Securities requesting to be included in CNET's registration must
sell their Registrable Securities to the underwriters selected by CNET on the
same terms and conditions as apply to CNET or others, with such differences,
including any with respect to indemnification and liability insurance, as may
be customary or appropriate in combined primary and secondary offerings, and
(iii) the provisions of this Section 4.1(a) will not apply to any underwritten
offering conducted pursuant to a shelf registration statement where no "road
show" is conducted. Any Holder of Registrable Securities requesting to be
included in such registration may elect, in writing prior to the effective date
of the registration statement filed in connection with such registration, not
to register such securities in connection with such registration.
(b) Expenses. CNET will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 4.1.
(c) Priority in Incidental Registrations. If the managing
underwriter advises CNET in writing that, in its reasonable opinion, the number
of securities requested to be included in such registration pursuant to this
Section 4.1 exceeds the number which can be sold in such
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offering, so as to be likely to have an adverse effect on the price, timing or
distribution of the Securities offered in such offering as contemplated by
CNET, then CNET will include in such registration (i) first, 100% of the
securities CNET proposes to sell and (ii) second, to the extent of the number
of Registrable Securities requested to be included in such registration which,
in the opinion of such managing underwriter, can be sold without having the
adverse effect referred to above, the number of Registrable Securities which
the Holders and the registrable securities any other stockholder entitled to
sell shares in such offering have requested to be included in such
registration, such amount to be allocated pro rata among all requesting Holders
and any other stockholder entitled to sell shares in such offering on the basis
of the relative number of shares of Registrable Securities then held by each
such Holder and the number of shares of registrable securities held by each
such other stockholder (provided that any shares thereby allocated to any such
Holder that exceed such Holder's request will be reallocated among the
remaining requesting Holders in like manner).
Section 4.2 Registration on Request.
(a) Request by the Demand Party. (i) On and after the 180-day
anniversary of the Effective Date, any Holder or Holders (the "Initiating
Holders") may in writing request that CNET effect the registration under the
Securities Act for sale in an underwritten offering of all or part of such
Holder's Registrable Securities and specifying the amount and intended method
of disposition thereof, CNET will promptly give written notice of such
requested registration to all other Holders of such Registrable Securities, and
thereupon will, as expeditiously as possible, use its reasonable best efforts
to effect the registration under the Securities Act of:
(x) such Registrable Securities which CNET has been so
requested to register by the Initiating Holders; and
(y) all other Registrable Securities which CNET has been
requested to register by any other Holder thereof by written request given to
CNET within 10 days after the giving of such written notice by CNET,
all to the extent necessary to permit the disposition of the Registrable
Securities so to be registered; provided, that (A) CNET shall not be obligated
to effect any registration of Registrable Securities under this Section 4.2(a)
unless the Initiating Holders request that CNET register Registrable Securities
either (x) representing at least 20% of the total number of Registrable
Securities or (y) representing at least 10% of the total number of Registrable
Securities and the aggregate proceeds from the sale of which are reasonably
expected to be at least $50,000,000, (B) CNET shall not be obligated to file a
registration statement relating to any registration request under this Section
4.2(a), (x) within a period of six months after the effective date of any other
registration statement relating to any registration request under this Section
4.2(a), or (y) if with respect thereto the managing underwriter, the SEC, the
Securities Act or the rules and regulations thereunder, or the form on which
the registration statement is to be filed, would require the conduct of an
audit other than the regular audit conducted by CNET at the end of its fiscal
year, in which case the filing may be delayed until the completion of such
regular audit (unless the Holders of the Registrable Securities to be
registered agree to pay the expenses of CNET in connection with such an audit
other than the regular audit), (C) CNET shall not be required to
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effect more than four registrations of Registrable Securities pursuant to the
Section 4.2(a) and (D) CNET shall have the right to defer such filing and/or
the offering or sale of Registrable Securities pursuant to any such
Registration Statement for a period of not more than ninety (90) days if (1) a
negotiation or consummation of a transaction by CNET or its Subsidiaries is
pending or an event has occurred, which negotiation, consummation or event
would, as determined by the Board of Directors of CNET and provided in writing
to the Initiating Holders, require additional disclosure by CNET in the
Registration Statement of material information which CNET has a bona fide
business purpose for keeping confidential, and the nondisclosure of which in
the Registration Statement would reasonably be expected to cause the
Registration Statement to fail to comply with applicable disclosure
requirements or (2) the Board of Directors determines in good faith that the
offering of such Registrable Securities would be likely to adversely affect a
pending or proposed public offering of Common Stock by CNET and such
determination is provided in writing to the Initiating Holders; provided that
CNET will not be entitled to require deferrals pursuant to this clause (D)
totaling more than 90 days during any 12-month period.
(b) Expenses. CNET will pay all Registration Expenses in
connection with the registration of Registrable Securities pursuant to this
Section 4.2.
(c) Effective Registration Statement. A registration
requested pursuant to this Section 4.2 will not be deemed to have been effected
unless it has become effective and all of the Registrable Securities registered
thereunder have been sold; provided that if, within 180 days after it has
become effective, the offering of Registrable Securities pursuant to such
registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court, such registration
will be deemed not to have been effected.
(d) Selection of Underwriters. The Initiating Holders shall
have the right to select the investment banker or bankers and managers to
administer the offering pursuant to this Section 4.2, which investment bank or
bankers shall be of nationally recognized standing, which shall be reasonably
acceptable to CNET and which shall be jointly appointed by CNET and the
Initiating Holders.
(e) Priority in Requested Registrations. If the managing
underwriter advises CNET in writing that, in its reasonable opinion, the number
of Registrable Securities requested to be included in a registration effected
pursuant to this Section 4.2 exceeds the number which can be sold in such
offering, the number of such Registrable Securities to be included in such
registration shall be allocated pro rata among all requesting Holders on the
basis of the relative number of shares of Registrable Securities then held by
each such Holder (provided that any shares thereby allocated to any such Holder
that exceed such Holder's request shall be reallocated among the remaining
requesting Holders in like manner). In the event that the number of Registrable
Securities requested to be included in such registration is less than the
number which, in the opinion of the managing underwriter, can be sold, CNET may
include in such registration such securities CNET or any other stockholder of
CNET proposes to sell up to the number of securities that, in the opinion of
the underwriter, can be sold.
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Section 4.3 Registration Procedures. If and whenever CNET is
required to use its reasonable best efforts to effect or cause the registration
of any Registrable Securities under the Securities Act as provided in this
Agreement, CNET will, as expeditiously as possible:
(a) prepare and, in any event within 45 days after a request
for registration is given to CNET, file with the SEC a registration statement
with respect to such Registrable Securities and use its reasonable best efforts
to cause such registration statement to become effective within 60 days after
filing, provided, however, that CNET may discontinue any registration of its
securities which is being effected pursuant to Section 4.1 at any time prior to
the effective date of the registration statement relating thereto;
(b) prepare and file with the SEC such amendments and
post-effective amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be reasonably requested by
the Holders or as may be necessary to keep such registration statement
effective for a period not in excess of 90 days and to comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC thereunder with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement; provided that before filing a
registration statement or prospectus, or any amendments or supplements thereto,
including documents incorporated by reference after the initial filing of the
registration statement, CNET will furnish to the Holders and counsel selected
pursuant to Section 4.6 hereof by the Holders of the Registrable Securities
covered by such registration statement to represent such Holders, copies of all
documents proposed to be filed, which documents will be subject to the review
and comment of such counsel;
(c) furnish to each seller of such Registrable Securities
such number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits filed therewith,
including any documents incorporated by reference), such number of copies of
the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities by such seller; and CNET hereby consents (except during the
continuance of any event described in Section 4.3(f) below) to the use of any
such prospectus by such seller and the underwriters, if any, in connection with
the offering and sale of the Registrable Securities covered by any such
prospectus;
(d) use its reasonable best efforts to register or qualify
such Registrable Securities covered by such registration in such jurisdictions
as each seller shall reasonably request, to keep such registrations or
qualifications in effect so as to permit the continuance of offers and sales in
such jurisdictions for so long as may be necessary to enable such seller to
complete its distribution of Registrable Securities pursuant to a registration
statement, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller, except
that CNET shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for the
requirements of this clause
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Stockholder Agreement
(d), it would not be obligated to be so qualified, to subject itself to
taxation in any such jurisdiction or to consent to general service of process
in any such jurisdiction;
(e) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(f) notify each seller of any such Registrable Securities
covered by such registration statement (and, if requested by the Holders,
confirm such notice in writing), at any time when a prospectus relating thereto
is required to be delivered under the Securities Act within the appropriate
period mentioned in clause (b) of this Section 4.3, of CNET's becoming aware
that the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, and at the
request of any such seller, promptly prepare a supplement or post-effective
amendment to the registration statement or the related prospectus or any
document incorporated by reference or file any other required document and
furnish to such seller a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(g) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than eighteen
months) after the effective date of the registration statement, an earnings
statement which shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations promulgated thereunder;
(h) use its reasonable best efforts to list such Registrable
Securities on any securities exchange on which the Common Stock is then listed
if such Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange on or prior to the effective
date of the registration statement;
(i) enter into such customary agreements (including an
underwriting agreement in customary form, scope and substance), which shall set
forth indemnification and contribution provisions and procedures with respect
to Holders to the effect of the provisions set forth in Section 4.4 hereof and
which may include indemnification provisions in favor of underwriters in
addition to the provisions of Section 4.4 hereof, and take such other actions
as the Holders and the underwriters, if any, reasonably requested in order to
expedite or facilitate the disposition of such Registrable Securities,
including making such representations and warranties to the Holders and
underwriters, if any, in form, substance and scope as are customarily made by
issuers to Holders and underwriters, respectively, in underwritten offerings
and delivering such documents and certificates as may be reasonably requested
by the Holders and the underwriters, if
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Stockholder Agreement
any, to evidence the continued validity of such representations and warranties
and to evidence compliance with any conditions contained in the underwriting
agreement;
(j) use its reasonable best efforts to obtain a "cold
comfort" letter or letters (and, if applicable, updates thereof) from CNET's
independent public accounts (and, if necessary, from the independent public
accountants of any Subsidiary of CNET or of any business acquired by CNET for
which financial statements and financial data are, or are required to be,
included in the registration statement) addressed to the Holders and the
underwriters, if any, in customary form and covering matters of the type
customarily covered by "cold comfort" letters as the seller or sellers of a
majority of shares of such Registrable Securities shall reasonably request;
(k) make available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by any such seller or any such underwriter, all pertinent financial and other
records, pertinent corporate documents and properties of CNET and its
Subsidiaries, and cause all of CNET's and its Subsidiaries' officers, directors
and employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(l) notify the Holders and counsel (selected pursuant to
Section 4.6 hereof) for the Holders of Registrable Securities included in such
registration statement and the managing underwriter or agent, immediately, and
confirm the notice in writing (i) when the registration statement, or any
post-effective amendment to the registration statement, shall have been filed
and shall have become effective, or any supplement to the prospectus or any
amendment prospectus shall have been filed, (ii) of the receipt of any comments
from the SEC, (iii) of any request of the SEC to amend the registration
statement or amend or supplement the prospectus or for additional information,
and (iv) of the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the registration statement for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any
of such purposes;
(m) make every reasonable effort to prevent the issuance of
any stop order suspending the effectiveness of the registration statement or of
any order preventing or suspending the use of any preliminary prospectus and,
if any such order is issued, to obtain the withdrawal of any such order at the
earliest possible moment;
(n) if requested by the managing underwriter or agent or any
Holder of Registrable Securities covered by the registration statement,
promptly incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriter or agent or such Holder reasonably
requests to be included therein, including, without limitation, with respect to
the number of Registrable Securities being sold by such Holder to such
underwriter or agent, the purchase price being paid therefor by such
underwriter or agent and with respect to any other terms of the underwritten
offering of the Registrable Securities to be sold in such offering; and make
all required filings of such prospectus supplement or post-effective amendment
as soon
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Stockholder Agreement
as practicable after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(o) cooperate with the Holders of Registrable Securities
covered by the registration statement and the managing underwriter or agent, if
any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold under the
registration statement, and enable such securities to be in such denominations
and registered in such names as the Holders or the managing underwriter or
agent, if any, may request;
(p) use its reasonable best efforts to obtain for delivery to
the Holders of Registrable Securities being registered and to the underwriter
or agent an opinion or opinions from counsel for CNET in customary form and in
form, substance and scope reasonably satisfactory to the Holders and to such
underwriters or agents and their counsel and addressed to the Holders and the
underwriters, if any;
(q) cooperate with each seller of Registrable Securities and
each underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the NASD; and
(r) cause management of CNET to participate in customary road
show meetings reasonably requested (and reasonably in scope in light of the
size of the offering) upon reasonable prior notice by the lead managing
underwriter of such offering.
CNET may require each seller of Registrable Securities as to
which any registration is being effected to furnish CNET with such information
regarding such seller relating to required disclosure regarding the
registration and the distribution of such securities as CNET may from time to
time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon
receipt of any notice from CNET of the happening of any event of the kind
described in clause (f) of this Section 4.3, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by clause (f)
of this Section 4.3 or until it is advised in writing by CNET that the use of
the prospectus may be resumed and, if so directed by CNET, such Holder will
deliver to CNET (at CNET's expense) all copies, other than permanent file
copies then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice; provided,
that nothing in this paragraph shall prohibit or restrict a Holder from
effecting sales or transfers otherwise than under a registration statement. In
the event CNET shall give any such notice, the period mentioned in clause (b)
of this Section 4.3 shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to clause (f)
of this Section 4.3 and including the date when each seller of Registrable
Securities covered by such registration statement shall have received the
copies of the supplemented or amended prospectus contemplated by clause (f) of
this Section 4.3 or is advised in writing by CNET that the use of the
prospectus may be resumed.
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Stockholder Agreement
Section 4.4 Indemnification.
(a) Indemnification by CNET. In the event of any registration
of any securities of CNET under the Securities Act, CNET will, and it hereby
does, indemnify and hold harmless, to the extent permitted by law, (i) in the
case of any registration of Registrable Securities pursuant to Section 4.1 or
4.2, the seller of any Registrable Securities covered by such registration
statement, each affiliate of such seller and their respective directors and
officers or general and limited partners or members or managing members
(including any director, officer, affiliate, employee, agent and controlling
Person of any of the foregoing), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person,
if any, who controls such seller or any such underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and (ii) in
the case of any registration statement of CNET, Softbank, Softbank Japan, their
respective officers and directors and each Person who controls Softbank and
Softbank Japan within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (collectively, the "Z-D Indemnified Parties"),
against any and all losses, claims, damages or liabilities, joint or several,
and expenses (including reasonable attorney's fees and reasonable expenses of
investigation) to which such Indemnified Party may become subject under the
Securities Act, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof, whether
or not such Indemnified Party is a party thereto) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or any
document incorporated by reference in any of the foregoing or (ii) any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, and CNET will reimburse such Z-D Indemnified Party for any legal or
any other expenses reasonably incurred by it in connection with investigating
or defending against any such loss, claim, liability, action or proceeding;
provided that CNET shall not be liable to any Z-D Indemnified Party in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in
any such preliminary, final or summary prospectus in reliance upon and in
conformity with written information furnished to CNET through an instrument
duly executed by such Z-D Indemnified Party specifically stating that it is for
use in the preparation thereof. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such seller or
any Z-D Indemnified Party and shall survive the transfer of such securities by
such seller.
(b) Indemnification by the Seller. CNET may require, as a
condition to including any Registrable Securities in any registration statement
filed in accordance with Section 4.1 or Section 4.2, that CNET shall have
received an undertaking reasonably satisfactory to it from the prospective
seller of such Registrable Securities or any underwriter, severally but not
jointly, to indemnify and hold harmless (in the same manner and to the same
extent as set forth in clause (a) of this Section 4.4) CNET and all other
prospective sellers that agree to provide a similar indemnity to Softbank
(collectively, the "CNET Indemnified Parties"; together with the Z-D
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Indemnified Parties, the "Indemnified Parties") with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement, if such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to CNET through an
instrument duly executed by such seller or underwriter specifically stating
that it is for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement, or a
document incorporated by reference into any of the foregoing. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of CNET or any of the prospective sellers, or any of their
respective affiliates, directors, officers or controlling Persons and shall
survive the transfer of such securities by such seller. In no event shall the
liability of any selling Holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the net proceeds received by such Holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Notices of Claims, Etc. Promptly after receipt by an
Indemnified Party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 4.4, such Indemnified Party shall, if a claim in
respect thereof is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action; provided that the
failure of the Indemnified Party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 4.4, except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any such
action is brought against an Indemnified Party, unless in such Indemnified
Party's reasonable judgment a conflict of interest between such Indemnified
Party and indemnifying parties may exist in respect of such claim, the
indemnifying party will be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the indemnifying party to such
Indemnified Party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such Indemnified Party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party will consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof, the giving by the claimant
or plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation and which does not constitute a statement
as to, or an admission of, fault, culpability or a failure to act, by or on
behalf of any Indemnified Party.
(d) Contribution. If the indemnification provided for in this
Section 4.4 from the indemnifying party is unavailable to or insufficient to
hold harmless an Indemnified Party hereunder in respect of any losses, claims,
damages, liabilities or expenses (or actions in respect thereof) referred to
herein, then each indemnifying party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and Indemnified Parties in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative
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fault of such indemnifying party and Indemnified Parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or Indemnified Parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by an Indemnified Party under
this Section 4.4(d) as a result of the losses, claims, damages, liabilities and
expenses (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
Indemnified Party in connection with any investigation or proceeding. The
obligations of any seller of Registrable Securities and any underwriters in
this Section 4.4(d) to contribute shall be several in proportion to the
percentage of Registrable Securities registered or underwritten, as the case
may be, by them and not joint.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4.4(d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(e) Non-Exclusivity. The obligations of the parties under
this Section 4.4 shall be in addition to any liability which any party may
otherwise have to any other party. The remedies provided in this Section 4.4
are not exclusive and shall not limit any rights or remedies which may
otherwise be available to an indemnified party at law or in equity.
Section 4.5 Rules 144 and 145. CNET covenants that it will
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder (or,
if CNET is not required to file such reports, it will, upon the request of any
Holder of Registrable Securities, make publicly available such information as
necessary to permit sales pursuant to Rules 144 and 145 under the Securities
Act), and it will take such further action as any Holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell shares of Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 and Rule 145 under the Securities Act, as either Rule
may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Securities, CNET will deliver to such Holder a written statement as to whether
it has complied with such requirements. Notwithstanding anything contained in
this Section 6, CNET may de-register under Section 12 of the Exchange Act if it
then is permitted to do so pursuant to the Exchange Act and the rules and
regulations thereunder but, in such circumstances, shall be required hereby,
upon the request of any Holder of Registrable Securities, to make publicly
available such information as necessary to permit sales pursuant to Rules 144
and 145 under the Securities Act or any similar rule or regulation available.
Section 4.6 Selection of Counsel. In connection with any
registration of Registrable
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Stockholder Agreement
Securities pursuant to this Article IV, the Holders of a majority of the
Registrable Securities covered by any such registration may select one counsel
to represent all Holders of Registrable Securities covered by such
registration.
Section 4.7 Miscellaneous.
(a) Holdback Agreement. If any such registration shall be in
connection with an underwritten public offering, each Holder of Registrable
Securities agrees not to effect any public sale or distribution, including any
sale pursuant to Rule 144 under the Securities Act, of any equity securities of
CNET, or of any security convertible into or exchangeable or exercisable for
any equity security of CNET (in each case, other than as part of such
underwritten public offering), within 7 days before or such period not to
exceed 90 days as the underwriting agreement may require (or such lesser period
as the managing underwriters may permit) after the effective date of such
registration (except as part of such registration).
(b) CNET will not file any registration statement under the
Securities Act unless it shall first have given to each of Softbank and
Softbank Japan, for so long as Softbank or Softbank Japan or any of their
respective Affiliates, Beneficially Owns 10% or more of the Common Stock of
CNET or is otherwise deemed to be a control person under the Securities Act, as
much notice as is reasonably practicable under the circumstances and, if so
requested by Softbank or Softbank Japan, Softbank and Softbank Japan shall have
the right, at any time when, in its reasonable judgment, it is or might be
deemed a controlling person of CNET within the meaning of the Securities Act,
(a) to participate in the preparation and filing of each such registration
statement to the extent provided in Section 4.3 hereof; (b) to receive the
documents and notices specified in Section 4.3 hereof and to make the requests
specified in Section 4.3 hereof; and (c) to receive copies of the documents
specified in Section 4.3 hereof addressed to it. If any such registration
statement refers to Softbank or Softbank Japan by name or otherwise as the
holder of any securities of CNET, then Softbank and/or Softbank Japan, as the
case may be, shall have the right (in addition to any other rights it may have
under this Agreement) to require, in the event that such reference by name or
otherwise is not required by the Securities Act or any rules and regulations
promulgated thereunder, the deletion of such references.
(c) CNET may grant to any Person other than Softbank and
Softbank Parent the right to request a registration of securities of CNET under
the Securities Act or the right to be included as a selling stockholder in
connection with any registration of Registrable Securities subject to the
provisions of this Article IV; provided, however, that the granting of any such
rights shall not conflict with or otherwise alter any rights granted to
Softbank and Softbank Japan hereunder.
ARTICLE V
MISCELLANEOUS
Section 5.1 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given, if
delivered personally, by telecopier or sent by overnight courier as follows:
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Stockholder Agreement
(a) If to Softbank or Softbank Japan, to:
Softbank America Inc.
00 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Fax: (000) 000-0000
(b) If to CNET, to:
CNET Networks, Inc.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxx and Xxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
or to such other address or addresses as shall be designated in writing. All
notices shall be effective when received.
Section 5.2 Entire Agreement; Amendment. This Agreement sets
forth the entire agreement between the parties hereto with respect to the
matters subject to this Agreement. Any provision of this Agreement may be
amended or modified in whole or in part at any time by an agreement in writing
between the parties hereto executed in the same manner as this Agreement. No
failure on the part of any party to exercise, and no delay in exercising, any
right shall operate
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Stockholder Agreement
as a waiver thereof nor shall any single or partial exercise by any party of
any right preclude any other or future exercise thereof or the exercise of any
other right.
Section 5.3 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
Section 5.4 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to constitute an
original, but all of which together shall constitute one and the same document.
Section 5.5 Governing Law; Jurisdiction; Waiver of Jury
Trial. This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware applicable to contracts executed and performed
entirely within such state, and each party hereby submits to the jurisdiction
of the Court of Chancery or other state court of the State of Delaware. The
parties hereto waive all right to trial by jury in any action, suit or
proceeding brought to enforce or defend any rights or remedies under this
Agreement.
Section 5.6 Successors and Assigns; Third Party
Beneficiaries. Softbank and any other Restricted Party that agrees to be bound
by the terms hereof may not assign any of its rights or delegate any of its
duties under this Agreement without the prior written consent of CNET. CNET may
not assign any of its rights or delegate any of its duties under this Agreement
without the prior written consent of Softbank, provided that in the event of
any merger or consolidation of CNET with any Person in which the holders of
Common Stock receive securities of any other Person (the "Successor Issuer"),
CNET may assign all of its rights and delegate all of its obligations under
this Agreement to such Successor Issuer in which event the Successor Issuer
will become "CNET" for all purposes of this Agreement (except for purposes of
the definition of Change of Control). Any purported assignment in violation of
this Section shall be void. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any Person other than the Restricted
Parties (who shall be third party beneficiaries of this Agreement entitled to
the benefit of, and to enforce, its terms) and CNET and their respective
successors, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the Restricted Parties and CNET and their respective successors, and
for the benefit of no other Person. No purchaser of Common Stock from a
Restricted Party (other than another Restricted Party) shall be deemed to be a
successor or assignee by reason merely of such purchase.
Section 5.7 Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this
Agreement was not performed in
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Stockholder Agreement
accordance with the terms hereof and that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in addition to any
other remedy to which they are entitled at law or in equity.
Section 5.8 Headings, Captions and Table of Contents. The
section headings, captions and table of contents contained in this Agreement
are for reference purposes only, are not part of this Agreement and shall not
affect the meaning or interpretation of this Agreement.
Section 5.9 Effectiveness. This Agreement shall become
effective at the Effective Time. If the Merger Agreement is terminated prior to
the Effective Time then this Agreement will automatically terminate and be of
no further force and effect upon termination of the Merger Agreement.
Section 5.10 Termination; Survival. Subject to the earlier
termination of this Agreement pursuant to Section 5.9 hereof or the earlier
termination of the provisions of this Agreement by the written agreement of the
parties hereto or as expressly set forth herein, (i) Article II of this
Agreement shall terminate and be of no further force and effect on the later to
occur of (A) the date the rights and obligations of Softbank pursuant to
Section 2.1 hereof terminate in accordance with Section 2.1(f) and (B) the date
a Designee no longer serves on the Board of Directors, (ii) Sections 3.1, 3.3,
3.4 and 3.5 of this Agreement shall terminate and be of no further force and
effect on the permanent termination of the Standstill Period (subject to
reinstatement upon the occurrence of a Standstill Reinstatement Event), (iii)
Sections 3.2(a) and (b) of this Agreement shall terminate and be of no further
force and effect in accordance with their respective terms, and (iv) Article IV
of this Agreement shall terminate and be of no further force and effect on the
date that there are no Registrable Securities or securities which are
convertible or exchangeable for Registrable Securities issued and outstanding.
This Article V, Article I and Section 3.2(c) hereof shall survive any
termination of all or any part of this Agreement indefinitely.
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Stockholder Agreement
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto or by their respective duly authorized Representatives, all as of the
date first above written.
CNET NETWORKS, INC.
By: /s/ Xxxxxx Xxxxxx
--------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
SOFTBANK AMERICA INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
SOFTBANK CORP.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
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