EXHIBIT 3
CKS VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as of
September 1, 1998, by and between USWeb Corporation, a Delaware corporation
("USWeb"), and the undersigned stockholder ("Stockholder") of CKS Group, Inc., a
Delaware corporation ("CKS").
RECITALS
A. Concurrently with the execution of this Agreement, USWeb, CKS and
USWeb Acquisition Corporation 134, a Delaware corporation and a wholly owned
subsidiary of USWeb ("Merger Sub"), have entered into an Agreement and Plan of
Reorganization (the "Merger Agreement") which provides for the merger (the
"Merger") of Merger Sub with and into CKS. Pursuant to the Merger, shares of
capital stock of CKS will be converted into Common Stock of USWeb on the basis
described in the Merger Agreement.
B. The Stockholder is the record holder and beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of such number of shares of the outstanding capital stock of
CKS as is indicated on the final page of this Agreement (the "Shares").
C. USWeb desires the Stockholder to agree, and the Stockholder is willing
to agree, not to transfer or otherwise dispose of any of the Shares, or any
other shares of capital stock of CKS acquired hereafter and prior to the
Expiration Date (as defined in Section 1.1 below, except as otherwise permitted
hereby), and to vote the Shares and any other such shares of capital stock of
CKS so as to facilitate consummation of the Merger.
D. As an inducement to the Stockholder's willingness to enter into this
Agreement, USWeb has agreed (i) to file with the Securities and Exchange
Commission (the "SEC") certain financial information regarding the operations of
the combined company as contemplated hereby and by that certain CKS Group, Inc.
Holder Agreement to be entered into by the Stockholder in connection with the
Merger (the "Holder Agreement") and (ii) to register, in accordance with the
terms of the Holder Agreement, the shares of USWeb Common Stock to be received
by the Stockholder in the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Vote Shares.
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1.1 Definition. As used herein, the term "Expiration Date" shall
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mean the earlier to occur of (i) such date and time as the Merger shall become
effective in accordance with the terms
and provisions of the Merger Agreement and (ii) such date and time as the Merger
Agreement shall be terminated pursuant to Article VII thereof.
1.2 Additional Purchases. Stockholder agrees that any shares of
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capital stock of CKS that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the execution of this
Agreement and prior to the Expiration Date ("New Shares") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares. Any Shares with respect to which Stockholder ceases to be
the beneficial owner without violation of Stockholder's obligations pursuant to
the Holder Agreement shall cease to be included in the definition of "Shares."
2. Agreement to Vote Shares. At every meeting of the stockholders of CKS
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called with respect to any of the following, and at every adjournment thereof,
and on every action or approval by written consent of the stockholders of CKS
with respect to any of the following, Stockholder shall vote the Shares and any
New Shares beneficially owned or controlled by Stockholder in favor of approval
of the Merger Agreement and the Merger; provided that the Stockholder shall not
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be required to vote in favor of, or consent to, any action that would (i) impose
any obligation on the Stockholder not contemplated hereby or in the Holder
Agreement or (ii) reduce the amount of USWeb Common Stock to be received by the
Stockholder in the Merger. Stockholder agrees not to take any actions contrary
to Stockholder's obligations under this Agreement.
3. Irrevocable Proxy. Concurrently with the execution of this Agreement,
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Stockholder agrees to deliver to USWeb a proxy in the form attached hereto as
Exhibit A (the "Proxy"), which shall be irrevocable to the extent provided in
Section 212 of the Delaware General Corporation Law, with respect to the Shares
beneficially owned (as such term is defined in Rule 13d-3 under the Exchange
Act) by Stockholder set forth therein; provided, however, that the Proxy shall
be revoked upon expiration or termination of this Voting Agreement in accordance
with its terms and shall be revoked with respect to any Shares with respect to
which Stockholder ceases to be the beneficial owner without violation of
Stockholder's obligations pursuant to the Holder Agreement upon such event.
4. Representations, Warranties and Covenants of the Stockholder.
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Stockholder hereby represents, warrants and covenants to USWeb that Stockholder
(i) is the beneficial owner of the Shares, which at the date hereof and at all
times up until the Expiration Date will be free and clear of any liens, claims,
options, charges or other encumbrances; (ii) does not beneficially own any
shares of capital stock of CKS other than the Shares and any New Shares
(excluding shares as to which Stockholder currently disclaims beneficial
ownership in accordance with applicable law); and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement and the
Proxy.
5. No Limitation on Discretion as Director. This Agreement is intended
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solely to apply to the exercise by Stockholder in his, her its individual
capacity as a stockholder of rights attaching to ownership of the Shares, and
nothing herein shall be deemed to apply to, or to limit in any manner the
discretion of Stockholder or any of its designees, employees or agents with
respect to, any action
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which may be taken or omitted by such person acting in his or her fiduciary
capacity as a director of CKS.
6. Publication of Financial Results. USWeb shall use its commercially
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reasonable best efforts to publish, in accordance with ASR 135 and other
applicable accounting rules, as promptly as practicable, consolidated financial
results covering at least thirty (30) days of post-Merger combined operations of
USWeb and CKS.
7. Additional Documents. Stockholder and USWeb hereby covenant and agree
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to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of USWeb or Stockholder, as the case may be, to carry out the
intent of this Agreement and the Proxy.
8. Consent and Waiver. Stockholder hereby gives any consents or waivers
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that are reasonably required for the consummation of the Merger under the terms
of any agreements to which Stockholder is a party or pursuant to any rights
Stockholder may have.
9. Termination. This Agreement and the Proxy delivered in connection
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herewith shall terminate and shall have no further force or effect as of 5:00
p.m. (Pacific Time) on the Expiration Date.
10. Miscellaneous.
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10.1 Severability. If any term, provision, covenant or restriction
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of this Agreement is held by a court of competent jurisdiction to be invalid
void or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
10.2 Binding Effect and Assignment. This Agreement and all of
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the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either party without prior written consent of the other.
10.3 Amendments and Modification. This Agreement may not be
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modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
10.4 Specific Performance; Injunctive Relief. The parties hereto
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acknowledge that USWeb will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to USWeb upon any such violation, USWeb
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to USWeb at law
or in equity.
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10.5 Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or facsimile, or sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or overnight courier
(prepaid) to the respective parties as follows:
If to USWeb: USWeb Corporation
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to its General Counsel at the same
address, and
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Stockholder: To the address for notice set forth on the
last page hereof.
With a copy to: Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
10.6 Governing Law. This Agreement shall be governed by, and construed
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and enforced in accordance with, the internal laws of the State of Delaware.
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10.7 Entire Agreement. This Agreement contains the entire understanding
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of the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
10.8 Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
10.9 Effect of Headings. The section headings herein are for convenience
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only and shall not affect the construction of interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
USWEB CORPORATION
By:
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Title:
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STOCKHOLDER:
By:
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Stockholder's Address for Notice:
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Shares beneficially owned:
_______________ shares of Common Stock
Shares subject to outstanding options:
_______________ shares of Common Stock
***VOTING AGREEMENT***
Exhibit A
IRREVOCABLE PROXY
The undersigned stockholder of CKS Group, Inc., a Delaware corporation
("CKS"), hereby irrevocably (to the extent provided in Section 212 of the
Delaware General Corporation Law and except as otherwise provided herein)
appoints the directors on the Board of Directors of USWeb Corporation, a
Delaware corporation ("USWeb"), and each of them individually, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to the shares of capital stock of CKS beneficially owned by the
undersigned, which shares are listed on the final page of this Proxy (the
"Shares"), and any and all other shares or securities issued or issuable in
respect thereof on or after the date hereof, until such time as that certain
Agreement and Plan of Reorganization dated as of September 1, 1998 (the "Merger
Agreement"), among USWeb, USWeb Acquisition Corporation, a Delaware corporation
and a wholly owned subsidiary of USWeb ("Merger Sub"), and CKS, shall be
terminated in accordance with its terms or the Merger (as defined in the Merger
Agreement) is effective. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given.
Notwithstanding any other provision of this Proxy, upon notice by the
Stockholder to USWeb of any transfer permitted pursuant to that certain CKS
Group, Inc. Holder Agreement of even date herewith, the proxy granted hereby
shall automatically be revoked with respect to any Shares so transferred and any
such notice shall be attached as an exhibit hereto and shall be deemed to reduce
the number of Shares with respect to which a proxy is granted hereunder.
Except as otherwise provided herein, this proxy is irrevocable (to the
extent provided in Section 212 of the Delaware General Corporation Law), is
granted pursuant to the Voting Agreement dated as of September 1, 1998 between
USWeb and the undersigned stockholder (the "Voting Agreement"), and is granted
in consideration of USWeb entering into the Merger Agreement. The attorneys and
proxies named above will be empowered at any time prior to termination of the
Merger Agreement to exercise all voting rights (including, without limitation,
the power to execute and deliver written consents with respect to the Shares) of
the undersigned at every annual, special or adjourned meeting of CKS
stockholders, and in every written consent in lieu of such a meeting, or
otherwise, in favor of approval of the Merger and the Merger Agreement.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to termination of the Merger
Agreement at every annual, special or adjourned meeting of the stockholders of
CKS and in every written consent in lieu of such meeting, in favor of approval
of the Merger and the Merger Agreement and may not exercise this proxy on any
other matter. The undersigned stockholder may vote the Shares on all other
matters.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated:___________________, 1998
Signature of Stockholder:
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Print Name of Stockholder:
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Shares beneficially owned:
shares of Common Stock
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****IRREVOCABLE PROXY****
