EXHIBIT 99.3
USWEB STOCK OPTION AGREEMENT
THIS USWEB STOCK OPTION AGREEMENT dated as of September 1, 1998 (the
"Agreement") is entered into by and between CKS Group, Inc. , a Delaware
corporation ("CKS"), and USWeb Corporation, a Delaware corporation ("USWeb").
RECITALS
Concurrently with the execution and delivery of this Agreement, USWeb, CKS
and USWeb Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of USWeb ("Merger Sub"), are entering into an Agreement and Plan of
Reorganization (the "Merger Agreement"), which provides that, among other
things, upon the terms and subject to the conditions thereof, Merger Sub will
be merged with and into USWeb (the "Merger") with USWeb continuing as the
surviving corporation and as a wholly owned subsidiary of CKS.
As a condition and inducement to CKS's willingness to enter into the Merger
Agreement, CKS has required that USWeb agree, and USWeb has so agreed, to
grant to CKS an option to acquire shares of USWeb Common Stock, par value
$0.001 per share ("USWeb Common Stock") upon the terms and subject to the
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option
On the terms and subject to the conditions set forth in this Agreement,
USWeb hereby grants to CKS an irrevocable option (the "Option") to acquire a
number of the authorized but unissued shares of USWeb Common Stock (the
"Option Shares") equal to 19.9% of the number of shares of USWeb Common Stock
issued and outstanding on the date the Option is first exercised for any
Option Shares, in the manner set forth below, at a price per share equal to
the lower of (i) the closing price of USWeb Common Stock on the last trading
day before the date of this Agreement or (ii) the average closing price of
USWeb Common Stock on the five trading days immediately prior to the first
public announcement or disclosure of a USWeb Alternative Proposal (as defined
in the Merger Agreement) (the "Exercise Price"), payable in cash. Capitalized
terms used in this Agreement but not defined herein shall have the meanings
ascribed thereto in the Merger Agreement.
2. Exercise of Option
The Option may only be exercised by CKS, in whole or in part, at any time or
from time to time, from and after (i) the commencement of a tender or exchange
offer for 25% or more of any class of USWeb's capital stock, or (ii) the
failure to obtain the required vote of USWeb stockholders contemplated by the
Merger Agreement upon a vote taken at a meeting of USWeb stockholders duly
convened therefor (or at any adjournment thereof) if at the time of such
failure a USWeb Alternative Proposal (as defined in the Merger Agreement)
shall have been publicly announced or otherwise publicly disclosed, or (iii)
the occurrence of any of the events specified in Section 7.1(g) and Section
7.1(k) of the Merger Agreement (any of the events specified in clauses (i),
(ii) and (iii) of this sentence being referred to herein as an "Exercise
Event"). In the event CKS wishes to exercise the Option, CKS shall deliver to
USWeb a written notice (an "Exercise Notice") specifying the total number of
Option Shares it wishes to acquire. Each closing of a purchase of Option
Shares
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hereunder (a "Closing") shall occur on a date and at a time designated by CKS
in an Exercise Notice delivered to USWeb at least five (5) business days prior
to the date of such Closing, which Closing shall be held at the offices of
counsel to CKS. The Option shall terminate upon the earliest to occur of (i)
the Effective Time, (ii) sixty (60) days following the termination of the
Merger Agreement pursuant to Article VII thereof, if an Exercise Event shall
have occurred on or prior to the date of such termination, (iii) the date on
which the Merger Agreement is terminated pursuant to Article VII thereof if an
Exercise Event shall not have occurred on or prior to such date, and (iv) the
termination of the Merger Agreement pursuant to Section 7.1(a) or 7.1(c)
thereof; provided, however, with respect to the preceding clause (ii) of this
sentence, that if the Option cannot be exercised by reason of any applicable
government order or because the waiting period related to the issuance of the
Option Shares under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), if applicable, shall not have expired or been
terminated, then the Option shall not terminate until the tenth business day
after such impediment to exercise shall have been removed or shall have become
final and not subject to appeal. Notwithstanding the foregoing, but subject to
the further limitations set forth in Section 7(a), (i) the Option may not be
exercised if CKS is in breach in any material respect of any of its covenants
or agreements contained in the Merger Agreement; and (ii) in the event CKS
receives more than an aggregate of (x) eighteen million dollars ($18,000,000)
plus (y) the Exercise Price multiplied by the Number of Option Shares
purchased by CKS pursuant to the Option minus (z) any amounts paid to CKS by
USWeb pursuant to Section 7.3(d) of the Merger Agreement, in connection with a
sale or other disposition of the Option Shares, all proceeds in excess of such
amount shall be remitted to USWeb.
3. Conditions to Closing
The obligation of USWeb to issue the Option Shares to CKS hereunder is
subject to the conditions that (a) any waiting period under the HSR Act
applicable to the issuance of the Option Shares hereunder shall have expired
or been terminated; (b) all consents, approvals, orders or authorizations of,
or registrations, declarations or filings with, any federal, state or local
administrative agency or commission or other federal state or local
governmental authority or instrumentality, if any, required in connection with
the issuance of the Option Shares hereunder shall have been obtained or made,
as the case may be; and (c) no preliminary or permanent injunction or other
order by any court of competent jurisdiction prohibiting or otherwise
restraining such issuance shall be in effect.
4. Closing
At any Closing, (a) USWeb shall deliver to CKS a single certificate in
definitive form representing the number of Option Shares designated by CKS in
its Exercise Notice, such certificate to be registered in the name of CKS and
to bear the legend set forth in Section 11 hereof, and (b) CKS shall pay to
USWeb the aggregate purchase price for the Option Shares so designated and
being purchased by wire transfer of immediately available funds or by delivery
of a certified check or bank check. At any Closing at which CKS is exercising
the Option in part, CKS shall present and surrender this Agreement to USWeb,
and USWeb shall deliver to CKS an executed new agreement with the same terms
as this Agreement evidencing the right to purchase the balance of the Option
Shares purchasable hereunder.
5. Representations and Warranties of USWeb
USWeb represents and warrants to CKS that (a) USWeb is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware and has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder; (b) the execution and
delivery of this Agreement by USWeb and consummation by USWeb of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of USWeb and no other corporate proceedings on
the part of USWeb are necessary to authorize this Agreement or any of the
transactions contemplated hereby; (c) this Agreement has been duly executed
and delivered by USWeb and constitutes a legal, valid and binding obligation
of USWeb and, assuming this Agreement constitutes a legal, valid and binding
obligation of CKS, is enforceable against USWeb in accordance with its terms,
except as enforceability may be limited by
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bankruptcy and other laws affecting the rights and remedies of creditors
generally and general principles of equity; (d) except for any filings as may
be required under the HSR Act and foreign antitrust or similar laws, USWeb has
taken all necessary corporate and other action to authorize and reserve for
issuance and to permit it to issue upon exercise of the Option, and at all
times from the date hereof until the termination of the Option will have
reserved for issuance, a sufficient number of unissued Option Shares for CKS
to exercise the Option in full and will take all necessary corporate or other
action to authorize and reserve for issuance all additional Option Shares or
other securities which may be issuable pursuant to Section 9 upon exercise of
the Option, all of which, upon their issuance and delivery in accordance with
the terms of this Agreement, will be validly issued, fully paid and
nonassessable; (e) upon delivery of the Option Shares and any other securities
to CKS upon exercise of the Option, CKS will acquire such Option Shares or
other securities free and clear of all material claims, liens, charges,
encumbrances and security interests of any kind or nature whatsoever,
excluding those imposed by CKS; (f) the execution and delivery of this
Agreement by USWeb does not, and the performance of this Agreement by USWeb
will not, (i) violate the Certificate of Incorporation or Bylaws of USWeb,
(ii) conflict with or violate any order applicable to USWeb or any of its
subsidiaries or by which they or any of their property is bound or (iii)
result in any breach of or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or give rise to any
right of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any of the property or assets of
USWeb or any of its subsidiaries pursuant to, any contract or agreement to
which USWeb or any of its subsidiaries is a party or by which USWeb or any of
its subsidiaries or any of their property is bound, except, in the case of
clauses (ii) and (iii) above, for violations, conflicts, breaches, defaults,
rights of termination, amendment, acceleration or cancellation, liens or
encumbrances which would not, individually or in the aggregate, have a
Material Adverse Effect on USWeb; and (g) the execution and delivery of this
Agreement by USWeb does not, and the performance of this Agreement by USWeb
will not, require any consent, approval, authorization or permit of, or filing
with, or notification to, any Governmental Entity except as may be required
pursuant to the HSR Act, foreign antitrust or similar laws, and Section 13(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
6. Representations and Warranties of CKS
CKS represents and warrants to USWeb that (a) CKS is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder; (b) the execution and
delivery of this Agreement by CKS and the consummation by CKS of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of CKS and no other corporate proceedings on the
part of CKS are necessary to authorize this Agreement or any of the
transactions contemplated hereby; (c) this Agreement has been duly executed
and delivered by CKS and constitutes a legal, valid and binding obligation of
CKS and, assuming this Agreement constitutes a legal, valid and binding
obligation of USWeb, is enforceable against CKS in accordance with its terms,
except as enforceability may be limited by bankruptcy and other laws affecting
the rights and remedies of creditors generally and general principles of
equity; (d) the execution and delivery of this Agreement by CKS do not, and
the performance of this Agreement by CKS will not, (i) violate the Certificate
of Incorporation or Bylaws of CKS, (ii) conflict with or violate any order
applicable to CKS or any of its subsidiaries or by which they or any of their
property is bound or (iii) result in any breach of or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give rise to any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the property or assets of CKS or any of its subsidiaries pursuant to, any
contract or agreement to which CKS or any of its subsidiaries is a party or by
which CKS or any of its subsidiaries or any of their property is bound,
except, in the case of clauses (ii) and (iii) above, for violations,
conflicts, breaches, defaults, rights of termination, amendment, acceleration
or cancellation, liens or encumbrances which would not, individually or in the
aggregate, have a Material Adverse Effect on CKS; (e) the execution and
delivery of this Agreement by CKS does not, and the performance of this
Agreement by CKS will not, require any consent, approval, authorization or
permit of, or filing with or notification to, any Governmental Entity except
as may be required pursuant to the HSR Act, foreign antitrust or similar laws,
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and Section 13(d) of the Exchange Act; and (f) any Option Shares acquired upon
exercise of the Option will not be acquired by CKS with a view to the public
distribution thereof and CKS will not sell or otherwise dispose of such shares
in violation of applicable law or this Agreement.
7. Certain Rights
(a) Put. At the request of CKS at any time during the period during which
the Option is exercisable pursuant to Section 2, provided that an event
specified in Sections 7.1(g) of the Merger Agreement shall have occurred and
the USWeb Termination Fee (as defined in the Merger Agreement) has become
payable pursuant to Section 7.3(d) of the Merger Agreement (the "Purchase
Period"), USWeb (or any successor entity thereof) shall purchase from CKS the
Option Shares, if any, acquired by CKS pursuant to this Agreement, at a price
equal to the sum of (i) the Exercise Price paid by CKS for the Option Shares
acquired pursuant to the Option plus (ii) the difference between the "Market
Price" for such Option Shares as of the date CKS gives notice of its intent to
exercise its rights under this Section 7(a) and such Exercise Price (but only
if the Market Price is greater than the Exercise Price), multiplied by the
number of Option Shares so purchased. Notwithstanding any other provision of
this Agreement, USWeb shall not be required pursuant to this Section 7 to pay
CKS any amount in excess of an aggregate of (x) twelve million dollars
($12,000,000) plus (y) the Exercise Price paid by CKS for the Option Shares
acquired pursuant to the Option minus (z) any amounts paid to CKS by USWeb
pursuant to Sections 7.3(d) of the Merger Agreement. For purpose of this
Section 7(a), "Market Price" means the average closing sale price of USWeb
Common Stock on the Nasdaq National Market during the five (5) trading days
ending on the trading day immediately preceding such date).
(b) Payment and Redelivery of Option or Shares. In the event CKS exercises
its rights under Section 7(a), USWeb shall, within ten (10) business days
after CKS delivers notice pursuant to Section 7(a) (which notice may be
delivered prior to consummation of the exercise of the Option), pay the
required amount to CKS in immediately available funds and CKS shall surrender
to USWeb the certificates evidencing the Option Shares purchased by CKS
pursuant thereto, and CKS shall represent and warrant that such shares are
then free and clear of all claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever.
8. Certain Restrictions
(a) Restrictions on Transfer. Prior to the fifth anniversary of the date
hereof (the "Expiration Date" ), CKS shall not directly or indirectly, by
operation of law or otherwise, sell, assign, pledge, or otherwise dispose of
or transfer any shares of capital stock of USWeb acquired by CKS pursuant to
this Agreement, ("Restricted Shares"), other than (i) pursuant to Section 7 or
(ii) in accordance with Sections 8(b) or 9.
(b) Permitted Sales. Following the termination of the Merger Agreement, CKS
shall be permitted to sell any Restricted Shares beneficially owned by it if
such sale is made (i) pursuant to a tender or exchange offer or other business
combination transaction that has been approved or recommended, or otherwise
determined to be fair to and in the best interests of the holders of USWeb
Common Stock, by a majority of the members of the Board of Directors of USWeb,
or (ii) subject to Section 8(c) or (d) as the case may be, to a person who,
immediately following such sale, would beneficially own (within the meaning of
Rule 13d-3 promulgated under the Exchange Act), either alone or as part of a
"group" (as used in Rule 13d-5 under the Exchange Act), not more than ten
percent (10%) of USWeb's outstanding voting securities, which person is a
passive institutional investor who would be eligible under Rule 13d-1(b)(1)
under the Exchange Act to report such holdings of Restricted Shares on
Schedule 13G under the Exchange Act.
(c) USWeb's Right of First Refusal. At any time after the first occurrence
of a Exercise Event and prior to the Expiration Date, if CKS shall desire to
sell, assign, transfer or otherwise dispose of all or any of the Option Shares
acquired pursuant to this Agreement, it shall give USWeb written notice of the
proposed transaction (an "CKS Offer Notice"), identifying the proposed
transferee, accompanied by a copy of a binding offer to purchase such shares
or other securities signed by such transferee and setting forth the terms of
the
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proposed transaction. A CKS Offer Notice shall be deemed an offer by CKS to
USWeb, which may be accepted within five (5) business days of the receipt of
such CKS Offer Notice, on the same terms and conditions and at the same price
at which CKS is proposing to transfer such shares or other securities to such
transferee. The purchase of any such shares or other securities by USWeb shall
be settled within five (5) business days of the date of the acceptance of the
offer and the purchase price shall be paid to CKS in immediately available
funds. In the event of the failure or refusal of USWeb to purchase all the
shares or other securities covered by a CKS Offer Notice, CKS may sell all,
but not less than all, of such shares or other securities to the proposed
transferee at no less than the price specified and on terms no more favorable
to the transferee than those set forth in the CKS Offer Notice as long as such
sale is completed within ninety (90) days of the receipt by USWeb of the
applicable CKS Offer Notice; provided that the provisions of this sentence
shall not limit the rights CKS may otherwise have in the event USWeb has
accepted the offer contained in the CKS Offer Notice and wrongfully refuses to
purchase the shares or other securities subject thereto.
(d) Additional Restrictions. Prior to any permitted sales of any Restricted
Shares under Section 8(b)(ii), the holder thereof shall give written notice to
the issuer of such Restricted Shares of its intention to effect such transfer.
Each such notice shall describe the manner of the proposed transfer and, if
requested by the issuer of such Restricted Shares, shall be accompanied by an
opinion of counsel satisfactory to such issuer (it being agreed that each of
Xxxx Xxxx Xxxx & Freidenrich LLP, and Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, shall be satisfactory) to the effect that such sale
may be effected without registration under the Securities Act and any
applicable state securities laws. Each certificate for Restricted Shares
transferred as above provided shall bear the legend set forth in Section 11,
except that such certificate shall not bear such legend if (i) such transfer
is in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or (ii) the opinion
of counsel referred to above is to the further effect that the transferee and
any subsequent transferee would be entitled to transfer such securities in a
public sale without registration under the Securities Act and any applicable
state securities laws. The restrictions provided for in this Section 8(d)
shall not apply to securities which are not required to bear the legend
prescribed by Section 11 in accordance with the provisions of this Agreement.
The foregoing restrictions on transferability shall terminate as to any
particular shares when such shares shall have been effectively registered
under the Securities Act and any applicable state securities laws and sold or
otherwise disposed of in accordance with the registration statement covering
such shares.
(e) Voting of Shares. Following the date hereof and prior to the Expiration
Date, CKS (i) shall vote all Restricted Shares, on each matter submitted to a
vote of the stockholders of USWeb, for and against such matter in the same
proportion as all other shares of the same class of capital stock of USWeb are
voted (whether by proxy or otherwise) for and against such matter, and (ii)
shall execute written consents with respect to the Restricted Shares in the
same proportion as written consents are executed by other holders of such
class of capital stock of USWeb. Before acquiring any Restricted Shares
hereunder, CKS shall execute and deliver a proxy to USWeb authorizing USWeb to
vote and execute written consents with respect to all Restricted Shares held
by CKS in accordance with the provisions of this paragraph.
9. Registration Rights
(a) Following the termination of the Merger Agreement, CKS may by written
notice (a "Registration Notice") to USWeb request USWeb to register under the
Securities Act all or any part of the shares acquired by CKS pursuant to this
Agreement (the "Registrable Securities") in order to permit the sale or other
disposition of such shares pursuant to a bona fide firm commitment
underwritten public offering in which CKS and the underwriters shall effect as
wide a distribution of such Registrable Securities as is reasonably
practicable and shall use reasonable efforts to prevent any person or group
from purchasing through such offering shares representing more than 1% of the
outstanding shares of Common Stock of USWeb on a fully diluted basis;
provided, however, that any such Registration Notice must relate to a number
of shares equal to at least 2% of the outstanding shares of Common Stock of
USWeb on a fully diluted basis and that any rights
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to require registration hereunder shall terminate with respect to any shares
that may be sold pursuant to Rule 144(k) under the Securities Act.
(b) USWeb shall use commercially reasonable best efforts to effect, as
promptly as practicable, the registration under the Securities Act of the
Registrable Securities; provided, however, that (i) CKS shall not be entitled
to more than an aggregate of two effective registration statements hereunder
and (ii) USWeb will not be required to file any such registration statement
during any period of time (not to exceed 40 days after a Registration Notice
in the case of clause (A) below or 90 days after a Registration Notice in the
case of clauses (B) and (C) below) when (A) USWeb is in possession of material
non-public information which it reasonably believes would be detrimental to be
disclosed at such time and, in the written opinion of counsel to USWeb, such
information would have to be disclosed if a registration statement were filed
at that time; (B) USWeb is required under the Securities Act to include
audited financial statements for any period in such registration statement and
such financial statements are not yet available for inclusion in such
registration statement; or (C) USWeb determines, in its reasonable judgment,
that such registration would interfere with any financing, acquisition or
other material transaction involving USWeb. If consummation of the sale of any
Registrable Securities pursuant to a registration hereunder does not occur
within 180 days after the filing with the SEC of the initial registration
statement therefor, the provisions of this Section 9 shall again be applicable
to any proposed registration, it being understood that CKS shall not be
entitled to more than an aggregate of two effective registration statements
hereunder. USWeb shall use commercially reasonable best efforts to cause any
Registrable Securities registered pursuant to this Section 9 to be qualified
for sale under the securities or blue sky laws of such jurisdictions as CKS
may reasonably request and shall continue such registration or qualification
in effect in such jurisdictions; provided, however, that USWeb shall not be
required to qualify to do business in, or consent to general service of
process in, any jurisdiction by reason of this provision.
(c) The registration rights set forth in this Section 9 are subject to the
condition that CKS shall provide USWeb with such information with respect to
CKS's Registrable Securities, the plan for distribution thereof, and such
other information with respect to CKS as, in the reasonable judgment of
counsel for USWeb, is necessary to enable USWeb to include in a registration
statement all material facts required to be disclosed with respect to a
registration thereunder.
(d) A registration effected under this Section 9 shall be effected at
USWeb's expense, except for underwriting discounts and commissions and the
fees and expenses of counsel to CKS, and USWeb shall provide to the
underwriters such documentation (including certificates, opinions of counsel
and "comfort" letters from auditors) as are customary in connection with
underwritten public offerings and as such underwriters may reasonably require.
In connection with any registration, the parties agree (i) to indemnify each
other and the underwriters in the customary manner and (ii) to enter into an
underwriting agreement in form and substance customary for transactions of
this type with the underwriters participating in such offering.
10. Adjustment Upon Changes in Capitalization
In the event of any change in the Option Shares by reason of stock
dividends, split-ups, mergers (other than the Merger), recapitalizations,
combinations, exchanges of shares and the like, the type and number of shares
or securities subject to the Option, the Exercise Price shall be adjusted
appropriately, and proper provision shall be made in the agreements governing
such transaction so that CKS shall receive, upon exercise of the Option, the
number and class of shares or other securities or property that CKS would have
received in respect of the Option Shares if the Option had been exercised
immediately prior to such event or the record date therefor, as applicable.
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11. Restrictive Legends
Each certificate representing Option Shares issued to CKS hereunder shall
include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR SOLD
ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET
FORTH IN THE STOCK OPTION AGREEMENT DATED AS OF AUGUST 31, 1998, A COPY OF
WHICH MAY BE OBTAINED FROM USWEB CORPORATION.
12. Listing and HSR Filing
USWeb, upon the request of CKS, shall promptly file an application to list
the Option Shares to be acquired upon exercise of the Option for quotation on
the Nasdaq National Market and shall use its best efforts to obtain approval
of such listing as soon as practicable. Promptly after the date such a filing
is permitted to be made, each of the parties hereto shall file with the
Federal Trade Commission and the Antitrust Division of the United States
Department of Justice all required premerger notification and report forms and
other documents and exhibits required to be filed under the HSR Act, if any,
to permit the acquisition of the Option Shares subject to the Option at the
earliest possible date.
13. Binding Effect
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Nothing
contained in this Agreement, express or implied, is intended to confer upon
any person other than the parties hereto and their respective successors and
permitted assigns any rights or remedies of any nature whatsoever by reason of
this Agreement. Any shares sold by a party in compliance with the provisions
of Section 9 shall, upon consummation of such sale, be free of the
restrictions imposed with respect to such shares by this Agreement and any
transferee of such shares shall not be entitled to the rights of such party.
Certificates representing shares sold in a registered public offering pursuant
to Section 9 shall not be required to bear the legend set forth in Section 11.
14. Specific Performance
The parties recognize and agree that if for any reason any of the provisions
of this Agreement are not performed in accordance with their specific terms or
are otherwise breached, immediate and irreparable harm or injury would be
caused for which money damages would not be an adequate remedy. Accordingly,
each party agrees that in addition to other remedies the other party shall be
entitled to an injunction restraining any violation or threatened violation of
the provisions of this Agreement. In the event that any action shall be
brought in equity to enforce the provisions of the Agreement, neither party
will allege, and each party hereby waives the defense, that there is an
adequate remedy at law.
15. Entire Agreement
This Agreement and the Merger Agreement (including the appendices thereto)
constitute the entire agreement between the parties with respect to the
subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
16. Further Assurances
Each party will execute and deliver all such further documents and
instruments and take all such further action as may be necessary in order to
constitute the transactions contemplated hereby.
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17. Validity
The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of the other provisions of this
Agreement, which shall remain in full force and effect. In the event any
Governmental Entity of competent jurisdiction holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall
negotiate in good faith and shall execute and deliver an amendment to this
Agreement in order, as nearly as possible, to effectuate, to the extent
permitted by law, the intent of the parties hereto with respect to such
provision.
18. Notices
All notices and other communications hereunder shall be in writing and shall
be deemed given if delivered personally or by commercial delivery service, or
sent via telecopy (receipt confirmed) to the parties at the following
addresses or telecopy numbers (or at such other address or telecopy numbers
for a party as shall be specified by like notice):
(a) if to CKS, to:
CKS Group, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy at the same address to the
attention of the General Counsel, and
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxx.
Xxxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
(b) if to USWeb, to:
USWeb Corporation
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy at the same address to the
attention of the General Counsel, and
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telephone No. (000) 000-0000
Telecopy No.: (000) 000-0000
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19. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to agreements made and to be
performed entirely within such State.
20. Counterparts
This Agreement may be executed in two counterparts, each of which shall be
deemed to be an original, but both of which, taken together, shall constitute
one and the same instrument.
21. Expenses
Except as otherwise expressly provided herein or in the Merger Agreement,
all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses.
22. Amendments; Waiver
This Agreement may be amended by the parties hereto and the terms and
conditions hereof may be waived only by an instrument in writing signed on
behalf of each of the parties hereto, or, in the case of a waiver, by an
instrument signed on behalf of the party waiving compliance.
23. Assignment
Neither of the parties hereto may sell, transfer, assign or otherwise
dispose of any of its rights or obligations under this Agreement or the Option
created hereunder to any other person, without the express written consent of
the other party, except that CKS may assign its rights and obligations
hereunder to Merger Sub.
[Remainder of Page Intentionally Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first
above written.
USWEB CORPORATION.
/s/ Xxxxxxx X. Aver
By: _________________________________
Name: Xxxxxxx X. Aver
Title: Executive Vice President and
Chief Financial Officer
CKS GROUP, INC.
/s/ Xxxx X. Xxxxxx
By: _________________________________
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer and
Chairman of the Board
B-9
