EXHIBIT J
Voting Agreement, dated as of May 1, 2000, by and between TMCT
Ventures, L.P., a Delaware limited partnership and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into as of May 1, 2000 (this
"Agreement") between TMCT Ventures, L.P., a Delaware limited partnership
("TMCT"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Principal Stockholder").
RECITALS
WHEREAS, on April 27, 2000, the Company and TMCT entered into a
purchase agreement (the "Purchase Agreement"), pursuant to which TMCT intends to
acquire 625,000 shares of the Company's Common Stock; and
WHEREAS, as an inducement and a condition to consummating the Purchase
Agreement, TMCT has required that the Principal Stockholder agree, and the
Principal Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the covenants set forth herein,
and for other good and valuable consideration, intending to be legally bound
hereby, the parties agree as follows:
1. Definitions. For purposes of this Agreement:
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(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of
the same securities by the same holder, securities Beneficially Owned by a
Person shall include securities Beneficially Owned by all other Persons with
whom such Person would constitute a "group" within the meaning of Section
13(d)(3) of the Exchange Act.
(b) "Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
2. Stockholder Meetings.
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2.1 Stockholder Votes. The Principal Stockholder agrees that it
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shall, at any meeting of stockholders of the Company, however called, or in
connection with any written consent of stockholders of the Company, vote (or
cause to be voted) the shares (if any) of capital stock of the Company (the
"Capital Stock") then held of record or Beneficially Owned by such Principal
Stockholder, (i) against any action or agreement that would result in a breach
in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Purchase Agreement; (ii) in
favor of election to the Board of Directors the director which TMCT is entitled
to designate upon consummation of the Purchase Agreement and who has been
identified by TMCT as nominee for such purpose; and (iii) except as otherwise
agreed to in writing in advance by TMCT, against the following actions (other
than the Purchase (as defined in the Purchase Agreement) and the transactions
contemplated by the Purchase Agreement and for the transactions contemplated by
that certain Stock Purchase Agreement dated as of the date hereof by and among
the Company, SOFTBANK Capital Partners LP and SOFTBANK Capital Advisors Fund
LP): (A) a dissolution of the Company or (B) any material change in the present
capitalization of the Company or any amendment of the Company's Certificate of
Incorporation or By-laws, in each case, which is intended, or could reasonably
be expected, to impede, delay or adversely affect the Purchase and the
transactions contemplated by this Agreement and the Purchase Agreement. The
Principal Stockholder agrees that it shall not enter into any agreement or
understanding with any Person the effect of which would be inconsistent or
violative of the provisions and agreements contained in this Section 2.
2.2 Irrevocable Proxy. The Principal Stockholder, in furtherance of
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the transactions
contemplated hereby and by the Purchase Agreement, and in order to secure the
performance by the Principal Stockholder of its duties under this Agreement,
shall, if and when requested by TMCT, promptly execute and deliver to TMCT an
irrevocable proxy, substantially in the form of Exhibit A hereto, and
irrevocably appoint Purchaser or its designees, with full power of substitution,
its attorney, agent and proxy to vote (or cause to be voted) or, if applicable,
to give consent with respect to, all of the shares of Common Stock Beneficially
Owned by such Principal Stockholder, together with any shares acquired by such
Principal Stockholder in any capacity after the date hereof in the manner, and
with respect to the matters, set forth in Section 2.1 hereof. The Principal
Stockholder acknowledges that the proxy executed and delivered by it shall be
coupled with an interest, shall constitute, among other things, an inducement
for TMCT to enter into the Purchase Agreement, shall be irrevocable and binding
on any successor in interest of such Principal Stockholder and shall not be
terminated by operation of law upon the occurrence of any event, including,
without limitation, the death or incapacity of such Principal Stockholder. Such
proxy shall operate to revoke and render void any prior proxy as to the shares
heretofore granted by such Principal Stockholder. Such proxy shall terminate on
the Expiration Date.
3. Composition and Nomination of Board of Directors.
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3.1 Board Composition Requirements. The parties hereto intend that
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the Board of Directors of the Company shall consist of seven (7) members. TMCT
shall have the right to designate one (1) member of the Company's Board of
Directors (the "Board Composition Requirement") and shall retain such right for
so long as TMCT retains ownership of at least 300,000 shares of the Company's
Common Stock. At any meeting of stockholders at which directors are to be
elected and with respect to any written consent of stockholders of the Company
in lieu of meeting relating to the election of directors, the Principal
Stockholder shall vote, or execute and deliver a written consent with respect
to, all shares of Common Stock and any other voting
securities of the Company held of record or Beneficially Owned by it in favor of
a slate of directors meeting the Board Composition Requirement and nominated as
contemplated by Section 3.2 hereof and against any slate of directors that does
not satisfy the Board Composition Requirements or the nomination procedures
contemplated by Section 3.2.
3.2 Nominating Procedures. In connection with each meeting of
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stockholders of the Company at which directors of the Company are to be elected,
the parties hereto shall cause their designees on the Board to nominate a slate
of nominees for director which meets the Board Composition Requirements for so
long as this Agreement remains in effect.
The nominees so selected by the Board of Directors shall be presented
and voted upon at the meeting of stockholders as a slate.
3.3 Removal of Directors. Except as otherwise provided in this
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Section 3.3, the Principal Stockholder agrees not to take any action to remove,
with or without cause, the director of the Company designated by TMCT.
Notwithstanding the foregoing, TMCT shall at all times have the right to remove
and to cause the Principal Stockholder to remove, with or without cause, the
director designated by TMCT.
3.4 Vacancies. If a vacancy is created on the Board of Directors by
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reason of the death, disability, removal or resignation of any one of the
directors, the Principal Stockholder shall promptly take all necessary and
appropriate action, including, to the extent it has power to do so, calling a
special meeting of stockholders or executing a written consent of stockholders
in lieu of meeting and voting, or executing and delivering a written consent
with respect to, the shares of Common Stock and any other voting securities of
the Company then held of record or Beneficially Owned in such a manner to ensure
that such vacancy is filled in a manner consistent with the Board Composition
Requirements.
4. Action to Reconstitute Board of Directors. If at any time and for any
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reason the Board of Directors shall fail to satisfy the Board Composition
Requirements, then, at the written request of TMCT, the Principal Stockholder
shall, to the extent it has power to do so, cause to be called a special meeting
of the stockholders to be held for the purpose of taking whatever action may be
necessary to ensure that the Board is constituted so as to satisfy the Board
Composition Requirements as promptly as practicable.
5. Certificate of Incorporation and Bylaws. The Principal Stockholder
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shall vote all shares of Common Stock and any other voting securities of the
Company then held of record or Beneficially Owned and shall take all other
actions necessary and appropriate (including, without limitation, removing any
director) to ensure that the Company's Certificate of Incorporation and Bylaws
do not at any time conflict with the provisions of this Agreement.
6. No Transfer of Capital Stock. The Principal Stockholder hereby agrees
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that during the period ending six (6) months after the date hereof, such
Principal Stockholder shall not sell, transfer or pledge his Capital Stock to
another Person or otherwise engage in any act which would decrease the Principal
Stockholder's percentage of Common Stock ownership on the date hereof
("Dispose"), except if such sale, transfer or pledge is consummated in
accordance with Rule 144 under the Securities Act of 1933, as amended. In
addition, the Principal Stockholder shall not Dispose of his Capital Stock,
except, if the transferee agrees in writing to be bound by the provisions of
this Agreement.
7. Miscellaneous.
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7.1 Modification and Waiver. No amendment or modification of the
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terms or provisions of this Agreement shall be binding unless the same shall be
in writing and duly executed by the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed to or shall constitute a waiver of
any other provisions hereof. No delay on the part of any party in exercising
any right,
power or privilege hereunder shall operate as a waiver thereof.
7.2 Entire Agreement. This Agreement sets forth the entire
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understanding of the parties with respect to the subject matter hereof. Any
previous agreement or understandings between the parties regarding the subject
matter hereof are merged into and superseded by this Agreement.
7.3 Severability. In case any provision in this Agreement shall be
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invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
7.4 No Implied Rights. Nothing herein, express or implied, is
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intended to or shall be construed to confer upon or give to any person, firm,
corporation or legal entity, other than the parties hereto, any interest,
rights, remedies or other benefits with respect to or in connection with any
agreement or provision contained herein or contemplated hereby.
7.5 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware.
7.6 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
7.7 Successors and Assigns. The provisions hereof shall inure to the
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benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
7.8 Notices. All notices and other communications under this
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Agreement shall be in writing, and shall be deemed to have been duly given on
the date of delivery if delivered personally or on the third business day after
mailing or if mailed to the party to whom notice is to be given by first class
mail, registered or
certified, postage prepaid, return receipt requested, and addressed as follows
(until any such address is changed by notice duly given):
if to TMCT, to:
TMCT Ventures, L.P.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
if to the Principal Stockholder, to:
Global Sports, Inc.
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
Blank Rome Comisky & ▇▇▇▇▇▇▇▇ LLP
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
TMCT VENTURES, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Member
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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EXHIBIT A
Irrevocable Proxy
In order to secure the performance of the duties of the undersigned
pursuant to the Voting Agreement, dated as of April 27,2000 (the "Voting
Agreement"), between the undersigned, TMCT Ventures, L.P., the undersigned
hereby irrevocably appoints __________, and each of them, the attorneys, agents
and proxies, with full power of substitution in each of them, for the
undersigned, and in the name, place and stead of the undersigned, to vote (or
cause to be voted) or, if applicable, to give consent, in such manners each such
attorney, agent and proxy or his substitute shall in his sole discretion deem
proper to record such vote (or consent) in the manner, and with respect to the
matters, set forth in Section 2 of the Voting Agreement with respect to all
shares of Common Stock and voting securities of Global Sports, Inc., a Delaware
corporation (the "Company"), which the undersigned is or may be entitled to vote
at any meeting of the Company held after the date hereof, whether annual or
special and whether or not an adjourned meeting, or if applicable, to given
written consent with respect thereto. This Proxy is coupled with an interest,
shall be irrevocable and binding on any successor in interest of the undersigned
and shall not be terminated by operation of law upon the occurrence of any
event, including, without limitation, the death or incapacity of the
undersigned. This Proxy shall operate to revoke and render void any prior proxy
as to the shares of Common Stock and voting securities heretofore granted by the
undersigned. This Proxy shall terminate on ___________.
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