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EXHIBIT 99.5
EXECUTION COPY
VOTING AGREEMENT, dated as of July 19, 2000 (this
"Agreement"), between Ziff-Davis Inc., a Delaware corporation ("Z-D") and Halsey
M. Minor ("CNET Stockholder") the holder of a certain percentage of the issued
and outstanding shares of CNET Common Stock.
RECITALS
CNET Networks, Inc., a Delaware corporation ("CNET"), Z-D and
TD Merger Sub, Inc., a Delaware corporation that is a direct wholly owned
subsidiary of CNET ("Merger Sub"), propose to enter into an Agreement and Plan
of Merger, dated as of July 19, 2000 (the "Merger Agreement"; capitalized terms
used without definition herein having the meanings assigned to them in the
Merger Agreement), pursuant to which Merger Sub would be merged (the "Merger")
with and into Z-D.
As a condition of its entering into the Merger Agreement, Z-D
has requested that CNET Stockholder agree, and CNET Stockholder has agreed, to
enter into this Agreement.
As of the date hereof, CNET Stockholder is the record and
beneficial owner of 8,598,792 shares of CNET Common Stock (the "Existing Shares"
and, together with any shares of CNET Common Stock or other voting capital stock
of CNET acquired after the date hereof, whether upon the exercise of warrants,
options, conversion of convertible securities or otherwise, CNET Stockholder's
"Shares"), representing in the aggregate 10.0% of the aggregate issued and
outstanding shares of CNET Common Stock.
Prior to the date hereof, Z-D and CNET Stockholder had no
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of the Shares.
In consideration for the agreements contained herein, prior to
the date hereof the board of directors of CNET has approved the agreement of
CNET Stockholder to vote as provided in this Agreement.
ARTICLE I
VOTING
1.1 Agreement to Vote. CNET Stockholder hereby agrees during
the term of this Agreement that it shall, and shall cause the holder of record
on any applicable record date to, at the request of Z-D, at any meeting (whether
annual or special and whether or not an adjourned or postponed meeting) of
stockholders of CNET, however called, or in connection with any written consent
of the holders of CNET Common Stock, (a) if a meeting is held, appear at such
meeting or otherwise cause the Shares to be counted as present thereat for
purposes of establishing a quorum, and (b) vote or consent (or cause to be voted
or consented), in person or by proxy, all Shares, and any other voting
securities of CNET (whether acquired heretofore or
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hereafter) that are beneficially owned or held of record by CNET Stockholder or
as to which CNET Stockholder has, directly or indirectly, the right to vote or
direct the voting (collectively, the "Subject Shares"), in favor of the approval
and adoption of the Merger Agreement, the Merger and the transactions
contemplated thereby. CNET Stockholder further agrees to use his reasonable good
faith efforts to cause the shareholders of CNET to approve the Merger and the
transactions and matters contemplated in connection therewith and to not,
directly or indirectly, solicit or encourage any offer from any party concerning
the possible disposition of all or any substantial portion of CNET's business,
assets or capital stock. In the event CNET's board of directors does not call a
meeting of CNET's stockholders to approve the Merger and the transactions and
matters contemplated in connection therewith, CNET Stockholder agrees to take
all action permitted under the certificate of incorporation and bylaws of CNET
and under Delaware law necessary to call a meeting of CNET's stockholders to
approve the Merger and the transactions and matters contemplated in connection
therewith.
1.2 Proxy. CNET Stockholder hereby grants to Z-D a proxy to
vote the Subject Shares as indicated in Section 1.1 above solely to the extent
that CNET Stockholder fails for any reason to vote the Subject Shares in
accordance with Section 1.1. CNET Stockholder intends this proxy to be
irrevocable and coupled with an interest and will take such further action or
execute such other instruments as may be necessary or desirable to effectuate
the intent of this proxy and hereby revokes any proxy previously granted by him
with respect to the Subject Shares.
1.3 No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in Z-D any direct or indirect ownership or incidence of
ownership of or with respect to any Subject Shares. All rights, ownership and
economic benefits of and relating to the Subject Shares shall remain vested in
and belong to CNET Stockholder, and Z-D shall have no authority to manage,
direct, superintend, restrict, regulate, govern, or administer any of the
policies or operations of CNET or exercise any power or authority to direct CNET
Stockholder in the voting of any of the Subject Shares, except as otherwise
provided herein, or in the performance of CNET Stockholder's duties or
responsibilities as a stockholder of CNET.
1.4 No Inconsistent Agreements. CNET Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Merger Agreement, CNET Stockholder (a) has not entered, and shall not enter at
any time while this Agreement remains in effect, into any voting agreement or
voting trust with respect to the Shares and (b) has not granted, and shall not
grant at any time while this Agreement remains in effect, a proxy or power of
attorney with respect to the Shares, in either case, which is inconsistent with
CNET Stockholder's obligations pursuant to this Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
CNET STOCKHOLDER
CNET Stockholder hereby represents and warrants to Z-D as
follows:
2.1 Validity of Agreement. CNET Stockholder has full power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
constitutes a valid and binding obligation of CNET Stockholder, enforceable
against it in accordance with its terms, except that (i) such enforcement may be
subject to applicable bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors' rights generally, and (ii) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
2.2 Shares. The Existing Shares are, and all of CNET
Stockholder's Shares from the date hereof through and on the Closing Date have
been and will be, owned beneficially and of record by CNET Stockholder (subject
to any dispositions of Shares permitted by Section 4.1(a) hereof). As of the
date hereof, the Existing Shares constitute all of the Shares owned of record or
beneficially by CNET Stockholder. CNET Stockholder has or will have sole voting
power, sole power of disposition, sole power to issue instructions with respect
to the matters set forth in Article I hereof, and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect to all of the
Existing Shares and with respect to all of the Shares on the Closing Date, with
no limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement.
2.3 No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by CNET Stockholder
and the consummation by CNET Stockholder of the transactions contemplated hereby
(other than (i) filings under the DGCL required to effect the Merger, (ii) the
filing of a pre-merger notification and report form by CNET under the HSR, (iii)
the filing of the Form S-4 and the Joint Proxy Statement/Prospectus by CNET and
Z-D in connection with the Merger, or (iv) as otherwise contemplated by the
Merger Agreement) and neither the execution and delivery of this Agreement by
CNET Stockholder nor the consummation by CNET Stockholder of the transactions
contemplated hereby nor compliance by CNET Stockholder with any of the
provisions hereof shall conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third-party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which CNET Stockholder is a party or by which CNET Stockholder's
properties or assets may be bound or violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to CNET
Stockholder or any of CNET Stockholder's properties or assets.
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2.4 No Liens. The Existing Shares are held by CNET
Stockholder, or by a nominee or custodian for the exclusive benefit of CNET
Stockholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any encumbrances arising hereunder and
agreements existing prior to the date hereof between CNET Stockholder and CNET,
as the same may be amended pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF Z-D
3.1 Representations and Warranties of Z-D. Z-D represents and
warrants to CNET Stockholder as follows:
3.2 Power: Binding Agreement. Z-D has full corporate power and
authority to execute and deliver this Agreement and to perform all of its
obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by Z-D and constitutes a valid and binding agreement of
Z-D, enforceable against Z-D in accordance with its terms, except that (i) such
enforcement may be subject to applicable bankruptcy, insolvency or other similar
laws, now or hereafter in effect, affecting creditors' rights generally, and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
3.3 No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by Z-D and the
consummation by Z-D of the transactions contemplated hereby and neither the
execution and delivery of this Agreement by Z-D nor the consummation by Z-D of
the transactions contemplated hereby nor compliance by Z-D with any of the
provisions hereof shall conflict with or result in any breach of any
organizational documents applicable to Z-D, result in a violation or breach of,
or constitute (with or without notice or lapse of time or both) a default (or
give rise to any third-party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which Z-D is a party or by which Z-D's properties or assets may be bound
or violate any order, writ, injunction, decree, judgment, order, statute, rule
or regulation applicable to Z-D or any of Z-D's properties or assets.
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ARTICLE IV
OTHER COVENANTS
4.1 Further Agreements of CNET Stockholder.
(a) CNET Stockholder hereby agrees, while this
Agreement is in effect, and except as contemplated hereby, not to sell,
transfer, pledge, encumber, assign or otherwise dispose of (collectively, a
"Transfer") or enforce or permit the execution of the provisions of any
redemption, share purchase or sale, recapitalization or other agreement with
CNET or enter into any contract, option or other arrangement or understanding
with respect to the offer for sale, sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of its Existing Shares, any Shares
acquired after the date hereof, any securities exercisable for or convertible
into CNET Common Stock, any other capital stock of CNET or any interest in any
of the foregoing with any Person, except to a Person who agrees in writing, in
an instrument reasonably acceptable to Z-D, to be bound by this Agreement as a
Stockholder and be subject to Section 1.1.
(b) In the event of a stock dividend or distribution,
or any change in CNET Common Stock by reason of any stock dividend or
distribution, or any change in CNET Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any securities into which
or for which any or all of the Shares may be changed or exchanged or which are
received in such transaction.
ARTICLE V
MISCELLANEOUS
5.1 Termination. This Agreement shall terminate and no party
shall have any rights or duties hereunder upon the earlier of (a) the Effective
Time or (b) termination of the Merger Agreement pursuant to Section 7.1 thereof.
Nothing in this Section 5.1 shall relieve or otherwise limit any party of
liability for breach of this Agreement. Upon any termination of this Agreement,
this Agreement shall thereupon become void and of no further force and effect,
and there shall be no liability in respect of this Agreement or of any
transactions contemplated hereby on the part of any party hereto or any of its
directors, officers, partners, members, stockholders, employees, agents,
advisors, representatives or affiliates; provided, however, that nothing herein
shall relieve any party from any liability for such party's material breach of
this Agreement; and provided further that nothing in this Section 5.1 shall
limit, restrict, impair, amend or otherwise modify the rights, remedies,
obligations or liabilities of any person under any other contract or agreement,
including, without limitation, the Merger Agreement.
5.2 Further Assurances. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional
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documents and take all such further action as may be necessary or appropriate to
consummate the transactions contemplated by this Agreement.
5.3 Noninterference. CNET Stockholder hereby agrees and
covenants that it shall not, directly or indirectly, take any action that would
make any representation or warranty contained herein untrue or incorrect or have
the effect of preventing or disabling CNET Stockholder from performing its
obligations under this Agreement.
5.4 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed duly given (a) on the date of delivery
if delivered personally, or by telecopy or facsimile, upon confirmation of
receipt, (b) on the first Business Day following the date of dispatch if
delivered by a recognized next-day courier service, or (c) on the tenth Business
Day following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be
delivered as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:
(a) if to CNET Stockholder to:
c/o CNET Networks, Inc.
150 Chestnut Street
San Francisco, California 94111
Fax: (415) 395-9205
Attention: Chief Executive Officer
with a copy to:
Simpson Thacher & Bartlett
3373 Hillview Avenue
Suite 250
Palo Alto, California 94304
Attention: Daniel Clivner, Esq.
Fax: (650) 251-5002
(b) if to Z-D to:
Ziff-Davis Inc.
28 East 28th Street
New York, New York 10016
Fax: (212) 503-4599
Attention: Chief Executive Officer
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with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004-2498
Fax: (212) 558-3588
Attention: Alan Sinsheimer, Esq.
5.5 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
both parties need not sign the same counterpart.
5.6 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without regard
to conflicts of laws principles thereof.
5.7 Submission to Jurisdiction; Waivers. Each of CNET
Stockholder and Z-D irrevocably agrees that any legal action or proceeding with
respect to this Agreement or for recognition and enforcement of any judgment in
respect hereof brought by the other party hereto or its successors or assigns
may be brought and determined in the Chancery or other Courts of the State of
Delaware, and each of Z-D and CNET Stockholder hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the exclusive jurisdiction of the
aforesaid courts. Each of CNET Stockholder and Z-D hereby irrevocably waives,
and agrees not to assert, by way of motion, as a defense, counterclaim or
otherwise, in any action or proceeding with respect to this Agreement, (a) any
claim that it is not personally subject to the jurisdiction of the above-named
courts for any reason other than the failure to lawfully serve process, (b) that
it or its property is exempt or immune from jurisdiction of any such court or
from any legal process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise), (c) to the fullest extent
permitted by applicable law, that (i) the suit, action or proceeding in any such
court is brought in an inconvenient forum, (ii) the venue of such suit, action
or proceeding is improper and (iii) this Agreement, or the subject matter
hereof, may not be enforced in or by such courts and (d) any right to a trial by
jury.
5.8 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
5.9 Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity, including without limitation injunctive relief.
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5.10 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof.
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IN WITNESS WHEREOF, CNET Stockholder has duly signed this
Agreement and Z-D has caused this Agreement to be signed by an officer or other
authorized person of Z-D thereunto duly authorized as of the date first written
above.
ZIFF-DAVIS INC.
By: /s/ Eric Hippeau
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Name: Eric Hippeau
Title: Chairman and CEO
/s/ Halsey M. Minor
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Halsey M. Minor
