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Exhibit 2.2
VOTING AND STOCK TRANSFER
RESTRICTION AGREEMENT
THIS VOTING AND STOCK TRANSFER RESTRICTION AGREEMENT ("Agreement") is
entered into as of October 24, 2000, by and between GLOBAL SPORTS, INC., a
Delaware corporation ("Parent"), and ____________________ ("Stockholder").
RECITALS
A. Stockholder is a holder of record and the "beneficial owner" (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain
shares of common stock of Fogdog, Inc., a Delaware corporation (the "Company").
B. Parent, Fido Acquisition Corp., a Delaware corporation ("Merger Sub"),
and the Company are entering into an Agreement and Plan of Merger and
Reorganization of even date herewith (the "Reorganization Agreement") which
provides (subject to the conditions set forth therein) for the merger of Merger
Sub into the Company (the "Merger").
C. In the Merger, the outstanding shares of common stock of the Company
are to be converted into the right to receive shares of common stock of Parent.
D. In order to induce Parent to enter into the Reorganization Agreement,
Stockholder is entering into this Agreement. Even though Stockholder may be a
director or officer of the Company, Stockholder is executing this Agreement
solely in his individual capacity and not in his capacity as a director or
officer of the Company.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Agreement:
(a) The terms "Acquisition Proposal" and "Acquisition Transaction"
shall have the respective meanings assigned to those terms in the
Reorganization Agreement.
(b) "Company Common Stock" shall mean the common stock, par value
$.001 per share, of the Company.
(c) An "Identified Termination" shall occur if:
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(i) the Reorganization Agreement is terminated by Parent or the
Company pursuant to Section 8.1(b) of the Reorganization Agreement at
any time after (A) an Acquisition Proposal has been disclosed,
announced, commenced, submitted or made or (B) the occurrence of a
Triggering Event (as defined in the Reorganization Agreement); or
(ii) the Reorganization Agreement is terminated (A) by Parent or
the Company pursuant to Section 8.1(d) of the Reorganization Agreement
or (B) by Parent pursuant to Section 8.1(e) of the Reorganization
Agreement.
(d) "Lock-Up Period" shall refer to the period beginning upon the
consummation of the Merger and ending 180 days after the consummation of
the Merger.
(e) Stockholder shall be deemed to "Own" or to have acquired
"Ownership" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of such security.
(f) "Parent Common Stock" shall mean the common stock, par value $.01
per share, of Parent.
(g) "Person" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental
authority.
(h) "Subject Company Securities" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and all options,
warrants and other rights to acquire shares of Company Common Stock) Owned
by Stockholder as of the date of this Agreement; and (ii) all additional
securities of the Company (including all additional shares of Company
Common Stock and all additional options, warrants and other rights to
acquire shares of Company Common Stock) of which Stockholder acquires
Ownership during the period from the date of this Agreement through the
Voting Covenant Expiration Date.
(i) "Subject Parent Securities" shall mean: (i) all securities of
Parent (including all shares of Parent Common Stock and all options,
warrants and other rights to acquire shares of Parent Common Stock) Owned
by Stockholder as of the time of consummation of the Merger; and (ii) all
additional securities of the Parent (including all additional shares of
Parent Common Stock and all additional options, warrants and other rights
to acquire shares of Parent Common Stock) of which Stockholder acquires
Ownership during the Lock-Up Period.
(j) A Person shall be deemed to have effected a "Transfer" of a
security if such Person directly or indirectly: (i) sells, pledges,
encumbers, grants an option with respect to, transfers or disposes of such
security or any interest in such security to any
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Person other than Parent; (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein to any Person other than Parent; or (iii) reduces such
Person's beneficial ownership of such security.
(k) "Voting Covenant Expiration Date" shall mean the earlier of the
date upon which the Reorganization Agreement is validly terminated, or the
date upon which the Merger is consummated; provided, however, that the
"Voting Covenant Expiration Date" shall be the date 180 days following the
date on which the Reorganization Agreement is validly terminated, if an
Identified Termination occurs.
SECTION 2. TRANSFER OF SUBJECT COMPANY SECURITIES AND VOTING RIGHTS
2.1 Restriction on Transfer of Subject Company Securities. Subject to
Section 2.3, during the period from the date of this Agreement through the
Voting Covenant Expiration Date, Stockholder shall not, directly or indirectly,
cause or permit any Transfer of any of the Subject Company Securities to be
effected.
2.2 Restriction on Transfer of Voting Rights. During the period from the
date of this Agreement through the Voting Covenant Expiration Date, Stockholder
shall ensure that: (a) none of the Subject Company Securities is deposited into
a voting trust; and (b) no proxy is granted, and no voting agreement or similar
agreement is entered into, with respect to any of the Subject Company
Securities.
2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of
Company Common Stock by Stockholder (i) to any member of his immediate family,
or to a trust for the benefit of Stockholder or any member of his immediate
family, (ii) upon the death of Stockholder, (iii) if Stockholder is a
partnership or limited liability company, to one or more partners or members of
Stockholder or to an affiliated corporation under common control with
Stockholder or (iv) that Stockholder cannot prevent (it being understood that
Stockholder shall use his or its best efforts to prevent transfers of Company
Common Stock other than pursuant to clause "(i)" or "(iii)" of this sentence);
provided, however, that a transfer referred to in clause "(i)", "(ii)" or
"(iii)" of this sentence shall be permitted only if, as a precondition to such
transfer, the transferee agrees in a writing, reasonably satisfactory in form
and substance to Parent, to be bound by the terms of this Agreement.
SECTION 3. VOTING OF SHARES
3.1 Voting Covenant Prior to Termination of Reorganization Agreement.
Stockholder hereby agrees that, prior to the Voting Covenant Expiration Date, at
any meeting of the stockholders of the Company, however called, and in any
written action by consent of stockholders of the Company, unless otherwise
directed in writing by Parent, Stockholder shall cause the Subject Company
Securities to be voted:
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(a) in favor of the Merger, the execution and delivery by the Company
of the Reorganization Agreement and the adoption and approval of the
Reorganization Agreement and the terms thereof, in favor of each of the
other actions contemplated by the Reorganization Agreement and in favor of
any action in furtherance of any of the foregoing; and
(b) against any action or agreement that would result in a breach of
any representation, warranty, covenant or obligation of the Company in the
Reorganization Agreement; and
(c) against the following actions (other than the Merger and the
transactions contemplated by the Reorganization Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or any subsidiary of the
Company; (B) any sale, lease or transfer of a material amount of assets of
the Company or any subsidiary of the Company; (C) any reorganization,
recapitalization, dissolution or liquidation of the Company or any
subsidiary of the Company; (D) any change in a majority of the board of
directors of the Company; (E) any amendment to the Company's certificate of
incorporation or bylaws; (F) any material change in the capitalization of
the Company or the Company's corporate structure; and (G) any other action
which is intended, or could reasonably be expected, to impede, interfere
with, delay, postpone, discourage or adversely affect the Merger or any of
the other transactions contemplated by the Reorganization Agreement or this
Agreement.
Prior to the earlier to occur of the valid termination of the Reorganization
Agreement or the consummation of the Merger, Stockholder shall not enter into
any agreement or understanding with any Person to vote or give instructions in
any manner inconsistent with clause "(a)", "(b)", or "(c)" of the preceding
sentence.
3.2 Voting Covenant After Termination of Reorganization Agreement. If an
Identified Termination occurs, then, prior to the Voting Covenant Expiration
Date, at any meeting of the stockholders of the Company, however called, and in
any written action by consent of stockholders of the Company, unless otherwise
directed in writing by Parent, Stockholder shall cause the Subject Company
Securities to be voted (i) against any Acquisition Proposal and any related
transaction or agreement and (ii) against any action which is intended, or could
reasonably be expected, to facilitate the consummation of any Acquisition
Transaction. Stockholder shall not enter into any agreement or understanding
with any Person prior to the Voting Covenant Expiration Date to vote or give
instructions in any manner inconsistent with clause "(i)" or "(ii)" of the
preceding sentence.
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3.3 Proxy; Further Assurances.
(a) Contemporaneously with the execution of this Agreement: (i)
Stockholder shall deliver to Parent a proxy in the form attached to this
Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law (at all times prior to the Voting Covenant Expiration
Date) with respect to the shares referred to therein (the "Proxy"); and
(ii) Stockholder shall cause to be delivered to Parent an additional proxy
(in the form attached hereto as Exhibit A) executed on behalf of the record
owner of any outstanding shares of Company Common Stock that are owned
beneficially (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934), but not of record, by Stockholder.
(b) Stockholder shall, at his or its own expense, perform such further
acts and execute such further proxies and other documents and instruments
as may reasonably be required to vest in Parent the power to carry out and
give effect to the provisions of this Agreement.
3.4 Fiduciary Duties. This Agreement is intended to bind Stockholder only
with respect to the specific matters set forth herein, and shall not prohibit
Stockholder from acting in his capacity as an officer or director of the Company
in the manner required by Stockholder's fiduciary duties as an officer or
director of the Company.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters' rights and any similar rights relating to the Merger or any related
transaction that Stockholder or any other Person may have by virtue of the
ownership of any outstanding shares of Company Common Stock Owned by
Stockholder.
SECTION 5. NO SOLICITATION
Subject to Section 3.4, Stockholder agrees that, during the period from the
date of this Agreement through the Voting Covenant Expiration Date, Stockholder
shall not, directly or indirectly, and Stockholder shall ensure that his or its
Representatives (as defined in the Reorganization Agreement) do not, directly or
indirectly: (i) solicit, initiate, encourage, induce or facilitate the making,
submission or announcement of any Acquisition Proposal or take any action that
could reasonably be expected to lead to an Acquisition Proposal; (ii) furnish
any information regarding the Company or any subsidiary of the Company to any
Person in connection with or in response to an Acquisition Proposal or an
inquiry or indication of interest that could lead to an Acquisition Proposal;
(iii) engage in discussions or negotiations with any Person with respect to any
Acquisition Proposal; (iv) approve, endorse or recommend any
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Acquisition Proposal; or (v) enter into any letter of intent or similar document
or any agreement or understanding contemplating or otherwise relating to any
Acquisition Transaction. Stockholder shall immediately cease and discontinue,
and Stockholder shall ensure that his or its Representatives immediately cease
and discontinue, any existing discussions with any Person that relate to any
Acquisition Proposal.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
6.1 Authorization, etc. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Agreement and
the Proxy and to perform his or its obligations hereunder and thereunder. This
Agreement and the Proxy have been duly executed and delivered by Stockholder and
constitute legal, valid and binding obligations of Stockholder, enforceable
against Stockholder in accordance with their terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies. If Stockholder is a general or limited
partnership, then Stockholder is a partnership duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it was
organized. If Stockholder is a limited liability company, then Stockholder is a
limited liability company duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it was organized.
6.2 No Conflicts or Consents.
(a) The execution and delivery of this Agreement and the Proxy by
Stockholder do not, and the performance of this Agreement and the Proxy by
Stockholder will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Stockholder or by which
he or it or any of his or its properties is or may be bound or affected; or
(ii) result in or constitute (with or without notice or lapse of time) any
breach of or default under, or give to any other Person (with or without
notice or lapse of time) any right of termination, amendment, acceleration
or cancellation of, or result (with or without notice or lapse of time) in
the creation of any encumbrance or restriction on any of the Subject
Company Securities pursuant to, any contract to which Stockholder is a
party or by which Stockholder or any of his or its affiliates or properties
is or may be bound or affected.
(b) The execution and delivery of this Agreement and the Proxy by
Stockholder do not, and the performance of this Agreement and the Proxy by
Stockholder will not, require any consent or approval of any Person.
6.3 Title to Securities. As of the date of this Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of
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Company Common Stock set forth under the heading "Shares Held of Record" on the
signature page hereof; (b) Stockholder holds (free and clear of any encumbrances
or restrictions) the options, warrants and other rights to acquire shares of
Company Common Stock set forth under the heading "Options and Other Rights" on
the signature page hereof; (c) Stockholder Owns the additional securities of the
Company set forth under the heading "Additional Securities Beneficially Owned"
on the signature page hereof; and (d) Stockholder does not directly or
indirectly Own any shares of capital stock or other securities of the Company,
or any option, warrant or other right to acquire (by purchase, conversion or
otherwise) any shares of capital stock or other securities of the Company, other
than the shares and options, warrants and other rights set forth on the
signature page hereof.
6.4 Accuracy of Representations. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times through the Voting
Covenant Expiration Date and will be accurate in all respects as of the date of
the consummation of the Merger as if made on that date.
SECTION 7. ADDITIONAL COVENANTS OF STOCKHOLDER
7.1 Restriction on Transfer of Subject Parent Securities. During the
Lock-Up Period, Stockholder shall not, directly or indirectly, cause or permit
any Transfer of any Subject Parent Securities to be effected. Without limiting
the generality of the foregoing, during the Lock-Up Period, Stockholder shall
not directly or indirectly engage in any hedging or other transaction which is
designed to or could reasonably be expected to lead to or result in a Transfer
of securities of Parent during the Lock-Up Period, even if such securities would
be disposed of by a Person other than Stockholder. The transactions prohibited
by this Section 7.1 shall include any short sale (whether or not against the
box) and any purchase, sale or grant of any right (including any put or call
option) with respect to any securities of Parent or with respect to any security
(other than a broad-based market basket or index) that includes, relates to or
derives any significant part of its value from any security or securities of
Parent.
7.2 Further Assurances. From time to time and without additional
consideration, Stockholder shall (at Stockholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at Stockholder's sole expense) take such further actions, as Parent may request
for the purpose of carrying out and furthering the intent of this Agreement.
7.3 Legends.
(a) If requested by Parent, immediately after the execution of this
Agreement (and from time to time upon the acquisition by Stockholder of
Ownership of any shares of Company Common Stock prior to the Voting
Covenant Expiration Date), Stockholder shall cause each certificate
evidencing any outstanding shares of Company Common
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Stock or other securities of the Company Owned by Stockholder to be
surrendered so that the transfer agent for such securities may affix
thereto a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE TERMS AND PROVISIONS OF A VOTING AND STOCK
TRANSFER RESTRICTION AGREEMENT DATED AS OF OCTOBER 24, 2000, AS IT MAY
BE AMENDED, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE ISSUER.
(b) If requested by Parent, immediately after the consummation of the
Merger (and from time to time upon the acquisition by Stockholder of
Ownership of any shares of Parent Common Stock during the Lock-Up Period),
Stockholder shall permit Parent to cause each certificate evidencing any
outstanding shares of Parent Common Stock or other securities of Parent
Owned by Stockholder to bear a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE TERMS AND PROVISIONS OF A VOTING AND STOCK
TRANSFER RESTRICTION AGREEMENT DATED AS OF OCTOBER 24, 2000, AS IT MAY
BE AMENDED, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE ISSUER.
SECTION 8. MISCELLANEOUS
8.1 Survival of Representations, Warranties and Agreements. All
representations, warranties, covenants and agreements made by Stockholder in
this Agreement shall survive (i) the consummation of the Merger, (ii) any
termination of the Reorganization Agreement, and (iii) the Voting Covenant
Expiration Date.
8.2 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
8.3 Notices. Any notice or other communication required or permitted to
be delivered to either party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party
shall have specified in a written notice given to the other party):
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if to Stockholder:
at the address set forth on the signature page hereof; and
if to Parent:
Global Sports, Inc.
1075 First Avenue
King of Prussia, PA 19406
Attn: General Counsel
Fax: (610) 265-1730
8.4 Severability. If any provision of this Agreement or any part of any
such provision is held under any circumstances to be invalid or unenforceable in
any jurisdiction, then (a) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Agreement. Each provision of this
Agreement is separable from every other provision of this Agreement, and each
part of each provision of this Agreement is separable from every other part of
such provision.
8.5 Entire Agreement. This Agreement, the Proxy and any other documents
delivered by the parties in connection herewith constitute the entire agreement
between the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings between the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party unless made in writing and signed
by both parties.
8.6 Assignment; Binding Effect. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Stockholder, and any attempted or purported assignment or
delegation of any of such interests or obligations shall be void. Subject to
the preceding sentence, this Agreement shall be binding upon Stockholder and his
heirs, estate, executors and personal representatives and his or its successors
and assigns, and shall inure to the benefit of Parent and its successors and
assigns. Without limiting any of the restrictions set forth in Section 2 or
Section 7.1 or elsewhere in this Agreement, this Agreement shall be binding upon
any Person to whom any Subject Company Securities or Subject Parent Securities
are transferred. Nothing in this Agreement is intended to confer on any Person
(other than Parent and its successors and assigns) any rights or remedies of any
nature.
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8.7 Specific Performance. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement or the Proxy
were not performed in accordance with its specific terms or were otherwise
breached. Stockholder agrees that, in the event of any breach or threatened
breach by Stockholder of any covenant or obligation contained in this Agreement
or in the Proxy, Parent shall be entitled (in addition to any other remedy that
may be available to it, including monetary damages) to seek and obtain (a) a
decree or order of specific performance to enforce the observance and
performance of such covenant or obligation, and (b) an injunction restraining
such breach or threatened breach. Stockholder further agrees that neither
Parent nor any other Person shall be required to obtain, furnish or post any
bond or similar instrument in connection with or as a condition to obtaining any
remedy referred to in this Section 8.7, and Stockholder irrevocably waives any
right he or it may have to require the obtaining, furnishing or posting of any
such bond or similar instrument.
8.8 Non-Exclusivity. The rights and remedies of Parent under this
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Agreement, and the
obligations and liabilities of Stockholder under this Agreement, are in addition
to their respective rights, remedies, obligations and liabilities under common
law requirements and under all applicable statutes, rules and regulations.
Nothing in this Agreement shall limit any of Stockholder's obligations, or the
rights or remedies of Parent, under any Affiliate Agreement between Parent and
Stockholder; and nothing in any such Affiliate Agreement shall limit any of
Stockholder's obligations, or any of the rights or remedies of Parent, under
this Agreement.
8.9 Governing Law; Venue.
(a) This Agreement and the Proxy shall be construed in accordance
with, and governed in all respects by, the laws of the State of Delaware
(without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this
Agreement or the Proxy or the enforcement of any provision of this
Agreement or the Proxy may be brought or otherwise commenced in any state
or federal court located in the State of Delaware. Stockholder:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the State of
Delaware in connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or
document by U.S. mail addressed to him or it at the address set forth
on the signature page hereof shall constitute effective service of
such process, summons, notice or document for purposes of any such
legal proceeding;
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(iii) agrees that each state and federal court located in the
State of Delaware shall be deemed to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any state or
federal court located in the State of Delaware, any claim that
Stockholder is not subject personally to the jurisdiction of such
court, that such legal proceeding has been brought in an inconvenient
forum, that the venue of such proceeding is improper or that this
Agreement or the subject matter of this Agreement may not be enforced
in or by such court.
Nothing contained in this Section 8.9 shall be deemed to limit or otherwise
affect the right of Parent to commence any legal proceeding or otherwise
proceed against Stockholder in any other forum or jurisdiction.
(c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.
8.10 Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
8.11 Captions. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
8.12 Attorneys' Fees. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought against Stockholder, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
8.13 Waiver. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
Parent in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. Parent shall not be deemed to have waived any claim
available to Parent arising out of this Agreement, or any power, right,
privilege or remedy of Parent under this Agreement, unless the waiver of such
claim, power, right, privilege or remedy is expressly set forth in a written
instrument duly executed and delivered on behalf of Parent; and any such waiver
shall not be applicable or have any effect except in the specific instance in
which it is given.
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8.14 Construction.
(a) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender
shall include the masculine and neuter genders; and the neuter gender shall
include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
(d) Except as otherwise indicated, all references in this Agreement to
"Sections" and "Exhibits" are intended to refer to Sections of this
Agreement and Exhibits to this Agreement.
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement to be
executed as of the date first written above.
GLOBAL SPORTS, INC.
By:____________________________
STOCKHOLDER
_______________________________
Name:
Address: ________________________
________________________
Facsimile: ________________________
Shares Held of Record Options and Other Rights Additional Securities
--------------------- ------------------------ ---------------------
Beneficially Owned
------------------
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder (the "Stockholder") of FOGDOG, INC., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes MICHAEL G. RUBIN, KENNETH J. ADELBERG and
GLOBAL SPORTS, INC., a Delaware corporation ("Parent"), and each of them, the
attorneys and proxies of the Stockholder with full power of substitution and
resubstitution, to the full extent of the Stockholder's rights with respect to
(i) the outstanding shares of capital stock of the Company owned of record by
the Stockholder as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the Stockholder may acquire on or after the date hereof. (The
shares of the capital stock of the Company referred to in clauses "(i)" and
"(ii)" of the immediately preceding sentence are collectively referred to as the
"Shares.") Upon the execution hereof, all prior proxies given by the
Stockholder with respect to any of the Shares are hereby revoked, and the
Stockholder agrees that no subsequent proxies will be given with respect to any
of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting and Stock Transfer Restriction Agreement, dated as of
the date hereof, between Parent and the Stockholder (the "Voting Agreement"),
and is granted in consideration of Parent entering into the Agreement and Plan
of Merger and Reorganization, dated as of the date hereof, among Parent, Fido
Acquisition Corp. and the Company (the "Reorganization Agreement"). This proxy
will terminate on the Voting Covenant Expiration Date (as defined in the Voting
Agreement).
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Reorganization Agreement or the effective time of the
merger contemplated thereby (the "Merger") at any meeting of the stockholders of
the Company, however called, and in connection with any written action by
consent of stockholders of the Company:
(i) in favor of the Merger, the execution and delivery by the
Company of the Reorganization Agreement and the adoption and approval of
the Reorganization Agreement and the terms thereof, in favor of each of the
other actions contemplated by the Reorganization Agreement and in favor of
any action in furtherance of any of the foregoing; and
(ii) against any action or agreement that would result in a breach
of any representation, warranty, covenant or obligation of the Company in
the Reorganization Agreement; and
(iii) against the following actions (other than the Merger and the
other transactions contemplated by the Reorganization Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination
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involving the Company or any subsidiary of the Company; (B) any sale, lease
or transfer of a material amount of assets of the Company or any subsidiary
of the Company; (C) any reorganization, recapitalization, dissolution or
liquidation of the Company or any subsidiary of the Company; (D) any change
in a majority of the board of directors of the Company; (E) any amendment
to the Company's certificate of incorporation or bylaws; (F) any material
change in the capitalization of the Company or the Company's corporate
structure; and (G) any other action which is intended, or could reasonably
be expected to impede, interfere with, delay, postpone, discourage or
adversely affect the Merger or any of the other transactions contemplated
by the Reorganization Agreement.
If an Identified Termination (as defined in the Voting Agreement) occurs,
then, during the 180-day period commencing on the date of such Identified
Termination, at any meeting of the stockholders of the Company, however called,
and in connection with any written action by consent of stockholders of the
Company, the attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares in their discretion against or otherwise
with respect to (i) any Acquisition Proposal (as defined in the Voting
Agreement) and any related transaction or agreement and (ii) any action which is
intended, or could reasonably be expected, to facilitate the consummation of any
Acquisition Transaction (as defined in the Voting Agreement).
The Stockholder may vote the Shares on all other matters not referred to in
this proxy, and the attorneys and proxies named above may not exercise this
proxy with respect to such other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the Stockholder (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
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Dated: October 24, 2000
_________________________________________
Name
Number of shares of common stock of the
Company owned of record as of the date of
this proxy:
_________________________________________
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