EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), made as of December
17, 1999 by and among VIVID HOLDINGS, INC., a Delaware corporation (the
"Company"), VIVID PUBLISHING INC. (d/b/a Vivid Studios), a California
corporation ("Operating Sub"), COMPUTER ASSOCIATES INTERNATIONAL, INC., a
Delaware corporation ("CAI"), and MODEM MEDIA.XXXXX XXXXX, INC., a Delaware
corporation ("MMPT").
W I T N E S S E T H:
WHEREAS, MMPT, the Company, Modem Media.Xxxxx Xxxxx Merger Corp., a
Delaware corporation ("Acquisition Sub"), Vivid Publishing, Inc. (d/b/a Vivid
Studios), a California corporation ("Operating Sub"), and all of the
stockholders of the Company are parties to that certain Agreement and Plan of
Merger dated as of the date hereof (the "Merger Agreement");
WHEREAS, Acquisition Sub will merge with and into the Company, with the
Company surviving and becoming a wholly owned subsidiary of MMPT after execution
of the transactions contemplated by the Merger Agreement (the "Merger");
WHEREAS, it is a condition precedent to the obligations of MMPT and
Acquisition Sub under the Merger Agreement that (i) the 100 shares of Common
Stock of Operating Sub owned by CAI (the "Residual Shares") shall have been sold
and delivered to MMPT and (ii) MMPT repay at Closing all amounts owed with
respect to the CA Note and to make the Asset/Release Payment (as defined
herein);
WHEREAS, CAI desires to sell, and MMPT desires to purchase, the
Residual Shares for the consideration and on the terms set forth in this
Agreement and MMPT agrees to pay the CA Note and the Asset/Release Payment, each
in full in cash pursuant to the terms of the Merger Agreement;
WHEREAS, MMPT, CAI and the Company desire to reach an agreement with
regard to: (a) that certain promissory note with a face amount of $8,300,000,
dated as of June 30, 1999, issued by the Company, as Maker, to Computer
Associates (the "CA Note"); (b) that certain Guaranty dated as of June 30, 1999
by Xxxxx Xxxxxxx ("Guarantor") in favor of CAI (the "Guaranty"); (c) that
certain Shareholders' Agreement, dated as of June 30, 1999, by and among the
Company, CAI and Operating Sub (the "Shareholders' Agreement") (d) that certain
Stock Purchase Agreement dated as of June 30, 1999 by and among the Operating
Sub, the Company, CAI, Platinum technology IP, inc. (the "Stock Purchase
Agreement") and (e) that certain Agreement and Plan of Reorganization by and
among Platinum International, the Operating Sub and certain stockholders of the
Operating Sub dated as of May 29, 1998 (the "Platinum Acquisition Agreement"):
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NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
1. Definitions.
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1, or if not otherwise defined in this
Agreement, the meanings set forth in the Merger Agreement:
"Affiliate" --shall mean, with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person.
"Asset/Release Payment" --shall mean $200,000.
"Contract"--any agreement, contract, obligation, promise or undertaking
(whether written or oral and whether express or implied) that is legally
binding.
"Effective Time"--that date and time at which a properly executed
certificate of merger is duly filed with the Secretary of State of the State of
Delaware pursuant to the Merger Agreement, or at such later time as may be
specified therein.
"Encumbrance"--any charge, claim, community property interest,
condition, equitable interest, license, lien, option, pledge, security interest,
right of first refusal, or restriction of any kind, including any restriction on
use, voting, transfer, receipt of income or exercise of any other attribute of
ownership.
"Governmental Body"--any
(a) nation, state, county, city, town, village, district or other
jurisdiction of any nature;
(b) federal, state, local, municipal, foreign or other government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official or entity and
any court or other tribunal);
(d) multi-national organization or body; or
(e) body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority or
power of any nature.
"Legal Requirement"--any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"MMPT Common Stock"--shall mean the Class A common stock of MMPT, par
value $.001 per share.
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"Order"--any award, decision, injunction, judgment, order, ruling,
subpoena or verdict entered, issued, made, or rendered by any court,
administrative agency or other Governmental Body or by any arbitrator.
"Organizational Documents"--(a) the articles or certificate of
incorporation and the bylaws of a corporation; (b) the partnership agreement and
any statement of partnership of a general partnership; (c) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership; (d) any charter or similar document adopted or filed in connection
with the creation, formation, or organization of a Person; and (e) any amendment
to any of the foregoing.
"Person"--any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
"Promissory Notes" --shall mean all outstanding promissory notes
issued by the Company, as maker, to founders and third parties (other than the
CA Note).
"Registrable Stock" --shall mean any shares of MMPT Common Stock until
(i) a registration statement covering such shares has been declared effective by
the Securities and Exchange Commission and such shares have been disposed of
pursuant to such effective registration statement, (ii) such shares are sold
under circumstances in which all of the applicable conditions of Rule 144 are
met or under which they may be sold pursuant to Rule 144(k) or (iii) such shares
are otherwise transferred, MMPT has delivered a new certificate or other
evidence of ownership for such shares not bearing the legend required pursuant
to this Agreement and such shares may be resold without subsequent registration
under the Securities Act.
"Securities Act"--shall mean the Securities Act of 1933, as amended,
and the rules and regulations thereto.
"Subsidiary"--with respect to any Person (the "Owner"), any corporation
or other Person of which securities or other interests having the power to elect
a majority of that corporation's or other Person's board of directors or similar
governing body, or otherwise having the power to direct the business and
policies of that corporation or other Person (other than securities or other
interests having such power only upon the happening of a contingency that has
not occurred) are held by the Owner or one or more of its Subsidiaries.
"Vivid Rollover Stock" --shall mean MMPT Common Stock received (i) upon
the conversion of common stock of the Company in connection with the Merger, or
(ii) in exchange for the Promissory Notes.
2. Sale and Transfer of the Residual Shares; Closing.
2.1 Residual Shares. Subject to the satisfaction of and upon the terms
and conditions of this Agreement, at the Closing, as defined herein, CAI agrees
to sell and transfer the Residual Shares, and MMPT agrees to purchase the
Residual Shares, in exchange for that number of shares of MMPT Common Stock (the
"MMPT Shares") equal to the CA Allocation times the
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Stock Exchange Ratio, as such terms are defined in the Merger Agreement. The
Company and MMPT agree that without the prior written consent of CAI, they
shall not take any action to amend the Merger Agreement that would change the
definitions or the amounts of the CA Allocation and the Stock Exchange Ratio.
If between the date of this Agreement and the Effective Time the Purchaser
Common Stock shall have been changed into a different number of shares or a
different class, by reason of any stock dividend, subdivision,
reclassification, recapitalization, split-up, combination, exchange of shares
or the like, the number of shares of Purchaser Common Stock to be delivered
pursuant to this Agreement shall be correspondingly adjusted. As of the date
hereof, the Fully Diluted Company Shares (as defined in the Merger Agreement)
is 10,875,610 and the CA Allocation is 1,208,401. Schedule 2.1 sets forth a
computation schedule used by the parties to illustrate the number of shares of
MMPT Common Stock which would be issued in connection with the Merger based on
the capitalization of the Company as of the date hereof.
2.2 Surrender of Certificates Representing Shares. At the Effective
Time, CAI, upon surrender to MMPT of one or more certificates in valid form
representing the Residual Shares, duly endorsed in blank or accompanied by duly
executed stock powers, shall be entitled to receive the MMPT Shares in the names
and denominations provided by CAI to MMPT in writing at least ten Business Days
prior to Closing. Until so surrendered, each such certificate shall, after the
Effective Time, represent for all purposes only the right to receive MMPT shares
as provided for in this Agreement.
2.3 Repayment of CA Note. At the Closing, MMPT agrees to pay in full in
cash all outstanding amounts owed under the CA Note, and CAI agrees (a) to give
Xxxxx Xxxxxxx an acknowledgment of such payment and release of the Guaranty and
(b) to provide MMPT any documents reasonably necessary or desirable to release
CAI's security interest relating to the CA Note.
2.4 Payment of the Asset/Release Payment. At the Closing, MMPT agrees
to pay in full in cash the Asset/Release Payment.
2.5 Closing. The purchase and sale of the Residual Shares (the
"Closing")
provided for in this Agreement will take place as of the date of closing as
provided in Section 2.02 of the Merger Agreement.
2.6 Piggyback Registration.
(a) If MMPT proposes to register any of its MMPT Common Stock under the
Securities Act (other than a registration (A) on Form S-8 or S-4 or any
successor or similar forms, (B) relating to MMPT Common Stock issuable upon
exercise of employee stock options or in connection with any employee benefit or
similar plan of MMPT or (C) in connection with a direct or indirect acquisition
by MMPT of another Person), whether or not for sale for its own account, it will
each such time, subject to the provisions of Section 2.6(b), give prompt written
notice at least 20 days prior to the anticipated filing date of the registration
statement relating to such registration to CAI, which notice shall set forth
CAI's rights under this Section 2.6 and shall offer CAI the opportunity to
include in such registration statement such number of shares of Registrable
Stock as CAI may request. Upon the written request of CAI made within 10 days
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after the receipt of notice from MMPT (which request shall specify the number of
shares of Registrable Stock intended to be disposed of by CAI), MMPT will use
its best efforts to effect the registration under the Securities Act of all
Registrable Stock which MMPT has been so requested to register by CAI, to the
extent requisite to permit the disposition of the Registrable Stock so to be
registered; provided that (x) if CAI requests to be included in MMPT's
registration, CAI must sell its Registrable Stock to the underwriters selected
by MMPT on the same terms and conditions as apply to MMPT and (y) if, at any
time after giving written notice of its intention to register any stock pursuant
to this Section 2.6(a) (which such notice shall identify the underwriter(s) and
the proposed terms and conditions of the registration) and prior to the
effective date of the registration statement filed in connection with such
registration, MMPT shall determine for any reason not to register such stock,
MMPT shall give written notice to CAI and, thereupon, shall be relieved of its
obligation to register any Registrable Stock in connection with such
registration (but not from its obligation to pay registration expenses as
described in Section 2.6(c)).
(b) If, in any registration pursuant to this Section 2.6, the managing
underwriter advises MMPT that, in its view, the number of shares of MMPT Common
Stock that MMPT and its stockholders (including CAI) intend to include in such
registration exceeds the largest number of shares of MMPT Common Stock which can
be sold without having an adverse effect on such offering, including the price
at which such shares can be sold (the "Maximum Offering Size"), then MMPT will
include in such registration, in the following priority, up to the Maximum
Offering Size.
(i) first, all shares of MMPT Common Stock proposed to be registered
by MMPT and other MMPT stockholders having demand or piggyback registration
rights immediately prior to the date hereof up to the Maximum Offering
Size; and
(ii) second, all Registrable Stock requested to be included in such
registration by CAI and all Vivid Rollover Shares requested to be included
in such registration by the holders thereof (allocated, if necessary for
the offering not to exceed the Maximum Offering Size, pro rata among CAI's
Registrable Stock and the Vivid Rollover Shares on the basis of the
relative number of shares of Registrable Stock so requested to be included
in such registration).
(c) MMPT will pay all registration fees in connection with each
registration of Registrable Stock pursuant to this Section 2.6, including,
without limitation, all registration, filing and NASD fees, all stock exchange
listing fees, all fees and expenses of complying with securities or blue sky
laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for MMPT and of its
independent public accountants, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performances and
compliance, the fees and disbursements of a single counsel and accountants
retained by the holder. CAI will pay any underwriting fees, discounts or
commissions attributable to the sale of Registrable Stock of CAI and the fees
and expenses of any legal counsel retained by CAI.
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(d) MMPT agrees to indemnify CAI with respect to any registration under
this Section 2.6 on the same basis as MMPT agreed to indemnify other holders of
MMPT Common Stock having demand or piggyback registration rights on the date
hereof.
(e) MMPT agrees to use its best efforts to cause Rule 144 or Rule 145
of the Securities Act, as the case may be, to be made available to CAI.
3. Representations and Warranties of CAI. CAI represents and warrants
to MMPT as follows:
3.1 Organization and Good Standing.
(a) CAI is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and has the requisite
power and authority and all governmental licenses, authorizations, consents and
approvals required to own, operate and lease its properties and assets and to
conduct its business as they are now being owned, operated, leased and
conducted. CAI is duly qualified or licensed to do business as a foreign
corporation, and is in good standing as a foreign corporation, in every
jurisdiction in which the failure to be so qualified or licensed or in good
standing would have a material adverse effect on CAI's respective businesses or
operations or its ability to consummate the transactions provided for or
contemplated by this Agreement.
3.2 Authority; No Conflict.
(a) CAI has the requisite corporate power and authority to execute and
deliver this Agreement, perform its obligations hereunder and consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by CAI, the performance by it of its obligations hereunder and the consummation
hereunder and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate actions on the part of CAI.
This Agreement constitutes the legal, valid and binding obligation of CAI,
enforceable against it in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect relating to creditors' rights generally and subject
to general principles of equity.
(b) The execution and delivery of this Agreement by CAI, and the
performance by it of its obligations hereunder, will not violate:
(i) any provision of CAI's Organizational Documents;
(ii) any resolution adopted by the board of directors or the
stockholders of CAI;
(iii) any Legal Requirement or Order to which CAI may be subject; or
(iv) any Contract to which CAI is a party or by which CAI may be
bound.
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3.3 Investment Representations. CAI acknowledges and agrees with MMPT
that the consideration to be received in the form of MMPT Common Stock will not
be registered under the Securities Act and may not be offered or sold except
pursuant to registration or an exemption from the registration requirements of
the Securities Act. CAI further agrees that it has not entered and will not
enter into any transaction or arrangement with respect to the sale, transfer or
delivery of the MMPT Common Stock, other than pursuant to any transaction that
does not require registration under the Securities Act. CAI is acquiring the
MMPT Common Stock for its own account for investment and not with a view toward
distribution in a manner which would violate the Securities Act. CAI represents
that by reason of its business and financial experience it has the capacity to
protect its own interests in connection with the transactions contemplated by
this Agreement. CAI further represents that it is able to bear the economic risk
of an investment in the MMPT Common Stock and has an adequate income independent
of any income produced from an investment in the MMPT Common Stock, sufficient
net worth to sustain a loss of all of its investment in the MMPT Common Stock
without economic hardship if such a loss should occur. CAI represents that it is
an "accredited investor" as that term is defined in Regulation D promulgated
under the Securities Act. CAI has been given access to all MMPT documents,
records, and other information of MMPT, has received physical delivery of all
such document, records and information which CAI has requested, and has had
adequate opportunity to ask questions of, and receive answers from, MMPT as well
as MMPT's officers, employees, agents, accounts, and representatives concerning
MMPT's business, operations financial condition, assets, liabilities, and all
other matters relevant to his investment in the MMPT Common Stock.
3.4 Valid Title. CAI has good and marketable title to the Residual
Shares free and clear of all Encumbrances.
4. Representations and Warranties of MMPT. MMPT represents and warrants
to CAI as follows:
4.1 Organization and Good Standing. MMPT is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has the requisite power and authority and all governmental
licenses, authorizations, consents and approvals required to own, operate and
lease its properties and assets and to conduct its business as they are now
being owned, operated, leased and conducted. MMPT is duly qualified or licensed
to do business as a foreign corporation, and is in good standing as a foreign
corporation, in every jurisdiction in which the failure to be so qualified or
licensed or in good standing would have a material adverse effect on MMPT's
respective businesses or operations or its ability to consummate the
transactions provided for or contemplated by this Agreement.
4.2 Authority; No Conflict.
(a) MMPT has the requisite corporate power and authority to execute and
deliver this Agreement, perform its obligations hereunder and consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by MMPT, the performance by it of its obligations hereunder and the consummation
hereunder and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate actions on the part of
MMPT. This Agreement constitutes the legal, valid and binding obligation of
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MMPT, enforceable against it in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to creditors' rights generally and
subject to general principles of equity.
(b) The execution and delivery of this Agreement by MMPT, and the
performance by it of its obligations hereunder, will not violate:
(i) any provision of MMPT's Organizational Documents;
(ii) any resolution adopted by the board of directors or the
stockholders of MMPT;
(iii) any Legal Requirement or Order to which MMPT may be subject; or
(iv) any Contract to which MMPT is a party or by which MMPT may be
bound.
4.3 Valid Issuance of Shares. The MMPT Common Stock issued by MMPT to
CAI pursuant to this Agreement will, upon issuance, be duly authorized, validly
issued, fully paid and nonassessable and issued in compliance with all
applicable state and federal securities laws.
4.4 SEC Documents; Undisclosed Liabilities. MMPT has filed all required
registration statements, prospectuses, reports, schedules, forms, statements and
other documents (including exhibits and all other information incorporated
therein) with the Securities and Exchange Commission (the "SEC") since December
31, 1998 (the "SEC Reports"). As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Securities Act or
the Securities Exchange Act, as the case may be, and the rules and regulations
of the SEC promulgated thereunder applicable to such SEC Reports, and none of
the SEC Reports when filed contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statement therein , in light of the circumstances under which
they were made, not misleading. The financial statements of MMPT included in the
SEC Reports comply as to form as of their respective dates of filing with the
SEC, in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles (except, in
the case of unaudited statements, as permitted by Form 10-Q) applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto) and fairly present in all material respects the consolidated
financial position of MMPT and its consolidated subsidiaries as of the dates
thereof and the consolidated results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
5. Conditions Precedent. The obligations of CAI, MMPT and the Company
under this Agreement are subject to the closing of the Merger Agreement by MMPT,
Acquisition Sub, the Company, Operating Sub and all of the stockholders of the
Company. The obligations of CAI under this Agreement to deliver the Residual
Shares are subject to the following: (a) MMPT shall have arranged and shall have
paid in cash upon closing of all amounts due, including, all accrued and unpaid
interest, under the CA Note (the "Note Amount") and the Asset/Release
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Payment; and (b) CAI shall have received the proceeds from the account
receivable of approximately $115,000 relating to Xxxx Xxxxxx (the "Outstanding
Receivable"), or an equivalent amount from the Company or MMPT.
6. Note Extension. Notwithstanding any term or provision contained in
this Agreement, the Guaranty, or the CA Note, the parties hereto further agree
that the CA Note shall be amended so that the Maturity Date, as defined therein,
shall be February 15, 2000.
7. Shareholders' Agreement. Upon payment of the MMPT Shares, the Note
Amount and the Asset/Release Payment, the Shareholders' Agreement shall be
terminated and of no further force and effect.
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8. Certain Indebtedness. The Company, Operating Sub and CAI hereby
state and agree that: (a) except for the CA Note and the payment of the
Asset/Release Payment, the Company and Operating Sub have no indebtedness of any
kind to CAI or its Affiliates, whether payable now or to be paid in the future,
and (b) CAI and its Affiliates have no indebtedness of any kind to either of the
Company or Operating Sub, whether payable now or to be paid in the future. CAI
acknowledges that under the Merger Agreement, Operating Sub may borrow up to
$500,000 from MMPT prior to Closing, secured by computers and office equipment
of Operating Sub, and CAI acknowledges that such a loan shall not be deemed to
violate any agreements between CAI and Operating Sub or the Company. The Company
and Operating Sub agree to make the Asset/Release Payment no later than February
15, 1999 in the event that MMPT does not make the payment for any reason,
including any termination of the Merger Agreement.
9. Release. Upon receipt of the MMPT Shares, the Note Amount, the
Asset/Release Payment and the payment of the Outstanding Receivable, the
consummation of the Closing, (i) the CA Note shall be terminated and of no
further force and effect, and all Encumbrances that the Company has granted to
CAI in the 900 shares of common stock of the Operating Sub shall be absolutely
and irrevocably released, without need for further action by any Person; (ii)
CAI (on behalf of itself and its Affiliates) waives any rights and claims it
(or its Affiliates) may have against the Company, the Operating Sub or MMPT and
their respective Affiliates, whether in law or in equity, relating to the Stock
Purchase Agreement or the Platinum Acquisition Agreement and the transactions
contemplated thereby; and (iii) MMPT (on behalf of itself and its Affiliates)
waives any rights and claims it (or its Affiliates) may have against CAI and
its Affiliates, whether in law or in equity, relating to the Stock Purchase
Agreement, the Platinum Acquisition Agreement or the Merger Agreement and the
transactions contemplated thereby. The rights and claims waived include,
without limitation, claims for contribution or indemnity, breach of contract,
breach of representation or warranty, negligent misrepresentation and all other
claims for breach of duty. Following receipt of the Note Amount, the
Asset/Release Payment and the payment of the outstanding Receivable and the
consummation of the Closing, the Stock Purchase Agreement and the Platinum
Acquisition Agreement shall be terminated (if not previously terminated) and
all obligations, covenants and agreements contained therein shall be of no
further force and effect. CAI, on the one hand, and MMPT on the other hand,
shall execute such further documentation as reasonably requested by the other
as documentation of the foregoing releases, waivers and terminations.
10. Treatment of Special Assets. With respect to Assets listed on
Schedule 5.1 of the Stock Purchase Agreement which constitute leased equipment
under agreements to which CAI and not Operating Sub is a party (the "Special
Assets"), CAI was obligated under the Stock Purchase Agreement to use its best
efforts to cause the assignment, sublease or similar arrangement regarding the
Special Assets to allow Operating Sub to continue to use such Assets for the
same costs and on the same terms to which Operating Sub was currently subject,
subject to reimbursement by Operating Sub of CAI for actual costs incurred. CAI
agrees that effective as of June 30, 1999, Operating Sub may treat these Special
Assets as being owned by Operating Sub and in the event of any claim made on
such Special Assets by a third party, CAI agrees to be responsible for the
payment of any such claim and to conduct such negotiations and enter into
agreements that are necessary or desirable to cause Operating Sub to continue to
own such
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Special Assets without any Encumbrances. Operating Sub agrees to cooperate with
CAI in implementing this Section.
11. General Provisions.
11.1 Expenses. Except as described in Section 2.6(c), each party to
this Agreement will bear its respective expenses incurred in connection with the
preparation, execution, and performance of this Agreement, including all fees
and expenses of agents, representatives, counsel, and accountants.
11.2 Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
Computer Associates International, Inc.:
Computer Associates International, Inc.
Xxx Xxxxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
Attention: Xxxxxx Xxxxxx, Esq., General Counsel
Telecopy No. (000) 000-0000
Modem Media.Xxxxx Xxxxx, Inc.:
Modem Media.Xxxxx Xxxxx, Inc.
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telecopy No. (000) 000-0000
Vivid Holdings, Inc.:
Vivid Holdings, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy No. (000) 000-0000
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with a copy to:
Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopy No. (000) 000-0000
11.3 Jurisdiction; Service of Process. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the State
of New York, or, if it has or can acquire jurisdiction, in the United States
District Court for the Eastern District of New York, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
11.4 Further Assurances. The parties agree (a) to furnish upon request
to each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement. The Company and MMPT
represent that the MMPT Shares at Closing will be equal to or exceed 10% of the
aggregate consideration to be issued to the stockholders, warrantholders and
optionholders of the Company pursuant to the Merger Agreement in their capacity
as stockholders, warrantholders and optionholders, and the Company and MMPT each
agree that in the event of any modification of the Merger Agreement, the Company
and MMPT each will take all necessary actions to preserve CAI's 10% interest.
11.5 Entire Agreement and Modification. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by the parties hereto.
11.6 Assignment, Successors, and No Third-Party Rights. No party may
assign any of its rights under this Agreement without the prior consent of the
other parties, except that any party may assign any of its rights under this
Agreement to any Subsidiary of such party. Subject to the preceding sentence,
this Agreement will apply to, be binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of the parties. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the parties to this Agreement any legal or equitable right, remedy or
claim under or with respect to this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the parties
to this Agreement and their successors and assigns.
11.7 Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full
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force and effect. Any provision of this Agreement held invalid or unenforceable
only in part or degree will remain in full force and effect to the extent not
held invalid or unenforceable.
11.8 Time of Essence. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
11.9 Governing Law. This Agreement will be governed by the laws of the
State of New York without regard to conflicts of laws principles.
11.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
11.11 Termination. Except for Sections 6 and 10, this Agreement shall
terminate upon any termination of the Merger Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MODEM MEDIA.XXXXX XXXXX, INC. COMPUTER ASSOCIATES
INTERNATIONAL, INC.
By /s/ Xxxxxx X. X'Xxxxxxx By /s/ Xxxxxx X. Xxxxxx
------------------------------ -------------------------------
Name Xxxxxx X. X'Xxxxxx Name Xxxxxx X. Xxxxxx
---------------------------- -----------------------------
Title Chief Executive Officer Title Senior Vice President and
--------------------------- General Counsel
----------------------------
VIVID HOLDINGS, INC. VIVID PUBLISHING, INC.
(d/b/a Vivid Studios)
By /s/ Xxxxx Xxxxxxx
-------------------------------
Xxxxx Xxxxxxx By /s/ Xxxxx Xxxxxxx
President -------------------------------
Name Xxxxx Xxxxxxx
-----------------------------
Title Chief Executive Officer
----------------------------
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