EXHIBIT 3
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of September 29, 1999 (this "Agreement"),
by the stockholders listed on the signature page(s) hereto (collectively,
"Stockholders" and each individually, a "Stockholder") to and for the benefit of
CMGI, Inc., a Delaware corporation ("Acquiror"). Capitalized terms used and not
otherwise defined herein shall have the respective meanings assigned to them in
the Merger Agreement referred to below.
WHEREAS, as of the date hereof, the Stockholders collectively own of record
and beneficially shares of capital stock of Flycast Communications Corporation,
a Delaware corporation (the "Company"), as set forth on Schedule I hereto (such
shares or any other voting or equity of securities of the Company, hereafter
acquired by any Stockholder prior to the termination of this Agreement, being
referred to herein collectively as the "Shares");
WHEREAS, concurrently with the execution of this Agreement, Acquiror and
the Company are entering into an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), pursuant to which, upon the terms and
subject to the conditions thereof, a subsidiary of Buyer will be merged with and
into the Company, and the Company will be the surviving corporation (the
"Merger"); and
WHEREAS, as a condition to the willingness of the Company and Acquiror to
enter into the Merger Agreement, Acquiror has requested that the Stockholders
agree, and in order to induce Acquiror to enter into the Merger Agreement, the
Stockholders are willing to agree to vote in favor of adopting the Merger
Agreement and approving the Merger, upon the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:
Section 1. Voting of Shares. Each Stockholder covenants and agrees that
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until the termination of this Agreement in accordance with the terms hereof, at
the Company Meeting or any other meeting of the stockholders of the Company,
however called, and in any action by written consent of the stockholders of the
Company, such Stockholder will vote, or cause to be voted, all of his, her or
its respective Shares (a) in favor of adoption of the Merger Agreement and
approval of the Merger contemplated by the Merger Agreement, as the Merger
Agreement may be modified or amended from time to time in a manner not adverse
to the Stockholders, and (b) against any other Alternative Transaction. In
addition, such Stockholder agrees that it will, upon request by Acquiror,
furnish written confirmation, in form and substance reasonably acceptable to
Acquiror, of such
Stockholder's vote in favor of the Merger Agreement and the Merger. Each
Stockholder covenants and agrees to deliver to Acquiror upon request prior to
any vote contemplated by the first sentence of this Section 1, a proxy
substantially in the form attached hereto as Annex A (a "Proxy"), which Proxy
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shall be irrevocable during the term of this Agreement to the extent permitted
under Delaware law, and Acquiror agrees to vote the Shares subject to such Proxy
in favor of the approval and adoption of the Merger Agreement and the Merger.
Each Stockholder acknowledges receipt and review of a copy of the Merger
Agreement. Each Stockholder acknowledges and agrees that this proxy, if and when
given, shall be coupled with an interest, shall constitute, among other things,
an inducement for Acquiror to enter into the Merger Agreement, shall be
irrevocable and shall not be terminated by operation of law or otherwise upon
the occurrence of any event and that no subsequent proxies with respect to such
Shares shall be given (and if given shall not be effective); provided however
that any such proxy shall terminate automatically and without further action on
behalf of the Stockholders upon the termination of this Agreement. In the event
that a Stockholder does not provide the Proxy upon request of Acquiror, such
Stockholder hereby grants Buyer a power of attorney to execute and deliver such
Proxy for and behalf of such Stockholder, which power of attorney is coupled
with an interest and shall survive any death, disability, bankruptcy or any
other such impediment of such Stockholder. Upon the execution of this Agreement
by each Stockholder, such Stockholder hereby revokes any and all prior proxies
or powers of attorney given by such Stockholder with respect to the Shares.
Section 2. Transfer of Shares. Each Stockholder covenants and agrees that
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such Stockholder will not directly or indirectly, (a) sell, assign, transfer
(including by merger, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise by operation of law),
pledge, encumber or otherwise dispose of any of the Shares, (b) deposit any of
the Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares or grant any proxy or power of attorney with respect
thereto which is inconsistent with this Agreement or (c) enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect sale, assignment, transfer (including by merger, testamentary
disposition, interspousal disposition pursuant to a domestic relations
proceeding or otherwise by operation of law) or other disposition of any Shares;
provided, however, that a Stockholder may transfer Shares to an entity
controlled by the Stockholder on the condition that such transferee enter into
this agreement and agree unconditionally to bound by the terms hereof.
Section 3. Representations and Warranties of the Stockholders. Each
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Stockholder on its own behalf hereby severally represents and warrants to
Acquiror with respect to itself and its or her ownership of the Shares as
follows:
(a) Ownership of Shares. On the date hereof, the Shares are owned
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beneficially by Stockholder or its nominee. Stockholder has sole voting power,
without restrictions, with respect to all of the Shares.
(b) Power, Binding Agreement. Stockholder has the legal capacity, power
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and authority to enter into and perform all of its obligations, under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any material agreement to which Stockholder is a
party, including, without limitation, any voting agreement, stockholders'
agreement, partnership agreement or voting trust. This Agreement has been duly
and validly executed and delivered by Stockholder and constitutes a valid and
binding obligation of Stockholder, enforceable against Stockholder in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(c) No Conflicts. The execution and delivery of this Agreement do not, and
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the consummation of the transactions contemplated hereby will not, conflict with
or result in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, any
provision of any loan or credit agreement, note, bond, mortgage, indenture,
lease, or other agreement, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Stockholder or any of its properties or assets, other than such conflicts,
violations or defaults or terminations, cancellations or accelerations which
individually or in the aggregate do not materially impair the ability of
Stockholder to perform its obligations hereunder.
Section 4. No Solicitation. Prior to the termination of this Agreement in
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accordance with its terms, each Stockholder agrees, in its individual capacity
as a stockholder of the Company that (i) it will not, nor will it authorize or
permit any of its employees, agents and representatives to, directly or
indirectly, (a) initiate, solicit or encourage any inquiries or the making of
any Acquisition Proposal (as defined in the Merger Agreement), (b) enter into
any agreement with respect to any Acquisition Proposal, or (c) participate in
any discussions or negotiations regarding, or furnish to any person any
information with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or may reasonably be
expected to lead to, any Acquisition Proposal, and (ii) it will notify Acquiror
as soon as possible if any such inquiries or proposals are received by, any
information or documents is requested from, or any negotiations or discussions
are sought to be initiated or continued with, it or any of its affiliates in its
individual capacity; provided, that, notwithstanding the foregoing, each
Stockholder shall not be prohibited from taking any such actions to the extent
that the Company or its Board of Directors is permitted to take such actions
under the Merger Agreement.
Section 5. Termination. This Agreement shall terminate upon the earliest
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to occur of (i) the Effective Time (as such term is defined in the Merger
Agreement) or (ii) any termination of the Merger Agreement in accordance with
the terms thereof; provided that no such termination shall relieve any party of
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liability for a willful
breach hereof prior to termination.
Section 6. Specific Performance. The parties hereto agree that irreparable
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damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 7. Fiduciary Duties. Each Stockholder is signing this Agreement
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solely in such Stockholder's capacity as an owner of his, her or its respective
Shares, and nothing herein shall prohibit, prevent or preclude such Stockholder
from taking or not taking any action in his or her capacity as an officer or
director of the Company, to the extent permitted by the Merger Agreement.
Section 8. Miscellaneous.
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(a) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect thereto. This Agreement may not be amended, modified or rescinded except
by an instrument in writing signed by each of the parties hereto.
(b) If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
(c) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to the principles of conflicts
of law thereof.
(d) This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.
[Signature Page to follow]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement w
be signed individually or by its respective duly authorized officer as of the
date first written above.
CMGI, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx III
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Name: Xxxxxx X. Xxxxxxxx III
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Title: Executive Vice President, Chief
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Financial Officer and Treasurer
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STOCKHOLDER:
By: /s/ Xxx X. Xxxxxxxxxxx
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Name: Entities affiliated with Xxxxxxx
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River Ventures
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Title: General Partner, Xxxxxxx River
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Partnership VIII, A Limited
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Partnership
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By: /s/ Xxxxx X. Xxxxxx
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Name: St. Xxxx Venture Capital Affiliates
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Fund I, LLC
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Title: Executive Vice President, St. Xxxx
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Venture Capital, Inc., its Manager
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By: /s/ Xxxxx X. Xxxxxx
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Name: St. Xxxx Venture Capital IV, LLC
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Title: General Partner
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By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Entities affiliated with Bessemer
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Venture Partners
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Title: Manager, Deer IV & Co. LLC, its
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General Partner
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By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Director
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By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Chief Executive Officer and President
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By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice President, Client Services
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Schedule I
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Stockholder No. of Shares
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Entities affiliated with Xxxxxxx River Ventures: 2,093,837
Xxxxxxx River Partnership VIII, A Limited Partnership,
Xxxxxxx River VIII-A, LLC
(Xxx X. Xxxxxxxxxxx, General Partner of Xxxxxxx River
Partnership VIII, A Limited Partnership)
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Entities affiliated with St. Xxxx Venture Capital: 1,256,302
St. Xxxx Venture Capital Affiliates Fund I, LLC
(St. Xxxx Venture Capital, Inc., Manager, Xxxxx X. Xxxxxx,
Executive Vice President)
St. Xxxx Venture Capital IV, LLC
(Xxxxx X. Xxxxxx, General Partner)
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Entities affiliated with Bessemer Venture Partners: 2,130,968
Bessec Ventures IV, L.P.
Bessemer Venture Investors, L.P.
Bessemer Venture Partners IV L.P.
BVP IV Special Situations, L.P.
Various other individuals or entities, including Xxxxx X.
Xxxxx, that are either managers or former members of Deer
IV & Co. LLC or employees of Deer II & Co. LLC or
individuals or entities associated with Bessemer Securities
Corporation
(Deer IV & Co. LLC, General Partner, Xxxxxx X. Xxxxxxxx, Manager)
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Xxxxxxx X. Xxxxxxx 140,000
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Xxxxxx X. Xxxxxxx 720,000
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Xxxxxxx X. Xxxxxxxx 1,030,000
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IRREVOCABLE PROXY
The undersigned stockholder of Flycast Communications Corporation, a
Delaware corporation ("Company"), hereby irrevocably (to the fullest extent
permitted by the Delaware General Corporation Law) appoints the members of the
Board of Directors of CMGI, Inc., a Delaware corporation ("Buyer"), and each of
them, or any other designee of Buyer, as the sole and exclusive attorneys and
proxies of the undersigned, with full power of substitution and resubstitution,
to vote and exercise all voting and related rights (to the fullest extent that
the undersigned is entitled to do so) with respect to all of the shares of
capital stock of Company that now are or hereafter may be beneficially owned by
the undersigned, and any and all other shares or securities of Company issued or
issuable in respect thereof on or after the date hereof (collectively, the
"Shares") in accordance with the terms of this Irrevocable Proxy. Upon the
undersigned's execution of this Irrevocable Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided in the
Delaware General Corporation Law), is coupled with an interest, including, but
not limited to, that certain Company Affiliate Agreement dated as of even date
herewith by and among Buyer, and the undersigned, and is granted in
consideration of Buyer entering into that certain Agreement and Plan of Merger
and Reorganization (the "Merger Agreement") by and among Buyer and Freemont
Corporation, a Delaware corporation and a wholly owned subsidiary of Buyer
("Merger Sub"), and Company which Merger Agreement provides for the merger of
Merger Sub with and into Company (the "Merger"). As used herein, the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the Merger shall become effective in accordance with the terms and provisions of
the Merger Agreement, and (ii) the date of termination of the Merger Agreement.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other similar rights of the undersigned with respect to
the Shares (including, without limitation, the power to execute and deliver
written consents pursuant to the Delaware General Corporation Law), at every
annual, special or adjourned meeting of the stockholders of Company and in every
written consent in lieu of such meeting:
in favor of approval and adoption of the Merger Agreement and of the
transaction contemplated thereby.
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided above. The undersigned stockholder
may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Signature
/s/ Xxx X. Xxxxxxxxxxx
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Print Name:
Entities affiliated with Xxxxxxx River
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Ventures
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Shares beneficially owned:
2,093,837 shares of Company Common Stock
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Signature
/s/ Xxxxx X. Xxxxxx
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Print Name:
Entities affiliated with St. Xxxx
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Venture Capital
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Shares beneficially owned:
1,256,302 shares of Company Common Stock
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Signature
/s/ Xxxxxx X. Xxxxxxxx
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Print Name:
Entities affiliated with Bessemer
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Venture Partners
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Shares beneficially owned:
2,130,968 shares of Company Common Stock
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Signature
/s/ Xxxxxxx X. Xxxxxxx
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Print Name:
Xxxxxxx X. Xxxxxxx
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Shares beneficially owned:
140,000 shares of Company Common Stock
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Signature
/s/ Xxxxxx X. Xxxxxxx
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Print Name:
Xxxxxx X. Xxxxxxx
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Shares beneficially owned:
720,000 shares of Company Common Stock
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Signature
/s/ Xxxxxxx X. Xxxxxxxx
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Print Name:
Xxxxxxx X. Xxxxxxxx
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Shares beneficially owned:
1,030,000 shares of Company Common Stock
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