DOUBLECLICK INC.
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January 22, 2001
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Re: Amended and Restated Agreement and Plan of Merger and Reorganization,
dated as of November 17, 2000, among DoubleClick Inc., Atlas Merger Sub,
Inc., Atlas Acquisition Corp. and @▇▇▇▇.▇▇▇ (the 'Merger Agreement')
Ladies and Gentlemen:
This Letter Agreement will confirm our agreement to modify the terms of the
Merger Agreement. Capitalized terms used herein without definition shall have
the same meanings ascribed to them in the Merger Agreement.
Notwithstanding anything to the contrary in the Merger Agreement, the Merger
Agreement is hereby modified as follows:
1. At the Effective Time, at Parent's election, either (a) Company shall
be merged with and into Merger Sub (as is currently provided for in the
Merger Agreement); (b) Merger Sub shall be merged with and into Company or
(c) Company shall be merged with and into Parent; provided that, Parent may
only elect (b) above in the event it elects to pay the Merger Consideration
pursuant to Section 3.01(a)(ii) of the Merger Agreement. In the event that
Parent makes the election contemplated by either (b) or (c) above, the
Merger Agreement shall be deemed modified and amended in all respects
necessary to give effect thereto, including, without limitation, (i) that as
a result thereof, Company shall continue as the Surviving Corporation of the
Merger as a wholly owned Subsidiary of Parent (in the event of the election
contemplated by (b)) or Parent shall continue as the Surviving Corporation
of the Merger (in the event of the election contemplated by (c)); and (ii)
that at the Effective Time, except as otherwise provided in the Merger
Agreement, (A) in the event of the election contemplated by (b), all the
property, rights, privileges, powers and franchises of Company and Merger
Sub shall vest in Company as the Surviving Corporation, and all debts,
liabilities and duties of Company and Merger Sub shall become the debts,
liabilities and duties of Company as the Surviving Corporation or (B) in the
event of the election contemplated by (c), all the property, rights,
privileges, powers and franchises of Company shall vest in Parent as the
Surviving Corporation, and all debts, liabilities and duties of Company
shall become the debts, liabilities and duties of Parent as the Surviving
Corporation. Each of the parties hereto agrees to use all reasonable efforts
to take, or cause to be taken, all appropriate action, and do, or cause to
be done, all things necessary, proper or advisable to give effect to and
implement the modifications to the Merger Agreement set forth herein;
provided however, that the Merger Agreement shall otherwise remain
unmodified and in full force and effect (including, for the avoidance of
doubt, Sections 3.06(b) and 6.05 thereof, in the event that Parent elects to
pay the Merger Consideration pursuant to Section 3.01(a)(i) of the Merger
Agreement).
2. The parties hereto, being all of the parties to the Merger Agreement,
hereby acknowledge and agree that this Letter Agreement constitutes a valid
amendment of the Merger Agreement pursuant to Section 9.03 thereof. This
Letter Agreement may be executed and delivered (including by facsimile
transmission) in any number of counterparts, and by the different parties
hereto in separate counterparts, each of which when executed and delivered
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
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If the foregoing correctly sets forth the understanding and agreement among
the parties, please sign below and return one original executed copy of this
Letter Agreement.
Very truly yours,
DOUBLECLICK INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
ATLAS ACQUISITION CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
ATLAS MERGER SUB, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
Confirmed and agreed as of the date first
written above:
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By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CEO
