EXHIBIT 5.2
SUNRA CAPITAL HOLDINGS LIMITED
August 8, 2002
24/7 Real Media, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to that certain Series A and Series A-1 Preferred
Stock and Common Stock Warrant Purchase Agreement, dated as of July 2, 2002, by
and between the Company and Sunra Capital Holdings Limited ("Sunra"), as amended
(the "Purchase Agreement"). Reference is also made to that certain letter
agreement (the "Notice"), dated August 7, 2002, by and between the Company and
Sunra pursuant to which Sunra gave notice to the Company of its intention to
purchase an additional $3,000,000 of Series A Stock. All terms used but not
defined herein shall have the meanings given to such terms in the Purchase
Agreement.
Pursuant to the Purchase Agreement, Sunra has purchased $1,600,000 of
Series A Stock and $3,400,000 of Series A-1 Stock and, pursuant to the Notice,
Sunra has agreed to purchase an additional $3,000,000 of Series A Stock. The
conversion of Series A-1 Stock to Series A Stock and the purchase of such
additional $3,000,000 of Series A Stock are subject to stockholder approval,
which is being sought at the annual meeting of stockholders scheduled for
September 10, 2002 (the "Stockholder Meeting").
As used herein, the term "Excess Shares" shall mean the number of
shares equal to the difference between (i) the sum of (w) the aggregate number
of shares of Common Stock into which the Series A Closing Shares, shares of
Series A-1 Conversion Stock and Additional Closing Shares acquired by Sunra
pursuant to the Purchase Agreement are convertible or converted (including,
without limitation, any increase in such number as a result of an anti-dilution
adjustment pursuant to Section 5.8 of the Series A Designation), and (x) the
aggregate number of shares of Common Stock acquired by Sunra upon exercise or
conversion of the Warrants, in each case which are held by Sunra and entitled to
vote at any meeting of the stockholders of the Company, however called, or in
connection with any written consent of such stockholders, and (ii) the quotient
obtained by dividing (y) the aggregate consideration paid by Sunra to
purchase all securities of the Company listed in item (i) above, including,
without limitation, any amounts paid upon exercise or conversion of the
Warrants, by (z) $0.21.
Sunra hereby irrevocably constitutes and appoints the Company as its
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of Sunra, to vote (or cause to be voted) the Excess Shares
at any meeting of the stockholders of the
Company, however called, or in connection with any written consent of such
stockholders, in the same proportion as all other shares of common stock voted
at such meeting or in such written consent, other than those shares voted by
Sunra.
Sunra hereby (i) represents and warrants that there are no proxies
heretofore given in respect of the Excess Shares; (ii) affirms that the
irrevocable proxy granted pursuant hereto is coupled with an interest and may
under no circumstances be revoked; (iii) ratifies and confirms all that the
holder of such irrevocable proxy may lawfully do or cause to be done by virtue
hereof; and (iv) affirms that this proxy is intended to be irrevocable in
accordance with the provisions of Section 212(e) of the Delaware General
Corporation Law.
Additionally, Sunra hereby agrees that, until the earlier of the date
of the Stockholder Meeting and the Stockholder Meeting Deadline, it will not
convert any shares of Series A Stock into shares of Common Stock or exercise or
convert any Warrants held by it. Nothing in the preceding sentence shall be
deemed to limit the ability of Sunra to vote the shares of Series A Stock held
by it, subject to the terms and provisions of this letter agreement.
Sunra and the Company agree to use their best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper to advisable under applicable laws and regulations to
consummate and to make effective the agreements contemplated by this letter
agreement, including, without limitation, making such amendments or
modifications to this letter as may be requested by the Nasdaq from time to
time.
In addition to any other legend that may be required under applicable
securities laws or any other agreement between the Company and Sunra, each
certificate representing any shares of (i) Series A Stock or (ii) Common Stock
acquired by Sunra upon exercise or conversion of the Series A Stock and Warrants
(such shares of Series A Stock and Common Stock are sometimes collectively
referred to herein as "Restricted Stock") shall bear the following legend:
"THE RIGHTS OF THE HOLDER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF A VOTING
AGREEMENT DATED AS OF AUGUST 8, 2002 BY AND BETWEEN 24/7 REAL
MEDIA, INC. AND SUNRA CAPITAL HOLDINGS LIMITED. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST UPON WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF 24/7
REAL MEDIA, INC."
Each share of Restricted Stock shall continue to be subject to the provisions of
this Agreement, shall survive any sale, assignment, transfer, pledge or other
encumbrance or disposition by Sunra of Restricted Stock and shall be binding on
any purchaser, assignee, transferee, pledgee or acquiror of Restricted Stock,
unless such sale, assignment, transfer, pledge or other encumbrance or
disposition is pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Act"), or pursuant to Rule 144
promulgated thereunder. The legend set forth above shall be removed by the
Company from any certificate evidencing Restricted Stock upon
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delivery to the Company of an opinion by counsel, reasonably satisfactory to the
Company, that such Restricted Stock has been disposed of pursuant to an
effective registration statement under the Act or pursuant to Rule 144
promulgated thereunder.
This letter agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without giving effect to any choice of
law or conflicting provision or rule (whether of the State of Delaware or any
other jurisdiction) that would cause the laws of any jurisdiction other than the
State of Delaware to be applied.
Sincerely,
SUNRA CAPITAL HOLDINGS LIMITED
By: /s/Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
President
Accepted and agreed:
24/7 REAL MEDIA, INC.
By: /s/Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
Chairman and Chief Executive Officer
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