1
EXECUTION COPY
STOCK PURCHASE AGREEMENT
among
REAL MEDIA, INC.,
a Delaware corporation;
PUBLIGROUPE S.A.,
a Company organized under the laws of Switzerland;
and
REAL MEDIA EUROPE HOLDING S.A.,
a Company organized under the laws of Switzerland
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Dated as of February 8, 2000
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TABLE OF CONTENTS
Page
SECTION 1. DESCRIPTION OF TRANSACTION................................................ 2
1.1. Sale of Stock...................................................... 2
1.2. Closing............................................................ 2
1.3. Deliveries and Proceedings at Closing.............................. 2
SECTION 2. REPRESENTATIONS AND WARRANTIES OF PUBLIGROUPE AND RM EUROPE............... 3
2.1. Due Organization; Subsidiaries; Etc................................ 3
2.2. Organizational Documents; Records.................................. 4
2.3. Capitalization, Etc................................................ 4
2.4. Financial Statements............................................... 4
2.5. Absence of Changes................................................. 5
2.6. Title to Assets; Equipment; Real Property.......................... 6
2.7. Proprietary Assets................................................. 6
2.8. Contracts.......................................................... 7
2.9. Compliance with Legal Requirements................................. 8
2.10. Governmental Authorizations........................................ 8
2.11. Tax Matters........................................................ 8
2.12. Employee Benefit Plans............................................. 9
2.13. Insurance.......................................................... 9
2.14. Related Party Transactions......................................... 9
2.15. Legal Proceedings; Orders.......................................... 10
2.16. Authority; Binding Nature of Agreement............................. 10
2.17. Non-Contravention; Consents........................................ 10
2.18. Financial Advisor.................................................. 11
2.19. Employees.......................................................... 11
SECTION 3. REPRESENTATIONS AND WARRANTIES OF REAL MEDIA.............................. 11
3.1. Due Organization, Standing and Power............................... 11
3.2. Organizational Documents; Records.................................. 11
3.3. Capitalization, Etc................................................ 12
3.4. Financial Statements............................................... 12
3.5. Absence of Changes................................................. 13
3.6. Title to Assets; Equipment; Real Property.......................... 13
3.7. Proprietary Assets................................................. 14
3.8. Contracts.......................................................... 14
3.9. Compliance with Legal Requirements................................. 15
3.10. Governmental Authorizations........................................ 15
3.11. Tax Returns........................................................ 15
3.12. Employee Benefit Plans............................................. 16
3.13. Insurance.......................................................... 16
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3.14. Related Party Transactions......................................... 16
3.15. Legal Proceedings; Orders.......................................... 17
3.16. Authority; Binding Nature of Agreement............................. 17
3.17. Non-Contravention; Consents........................................ 17
3.18. Financial Advisor.................................................. 18
3.19. Employees.......................................................... 18
SECTION 4. CERTAIN COVENANTS AND AGREEMENTS.......................................... 18
4.1. RMSA Options....................................................... 18
4.2. Access to Records and Properties................................... 19
4.3. Operation of Business.............................................. 20
4.4. Advice of Changes.................................................. 21
4.5. Efforts to Consummate.............................................. 21
4.6. Additional Agreements.............................................. 21
4.7. Disclosure......................................................... 21
4.8. Survival; Indemnification.......................................... 22
4.9. Tax Matters........................................................ 22
4.10. Funding of Cumulative Losses; Forgiveness of Intercompany Loans.... 23
SECTION 5. CERTAIN CONDITIONS........................................................ 24
5.1. Conditions to Each Party's Obligations............................. 24
5.2. Conditions to Obligations of Real Media............................ 24
5.3. Conditions to Obligations of PubliGroupe and RM Europe............. 25
SECTION 6. TERMINATION............................................................... 25
6.1. Termination........................................................ 25
6.2. Effect of Termination.............................................. 26
SECTION 7. CERTAIN DEFINITIONS....................................................... 26
7.1. Definitions........................................................ 26
SECTION 8. MISCELLANEOUS PROVISIONS.................................................. 30
8.1. Amendment.......................................................... 30
8.2. Waiver............................................................. 30
8.3. Entire Agreement; Counterparts; Applicable Law..................... 30
8.4. Assignability...................................................... 30
8.5. Notices............................................................ 30
8.6. Cooperation........................................................ 31
8.7. Titles............................................................. 32
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List of Exhibits
Exhibit A - Preferred Stock Terms
Exhibit B - Second Amended and Restated Voting and Stockholders Agreement
Exhibit C - Interim Administrative Services Agreement
Exhibit D - RMSA Stockholders Agreement
Exhibit E - Technology Transfer Agreement
Exhibit F - Cooperation Agreement
Exhibit G - Trademark and Tradename Agreement
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AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as
of February __, 2000, by and among REAL MEDIA, INC., a Delaware corporation
("Real Media"); PUBLIGROUPE S.A., a company organized under the laws of
Switzerland ("PubliGroupe"); and REAL MEDIA EUROPE HOLDING S.A., a company
organized under the laws of Switzerland ("RM Europe"). Certain capitalized terms
used in this Agreement are defined in Section 7 hereof.
RECITALS
A. PubliGroupe owns all of the issued and outstanding capital stock of
RM Europe, and, through a wholly-owned subsidiary, all of the issued and
outstanding stock of Real Media Limited of Hong Kong ("▇▇ ▇▇▇▇ Kong") and Real
Media Pte Ltd of Singapore ("RM Singapore").
B. RM Europe owns all of the issued and outstanding capital stock of
Real Media SARL, Real Media Deutschland GmbH, Real Media Technology S.A., Real
Media Holding (UK) Ltd and Real Media (UK) Ltd (collectively, the "Wholly-Owned
Subsidiaries"). RM Europe owns 49% of the issued and outstanding capital stock
of Real Media S.A. ("RMSA") and PubliGroupe owns the remaining 51% of the issued
and outstanding capital stock of RMSA (the "RMSA Interest"). The Wholly-Owned
Subsidiaries, ▇▇ ▇▇▇▇ Kong, RM Singapore and RMSA are hereinafter referred to
collectively as the "Subsidiaries" and RM Europe and the Subsidiaries are
hereinafter referred to collectively as the "Acquired Corporations".
C. PubliGroupe owns 28.7% of the issued and outstanding capital stock
of Real Media, calculated on a fully diluted and converted basis (without giving
effect to certain options granted to the chief financial officer and chief
executive officer of Real Media).
D. PubliGroupe has previously agreed to invest an aggregate of
$10,000,000 in Real Media (the "Commitment"). As of the date hereof PubliGroupe
has funded a portion of the Commitment in exchange for short-term promissory
notes of Real Media which are convertible into Common Stock, par value $.01 per
share, of Real Media ("Real Media Common Stock") (the "Convertible Notes").
E. Real Media desires to acquire from PubliGroupe, and PubliGroupe
desires to transfer to Real Media, all of the issued and outstanding capital
stock of RM Europe and PubliGroupe desires to pay to Real Media the balance of
the Commitment and convert the outstanding Convertible Notes, all in exchange
for an aggregate of 16,126,525 shares of Real Media Common Stock and 450,000
shares of Series A Convertible Preferred Stock of Real Media having the terms
set forth on Exhibit A attached hereto ("Real Media Preferred Stock"). Real
Media also desires to acquire from PubliGroupe, and PubliGroupe desires to
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(through its wholly-owned subsidiary) to Real Media, all of the issued and
outstanding capital stock of ▇▇ ▇▇▇▇ Kong and RM Singapore in exchange for cash
pursuant to the terms hereof.
F. PubliGroupe wishes to grant Real Media an option to purchase the
RMSA Interest, and Real Media wishes to grant PubliGroupe the right to require
Real Media to purchase the RMSA Interest, all on the terms set forth herein.
TERMS
NOW THEREFORE, in consideration of the mutual covenants, promises,
representations and agreements contained herein, the parties to this Agreement,
intending to be legally bound, agree as follows:
SECTION 1. DESCRIPTION OF TRANSACTION
1.1. Sale of Stock. Subject to the terms and conditions hereof, at the
Closing referred to in Section 1.2 below, (a) PubliGroupe will transfer and
deliver to Real Media, all of the outstanding shares of capital stock of RM
Europe (the "RM Europe Stock") and all intercompany debt and other obligations
owed to PubliGroupe by any Acquired Corporation as of December 31, 1999 shall be
extinguished, (b) PubliGroupe will pay to Real Media the balance of the
Commitment and convert all of the outstanding Convertible Notes, and (c) Real
Media will issue and sell to PubliGroupe 16,126,525 shares of Real Media Common
Stock and 450,000 shares of Real Media Preferred Stock. PubliGroupe will also
transfer and deliver (through its wholly-owned subsidiary) to Real Media all of
the outstanding shares of capital stock of ▇▇ ▇▇▇▇ Kong and RM Singapore in
exchange for the payment by Real Media to PubliGroupe of $10.00.
1.2. Closing. The closing under this Agreement (the "Closing") will
take place at 10:00 A.M., local time, on the later of (i) February 29, 2000 or
(ii) the third business day after all conditions set forth in Section 5 shall
have been satisfied or waived, at the offices of Dechert Price & ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such other time, date or place
as the parties shall mutually agree. The date on which Closing occurs is
sometimes referred to herein as the "Closing Date."
1.3. Deliveries and Proceedings at Closing. At the Closing:
(a) Other Agreements. (i) PubliGroupe, Real Media, and the other
parties thereto shall execute and deliver the Second Amended and Restated Voting
and Stockholders Agreement in the form attached hereto as Exhibit B, (ii)
PubliGroupe, Real Media and RM Europe shall execute and deliver the Interim
Administrative Services Agreement in the form attached hereto as Exhibit C, and
(iii) PubliGroupe, Real Media, RM Europe and RMSA shall execute and deliver the
RMSA Stockholders Agreement in the form attached hereto as Exhibit D, the
Technology Transfer Agreement in the form attached hereto as Exhibit E, the
Cooperation Agreement in the form attached hereto as Exhibit F, the Trademark
and Tradename Agreement in the form attached hereto as Exhibit G.
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(b) Deliveries by PubliGroupe. PubliGroupe will deliver to Real
Media (i) good title to all of the issued and outstanding capital stock of ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ (with respect to the latter two companies,
through its wholly-owned subsidiary), free and clear of all liens, security
interests, claims and encumbrances, (ii) the balance of the Commitment, by wire
transfer of immediately available funds and (iii) the original Convertible Notes
duly executed for cancellation and conversion into Real Media Common Stock in
accordance with the terms thereof.
(c) Deliveries by Real Media. Real Media will deliver to PubliGroupe
(i) certificates registered in the name of PubliGroupe for an aggregate of
16,126,525 shares of Real Media Common Stock and 450,000 shares of Real Media
Preferred Stock and (ii) $10.00 in payment for the shares of ▇▇ ▇▇▇▇ Kong and RM
Singapore.
(d) Other Deliveries. The closing certificates, opinions of counsel
and other documents and agreements required to be delivered pursuant to this
Agreement shall be exchanged.
(e) Termination of Certain Agreements. Each of (i) the Amended and
Restated Technology Transfer Agreement dated April 7, 1998 among Real Media,
PubliGroupe and RMSA, (ii) the Amended and Restated Marketing Agreement dated
April 7, 1998 among Real Media, PubliGroupe and RMSA, (iii) the Non-Competition
Agreement dated December 3, 1996, as amended April 7, 1998, among Real Media,
PubliGroupe and RMSA, (iv) the Trademark and Tradename Agreement dated December
3, 1996 among Real Media, PubliGroupe and RMSA, and (v) the Proposed Joint
Venture between Real Media and Publicitas Asia to form Real Media Asia, shall
terminate and be of no further force and effect, .
SECTION 2. REPRESENTATIONS AND WARRANTIES OF PUBLIGROUPE AND RM EUROPE
PubliGroupe and RM Europe jointly and severally represents and warrants
to Real Media that, except as set forth in the disclosure schedule delivered by
PubliGroupe to Real Media on the date of this Agreement (the "PubliGroupe
Disclosure Schedule"):
2.1. Due Organization; Subsidiaries; Etc.
(a) RM Europe owns no shares of capital stock of, or equity interest
of any nature in, any Entity, other than the Subsidiaries. Except with respect
to RM Europe's ownership interests in the Subsidiaries, none of the Acquired
Corporations own any shares of capital stock of, or equity interest of any
nature in, any Entity (other than shares of non-affiliates held as non-material
financial investments). None of the Acquired Corporations has agreed or is
obligated to make any future investment in or capital contribution to any
Entity.
(b) Each of the Acquired Corporations is a corporation duly
organized and validly existing under the laws of the jurisdiction of its
incorporation and has the necessary corporate power and authority: (i) to
conduct its business in the manner in which its business is
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currently being conducted; (ii) to own and use its assets in the manner in which
its assets are currently owned and used; and (iii) to perform its obligations
under all Contracts by which it is bound.
2.2. Organizational Documents; Records. PubliGroupe has delivered or
made available to Real Media accurate and complete copies of the certificate of
incorporation, bylaws or similar organizational documents of each Acquired
Corporation, including all amendments thereto. PubliGroupe has made available to
Real Media accurate and complete copies of the minutes and other records of the
meetings and other proceedings (including any actions taken by written consent
or otherwise without a meeting) of the stockholders of each of the Acquired
Corporations and the board of directors and all committees of the board of
directors of each of the Acquired Corporations.
2.3. Capitalization, Etc.
(a) The authorized, issued and outstanding shares of capital stock
of each Acquired Corporation is set forth in Section 2.3(a) of the PubliGroupe
Disclosure Schedule. All of the foregoing shares of capital stock have been duly
authorized and validly issued, and are fully paid and non-assessable.
(b) Except as set forth in Section 2.3(b) of the PubliGroupe
Disclosure Schedule, as of the date of this Agreement, there is no: (i)
outstanding subscription, option, call, warrant or right to acquire any shares
of the capital stock or other securities of any of the Acquired Corporations;
(ii) outstanding security, instrument or obligation that is or will become
convertible into or exchangeable for any shares of the capital stock or other
securities of any of the Acquired Corporations; or (iii) Contract under which
any of the Acquired Corporations is or will become obligated to sell or
otherwise issue any shares of its capital stock or any other securities.
(c) The outstanding shares of capital stock of ▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ are owned beneficially and of record by PubliGroupe (or
its wholly-owned subsidiary), free and clear of any Encumbrances. The
outstanding shares of capital stock of the Wholly-Owned Subsidiaries, and 49% of
the outstanding shares of capital stock of RMSA, are owned beneficially and of
record by RM Europe, free and clear of any Encumbrances. 51% of the outstanding
shares of capital stock of RMSA are owned beneficially and of record by
PubliGroupe, free and clear of any Encumbrances.
2.4. Financial Statements.
(a) PubliGroupe has delivered to Real Media the following financial
statements and notes (collectively, the "Acquired Corporation Financial
Statements"):
(i) the audited balance sheets of each of the Subsidiaries as
of December 31, 1998 and 1997, and the related audited statements of operations,
statements of stockholders' equity and statements of cash flows of each of the
Subsidiaries for the years ended
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1998, 1997 and 1996, together with the notes thereto and the unqualified report
of Ernst & Young LLP relating thereto;
(ii) the audited balance sheet of each of the Subsidiaries as
of September 30, 1999, and the related audited statement of operations and a
statement of cash flows of each such Subsidiary for the nine months then ended,
together with the notes thereto and the unqualified report of Ernst & Young LLP
relating thereto;
(iii) the consolidated balance sheet of RM Europe as of
September 30, 1999, and the related consolidated statement of operations and a
statement of cash flows of RM Europe from inception through September 30, 1999,
together with the notes thereto and the unqualified report of Ernst & Young LLP
relating thereto;
(iv) the unaudited balance sheet of Real Media Hong Kong as of
December 31, 1999 and the related unaudited statement of operations for the six
months then ended; and
(v) the unaudited balance sheet of Real Media Singapore as of
December 31, 1998.
(b) The Acquired Corporation Financial Statements present fairly, in
all material respects, the financial position of the Acquired Corporations as of
the respective dates thereof and the results of operations and cash flows of the
Acquired Corporations for the periods covered thereby. The Acquired Corporation
Financial Statements have been prepared in accordance with US generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods covered (except that the unaudited financial statements do not contain
footnotes and are subject to normal and recurring year-end audit adjustments,
which will not, individually or in the aggregate, be material in magnitude).
(c) Except for liabilities or obligations which are accrued or
reserved in the Acquired Corporation Financial Statements (or reflected in the
notes thereto) or which were incurred after September 30, 1999 in the ordinary
course of business, none of the Acquired Corporations has any liabilities or
obligations (accrued or contingent) of a nature required by GAAP to be reflected
in a balance sheet or that would be required to be disclosed in footnotes that
would be required pursuant to GAAP.
2.5. Absence of Changes. Except as set forth in Section 2.5 of the
PubliGroupe Disclosure Schedule, between September 30, 1999 and the date of this
Agreement, none of the Acquired Corporations has:
(a) sold or transferred any material portion of its assets or any
material portion of the interests in such portion other than sales of their
respective products in the ordinary course of business;
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(b) suffered any material loss, or material interruption in use, of
any asset or property (whether or not covered by insurance), on account of fire,
flood, riot, strike or other hazard or Act of God;
(c) made any material change in the nature of its business or
operations;
(d) entered into any material transaction other than sales or
licenses of their respective products and services;
(e) incurred any liabilities other than in the ordinary course of
business; or
(f) suffered any adverse change with respect to its business or
financial condition which has had a Material Adverse Effect on the Acquired
Corporations.
(g) repaid any debt or liability owed to PubliGroupe or any of its
affiliates.
2.6. Title to Assets; Equipment; Real Property. The Acquired
Corporations own, and have good, valid and marketable title to, the assets
purported to be owned by them and which are material to the Acquired
Corporations or to the conduct of their business. Except as set forth in Section
2.6 of the PubliGroupe Disclosure Schedule, such assets are owned by the
Acquired Corporations free and clear of any Encumbrances, except for (x) any
lien for current taxes not yet due and payable and (y) liens that have arisen in
the ordinary course of business and that do not materially detract from the
value of the assets subject thereto or materially impair the operations of the
Acquired Corporations, taken as a whole. The material items of equipment and
other tangible assets owned by or leased to the Acquired Corporations are
adequate for the uses to which they are being put and are in good condition and
repair (ordinary wear and tear excepted). None of the Acquired Corporations owns
or leases any real property or any material interest in real property, except
for the leaseholds created under the real property leases included in Section
2.8 of the PubliGroupe Disclosure Schedule.
2.7. Proprietary Assets.
(a) The Acquired Corporations own or have a valid right to use and
exploit the intellectual property in the Acquired Corporation Proprietary
Assets. None of the Acquired Corporations jointly owns with any other Person
(other than another Acquired Corporation) any Acquired Corporation Proprietary
Asset (i) that an Acquired Corporation purports to own and (ii) that is material
to the business of the Acquired Corporations. There is no Acquired Corporation
Contract pursuant to which any Acquired Corporation has granted any Person other
than another Acquired Corporation any right (whether or not currently
exercisable) to sublicense, commercially distribute or otherwise market any
Acquired Corporation Proprietary Asset.
(b) The Acquired Corporations have taken commercially reasonable
measures and precautions to protect and maintain the confidentiality, secrecy
and value of the Acquired Corporation Proprietary Assets (except Acquired
Corporation Proprietary Assets whose value would be unimpaired by public
disclosure). No current or former officer, director, stockholder,
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employee, consultant or independent contractor has any ownership right with
respect to any Acquired Corporation Proprietary Asset.
(c) To the knowledge of PubliGroupe: (i) all patents, trademarks,
service marks and copyrights that are registered with any Governmental Body and
held by any of the Acquired Corporations are valid and subsisting; (ii) none of
the Acquired Corporation Proprietary Assets, the use thereof in the Acquired
Corporations' business activities or the conduct of the Acquired Corporations'
business as presently conducted infringes any Proprietary Asset owned or used by
any other Person; and (iii) no other Person is infringing any Acquired
Corporation Proprietary Asset.
(d) The Acquired Corporation Proprietary Assets, together with
agreements for the license to an Acquired Corporation of software generally
available to the public, constitute all the material Proprietary Assets
necessary to enable the Acquired Corporations to conduct their business in the
manner in which such business is currently being conducted. Except as set forth
in Section 2.7(d) of the PubliGroupe Disclosure schedule, none of the Acquired
Corporations has (i) licensed any of the Acquired Corporation Proprietary Assets
to any Person on an exclusive basis, or (ii) entered into any covenant not to
compete or Contract limiting its ability (A) to exploit fully any material
Acquired Corporation Proprietary Assets or (B) to transact business in any
market or geographical area or with any Person.
(e) Section 2.7(e) of the PubliGroupe Disclosure Schedule sets forth
all patents that have been issued to an Acquired Corporation, patent
applications that have been filed by an Acquired Corporation and trademarks that
have been registered by an Acquired Corporation and the jurisdictions in which
such patents have been issued, patent applications have been filed and
trademarks have been registered.
2.8. CONTRACTS.
(a) Section 2.8 of the PubliGroupe Disclosure Schedule identifies
each Acquired Corporation Contract. PubliGroupe has delivered or made available
to Real Media accurate and complete copies of the Acquired Corporation
Contracts. Each Acquired Corporation Contract is valid and in full force and
effect.
(b) None of the Acquired Corporations has violated or breached, or
committed any default under, any Acquired Corporation Contract, and, to the
knowledge of PubliGroupe and the Acquired Corporations, no other Person has
violated or breached, or committed any default under, any Acquired Corporation
Contract, except where such violations, breaches or defaults have not had and
will not have a Material Adverse Effect on the Acquired Corporations.
(c) None of the Acquired Corporations has executed any written
amendments of, or waived in writing any of its material rights under, any
Acquired Corporation Contract.
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2.9. COMPLIANCE WITH LEGAL REQUIREMENTS. Each of the Acquired
Corporations is in compliance with applicable Legal Requirements, except where
the failure to comply with such Legal Requirements will not have a Material
Adverse Effect on the Acquired Corporations. None of the Acquired Corporations
has received (i) at any time since January 1, 1997, any notice or written
communication from any Governmental Body regarding any actual or possible
violation of, or failure to comply with, any Legal Requirement or (ii) prior to
January 1, 1997 any such notice or communication that remains pending. To the
knowledge of PubliGroupe, no investigation or review of the Acquired
Corporations by any Governmental Body is pending or threatened.
2.10. GOVERNMENTAL AUTHORIZATIONS. The Acquired Corporations hold the
Governmental Authorizations necessary to enable the Acquired Corporations to
conduct their respective businesses in the manner in which such businesses are
currently being conducted and in compliance with applicable Legal Requirements,
except where the failure to hold such Governmental Authorizations will not have
a Material Adverse Effect on the Acquired Corporations. Such Governmental
Authorizations are valid and in full force and effect. Each Acquired Corporation
is in compliance with the terms and requirements of such Governmental
Authorizations except where failure to be in compliance will not have a Material
Adverse Effect on the Acquired Corporations. None of the Acquired Corporations
has received (i) at any time since January 1, 1997 any written notice or other
written communication from any Governmental Body regarding (a) any actual or
possible violation of or failure to comply with any term or requirement of any
material Governmental Authorization or (b) any actual or possible revocation,
withdrawal, suspension, cancellation, termination or modification of any
material Governmental Authorization or (ii) prior to January 1, 1997 any such
notice or communication that remains pending.
2.11. TAX MATTERS. The Acquired Corporations have timely filed or
caused to be filed all Tax Returns required to be filed, or, requests for
extensions to file such Tax Returns have been filed, granted and have not
expired, except to the extent that such failures to file or to have extensions
granted that remain in effect would not have a Material Adverse Effect on the
Acquired Corporations. All such Tax Returns are complete and accurate in all
material respects, except to the extent that such failures to be complete or
accurate would not have a Material Adverse Effect on the Acquired Corporations.
The Acquired Corporations have paid all Taxes shown as due on such Tax Returns,
and the Acquired Corporation Financial Statements fully accrue the Acquired
Corporations' liabilities for Taxes with respect to all periods in accordance
with GAAP. No deficiencies for any Tax have been proposed in writing, asserted
or assessed, in each case by any Governmental Authority, against the Acquired
Corporations for which there are not adequate reserves, except for deficiencies
that would not have a Material Adverse Effect on the Acquired Corporations.
There are no examinations or audits of any Acquired Corporation Tax Return
currently underway.
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2.12. EMPLOYEE BENEFIT PLANS.
(a) Section 2.12 of the PubliGroupe Disclosure Schedule sets forth a
true and complete list of each material, stock purchase, stock option, stock
bonus, profit sharing and other equity compensation plan, program, agreement or
arrangement; and each material employment, termination or severance plan,
agreement or arrangement, in each case that is sponsored, maintained or
contributed to or required to be contributed to by any Acquired Corporation, or
to which any Acquired Corporation is a party, whether written or oral, for the
benefit of any employee or former employee of the Acquired Corporation.
(b) Each PubliGroupe Plan has been administered and operated in
compliance with its terms and applicable law in all material respects.
(c) There are no liabilities of any Acquired Corporation with
respect to any PubliGroupe Plan, other than (i) liabilities disclosed or
provided for in the Acquired Corporation Financial Statements and (ii)
liabilities none of which will have a Material Adverse Effect on the Acquired
Corporations.
2.13. INSURANCE. Since December 31, 1997, none of the Acquired
Corporations has received any written notice or other written communication
regarding any actual or possible (a) cancellation or invalidation of any
insurance policy (b) refusal of any coverage or rejection of any material claim
under any insurance policy, or (c) material adjustment in the amount of the
premiums payable with respect to any insurance policy. There is no pending
material claim (including any workers' compensation claim) under or based upon
any insurance policy of any of the Acquired Corporations. Each insurance policy
of the Acquired Corporations is in full force and effect.
2.14. RELATED PARTY TRANSACTIONS. No Related Party has any direct or
indirect interest in any material asset used in or otherwise relating to the
business of any of the Acquired Corporations. No Related Party has any direct or
indirect financial interest in any Acquired Corporation Contract, transaction or
business dealing involving any of the Acquired Corporations. No Related Party is
competing directly or indirectly with any of the Acquired Corporations. No
Related Party has any claim or right against any of the Acquired Corporations
(other than rights to receive compensation for services performed as an employee
of an Acquired Corporation). (For purposes of this Section 2.14 each of the
following shall be deemed to be a "Related Party": (i) each individual who is an
officer of PubliGroupe or any of the Acquired Corporations; (ii) each member of
the immediate family of each of the individuals referred to in clause "(i)"
above; and (iii) any trust or other Entity (other than an Acquired Corporation)
in which any one of the individuals referred to in clauses "(i)" and "(ii)"
above holds (or in which more than one of such individuals collectively hold),
beneficially or otherwise, a material voting, proprietary or equity interest.)
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2.15. LEGAL PROCEEDINGS; ORDERS.
(a) Except as set forth in Section 2.15 of the PubliGroupe
Disclosure Schedule, there is no pending Legal Proceeding, and (to the knowledge
of PubliGroupe) no Person has overtly threatened to commence any Legal
Proceeding: (i) that involves any of the Acquired Corporations or any assets
owned or used by any of the Acquired Corporations which, if adversely
determined, would have a Material Adverse Effect on the Acquired Corporations;
or (ii) that challenges any of the transactions contemplated by this Agreement.
(b) There is no order, writ, injunction, judgment or decree to which
any of the Acquired Corporations, or any assets owned or used by any of the
Acquired Corporations, is subject.
2.16. AUTHORITY; BINDING NATURE OF AGREEMENT. PubliGroupe and RM Europe
each has all necessary corporate right, power and authority to enter into and to
perform its respective obligations under this Agreement. This Agreement has been
duly executed and delivered by PubliGroupe and RM Europe and constitutes the
legal, valid and binding obligation of PubliGroupe and RM Europe, enforceable
against each of them in accordance with its 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.
2.17. NON-CONTRAVENTION; CONSENTS. Except as set forth in Section
2.17(d) of the PubliGroupe Disclosure Schedule, neither (1) the execution,
delivery or performance of this Agreement, nor (2) the consummation of the
transactions contemplated by this Agreement, will directly or indirectly (with
or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of any of the
provisions of the certificate of incorporation, bylaws or similar organizational
documents of PubliGroupe or any of the Acquired Corporations;
(b) contravene, conflict with or result in a violation of, any Legal
Requirement or any order, writ, injunction, judgment or decree to which
PubliGroupe or any of the Acquired Corporations, or any material assets owned or
used by any of such Entities, is subject;
(c) contravene, conflict with or result in a violation of any of the
terms or requirements of any material Governmental Authorization that is held by
PubliGroupe or any of the Acquired Corporations or that otherwise relates to the
business of any of such Entities or to any material assets owned or used by any
of such Entities; or
(d) contravene, conflict with or result in a violation or breach of,
or result in a default under, or result in the creation of any lien with respect
to the assets of an Acquired Corporation pursuant to, any provision of any
Acquired Corporation Contract, except for any
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such violations, liens, breaches or defaults, or failures to give notice that
will not have a Material Adverse Effect on the Acquired Corporations.
None of PubliGroupe and the Acquired Corporations is or will be required to make
any filing with or give any notice to, or to obtain any Consent from, any Person
in connection with (x) the execution, delivery or performance of this Agreement
or (y) the consummation of the transactions contemplated by this Agreement,
except where the failure to take such actions will not have a Material Adverse
Effect on the Acquired Corporations.
2.18. FINANCIAL ADVISOR. Except as set forth in Section 2.18 of the
PubliGroupe Disclosure Schedule, no broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement.
2.19. EMPLOYEES. Section 2.19 of the PubliGroupe Disclosure Schedule
contains an accurate list of: (i) all written agreements providing for a term of
employment of six months or more between any Acquired Corporation and any
current or retired employee; and (ii) all collective bargaining agreements to
which any Acquired Corporation is a party (other than any labor contracts
mandated by applicable law). No strike or labor dispute involving any Acquired
Corporation and a group of its employees has occurred during the last three
years or, to the knowledge of PubliGroupe, is threatened. The Acquired
Corporations have complied in all material respects with applicable wage and
hour, equal employment, safety and other legal requirements relating to its
employees, except where the failure to comply will not have a Material Adverse
Effect on the Acquired Corporations.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF REAL MEDIA
Real Media represents and warrants to PubliGroupe that, except as set
forth in the disclosure schedule delivered by Real Media to PubliGroupe on the
date of this Agreement (the "Real Media Disclosure Schedule"):
3.1. DUE ORGANIZATION, STANDING AND POWER.
(a) Real Media is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. Real Media has the
necessary corporate power and authority: (i) to conduct its business in the
manner in which its business is currently being conducted; (ii) to own and use
its assets in the manner in which its assets are currently owned and used; and
(iii) to perform its obligations under all Contracts by which it is bound. Real
Media owns no shares of capital stock of, or equity interest of any nature in,
any Entity other than those disclosed in Section 3.1(a) of the Real Media
Disclosure Schedule.
(b) Real Media is qualified to do business as a foreign corporation,
and is in good standing, under the laws of the jurisdictions where the nature of
its business requires such qualification and where the failure to so qualify
will have a Material Adverse Effect on Real Media. Each such jurisdiction is
listed in Section 3.1(b) of the Real Media Disclosure Schedule.
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3.2. ORGANIZATIONAL DOCUMENTS; RECORDS. Real Media has delivered or
made available to PubliGroupe accurate and complete copies of the certificate of
incorporation and bylaws of Real Media, including all amendments thereto. Real
Media has made available to PubliGroupe accurate and complete copies of the
minutes and other records of the meetings and other proceedings (including any
actions taken by written consent or otherwise without a meeting) of the
stockholders of Real Media and the board of directors and all committees of the
board of directors of Real Media.
3.3. CAPITALIZATION, ETC.
(a) The authorized capital stock of Real Media is 27,000,000 shares
divided into two classes consisting of: (i) 18,000,000 shares of common stock,
par value $.001 per share, of which 9,836,150 shares have been issued and are
outstanding as of the date of this Agreement; and (ii) 9,000,000 shares of
Preferred Stock, par value $.001 per share, none of which shares have been
issued. All of the outstanding shares of capital stock of Real Media have been
duly authorized and validly issued, and are fully paid and non-assessable.
Section 3.3(a) of the Real Media Disclosure Schedule sets forth the number of
issued and outstanding shares of its capital stock, the name of each owner of
such shares and the number of shares owned by each.
(b) As of the date of this Agreement, 1,495,206 shares of Real Media
common stock are reserved for future issuance pursuant to stock options granted
and outstanding.
(c) Except as set forth in Section 3.3(c) of the Real Media
Disclosure Schedule, as of the date of this Agreement there is no: (i)
outstanding subscription, option, call, warrant or right to acquire any shares
of the capital stock or other securities of Real Media; (ii) outstanding
security, instrument or obligation that is or will become convertible into or
exchangeable for any shares of the capital stock or other securities of Real
Media; or (iii) Contract under which Real Media is or will become obligated to
sell or otherwise issue any shares of its capital stock or any other securities.
3.4. FINANCIAL STATEMENTS.
(a) Real Media has delivered to PubliGroupe the following financial
statements and notes (collectively, the "Real Media Financial Statements"):
(i) the audited balance sheets of Real Media as of December
31, 1998 and 1997 and the related audited statements of operations, statements
of stockholders' equity and statements of cash flows of Real Media for the years
ended December 31, 1998, 1997, and 1996 together with the notes thereto and the
unqualified report of Ernst & Young LLP thereon; and
(ii) the audited balance sheet of Real Media as of September
30, 1999, and the related audited statement of operations and a statement of
cash flows of Real Media for the nine months then ended, together with notes
thereto and the unqualified report of Ernst & Young LLP thereon.
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(b) The Real Media Financial Statements present fairly, in all
material respects, the financial position of Real Media as of the respective
dates thereof and the results of operations and cash flows of Real Media for the
periods covered thereby. The Real Media Financial Statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods covered (except that the unaudited
financial statements do not contain footnotes and are subject to normal and
recurring year-end audit adjustments, which will not, individually or in the
aggregate, be material in magnitude).
(c) Except for liabilities or obligations which are accrued or
reserved in the statements (or reflected in the notes thereto) or which were
incurred after September 30, 1999 in the ordinary course of business, Real Media
has no liabilities or obligations (accrued or contingent) of a nature required
by GAAP to be reflected in a balance sheet or that would be required to be
disclosed in footnotes that are required pursuant to GAAP.
3.5. ABSENCE OF CHANGES. Between September 30, 1999 and the date of
this Agreement, Real Media has not:
(a) sold or transferred any material portion of its assets or any
material portion of the interests in such portion other than sales of Real
Media's products in the ordinary course of business;
(b) suffered any material loss, or material interruption in use, of
any asset or property (whether or not covered by insurance), on account of fire,
flood, riot, strike or other hazard or Act of God;
(c) made any material change in the nature of its business or
operations;
(d) entered into any material transaction other than sales of Real
Media's products;
(e) incurred any liabilities other than in the ordinary course of
business; or
(f) suffered any adverse change with respect to its business or
financial condition which has had a Material Adverse Effect on Real Media.
3.6. TITLE TO ASSETS; EQUIPMENT; REAL PROPERTY. Real Media owns, and
has good, valid and marketable title to, the assets purported to be owned by it
and which are material to Real Media or to the conduct of its business. Except
as set forth in Section 3.6 of the Real Media Disclosure Schedule, such assets
are owned by Real Media free and clear of any Encumbrances, except for (x) any
lien for current taxes not yet due and payable and (y) liens that have arisen in
the ordinary course of business and that do not materially detract from the
value of the assets subject thereto or materially impair the operations of Real
Media. The material items of equipment and other tangible assets owned by or
leased to Real Media are adequate for the uses to which they are being put and
are in good condition and repair (ordinary wear and tear excepted). Real Media
does not own or lease any real property or any material interest in real
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property, except for the leaseholds created under the real property leases
included in Section 3.6 of the Real Media Disclosure Schedule.
3.7. PROPRIETARY ASSETS.
(a) Real Media owns or has a valid right to use and exploit the
intellectual property in the Real Media Proprietary Assets. Real Media does not
jointly own with any other Person any Real Media Proprietary Asset (i) that Real
Media purports to own and (ii) that is material to the business of Real Media or
its subsidiaries. Except as set forth in Section 3.7(a) of the Real Media
Disclosure Schedule, there is no Real Media Contract pursuant to which Real
Media has granted any Person any right (whether or not currently exercisable) to
sublicense, commercially distribute or otherwise exploit any Real Media
Proprietary Asset.
(b) Real Media has taken commercially reasonable measures and
precautions to protect and maintain the confidentiality, secrecy and value of
the Real Media Proprietary Assets (except Real Media Proprietary Assets whose
value would be unimpaired by public disclosure). No current or former officer,
director, stockholder, employee, consultant or independent contractor has any
ownership right with respect to any Real Media Proprietary Asset.
(c) To the knowledge of Real Media: (i) all patents, trademarks,
service marks and copyrights that are registered with any Governmental Body and
held by Real Media are valid and subsisting; (ii) none of the Real Media
Proprietary Assets, the use thereof in Real Media's and its subsidiaries'
business activities or the conduct of Real Media's business as presently
conducted by it infringes any Proprietary Asset owned or used by any other
Person; and (iii) no person is infringing any Real Media Proprietary Asset.
(d) The Real Media Proprietary Assets, together with agreements for
the license to Real Media of software generally available to the public,
constitute all the material Proprietary Assets necessary to enable Real Media to
conduct its business in the manner in which such business is currently being
conducted. Except as set forth in Section 3.7(a) of the Real Media Disclosure
Schedule, Real Media has not (i) licensed any of the Real Media Proprietary
Assets to any Person on an exclusive basis, or (ii) entered into any covenant
not to compete or Contract limiting its ability (A) to exploit fully any
material Real Media Proprietary Asset or (B) to transact business in any market
or geographical area or with any Person.
Section 3.7 of the Real Media Disclosure Schedule sets forth all patents that
have been issued to Real Media, patent applications that have been filed by Real
Media and trademarks that have been registered by Real Media and the
jurisdictions in which such patents have been issued, patent applications have
been filed and trademarks have been registered.
3.8. CONTRACTS.
(a) Section 3.8 of the Real Media Disclosure Schedule identifies
each Real Media Contract. Real Media has delivered or made available to
PubliGroupe accurate and
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complete copies of the Real Media Contracts. Each Real Media Contract is valid
and in full force and effect.
(b) Real Media has not violated or breached, or committed any
default under, any Real Media Contract, and, to the knowledge of Real Media, no
other Person has violated or breached, or committed any default under, any Real
Media Contract, except where such violations, breaches or defaults and have not
had and will not have a Material Adverse Effect on Real Media.
(c) Real Media has not executed any written amendments of, or waived
in writing any of its material rights under, any Real Media Contract.
3.9. COMPLIANCE WITH LEGAL REQUIREMENTS. Real Media is in compliance
with applicable Legal Requirements, except where the failure to comply with such
Legal Requirements will not have a Material Adverse Effect on Real Media. Real
Media has not received (i) at any time since January 1, 1997 any notice or
written communication from any Governmental Body regarding any actual or
possible violation of, or failure to comply with, any Legal Requirement or (ii)
prior to January 1, 1997 any such notice or communication that remains pending.
To the knowledge of Real Media, no investigation or review of Real Media by any
Governmental Body is pending or threatened.
3.10. GOVERNMENTAL AUTHORIZATIONS. Real Media holds the Governmental
Authorizations necessary to enable Real Media to conduct its business in the
manner in which such business is currently being conducted and in compliance
with applicable Legal Requirements, except where the failure to hold such
Governmental Authorizations will not have a Material Adverse Effect on Real
Media. Such Governmental Authorizations are valid and in full force and effect.
Real Media is in compliance with the terms and requirements of such Governmental
Authorizations except where the failure to be in compliance will not have a
Material Adverse Effect on Real Media. Real Media has not received (i) at any
time since January 1, 1997 any written notice or other written communication
from any Governmental Body regarding (a) any actual or possible violation of or
failure to comply with any term or requirement of any material Governmental
Authorization or (b) any actual or possible revocation, withdrawal, suspension,
cancellation, termination or modification of any material Governmental
Authorization or (ii) prior to January 1, 1997 any such notice or communication
that remains pending.
3.11. TAX RETURNS. Real Media has timely filed or caused to be filed
all Tax Returns required to be filed, or, requests for extensions to file such
Tax Returns have been filed, granted and have not expired, except to the extent
that such failures to file or to have extensions granted that remain in effect
would not have a Material Adverse Effect on Real Media. All such Tax Returns are
complete and accurate in all material respects, except to the extent that such
failures to be complete or accurate would not have a Material Adverse Effect on
Real Media. Real Media has paid all Taxes shown as due on such Tax Returns, and
the Real Media Financial Statements fully accrue Real Media's liabilities for
Taxes with respect to all periods in accordance with GAAP. No deficiencies for
any Tax have been proposed in writing, asserted or
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assessed, in each case by any Governmental Authority, against Real Media for
which there are not adequate reserves, except for deficiencies that would not
have a Material Adverse Effect on Real Media. There are no examinations or
audits of any Real Media Tax Return currently underway.
3.12. EMPLOYEE BENEFIT PLANS.
(a) Section 3.10 of the Real Media Disclosure Schedule sets forth a
true and complete list of each material defined compensation, incentive
compensation, stock purchase, stock option, stock bonus, profit sharing and
other equity compensation plan, program, agreement or arrangement; and each
material employment, termination or severance plan, agreement or arrangement; in
each case that is sponsored, maintained or contributed to or required to be
contributed to by Real Media or any ERISA Affiliate of Real Media, that together
with Real Media would be deemed a "single employer" within the meaning of
Section 4001(b) of ERISA, or to which Real Media or any of Real Media's ERISA
Affiliate, is a party, whether written or oral, for the benefit of any employee
or former employee of Real Media and whether or not subject to ERISA.
(b) Each Real Media Plan has been administered and operated in
compliance with its terms and applicable law in all material respects.
(c) There are no liabilities of Real Media or any of Real Media's
ERISA Affiliates with respect to any Plan, other than (i) liabilities disclosed
or provided for in the Real Media Financial Statements and (ii) liabilities none
of which would have a Material Adverse Effect on Real Media.
3.13. INSURANCE. Since December 31, 1997, Real Media has not received
any written notice or other written communication regarding any actual or
possible (a) cancellation or invalidation of any insurance policy, (b) refusal
of any coverage or rejection of any material claim under any insurance policy or
(c) material adjustment in the amount of the premiums payable with respect to
any insurance policy. There is no pending material claim (including any workers'
compensation claim) under or based upon any insurance policy of Real Media. Each
insurance policy of Real Media is in full force and effect.
3.14. RELATED PARTY TRANSACTIONS. No Related Party has any direct or
indirect interest in any material asset used in or otherwise relating to the
business of Real Media. No Related Party has any direct or indirect financial
interest in any Real Media Contract, transaction or business dealing involving
Real Media. No Related Party is competing directly or indirectly with Real
Media. No Related Party has any claim or right against Real Media (other than
rights to receive compensation for services performed as an employee of Real
Media). (For purposes of this Section 3.14 each of the following shall be deemed
to be a "Related Party": (i) each individual who is an officer of Real Media;
(ii) each member of the immediate family of each of the individuals referred to
in clause "(i)" above; and (iii) any trust or other Entity (other than Real
Media) in which any one of the individuals referred to in clauses "(i)" and
"(ii)" above
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holds (or in which more than one of such individuals collectively hold),
beneficially or otherwise, a material voting proprietary or equity interest.
3.15. LEGAL PROCEEDINGS; ORDERS.
(a) Except as set forth in Section 3.15 of the Real Media Disclosure
Schedule, there is no pending Legal Proceeding and (to the knowledge of Real
Media) no Person has overtly threatened to commence any Legal Proceeding: (i)
that involves Real Media or any of the assets owned or used by Real Media which,
if adversely determined, would have a Material Adverse Effect on Real Media; or
(ii) that challenges any of the transactions contemplated by this Agreement.
(b) There is no order, writ, injunction, judgment or decree to which
Real Media or any assets owned or used by Real Media is subject.
3.16. AUTHORITY; BINDING NATURE OF AGREEMENT. Real Media has all
necessary corporate right, power and authority to enter into and perform its
obligations under this Agreement. This Agreement has been duly executed and
delivered by Real Media and constitutes the legal, valid and binding obligation
of Real Media, enforceable against Real Media in accordance with its 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.
3.17. NON-CONTRAVENTION; CONSENTS. Neither (1) the execution, delivery
or performance of this Agreement, nor (2) the consummation of the transactions
contemplated by this Agreement, will directly or indirectly (with or without
notice or lapse of time):
(a) contravene, conflict with or result in a violation of any of the
provisions of the certificate of incorporation or bylaws of Real Media;
(b) contravene, conflict with or result in a violation of, any Legal
Requirement or any order, writ, injunction, judgment or decree to which or any
material assets owned or used by Real Media is subject;
(c) contravene, conflict with or result in a violation of any of the
terms or requirements of any material Governmental Authorization that is held by
Real Media or that otherwise relates to the business of Real Media or to any
material assets owned or used by Real Media; or
(d) contravene, conflict with or result in a violation or breach of,
or result in a default under, or result in the creation of any lien with respect
to Real Media's assets pursuant to, or require the giving of notice under, any
provision of any Real Media Contract, except for any such violations, liens,
breaches or defaults, or failures to give notice that will not have a Material
Adverse Effect on Real Media.
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Real Media is not required to make any filing with or give any notice to, or to
obtain any Consent from, any Person in connection with (x) the execution,
delivery or performance of this Agreement or (y) the consummation of the
transactions contemplated by this Agreement, except where the failure to take
such actions will not have a Material Adverse Effect on Real Media.
3.18. FINANCIAL ADVISOR. Except as set forth in Section 3.18 of the
Real Media Disclosure Schedule, no broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement.
3.19. EMPLOYEES. Section 3.19 of the Real Media Disclosure Schedule
contains an accurate list of: (i) all written agreements providing for a term of
employment of six months or more between Real Media and any current or retired
employee; and (ii) all collective bargaining agreements to which Real Media is a
party. No strike or labor dispute involving Real Media and a group of its
employees has occurred during the last three years or, to the knowledge of Real
Media, is threatened. Real Media has complied in all material respects with
applicable wage and hour, equal employment, safety and other legal requirements
relating to its employees, except where the failure to comply will not have a
Material Adverse Effect on Real Media.
SECTION 4. CERTAIN COVENANTS AND AGREEMENTS
4.1. RMSA OPTIONS. PubliGroupe and Real Media (and RM Europe as
required) grant to each other the following options with respect to the RMSA
Interest:
(a) THE PURCHASE ELECTION. At any time prior to January 1, 2002,
Real Media shall have the right, exercisable by notice given to PubliGroupe at
any time, to elect to purchase from PubliGroupe all, but not less than all, of
the RMSA Interest. If such notice (the "Purchase Election") is given, it shall
constitute an agreement by PubliGroupe to sell, and Real Media to purchase, all
of the RMSA Interest on a date selected by Real Media which is no more than ten
(10) business days following the establishment of the purchase price for the
RMSA Interest.
(b) THE SALE ELECTION. At any time prior to January 1, 2002,
PubliGroupe shall have the right to elect, by notice to Real Media, to sell to
Real Media all, but not less than all, of the RMSA Interest. If such notice (the
"Sale Election") is given, it shall constitute an agreement by PubliGroupe to
sell, and Real Media to purchase, all of the RMSA Interest on a date selected by
Real Media which is no more than ten (10) business days following the
establishment of the purchase price for the RMSA Interest.
(c) PURCHASE PRICE; CLOSING. The purchase price for the RMSA
Interest shall be the Fair Market Value thereof on the date the Sale Election or
Purchase Election is made by Real Media or PubliGroupe, as the case may be. The
closing for any purchase pursuant to the exercise of the Purchase Election or
the Sale Election shall take place at Real Media's principal executive offices.
At the closing (i) PubliGroupe shall deliver good title to certificates
representing the RMSA Interest, free and clear of all liens, claims or
encumbrances, duly endorsed in blank for transfer or with duly executed stock
powers attached, (ii) PubliGroupe and
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Real Media shall reaffirm to each other the representations and warranties
contained in Section 2 and Section 3 hereof, respectively, with respect to
itself and RMSA (in the case of PubliGroupe) as of the date of closing, and
(iii) Real Media shall pay the purchase price in immediately available funds,
or, at the election of Real Media all or any part of the purchase price may be
paid by delivery of certificates representing Real Media Common Stock. For
purposes of calculating the number of shares of Real Media Common Stock to be
delivered, the per share value of Real Media Common Stock shall be (i) the
average of the Closing Market Prices per share for such Stock for the sixty (60)
trading days ended on the second business day preceding the closing for the
payment of the purchase price, or (ii) if Real Media Common Stock is not then
publicly traded, the parties shall establish the fair market value per share for
the Real Media Common Stock by using the same mechanism for determining the fair
market value of the RMSA Interest. The PubliGroupe designees to the Real Media
Board of Directors shall not participate in any vote of the Real Media Board
with respect to the matters set forth in this Section 4.1, including without
limitation approval of the final purchase price or the manner of payment thereof
(in cash or Real Media Common Stock).
4.2. ACCESS TO RECORDS AND PROPERTIES.
(a) From and after the date hereof until the Closing or the
earlier termination of this Agreement pursuant to Section 6.1 hereof (the
"Executory Period"), PubliGroupe and RM Europe shall afford( subject to any
applicable laws relating to the maintenance of confidentiality or the
preservation of privacy of data and information): (i) to the officers,
independent certified public accountants, legal counsel and other
representatives of Real Media, free and full access at all reasonable times and
upon reasonable prior notice to all of its properties, books and records
(including tax returns filed and those in preparation), in order that Real Media
and such other persons may have full opportunity to make such investigations as
they shall reasonably desire to make of the business and affairs of the Acquired
Corporations; and (ii) to the independent certified public accountants of Real
Media, free and full access at all reasonable times and upon reasonable prior
notice to the work papers of the independent certified public accountants for
the Acquired Corporations. Additionally, PubliGroupe and RM Europe will permit
Real Media, its officers, directors, auditors, legal counsel and other
representatives to make such reasonable inspections of it and its operations
during normal business hours as Real Media may reasonably require and
PubliGroupe and RM Europe will cause its officers and the officers of the
Acquired Corporations to furnish to Real Media and such other persons, such
additional financial and operating data and other information as to its business
and properties as Real Media or such other persons shall from time to time
reasonably request. No investigation pursuant to this Section 4.2(a), or made
prior to the date hereof, shall affect or otherwise diminish or obviate in any
respect any of the representations and warranties of PubliGroupe and RM Europe.
(b) During the Executory Period, Real Media shall afford( subject
to any applicable laws relating to the maintenance of confidentiality or the
preservation of privacy of data and information): (i) to the officers,
independent certified public accountants, legal counsel and other
representatives of PubliGroupe, free and full access at all reasonable times and
upon reasonable prior notice to all of its properties, books and records
(including tax returns filed and
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those in preparation), in order that PubliGroupe and such other persons may have
full opportunity to make such investigations as they shall reasonably desire to
make of the business and affairs of Real Media; and (ii) to the independent
certified public accountants of PubliGroupe, free and full access at all
reasonable times and upon reasonable prior notice to the work papers of the
independent certified public accountants for Real Media. Additionally, Real
Media will permit PubliGroupe, its officers, directors, auditors, legal counsel
and other representatives to make such reasonable inspections of it and its
operations during normal business hours as PubliGroupe may reasonably require
and Real Media will cause its officers to furnish to PubliGroupe and such other
persons, such additional financial and operating data and other information as
to its business and properties as PubliGroupe or such other persons shall from
time to time reasonably request. No investigation pursuant to this Section
4.2(b), or made prior to the date hereof, shall affect or otherwise diminish or
obviate in any respect any of the representations and warranties of Real Media.
4.3. OPERATION OF BUSINESS.
(a) During the Executory Period, PubliGroupe shall (i) cause the
Acquired Corporations to operate its respective businesses as now operated and
only in the normal and ordinary course and, consistent with such operation, (ii)
use its best efforts to preserve intact their respective business organizations,
(iii) keep available the services of their respective officers and employees and
(iv) maintain satisfactory relationships with their respective customers and
other persons having business dealings with each of them. Without limiting the
generality of the foregoing, during the Executory Period PubliGroupe shall cause
the Acquired Corporations to not, without the prior written consent of Real
Media, (i) take any action that would result in any of the representations and
warranties of PubliGroupe and RM Europe herein becoming untrue, (ii) issue or
agree to issue any shares of their respective capital stock or securities,
rights, options or warrants convertible into or exercisable or exchangeable for
shares of their respective capital stock (other than shares of capital stock
issuable upon exercise or conversion of outstanding rights and options in
accordance with the present terms thereof) or (iii) take or cause to occur any
of the actions or transactions described in Section 2.5 hereof.
(b) During the Executory Period, Real Media shall (i) operate its
business as now operated and only in the normal and ordinary course and,
consistent with such operation, (ii) use its best efforts to preserve intact its
business organization, (iii) keep available the services of its officers and
employees and (iv) maintain satisfactory relationships with their respective
customers and other persons having business dealings with it. Without limiting
the generality of the foregoing, during the Executory Period, Real Media shall
not, without the prior written consent of PubliGroupe, (i) take any action that
would result in any of the representations and warranties of Real Media herein
becoming untrue, (ii) issue or agree to issue any shares of its capital stock or
securities, rights, options or warrants convertible into or exercisable or
exchangeable for shares of its capital stock (other than shares of capital stock
issuable upon exercise or conversion of outstanding rights and options in
accordance with the present terms thereof) or (iii) take or cause to occur any
of the actions or transactions described in Section 3.5 hereof.
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4.4. ADVICE OF CHANGES. The parties shall confer on a regular and
frequent basis with each other, report on operational matters and promptly
advise each other orally and in writing of any change, event or circumstance
having, or which, insofar as can reasonably be foreseen, could have, a Material
Adverse Effect on such party.
4.5. EFFORTS TO CONSUMMATE. Subject to the terms and conditions herein
provided, the parties shall use their best efforts to do or cause to be done all
such acts and things as may be necessary, proper or advisable, consistent with
all applicable laws and regulations, to consummate and make effective the
transactions contemplated hereby and to satisfy or cause to be satisfied all
conditions precedent that are set forth in Section 5 hereof as soon as
reasonably practicable. The parties also acknowledge that they have entered into
this Agreement in contemplation of an initial public offering by Real Media of
its Common Stock (the "IPO"). Accordingly, the parties agree to cooperate with
each other and to use their best efforts to do or cause to be done all such acts
and things as may be necessary, proper or advisable, consistent with all
applicable laws and regulations, to consummate and make effective the IPO.
4.6. ADDITIONAL AGREEMENTS. Each party to this Agreement (i) shall make
all filings (if any) and give all notices (if any) required to be made and given
by such party in connection with the transactions contemplated by this
Agreement, and (ii) shall use reasonable efforts to obtain each Consent (if any)
required to be obtained (pursuant to any applicable Legal Requirement or
Contract, or otherwise) by such party in connection with the transactions
contemplated by this Agreement. Each party shall promptly deliver to the other
party a copy of each such filing made, each such notice given and each such
Consent obtained.
4.7. DISCLOSURE.
(a) PubliGroupe and the Acquired Corporations shall not, and shall
not permit any of their Representatives to, issue any press release or otherwise
publicly disseminate any document or other written material relating to the
transactions contemplated by this Agreement unless (i) Real Media shall have
approved such press release or written material (it being understood that Real
Media shall not unreasonably withhold its approval of any such press release or
written material), or (ii) PubliGroupe or the Acquired Corporations shall have
been advised by outside legal counsel that the issuance of such press release or
the dissemination of such written material is required or advisable by any
applicable law or regulation, and PubliGroupe shall have consulted with Real
Media prior to issuing such press release or disseminating such written
material. PubliGroupe and the Acquired Corporations shall use reasonable efforts
to ensure that none of their Representatives make any public statement that is
materially inconsistent with any press release issued or any written material
publicly disseminated by Real Media with respect to the transactions
contemplated by this Agreement.
(b) Real Media shall not, and shall not permit any of its
Representatives to, issue any press release or otherwise publicly disseminate
any document or other written material relating to the transactions contemplated
by this Agreement unless (i) PubliGroupe shall have approved such press release
or written material (it being understood that PubliGroupe shall not unreasonably
withhold its approval of any such press release or written material), or (ii)
Real
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Media shall have been advised by outside legal counsel that the issuance of such
press release or the dissemination of such written material is required or
advisable by any applicable law or regulation, and Real Media shall have
consulted with PubliGroupe prior to issuing such press release or disseminating
such written material. Real Media shall use reasonable efforts to ensure that
none of its Representatives makes any public statement that is materially
inconsistent with any press release issued or any written material publicly
disseminated by PubliGroupe with respect to the transactions contemplated by
this Agreement.
4.8. SURVIVAL; INDEMNIFICATION. The representations and warranties made
in this Agreement shall survive the closing of the transactions contemplated
hereby for two years (other than with respect to Taxes, which shall survive
until the expiration of the thirty (30) day period following the expiration of
the applicable statute of limitations), and statements made in schedules
delivered hereunder shall be deemed to be representations and warranties made
hereunder. Each representing party shall indemnify, defend and hold harmless the
party to whom the representations were made (the "Recipient") and their
directors, officers, employees and Representatives against any and all claims,
damages, losses, costs or expenses (including attorneys' fees) suffered by the
Recipient due to, based upon or otherwise in respect of (i) any inaccuracy in,
or breach of, any representation made to the Recipient in this Agreement or any
schedule delivered hereunder and (ii) any breach of any covenant made by the
other party. If any claim is brought by a third party in respect of which
indemnification may be sought hereunder, then the indemnified party may not
settle such claim without the prior written consent of the indemnifying party.
PubliGroupe shall have no right of contribution from any Acquired Corporation
for any claim made by Real Media against PubliGroupe under this Section or
otherwise under this Agreement after the Closing Date. Upon the receipt by
PubliGroupe of all of the shares of Real Media Common Stock to which it is
entitled under Section 1 hereof, PubliGroupe hereby agrees that the Acquired
Corporations shall be irrevocably released and discharged of and from all
claims, liabilities, obligations and causes of action whatsoever (other than the
obligations of any Acquired Corporation (i) for the inter-company debt, if any,
referred to in the last sentence of Section 4.10 hereof and (ii) under any
contract or agreement with PubliGroupe listed on Schedule 2.8 of the PubliGroupe
Disclosure Schedule which is identified as surviving the Closing or under any
Exhibit attached hereto which PubliGroupe has or may have against any Acquired
Corporation for any matter arising at any time on or before the Closing Date.
4.9. TAX MATTERS.
(a) TERMINATION OF TAX SHARING AGREEMENT. Except as otherwise
provided in this Section 4.9, all Tax sharing agreements, arrangements, policies
and guidelines, formal or informal, express or implied, that may exist between
the Acquired Corporations and PubliGroupe or its affiliates ("Tax Sharing
Arrangements") and all obligations thereunder shall terminate as of the Closing
Date and no Acquired Corporation shall have any liability thereunder for any and
all amounts due in respect of periods prior to Closing Date.
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(b) CERTAIN PUBLIGROUPE TAX RETURNS. Each Acquired Corporation
shall continue to be included for all taxable periods ending on or before the
Closing Date in any tax returns filed with PubliGroupe or any of its affiliates
(other than the Acquired Corporations) on a consolidated, combined or similar
basis (all such Tax Returns including taxable periods of the Acquired
Corporations ending on or before the Closing Date are hereinafter referred to as
"Pre-Closing Consolidated Returns"). PubliGroupe shall timely prepare and file
(or cause to be prepared and filed) all Pre-Closing Consolidated Returns. All
Pre-Closing Consolidated Returns shall be prepared in a manner consistent with
prior practice. PubliGroupe shall timely pay (or cause to be paid) all Taxes
required to be paid with such Pre-Closing Consolidated Returns.
(c) TAX COOPERATION. After the Closing Date, PubliGroupe shall
submit to Real Media blank Tax Return workpaper packages reasonably necessary
for PubliGroupe to prepare any Pre-Closing Consolidated Returns. Real Media
shall cause the Acquired Corporations to prepare completely and accurately in
all material respects all information that PubliGroupe shall reasonably request
in such workpaper packages and shall submit to PubliGroupe such packages within
the later of 90 days after Real Media's receipt thereof or 90 days after the
close of the taxable period to which a workpaper package relates. Each party
shall cooperate with the other in connection with any tax investigation, audit
or other preceding. Following the Closing, Real Media and PubliGroupe and their
subsidiaries shall preserve all information, returns, books, record and
documents relating to any liabilities for Taxes with respect to a taxable period
until the later of the expiration of all applicable statutes of limitation and
extensions thereof, or the conclusion of all litigation with respect to Taxes
for such period.
(d) INDEMNIFICATION. After the Closing Date, PubliGroupe shall
indemnify and hold harmless Real Media from and against any Tax liability with
respect to (i) any Pre-Closing Consolidated Return or Tax Sharing Arrangements;
(ii) the Acquired Corporations attributable to or apportioned to any period on
or before the Closing Date; (iii) any Tax liability of the Acquired Corporations
attributable to the acquisition by RM Europe of the Subsidiaries or the transfer
by PubliGroupe of RM Europe, ▇▇ ▇▇▇▇ Kong or RM Singapore to Real Media pursuant
hereto; and (iv) any breach of Section 2.11 hereof. PubliGroupe shall pay such
amounts as it is obligated to pay to Real Media under the preceding sentence
within 30 days after payment of any applicable Tax liability by Real Media or
the applicable Acquired Corporation and to the extent not paid by PubliGroupe
within such 30-day period shall thereafter include interest thereon at the prime
rate.
4.10. FUNDING OF CUMULATIVE LOSSES; FORGIVENESS OF INTERCOMPANY LOANS.
All intercompany loans by PubliGroupe to each of the Acquired Corporations
outstanding on December 31, 1999 shall be forgiven and extinguished. PubliGroupe
will fund the cumulative deficit of each Acquired Corporation from inception
through December 31, 1999 with such forgiveness of all outstanding intercompany
loans and with equity capital contributions so that each Acquired Corporation
has a positive net worth as of December 31, 1999, as determined in accordance
with GAAP. PubliGroupe shall also fund the negative cash balance, if any, of
each Acquired Corporation as of December 31,1999 with equity capital
contributions. Within thirty (30) days after completion of the audit of RM
Europe for the year ended December 31, 1999,
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PubliGroupe shall pay RM Europe or Real Media any amounts which have not been
funded by PubliGroupe in accordance with this Section 4.10. Any intercompany
loan made by PubliGroupe to an Acquired Corporation on or after January 1, 2000
through the date of Closing to finance current year operations shall remain
outstanding and shall be repaid by RM Europe or Real Media within thirty (30)
days after completion of the audit of RM Europe for the year ended December 31,
1999.
SECTION 5. CERTAIN CONDITIONS
5.1. CONDITIONS TO EACH PARTY'S OBLIGATIONS. The obligations of the
parties to effect the transactions contemplated by this Agreement are subject to
the satisfaction, at or prior to the Closing, of the following conditions:
(a) AGREEMENTS. The Agreements referred to in Section 1.4(a)
hereof shall have been executed and delivered by the parties thereto in
substantially the forms attached hereto as Exhibits B through G, respectively.
(b) APPROVALS. All Governmental Authorizations and corporate
approvals required in connection with the transactions contemplated hereby shall
have been obtained and shall be in full force and effect. No temporary
restraining order, preliminary or permanent injunction or other order preventing
the consummation of the transactions contemplated hereby shall have been issued
by any court of competent jurisdiction and remain in effect, and there shall not
be any applicable law that makes consummation of this Agreement illegal.
5.2. CONDITIONS TO OBLIGATIONS OF REAL MEDIA. The obligations of Real
Media to perform this Agreement are subject to the satisfaction of the following
conditions unless waived (to the extent such conditions can be waived) by Real
Media:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the PubliGroupe and RM Europe set forth in Section 2 hereof shall
in each case be true and correct in all material respects (except for any
representation or warranty that by its terms is qualified by materiality, in
which case it shall be true and correct in all respects) as of the date of this
Agreement and as of the Closing Date as though made at and as of such dates,
respectively, and the Buyers shall have received a certificate signed by an
executive officer of PubliGroupe to that effect.
(b) PERFORMANCE OF OBLIGATIONS OF PUBLIGROUPE AND THE ACQUIRED
CORPORATIONS. Each of PubliGroupe and the Acquired Corporations shall have
performed in all material respects the obligations required to be performed by
it under this Agreement prior to or as of the Closing Date, and Real Media shall
have received a certificate signed by an executive officer of PubliGroupe to
that effect.
(c) OPINIONS OF COUNSEL. Real Media shall have received the
satisfactory opinion dated the Closing Date of legal counsel to PubliGroupe and
the Acquired Corporations, in form attached and substance reasonably
satisfactory to it.
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(d) DUE DILIGENCE. Real Media and its counsel shall be satisfied
in all respects with the results of its business, legal, environmental and
accounting due diligence investigation and review of the Acquired Corporations
which shall be performed by counsel for Real Media, accountants and other
representatives.
(e) REGISTRATION OF RM EUROPE. RM Europe shall be duly registered
as a corporation in Switzerland.
5.3. CONDITIONS TO OBLIGATIONS OF PUBLIGROUPE AND RM EUROPE. The
obligation of PubliGroupe and RM Europe to perform this Agreement are subject to
the satisfaction of the following conditions unless waived (to the extent such
conditions can be waived) by the PubliGroupe and RM Europe:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Real Media set forth in Section 3 hereof shall be true and correct
in all material respects (except for any representation or warranty that by its
terms is qualified by materiality, in which case it shall be true and correct in
all respects) as of the date of this Agreement, and as the Closing Date as
though made at and as of such date, and PubliGroupe shall have received a
certificate signed by an executive officer of Real Media to that effect.
(b) PERFORMANCE OF OBLIGATIONS OF REAL MEDIA. Real Media shall
have performed in all material respects the obligations required to be performed
by it under this Agreement prior to or as of the Closing Date and PubliGroupe
shall have received a certificate signed by an executive officer of Real Media
to that effect.
(c) OPINION OF COUNSEL TO THE BUYERS. PubliGroupe shall have
received a satisfactory opinion dated the Closing Date of Dechert Price &
▇▇▇▇▇▇, in the attached and substance reasonably satisfactory to it.
SECTION 6. TERMINATION
6.1. TERMINATION. This Agreement may be terminated notwithstanding the
approval by Real Media and PubliGroupe of this Agreement, at any time prior to
the Closing, by:
(a) the mutual consent of Real Media and PubliGroupe; or
(b) Real Media or PubliGroupe, if the conditions set forth in
Section 5.1 hereof shall not have been met by March 31, 2000, except if such
conditions have not been met solely as a result of the action or inaction of the
party seeking to terminate; or
(c) Real Media if the conditions set forth in Section 5.2 hereof
shall not have been met, and PubliGroupe if the conditions set forth in Section
5.3 hereof shall not have been met, in either case, by March 31, 2000, except if
such conditions have not been met solely as a result of the action or inaction
of the party seeking to terminate.
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Any termination pursuant to this Section 6.1 (other than a termination pursuant
to Section 6.1(a) hereof) shall be effected by written notice from the party so
terminating to the other parties hereto.
6.2. EFFECT OF TERMINATION.
In the event of the termination of this Agreement as provided in
Section 6.1, this Agreement shall be of no further force or effect; provided,
however, that the liability of any party for any breach by such party of the
representations, warranties, covenants or agreements of such party set forth in
this Agreement occurring prior to the termination of this Agreement shall
survive the termination of this Agreement.
SECTION 7. CERTAIN DEFINITIONS
7.1. DEFINITIONS. For purposes of this Agreement, the following defined
terms have the meanings set forth below:
"Acquired Corporation Contract" shall mean any Contract that is
material to any of the Acquired Corporations, to the business or operations of
any of the Acquired Corporations or to any of the transactions contemplated by
the Agreement: (a) to which any of the Acquired Corporations is a party,
including, without limitation, existing agreements with Real Media; or (b) by
which any of the Acquired Corporations or any asset of any of the Acquired
Corporations is bound or under which any of the Acquired Corporations has any
obligation, except for agreements for the license to an Acquired Corporation of
software generally available to the public.
"Acquired Corporation Proprietary Asset" shall mean any material
Proprietary Asset owned by or exclusively licensed to any of the Acquired
Corporations, except for agreements for the license to an Acquired Corporation
by Real Media or of software generally available to the public. As used herein,
"exclusively licensed" means exclusively licensed for commercial use subject to
certain retentions, exceptions and license-backs.
"Closing Market Price" shall mean the last reported sales price of the
Real Media Common Stock on the NASDAQ National Market System, or if such
securities are not included in such system, then the highest closing bid
quotation in the over-the-counter market.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Consent" shall mean any approval, consent, ratification, permission,
waiver or authorization (including any Governmental Authorization).
"Contract" shall mean any written, oral or other agreement, contract,
subcontract, lease, understanding, instrument, note, option, warranty, purchase
order, license, sublicense, insurance policy, benefit plan or legally binding
commitment or undertaking of any nature.
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"Encumbrance" shall mean any lien, pledge, hypothecation, charge,
mortgage, security interest or encumbrance.
"Entity" shall mean any corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, company (including any limited
liability company or joint stock company), firm or other enterprise,
association, organization or entity.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" shall mean, with respect to any Entity, (i) any
corporation included with such Entity in a controlled group of corporations
within the meaning of Section 414(b) of the Code; (ii) any trade or business
(whether or not incorporated) which is under common control with such Entity
within the meaning of Section 414(c) of the Code; (iii) any member of an
affiliate service group of which such Entity is a member within the meaning of
Section 414(m) of the Code; or (iv) any other person or entity treated as an
affiliate of such Entity under Section 414(o) of the Code.
"Fair Market Value" of the RMSA Interest or any portion thereof shall
be determined as follows. Upon notice delivered by Real Media or PubliGroupe
exercising the Purchase Election or Sale Election, as the case may be, Real
Media and PubliGroupe shall commence good faith negotiations to agree upon the
Fair Market Value. If within 30 days of the delivery of such notice Real Media
and PubliGroupe shall not have agreed upon the Fair Market Value, then Real
Media and PubliGroupe may jointly agree to continue their negotiations. Failing
such agreement, Real Media and PubliGroupe shall each promptly retain an
investment bank of recognized international standing (a "Bank"). The fees and
expenses of each Bank shall be paid by the party who retained such Bank. Each
Bank shall be instructed to render an estimation of the Fair Market Value within
30 days of its engagement, and the Fair Market Value shall be determined by
calculating the mean of the Banks' estimates of the Fair Market Value. If,
however, the higher of such estimations is greater than 120% of the lower of
such estimations, then the Banks shall promptly nominate a third Bank (the
"Third Bank"). Real Media and PubliGroupe shall jointly appoint the Third Bank,
and the Fair Market Value shall be determined by calculating the mean of the
Third Bank's estimation of the Fair Market Value and whichever Bank's estimation
of the Fair Market Value is closer in value to the estimation of the Third Bank.
The fees and expenses of the Third Bank shall be paid by (i) Real Media, if the
Third Bank's estimation of Fair Market Value is closer to the estimation
provided by the Bank retained by PubliGroupe than to the estimation provided by
the Bank retained by Real Media, or (ii) PubliGroupe, if the Third Bank's
determination of Fair Market Value is closer to the estimation provided by the
Bank retained by Real Media than to the estimation provided by the Bank retained
by PubliGroupe. The Third Bank shall render its estimation of the Fair Market
Value within thirty days of its engagement. Any determination of Fair Market
Value hereunder shall be final and binding upon the parties hereto. The Banks
and the Third Bank shall calculate the Fair Market Value of the RMSA Interest or
any portion thereof without giving any consideration to minority status or the
lack of liquidity thereof.
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"Governmental Authorization" shall mean any: permit, license,
certificate, franchise, permission, clearance, registration, qualification or
authorization issued, granted, given or otherwise made available by or under the
authority of any Governmental Body or pursuant to any Legal Requirement.
"Governmental Body" shall mean any: (a) nation, state, commonwealth,
canton, province, territory, county, municipality, district or other
jurisdiction of any nature; (b) federal, state, local, municipal, foreign or
other government; or (c) governmental or quasi-governmental authority of any
nature (including any governmental division, department, agency, commission,
instrumentality, official, organization, unit, body or Entity and any court or
other tribunal).
"Legal Proceeding" shall mean any action, suit, litigation,
arbitration, proceeding or hearing conducted or heard by or before, or otherwise
involving, any court or other Governmental Body or any arbitrator or arbitration
panel.
"Legal Requirement" shall mean any federal, state, local, municipal,
foreign or other law, statute, constitution, ordinance, code, rule or
regulation, issued, enacted, adopted, promulgated, implemented or otherwise put
into effect by or under the authority of any Governmental Body.
"Material Adverse Effect" shall mean any event, violation, inaccuracy,
circumstance or other matter will be deemed to have a "Material Adverse Effect"
on the Acquired Corporations if such event, violation, inaccuracy, circumstance
or other matter would have a material adverse effect on the business, condition,
assets, liabilities, operations or financial performance of the Acquired
Corporations taken as a whole. An event, violation, inaccuracy, circumstance or
other matter will be deemed to constitute a "Material Adverse Effect" on Real
Media if such event, violation, inaccuracy, circumstance or other matter would
have a material adverse effect on the business, condition, assets, liabilities,
operations or financial performance of Real Media and its subsidiaries taken as
a whole.
"Person" shall mean any individual, Entity or Governmental Body.
"Proprietary Asset" shall mean any: (a) patent, patent application,
trademark (whether registered or unregistered), trademark application, trade
name, fictitious business name, service ▇▇▇▇ (whether registered or
unregistered), service ▇▇▇▇ application, copyright (whether registered or
unregistered), copyright application, maskwork, maskwork application, trade
secret, know-how, computer software, computer program, source code, algorithm,
invention, proprietary product, technology, proprietary right or other
intellectual property right or intangible asset; or (b) right to use or exploit
any of the foregoing.
"PubliGroupe Plan" shall mean each material defined compensation,
incentive compensation, stock purchase, stock option and other equity
compensation plan, program, agreement or arrangement; each material severance or
termination pay, medical, surgical, hospitalization, life insurance and other
welfare benefit plan, fund or similar program; each material profit-sharing,
stock bonus or other pension plan, fund or similar program; each material
employment, termination or severance agreement; and each other material employee
benefit
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plan, fund, program, agreement or arrangement, in each case that is sponsored,
maintained or contributed to or required to be contributed to by any Acquired
Corporation, or to which any Acquired Corporation is a party, whether written or
oral, for the benefit of any employee or former employee of the Acquired
Corporation.
"Real Media Contract" shall mean any Contract that is material to Real
Media, to the business or operations of Real Media or to any of the transactions
contemplated by this Agreement: (a) to which Real Media is a party; or (b) by
which Real Media or any of its assets are bound or under which Real Media has
any obligation, except for agreements for the license to Real Media of software
generally available to the public.
"Real Media Plan" means each material defined compensation, incentive
compensation, stock purchase, stock option and other equity compensation plan,
program, agreement or arrangement; each material severance or termination pay,
medical, surgical, hospitalization, life insurance and other "welfare" plan,
fund or program (within the meaning of Section 3(1) of ERISA); each material
profit-sharing, stock bonus or other "pension" plan, fund or program (within the
meaning of Section 3(2) of ERISA); each material employment, termination or
severance agreement; and each other material employee benefit plan, fund,
program, agreement or arrangement, in each case that is sponsored, maintained or
contributed to or required to be contributed to by Real Media or any ERISA
Affiliate of Real Media, that together with Real Media would be deemed a "single
employer" within the meaning of Section 4001(b) of ERISA, or to which Real Media
or any of Real Media's ERISA Affiliate, is a party, whether written or oral, for
the benefit of any employee or former employee of Real Media and whether or not
subject to ERISA.
"Real Media Proprietary Asset" shall mean any material Proprietary
Asset owned by or exclusively licensed to Parent or its subsidiaries except for
agreements for the license to Parent or its subsidiaries of software generally
available to the public. As used herein, "exclusively licensed" means
exclusively licensed for commercial use subject to certain retentions,
exceptions and license-backs.
"Representatives" shall mean officers, directors, employees, agents,
attorneys, accountants, advisors and representatives.
"SEC" shall mean the United States Securities and Exchange Commission.
"Tax" shall mean any tax (including any income tax, franchise tax,
capital gains tax, gross receipts tax, value-added tax, surtax, excise tax, ad
valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business
tax, withholding tax or payroll tax), levy, assessment or other similar charge
together with any interest fines or penalties thereon, imposed, assessed or
collected by or under the authority of any Governmental Body.
"Tax Return" shall mean any return, declaration, report or similar
statement (including any information return) filed with or submitted to, or
required to be filed with or submitted to, any Governmental Body in connection
with the determination, assessment, collection or payment
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of any Tax or in connection with the administration, implementation or
enforcement of or compliance with any Legal Requirement relating to any Tax.
SECTION 8. MISCELLANEOUS PROVISIONS
8.1. AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
8.2. WAIVER.
(a) No failure on the part of any party to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
party 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.
(b) No party shall be deemed to have waived any claim arising out
of this Agreement, or any power, right, privilege or remedy 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 such party; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
8.3. ENTIRE AGREEMENT; COUNTERPARTS; APPLICABLE LAW. This Agreement and
the other agreements referred to herein constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral, among
or between any of the parties with respect to the subject matter hereof and
thereof. This Agreement may be executed in several counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same
instrument, and shall be governed in all respects by the laws of the State of
New York without regard to the conflicts of laws principles thereof.
8.4. ASSIGNABILITY. This Agreement shall be binding upon, and shall be
enforceable by and inure solely to the benefit of, the parties hereto and their
respective permitted successors and assigns; provided, however, that neither
this Agreement nor any of any party's rights or obligations hereunder may be
assigned by any party without the prior written consent of the other parties
hereto, and any attempted assignment of this Agreement or any of such rights or
obligations without such consent shall be void and of no effect. Nothing in this
Agreement is intended to or shall confer upon any Person any third-party rights
under or by reason of this Agreement.
8.5. NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized, overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
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To Real Media:
Real Media, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Dechert Price & ▇▇▇▇▇▇
4000 ▇▇▇▇ Atlantic Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To PubliGroupe and RM Europe:
PubliGroupe S.A.
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇-▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇-▇▇-▇▇▇-▇▇▇▇
with a copy to:
Squadron, Ellenoff, Plesent & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and other communications shall be deemed to have been received
(a) in the case of personal delivery, on the date of such delivery, (b) in the
case of a telecopy, when the party receiving such telecopy shall have confirmed
receipt of the communication, (c) in the case of delivery by
nationally-recognized, overnight courier, on the business day following dispatch
and (d) in the case of mailing, on the fifth business day following such
mailing.
8.6. COOPERATION. Each party agrees to cooperate fully with the other
party and to execute and deliver such further documents, certificates,
agreements and instruments and to take
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such other actions as may be reasonably requested by the other party to evidence
or reflect the transactions contemplated by this Agreement and to carry out the
intent and purposes of this Agreement.
8.7. TITLES. The titles and captions of the Sections of this Agreement
are included for convenience of reference only and shall have no effect on the
construction or meaning of this Agreement.
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In Witness Whereof, the parties have caused this Agreement to be
executed as of the date first above written.
REAL MEDIA, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and CEO
PUBLIGROUPE S.A.
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: CEO
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: CFO
REAL MEDIA EUROPE HOLDING S.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman of the Board
By: /s/ ▇▇▇▇▇▇ Annasohn
------------------------------
Name: ▇▇▇▇▇▇ Annasohn
Title: Director
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EXHIBIT A
PREFERRED STOCK TERMS
39
EXHIBIT A
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES A CONVERTIBLE PREFERRED STOCK
OF
REAL MEDIA, INC.
REAL MEDIA, Inc., a Delaware corporation (hereinafter called
the "Corporation"), pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, does hereby make this Certificate of
Designation under the corporate seal of the Corporation and does hereby state
and certify that pursuant to the authority expressly vested in the Board of
Directors of the Corporation by the Certificate of Incorporation, the Board of
Directors has duly adopted the following resolutions:
RESOLVED, that, pursuant to Article 4 of the Certificate of
Incorporation, as amended (which authorizes 9,000,000 shares of Preferred Stock,
$.001 par value per share, none of which is presently issued and outstanding),
the Board of Directors hereby fixes the designations and preferences and
relative, participating, optional and other special rights and qualifications,
limitations and restrictions of a series of Preferred Stock consisting of
450,000 shares to be designated Series A Convertible Preferred Stock.
SERIES A CONVERTIBLE PREFERRED STOCK
RESOLVED, that each share of the Series A Convertible
Preferred Stock shall rank equally in all respects and shall be subject to the
following provisions:
1. Designation, Number of Shares
The first series of Preferred Stock shall be designated as the Series A
Convertible Preferred Stock (hereinafter called "Series A Preferred Stock"), and
the number of shares which shall constitute such series shall be 450,000. The
par value of the Series A Preferred Stock shall be $.001 per share.
2. Dividends.
(a) The holders of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds of the
Corporation legally available therefor, such dividends on each share of Series A
Preferred Stock as may be declared by the Board of Directors.
(b) Each dividend on Series A Preferred Stock when paid shall be
payable to holders of record as they appear on the stock books of the
Corporation on the date established by the Board of Directors of the Corporation
as the record date for the payment of such dividend (which record date shall not
precede the date upon which the resolution fixing such record date is adopted
and which record date shall be not more than sixty days prior to such action).
If no
40
record date is fixed, the record date for determining holders for such purpose
shall be at the close of business on the date on which the Board of Directors
adopts the resolution relating to such dividend payment.
(c) All dividends paid upon shares of Series A Preferred Stock shall be
paid pro rata to the Holders entitled thereto.
3. Preference on Liquidation.
(a) In the event that the Corporation shall be liquidated, dissolved or
wound up, whether voluntarily or involuntarily, after all creditors of the
Corporation shall have been paid in full, the holders of the Series A Preferred
Stock shall be entitled to receive, out of the assets of the Corporation legally
available for distribution to its stockholders, whether from capital, surplus or
earnings, before any amount shall be paid to the holders of any shares of Common
Stock, an amount equal to $5.00 in cash per share plus an amount equal to any
dividends accrued and unpaid thereon to the date of final distribution, and no
more. If upon any liquidation, dissolution or winding up of the Corporation, the
net assets of the Corporation shall be insufficient to pay the holders of all
outstanding shares of Series A Preferred Stock the full amounts to which they
respectively shall be entitled, such assets, or the proceeds thereof, shall be
distributed ratably among the holders of the Series A Preferred Stock. Holders
of Series A Preferred Stock shall not be entitled, upon the liquidation,
dissolution or winding up of the Corporation, to receive any amounts with
respect to such stock other than the amounts referred to in this paragraph 3(a).
(b) Neither the purchase nor redemption by the Corporation of shares of
any class of stock in any manner permitted by the Certificate of Incorporation
or any amendment thereof, nor the merger or consolidation of the Corporation
with or into any other corporation or corporations, nor a sale, transfer or
lease of all or substantially all of the Corporation's assets shall be deemed to
be a liquidation, dissolution or winding up of the Corporation for the purposes
of this paragraph 3.
4. Redemption.
The Series A Preferred Stock shall not be redeemable by the Corporation
or the holders thereof.
5. Conversion. The holders of shares of Series A Preferred Stock shall
have conversion rights as follows:
(a) Right to Convert.
(i) Subject to Section 5(a)(ii) hereof, each share of Series A
Preferred Stock shall be convertible, at the option of the holder thereof, at
any time after the earlier to occur of (A) October 1, 2000 or (B) the date of
closing for the External Financing (as defined in the Second Amended and
Restated Stockholders and Voting Agreement dated January __, 2000 by and among
PubliGroupe, S.A., Advance Internet, and certain other stockholders of the
Company, a copy of which is on file with the Secretary of the Corporation), at
the office of the Corporation or any transfer agent for the Series A Preferred
Stock, into one fully paid and
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nonassessable share of Common Stock (the "Conversion Rate"). The Conversion Rate
for the Series A Preferred Stock shall be subject to adjustment as set forth in
Section 5(c) hereof.
(ii) Each share of Series A Preferred Stock shall automatically be
converted into fully paid and nonassessable shares of Common Stock at the
Conversion Rate in effect for the Series A Preferred Stock immediately prior to
the closing of the first sale by the Corporation of shares of its Common Stock
in a firmly underwritten public offering registered under the Securities Act of
1933, as amended.
(b) Mechanics of Conversion. Before any holder of shares of Series A
Preferred Stock shall be entitled to convert any of such shares into shares of
Common Stock, such holder shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Corporation or of any transfer
agent for the office of the Corporation or of any transfer agent for the Series
A Preferred Stock, and shall give written notice by mail, postage prepaid, or
hand delivery, to the Corporation at its principal corporate office, of the
election to convert the same and shall state therein the name or names in which
the certificate or certificates for shares of Common Stock are to be issued. The
Corporation shall, as soon as practicable thereafter, issue and deliver at such
office to such holders of shares of Series A Preferred Stock, or to the nominee
or nominees of such holders, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of such surrender of the shares of Series A Preferred Stock
to be converted, and the person or persons entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder or holders of such shares of Common Stock as of such date. If
the conversion is in connection with an underwritten offering of securities
registered pursuant to the Securities Act of 1933, as amended, the conversion
may, at the option of any holder tendering the Series A Preferred Stock for
conversion, be conditioned upon the closing with the underwriter of the sale of
securities pursuant to such offering, in which event the person(s) entitled to
receive Common Stock issuable upon such conversion of the Series A Preferred
Stock shall not be deemed to have converted such Series A Preferred Stock until
immediately prior to the closing of such sale of securities.
(c) Conversion Rate Adjustments of Series A Preferred Stock. The
Conversion Rate of the Series A Preferred Stock shall be subject to adjustment
from time to time as follows:
(i) In the event the Corporation at any time or from time to time
after the Series A Issuance Date fixes a record date for the effectuation of a
split or subdivision of the outstanding shares of Common Stock or the
determination of holders of shares of Common Stock entitled to receive a
dividend or other distribution payable in additional shares of Common Stock or
other securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as "Common Stock Equivalents") without payment of any consideration
by such holder for the additional shares of Common Stock or Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such dividend, distribution, split or subdivision if no record date is fixed),
the number of shares of Common Stock issuable on conversion of each share of
Series A Preferred Stock shall be increased in proportion to such increase in
the aggregate number of shares issuable with respect to Common Stock
Equivalents.
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(ii) If the number of shares of Common Stock outstanding at any
time after the Series A Issuance Date is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date of such
combination, the number of shares of Common Stock issuable on conversion of each
share of Series A Preferred Stock shall be decreased in proportion to such
decrease in the outstanding shares of Common Stock.
(d) Other Distributions. In the event the Corporation shall declare a
distribution payable in securities of other persons, evidences of indebtedness
issued by the Corporation or other persons, assets (excluding cash dividends) or
options or rights not referred to in Section 5(c)(i) hereof, then, in each such
case for the purpose of this Section 5(d), the holders of shares of Series A
Preferred Stock shall be entitled to a proportionate share of any such
distribution as though they were holders of the number of shares of Common Stock
into which their shares of Series A Preferred Stock are convertible as of the
record date fixed for the determination of the holders of shares of Common Stock
entitled to receive such distribution.
(e) Recapitalization. If at any time or from time to time there shall
be a recapitalization of Common Stock provision shall be made so that each
holder of shares of Series A Preferred Stock shall thereafter be entitled to
receive, upon conversion of the Series A Preferred Stock, the number of shares
of stock or other securities or property of the Corporation or otherwise,
receivable upon such recapitalization by a holder of the number of shares of
Common Stock into which such shares of Series A Preferred Stock could have been
converted immediately prior to such recapitalization. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section 5 with respect to the rights of the holders of shares of Series A
Preferred Stock after the recapitalization to the end that the provisions of
this Section 5 (including adjustments of the Conversion Rate then in effect and
the number of shares purchasable upon conversion of the Series A Preferred
Stock) shall be applicable after that event as nearly equivalent as may be
practicable.
(f) No Fractional Shares. No fractional shares shall be issued upon
conversion of the Series A Preferred Stock, and the number of shares of Common
Stock to be issued shall be rounded down to the nearest whole share, and there
shall be no payment to a holder of shares of Series A Preferred Stock for any
such rounded fractional share. Whether or not fractional shares result from such
conversion shall be determined on the basis of the total number of shares of
Series A Preferred Stock the holder is at the time converting into Common Stock
and the number of shares of Common Stock issuable upon such aggregate
conversion.
(g) Reservation of Stock Issuable Upon Conversion. The Corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of Series A Preferred Stock, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of Series A Preferred Stock, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of Series A Preferred Stock, then
in addition to such other remedies as shall be available to the holder of such
shares of Series A Preferred Stock, the Corporation will take such corporate
action as may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purposes.
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6. Reissuance of Shares
Shares of Series A Preferred Stock which have been converted or
purchased shall have the status of authorized and unissued shares of preferred
stock and may be reissued as part of a new series of preferred stock to be
created by resolution or resolutions of the Board of Directors or as part of any
other series of preferred stock, all subject to the conditions or restrictions
on issuance set forth in any resolution or resolutions adopted by the Board of
Directors providing for the issuance of any series of preferred stock.
7. Voting
The holders of shares of the Series A Preferred Stock shall have no
voting rights whatsoever, except such rights as may be required by law. On any
matters on which the holders of the Series A Preferred Stock shall be entitled
to vote, they shall be entitled to one vote for each share held.
IN WITNESS WHEREOF, REAL MEDIA, Inc. has caused this Certificate of
Designation to be signed by its President, and attested by its Secretary, this
__th day of ______, 2000.
ATTEST: REAL MEDIA, INC.
---------------------------- ----------------------------
Secretary President
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EXHIBIT B
SECOND AMENDED AND RESTATED VOTING AND STOCKHOLDERS AGREEMENT
45
EXHIBIT B
SECOND AMENDED AND RESTATED
VOTING AND STOCKHOLDERS AGREEMENT
THIS SECOND AMENDED AND RESTATED VOTING AND STOCKHOLDERS
AGREEMENT (this "Agreement") is made as of this __ day of ________, 2000, by and
among Real Media, Inc., a Delaware corporation (the "Company"), PubliGroupe USA
Holding, Inc., a Delaware corporation ("PubliGroupe USA"), PubliGroupe S.A.
(together with PubliGroupe USA, "PubliGroupe" or an "Investor"), Advance
Internet, Inc., a New Jersey corporation ("Advance" or an "Investor") and the
persons listed as Founders on the signature page hereto (the "Founders" and,
with the Investors, the "Stockholders").
BACKGROUND
PubliGroupe and the Company have entered into a Stock Purchase
Agreement dated as of ____________, 2000 (the "Acquisition Agreement"). The
transactions contemplated by the Acquisition Agreement (the "Acquisition") are
closing on the date hereof and pursuant to the Acquisition Agreement, the
Company will acquire Real Media Europe (as defined therein) from PubliGroupe and
PubliGroupe will receive additional shares of the Company's common stock, par
value $.01 per share (the "Common Stock") and shares of the Company's Series A
Convertible Preferred Stock ("Preferred Stock"). After giving effect to the
Acquisition, PubliGroupe, Advance and the Founders will own 72%, 11.44% and
12.45%, respectively, of the equity securities of the Company (calculated in
accordance with the Acquisition Agreement).
The parties have previously entered into an Amended and Restated Voting
and Stockholders' Agreement dated as of April 8, 1998 (the "1998 Stockholders
Agreement") which set forth certain rights and obligations with respect to the
election of directors and other corporate governance matters pertaining to the
Company. The Company is contemplating an initial, firm commitment public
offering of its Common Stock registered with the U.S. Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Initial Public
Offering") and the parties desire to amend and restate the 1998 Agreement to set
forth new provisions regarding the governance and other affairs of the Company
and for the transfer of their shares of Real Media pending the Initial Public
Offering.
NOW, THEREFORE, in consideration of the agreements set forth below, the
parties agree as follows:
1. DEFINITION. As used in this Agreement, the term "Shares" means all
shares of equity securities of the Company (i) now or hereafter owned (either
beneficially or of record) by a Stockholder, and (ii) which a Stockholder does
not own (either beneficially or of record) but as to which it now or hereafter
has the right to exercise voting control.
2. DESIGNATION OF NOMINEES.
(a) The Board of Directors of the Company shall be composed of
no more than nine members. PubliGroupe shall have the right to designate three
nominees for election as directors of the Company (the "PubliGroupe Nominees").
Two nominees for election as directors of the Company shall be designated by the
Founders owning at least a majority of
46
the total number of Shares held by the Founders (the "Founder Nominees"). The
Chief Executive Officer of the Company on the date hereof (the "CEO Nominee")
shall be designated as a nominee for election as a director of the Company. The
remaining three directors shall be "Independent Directors." The initial
Independent Director Nominees shall be designated as follows: (i) Advance shall
have the right to designate one of the Independent Directors who may be a United
States resident; and (ii) the other two Independent Directors shall be nominated
by the affirmative vote of at least five of the CEO Nominee, Founder Nominees,
the Independent Director designated by Advance, and PubliGroupe Nominees, voting
together as a single group (the Independent Director nominees designated under
clauses (i) and (ii) being hereinafter referred to as the "Independent Director
Nominees"). At least two of the three Independent Director Nominees shall be
non-United States residents so that if Advance designates an Independent
Director who is a United States resident, the remaining two Independent
Directors shall be non-United States residents, unless otherwise consented to by
PubliGroupe. Each Independent Director Nominee elected to the initial Board of
Directors shall continue to serve until such Independent Director Nominee
resigns or is removed as a Director in accordance with the terms of this
Agreement. Advance shall designate its Independent Director Nominee as soon as
practicable but in any event before the closing of the Public Offering. Pending
the designation by Advance of its Independent Director, Advance may designate
another nominee to the Board of Directors which is not an Independent Director
to serve until the replacement Independent Director Nominee is designated by
Advance.
(b) Notwithstanding the foregoing, in the event the Initial
Public Offering shall not have occurred by June 30, 2000, Advance shall have the
right to request the removal of any Independent Director designated by Advance
(or such Director's successor) and designate a replacement nominee which may or
may not be an Independent Director (the "Advance Nominee"), and the Board of
Directors shall promptly take such action as is necessary to elect the
designated Advance Nominee.
(c) An "Independent Director" means an individual who (i) is
"independent" as defined in the listing standards of NASDAQ for purposes of
serving as a member of an audit committee, (ii) is not an officer, director or
other employee of the Company or the Investors, or of any entity controlled by,
controlling or under common control with, the Company or the Investors (a
"Prohibited Employee"); (iii) is not an individual who is an employee, officer,
director, partner, member, or 10% or greater equity owner in any entity that,
during the year of determination, had liabilities owing to or from the Company
or the Investors in an amount exceeding 10% of such entity's revenues for such
year or 10% of the Company's or Investors' revenues for the immediately
preceding , as the case may be (a "Prohibited Business Partner"); or (iv) is not
a family member of a Founder, Prohibited Employee or Prohibited Business
Partner.
3. ELECTION OF DIRECTORS. The Stockholders shall take, at any time and
from time to time, all action necessary (including voting the shares owned by
him or it or delivering written consents) to cause the election of nominees to
the Board of Directors designated in accordance with Section 2 above. In
addition, the Stockholders and the Company shall take all other action necessary
so that the Bylaws and Certificate of Incorporation of the Company are
consistent with this Agreement and neither the Stockholders nor the Company
shall take any
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action (e.g., by amending the By-laws or the Certificate of Incorporation or
otherwise) which would in any way derogate from the rights granted to the
Stockholders hereunder.
4. SUCCESSOR DIRECTORS.
(a) If any PubliGroupe Nominee shall cease to serve as a
director for any reason, PubliGroupe shall have the right to designate a
successor PubliGroupe Nominee, and the Board of Directors shall promptly take
such action as is necessary to elect the designated successor Nominee.
(b) If any Founder Nominee shall cease to serve as a director
for any reason, the Founders owning at least a majority of the total number of
Shares then held by the Founders shall have the right to designate a successor
Founder Nominee, and the Board of Directors shall promptly take such action as
is necessary to elect the designated successor Nominee.
(c) If the Advance Nominee, if any, shall cease to serve as a
director for any reason, Advance shall have the right to designate a successor
Advance Nominee and the Board of Directors shall promptly take such action as is
necessary to elect the designated successor Nominee.
(d) If (i) PubliGroupe notifies the Company that it desires to
remove any of the PubliGroupe Nominees, or (ii) the Founders owning at least a
majority of the total number of Shares then held by the Founders notify the
Company that they desire to remove a Founder Nominee, or (iii) Advance notifies
the Company that it desires to remove the Advance Nominee, if any, the Board of
Directors of the Company shall promptly take such action as is necessary to
effect such removal and to elect any successor Nominee which has been designated
in accordance with Sections 2(a)-(c) above .
(e) If the CEO Nominee shall cease to be the Chief Executive
Officer of the Company for any reason, the Board of Directors shall have the
right to remove the CEO Nominee as a director of the Company by the affirmative
vote of a majority of the remaining members of the Board of Directors. If the
CEO Nominee shall cease to serve as a director for any reason, the Board of
Directors of the Company shall elect a replacement CEO Nominee or an Independent
Director which is designated by a majority vote of the remaining members of the
Board of Directors.
(f) Except as provided in Section 2(b), if any Independent
Director Nominee shall cease to serve as a director for any reason, the Board of
Directors of the Company shall as soon as practicable elect the replacement
Independent Director Nominee which is designated by a majority vote of the
remaining members of the Board of Directors. If at the time of election of the
replacement Independent Director Nominee there are fewer than two Independent
Director Nominees who are non-United States residents, then such replacement
shall be a non-United States resident unless otherwise consented to by
PubliGroupe. Each Independent Director Nominee elected under this clause (f)
shall continue to serve until such Independent Director Nominee resigns or is
removed as a Director in accordance with the terms of this Agreement.
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(g) Except as provided in Section 2(b), an Independent
Director Nominee may be removed only by the vote or consent of at least 75% of
the entire Board of Directors. If an Investor, or the Founders owning at least a
majority of the total number of Shares then held by the Founders, notify the
Company that it or they desire to remove an Independent Director, the Board of
Directors of the Company shall take such action as may be necessary to ensure
that a meeting of the Board of Directors is promptly called for the purpose of
voting upon such removal.
5. MANAGEMENT AND CONTROL.
(a) The business and affairs of the Company shall be managed
by or under the direction of the Company's Board of Directors. Without limiting
the generality of the foregoing, and subject to applicable law, the Board of
Directors shall be responsible for making determinations with respect to the
following, and the Company shall not take any of the actions set forth in the
following clauses (i)-(iv) without the affirmative vote or consent of a majority
of the Board of Directors, or any of the actions set forth in the following
clauses (v-x) without the affirmative vote or consent of seven members of the
Board of Directors:
(i) hire or terminate any executive officers;
(ii) incur or refinance any existing indebtedness of
more than US $1,000,000;
(iii) pay any dividends;
(iv) issue or redeem any equity securities;
(v) make any capital expenditures of US $1,000,000 or
more in any two month period which are not included in the Company's capital
budget;
(vi) adopt or effect any plan of sale, merger,
consolidation, dissolution, reorganization or recapitalization of the Company;
(vii) sell all or substantially all of the assets of
the Company;
(viii) appoint or remove a Chairman of the Board of
Directors;
(ix) enter into a significant new line of business
which is unrelated to the Company's then existing business, abandon any
significant line of business, or otherwise fundamentally change the nature of
the Company's business; or
(x) change the number of directors constituting the
Company's Board of Directors or otherwise amend or circumvent in any manner the
provisions set forth in Sections 2, 3 and 4 of this Agreement.
(b) The annual operating budget for the Company shall be
subject to approval by a majority of the Company's Board of Directors. If the
Company shall commence operations in a new fiscal year prior to the adoption of
the annual operating budget for such year,
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then the Company shall continue to operate under the budget adopted for the
immediately preceding fiscal year until such time as the new operating budget
shall be adopted using the last fiscal quarter of 2000 as the base for the year.
(c) The chief executive officer of the Company shall be
responsible for the strategic planning, day-to-day operations and decisions for
the Company and such other duties as the Board of Directors of the Company may
assign.
6. VOTING OF PUBLIGROUPE SHARES. In addition to the obligations set
forth in Sections 2, 3 and 4 hereof, so long as PubliGroupe owns more than
33-1/3% of the outstanding shares of Common Stock of the Company, PubliGroupe
shall vote all Shares which it holds in excess of such 33-1/3% ("Excess Shares")
in accordance with the recommendation of a majority of the entire Board of
Directors on all matters submitted for approval by the Stockholders of the
Company. PubliGroupe shall not vote or otherwise take any action or consent with
respect to the Excess Shares in the absence of such recommendation by the Board
of Directors. Notwithstanding the foregoing, PubliGroupe shall be empowered to
vote the Excess Shares in its discretion in connection with (i) any merger or
other business combination pursuant to which the shares would be converted into
cash or another security, (ii) any merger or other business combination in which
the stockholders of the entity combining with the Company would own a majority
of the voting power of the combined entity or (iii) any sale of all or
substantially all of the Company's assets.
7. LOANS.
(a) PubliGroupe and Advance shall loan to the Company an
aggregate of US $15 million (the "Commitment"), of which PubliGroupe shall
provide US $13 million and Advance shall provide US $2 million. Of the total
amount of the Commitment, US $3 million may be borrowed at any time after the
date hereof for the following purposes: acquisitions, investments and expansion
activities which are included in the Company's operating budget or otherwise
approved by the Board of Directors, including without limitation, the
investments in South Africa, Australia and interactive television in the United
Kingdom (the "Development Loans"). The US $12 million balance of the Commitment
may be borrowed by the Company for general corporate purposes included in the
Company's capital budget in amounts not to exceed US $2.884 million per month
("Working Capital Loans"), commencing March 1, 2000 and ending on the Loan
Maturity Date (as defined in Section 7(c)(iii) below). The Development Loans and
the Working Capital Loans are sometimes hereinafter referred to collectively as
the "Loans" and individually as a "Loan."
(b) Each Loan hereunder shall be made on notice given by the
Company to PubliGroupe and Advance in writing, or by telephone with immediate
written confirmation, at least five (5) business days prior to the date of the
proposed Loan. The Company's request for a Loan shall specify the amount and
type of Loan requested indicating in the case of a Development Loan the
particular project that is being funded. Upon receipt of a proper Loan request
from the Company, PubliGroupe and Advance shall make the requested Loan to the
Company in immediately available funds. Each Loan shall be funded 86.67% by
PubliGroupe and 13.33% by Advance and the obligation of PubliGroupe and Advance
to make Loans shall be several and not joint.
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(c) Each Loan made by PubliGroupe and Advance hereunder shall
be evidenced by a promissory note of the Company issued to each of them in
substantially the form attached hereto as Exhibit A (the "Note"). The Loans will
have the following terms: (i) the unpaid principal balance of any Loan shall
bear interest at the annual rate equal to the prime rate (as published by the
Wall Street Journal, Eastern Edition); (ii) the Company shall pay interest on
the Loan on the date of its maturity; (iii) the principal amount of the Loans
shall become due and payable on the earliest to occur of (A) the closing of the
Initial Public Offering (in which case proceeds from the Initial Public Offering
shall be used to pay off the Loans), or (B) the date which is one year after the
date of the initial Loan made under this Section 7 (the "IPO Expiration Date"),
or (C) the closing of the External Financing pursuant to Section 8 hereof (the
"Loan Maturity Date"); (iv) the Company may prepay the Loans at any time without
premium or penalty; and (v) if the principal balance is not paid when due, the
holder of the Note will have the right to convert the Note into shares of Common
Stock of the Company at a conversion price equal to the "fair market value" of a
share of Common Stock at the time of conversion. For purposes of establishing
the conversion price for the note, "fair market value" shall mean the greater of
(i) the fair market value per share of Common Stock most recently established by
the Board of Directors prior to the maturity date for the Loan for options
granted to employees of the Company under the Company's 1999 Stock Option Plan
or (ii) the value per share of Common Stock established for the equity of the
Company by the New Investor in connection with the External Financing (as
defined in Section 8(b) below), determined on a fully diluted basis after giving
effect to the exercise of all outstanding options and other convertible
securities but before any investment is made by the New Investor.
8. EXTERNAL FINANCING; RIGHT OF FIRST OFFER.
(a) If the Company shall desire to issue new debt and/or
equity securities (other than Excluded Securities as provided in Section 8(e)
below) at any time after the Company shall have borrowed the entire Commitment
under Section 7 above, the Company shall submit a written notice to PubliGroupe
and Advance (the "Investors") including in such notice (the "Offer Notice") the
total amount of capital desired, the total amount of equity securities of the
Company, if any, proposed to be issued (which may be expressed as a percentage
of the total equity of the Company after giving effect to the issuance of such
securities), the price for any equity securities being offered, and a general
description of any other material terms of the debt and/or equity securities
proposed for sale (the "Offered Securities").
(b) Within ten (10) business days after receipt of the Offer
Notice, the Investors shall jointly submit a written proposal to the Company to
purchase all of the Offered Securities (the "Joint Investor Offer") for the
price specified by the Company in the Offer Notice or for a different price
specified by the Investors in their proposal to the Company. If the purchase
price for the Offered Securities specified by the Investors in the Joint
Investor Offer is equal to or greater than the price specified by the Company in
the Offer Notice, the Company and the Investors shall complete the purchase and
sale of the Offered Securities on such terms at a closing to be held within ten
(10) business days after the submission of the Joint Investor Offer to the
Company. If the purchase price for the Offered Securities specified by the
Investors in the Joint Investor Offer is less than the price specified by the
Company in the Offer Notice, the Company and the Investors shall negotiate
diligently and in good faith to reach agreement for the purchase of the Offered
Securities by the Investors.
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(c) If the Investors are unable to agree with each other on
the terms of a joint proposal to be submitted to the Company under paragraph (b)
above, each Investor shall submit a separate written proposal to the Company
within fifteen (15) business days after receipt of the Offer Notice, to purchase
all of the Offered Securities (the "Separate Investor Offer") for the price
specified by the Company in the Offer Notice or for a different price specified
by such Investor in its proposal to the Company. If the purchase price for the
Offered Securities specified in a Separate Investor Offer is equal to or greater
than the price specified by the Company in the Offer Notice, the Company and the
Investor submitting such price shall complete the purchase and sale of the
Offered Securities on such terms at a closing to be held within ten (10)
business days after submission of the Separate Investor Offer to the Company. If
both Investors submit Separate Investor Offers containing a price for the
Offered Securities which is equal to or greater than the price specified by the
Company in the Offer Notice, then the Investor specifying the higher price shall
purchase the Offered Securities; provided that if each Investor submits the same
price, then the Investors shall purchase the Offered Securities pro rata in
proportion to their respective percentage equity ownership interests in the
Company. If the purchase price specified for the Offered Securities by both
Investors in their respective Separate Investor Offers is less than the price
specified by the Company in the Offer Notice, the Company and the Investor
specifying the higher price for the Offered Securities shall negotiate
diligently and in good faith to reach agreement for the purchase of the Offered
Securities by such Investor. Notwithstanding the foregoing, prior to the
completion of the sale of the Offered Securities to a single Investor under this
clause (b), the other Investor shall be given the right to purchase on the same
price and terms such Investor's pro rata share of the Offered Securities in
proportion to each Investor's respective equity ownership interests in the
Company.
(d) If no agreement for the sale of the Offered Securities to
the Investors is reached under paragraph (b) or (c) above within twenty (20)
business days of receipt by the Investor of the Offer Notice, (the "First Offer
Period"), the Offered Securities may be sold by the Company (the "External
Financing") to one or more persons or entities other than the Stockholders (a
"New Investor") at any time within sixty (60) days after the expiration of the
First Offer Period, provided that (i) the price to be paid by the New Investors
for the Offered Securities is at least 8% greater than the highest price offered
by an Investor under paragraph (b) or (c) above and (ii) the other terms and
conditions of sale for the Offered Securities (which do not have to be
identical) are no more favorable to the New Investor than those offered by the
Company to the Investors in the negotiations of the terms of the Offered
Securities. Notwithstanding the foregoing, if no Investor Offers are submitted
to the Company under paragraph (b) or (c) above, then the price to be paid by
the New Investor for the Offered Securities shall be equal to or greater than
the price specified for the Offered Securities by the Company in the Offer
Notice. The determination of whether the terms of the External Financing meet
the foregoing conditions shall be made by a majority vote of the Board of
Directors of the Company.
(e) The provisions of this Section 8 shall not apply to the
following ("Excluded Securities"): (i) the issuance of shares of Common Stock as
a stock dividend or upon any subdivision or stock split of the outstanding
shares of Common Stock (provided the securities issued in respect of such
dividend, subdivision or stock split are limited to shares of Common Stock),
(ii) the issuance of shares of Common Stock upon exercise of any options,
warrants or other rights to acquire Common Stock that are outstanding on the
date of this
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Agreement, (iii) the issuance of shares of Common Stock upon conversion of any
shares of convertible securities outstanding on the date hereof, (iv) the
issuance of Common Stock in the Initial Public Offering so long as PubliGroupe
would own at least 51% of the outstanding Common Stock immediately thereafter,
(v) the issuance of Common Stock upon exercise of options to purchase Common
Stock (and the issuance of such options) granted to directors, officers,
employees or consultants of the Company under benefit plans in connection with
their service to the Company (it being understood that the number of options and
shares so issued under this clause (v) shall be limited to such number as may be
authorized from time to time by the Company's Board of Directors), (vi) the
issuance of Common Stock upon exercise of options to purchase Common Stock (and
the issuance of such options) granted outside of benefit plans as compensation
or incentive to third party service providers of the Company (it being
understood that the number of options and shares so issued under this clause
(vi) shall be limited to options to purchase 25,000 shares of Common Stock),
(vii) shares of Common Stock issued to PubliGroupe or any of its affiliates on
the date hereof pursuant to the Reorganization Agreement, and (viii) the
issuance of securities by the Company pursuant to any Loan.
9. TERMINATION OF CERTAIN PROVISIONS; COMPANY RESTRUCTURING.
(a) From and after the IPO Expiration Date, PubliGroupe and
the other Stockholders shall for a period of sixty (60) days negotiate with each
other in good faith the terms of a new stockholders agreement which will (i)
provide PubliGroupe with the right to exercise control over the Company and (ii)
protect the interests of the other Stockholders with respect to fundamental
transactions by the Company and preserve for the other Stockholders the value
and liquidity of their equity interests. PubliGroupe and the other Stockholders
shall also discuss and consider the possibility of restructuring the Company,
including a refinancing, sale of the Company or its assets, division of the
Company, or merger with another company.
(b) If after the IPO Expiration Date, PubliGroupe desires to
terminate the provisions of Sections 2 through 6 hereof, PubliGroupe shall give
written notice thereof to the other Stockholders. Such termination shall become
effective on the later of (i) the expiration of the Real Media Europe Option
Period (as defined in Section 10(d)(ii) below), or (ii) if the Sale Election or
Purchase Election is given pursuant to Section 10 below, the closing of the
transactions contemplated thereby. Pending the termination of the corporate
governance provisions pursuant to the preceding sentence, (i) the Board of
Directors of the Company shall be reduced to six members consisting of three
directors designated by PubliGroupe, the CEO Nominee, one director designated by
Advance, and one director designated by the Founders owning at least a majority
of the total number of Shares held by the Founders (provided that if the CEO
Nominee shall cease to serve for any reason, the successor Nominee shall be
designated by the Founders) as set forth in Section 2(a) and (b) above, (ii) the
Stockholders and the Company shall take such action as may be necessary to
remove the Independent Directors from Office, (iii) the number of members of the
Board of Directors required to approve the actions set forth in clauses vi-x of
Section 5(a) hereof shall be reduced to a majority, and (iv) the provisions of
Sections 2 through 5 (as amended hereby) shall continue until the termination
becomes effective as provided in this Section 9(b).
10. REAL MEDIA EUROPE OPTIONS. The Stockholders shall have the
following rights and options with respect to Real Media Europe:
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(a) THE PURCHASE ELECTION. At any time during the Real Media
Europe Option Period (as defined in Section 10(d)(ii) below), PubliGroupe shall
have the right, exercisable by notice given to the Company, the Founders and
Advance at any time, to elect to acquire from the Company all, but not less than
all, of the outstanding stock of Real Media Europe and its subsidiaries ("Real
Media Europe"). If such notice (the "Purchase Election") is given, it shall
constitute an agreement by the Company to sell, and PubliGroupe to purchase, all
of the stock of Real Media Europe on a date selected by the Company which is no
more than twenty (20) business days following the establishment of the purchase
price for the stock of Real Media Europe.
(b) THE SALE ELECTION. At any time during the Real Media
Europe Option Period, the Founders owning at least a majority of the total
number of Shares held by the Founders (with the consent of Advance) shall have
the right to elect, by notice to PubliGroupe, to sell to PubliGroupe all, of the
outstanding capital stock of Real Media Europe. If such notice (the "Sale
Election") is given, it shall constitute an agreement by the Company to sell,
and PubliGroupe to purchase, all of the stock of Real Media Europe on a date
selected by the Company which is no more than twenty (20) business days
following the establishment of the purchase price for the stock of Real Media
Europe.
(c) PURCHASE PRICE; CLOSING. The purchase price for the stock
of Real Media Europe shall be the Fair Market Value thereof on the date the Sale
Election or Purchase Election is made by the Founders (with the consent of
Advance) or PubliGroupe, as the case may be. The closing for any purchase
pursuant to the exercise of the Purchase Election or the Sale Election shall
take place at the Company's principal executive offices. At the closing (i) the
Company shall deliver and transfer to PubliGroupe good title to the stock of
Real Media Europe, free and clear of all liens, claims or encumbrances, and (ii)
PubliGroupe shall deliver to the Company good title to an aggregate number of
shares of the Company's Common Stock, free and clear of all liens, claims or
encumbrances, having a "Fair Market Value" (as defined below) equal to the Fair
Market Value of Real Media Europe, provided, however that in no event shall
PubliGroupe have an obligation to deliver any Shares in excess of the total
number of Shares then held by PubliGroupe, any of its affiliates and its
permitted transferees, if any, under Section 11 hereof.
(d) DEFINITIONS.
(i) FAIR MARKET VALUE. "Fair Market Value" of the
Real Media Europe shall be determined as follows. Upon notice delivered by the
Founders and Advance or PubliGroupe exercising the Purchase Election or Sale
Election, as the case may be, the Founders, Advance and PubliGroupe shall
commence good faith negotiations to agree upon the Fair Market Value. If within
30 days of the delivery of such notice the Founders, Advance and PubliGroupe
shall not have agreed upon the Fair Market Value, then the Founders, Advance and
PubliGroupe may jointly agree to continue their negotiations. Failing such
agreement, Real Media and PubliGroupe shall each promptly retain an investment
bank of recognized international standing (a "Bank"). The fees and expenses of
each Bank shall be paid by the party who retained such Bank. Each Bank shall be
instructed to render an estimation of the Fair Market Value within 30 days of
its engagement, and the Fair Market Value shall be determined by calculating the
mean of the Banks' estimates of the Fair Market Value. If, however, the
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higher of such estimations is greater than 120% of the lower of such
estimations, then the Banks shall promptly nominate a third Bank (the "Third
Bank"). The Founders, Advance and PubliGroupe shall jointly appoint the Third
Bank, and the Fair Market Value shall be determined by calculating the mean of
the Third Bank's estimation of the Fair Market Value and whichever Bank's
estimation of the Fair Market Value is closer in value to the estimation of the
Third Bank. The fees and expenses of the Third Bank shall be paid by (i) Real
Media, if the Third Bank's estimation of Fair Market Value is closer to the
estimation provided by the Bank retained by PubliGroupe than to the estimation
provided by the Bank retained by Real Media, or (ii) PubliGroupe, if the Third
Bank's determination of Fair Market Value is closer to the estimation provided
by the Bank retained by Real Media than to the estimation provided by the Bank
retained by PubliGroupe. The Third Bank shall render its estimation of the Fair
Market Value within thirty days of its engagement. Any determination of Fair
Market Value hereunder shall be final and binding upon the parties hereto.
The Fair Market Value of the Company's Common Stock shall be determined
in accordance with the same procedures based upon the value of Real Media Europe
relative to the value of the Company as a whole. For example, if the value of
Real Media Europe represents 60% of the overall value of the Company,
PubliGroupe shall deliver to the Company shares of Common Stock representing 60%
of the total number of shares of Common Stock then outstanding.
(ii) REAL MEDIA EUROPE OPTION PERIOD. The term "Real
Media Europe Option Period" shall mean the period commencing on the date which
is sixty (60) days after the IPO Expiration Date and ending on the date which is
one hundred twenty (120) days after the IPO Expiration Date.
(e) TECHNOLOGY AND RELATED AGREEMENTS; TAXES. If the Purchase
Election or the Sale Election is exercised by either party, PubliGroupe, Real
Media Europe and the Company shall enter into a (i) technology license
agreement, (ii) trademark license agreement, (iii) joint marketing agreement,
and (iv) non-competition agreement, in each case on mutually acceptable terms
which are substantially the same as those contained in the agreements among them
with respect to such matters existing immediately prior to the closing under the
Reorganization Agreement. PubliGroupe and the Company shall also endeavor in
good faith to structure the transactions contemplated by this Section 10 in a
manner which is tax efficient for all of the parties.
11. RESTRICTIONS ON TRANSFER BY INVESTORS.
(a) Neither Investor shall sell, assign, transfer, pledge,
hypothecate, make gifts of or in any manner whatsoever dispose of (other than in
connection with a redemption or purchase by the issuer thereof) or encumber (any
such sale, assignment, transfer, pledge, hypothecation, gift or disposition
being hereinafter referred to in this Section 11 as a "Transfer") any Investor
Stock or any interest therein, except pursuant to a Permitted Transfer in
accordance with Section 11(b). Any purported Transfer by an Investor in
violation of this Agreement shall be null and void and of no force and effect
and the purported transferee shall have no rights or privileges in or with
respect to the Company.
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(b) Notwithstanding anything to the contrary contained herein,
an Investor may Transfer any or all of its Investor Stock pursuant to a
Permitted Transfer (as defined below) if: prior to the consummation of any such
Permitted Transfer (other than a Transfer described by clauses (1), (2), or (3)
of the definition of "Permitted Transfer" below): (i) such Investor notifies the
Company in writing of the proposed Permitted Transfer; and (ii) the proposed
transferee agrees in a writing delivered to the Company to become a party to
this Agreement and pursuant to which writing such proposed transferee (A) shall
be bound by the terms and conditions of this Agreement in the same manner and to
the same extent as such Investor, and (B) shall be entitled to the benefit of
the provisions of this Agreement in the same manner and to the same extent as
such Investor. For purposes of this Agreement, a "Permitted Transfer" shall mean
any Transfer of Investor Stock: (1) by an Investor in connection with a public
offering by the Company of its common stock in which the Investor is permitted
to register Investor Stock, or (2) by an Investor to the Company or its
designated assignees, or (3) the transfer by PubliGroupe of (A) up to 3% of the
outstanding capital stock of the Company owned by it to the persons listed on
Schedule I hereto on terms approved by the Company and (B) Shares owned by
PubliGroupe to the former owner of Real Media Deutschland pursuant to the terms
of the acquisition agreement relating thereto; and (4) by an Investor to any
subsidiary or affiliate in which such Investor (or its ultimate parent company)
owns, directly or indirectly, at least a majority of the outstanding shares of
voting stock of such subsidiary or affiliate, or any person (other than a
corporation) in which such Investor (or its ultimate parent company) owns at
least a majority of the equity interests of such person (provided that such
Investor (or its ultimate parent company) continues to beneficially own, whether
directly or indirectly, at least a majority of the shares of voting stock or
equity interests of such subsidiary or other person).
(c) Prior to any proposed Transfer of any Investor Stock
(other than a Transfer described by clauses (1) or (2) of the definition of
"Permitted Transfer" above), the Investor (i) shall give written notice to the
Company describing the manner and circumstances of the proposed Transfer, and
(ii) unless waived by the Company, shall deliver a written opinion of legal
counsel, addressed to the Company and the transfer agent, if other than the
Company, and in customary form and substance to each addressee, to the effect
that the proposed Transfer of the Shares may be effected without registration
under the United States Securities Act of 1933 ("Securities Act") and applicable
state securities laws.
12. RESTRICTIONS ON TRANSFERS BY FOUNDERS.
(a) No Founder shall sell, assign, transfer, pledge,
hypothecate, make gifts of or in any manner whatsoever dispose of (other than in
connection with a redemption or purchase by the issuer thereof) or encumber (any
such sale, assignment, transfer, pledge, hypothecation, gift or disposition
being hereinafter referred to in this Section 12 as a "Transfer") any Shares or
any interest therein, except pursuant to a Permitted Transfer in accordance with
Section 12(b). Any purported Transfer by any Founder in violation of this
Agreement shall be null and void and of no force and effect and the purported
transferee shall have no rights or privileges in or with respect to the Company.
(b) Notwithstanding anything to the contrary contained herein,
a Founder may Transfer any and all Shares pursuant to a Permitted Transfer (as
defined below) if: (i) prior to the consummation of any such Permitted Transfer,
the Founder proposing the
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Permitted Transfer notifies the Company in writing of the proposed Permitted
Transfer; and (ii) in the case of Permitted Transfers described by clauses (1)
and (3) of the definition of "Permitted Transfer" below, the proposed transferee
agrees in a writing delivered to the Company to become a party to this Agreement
and pursuant to which writing such proposed transferee (A) shall be bound by the
terms and conditions of this Agreement in the same manner and to the same extent
as the Founder who proposes to Transfer such Shares, and (B) shall be entitled
to the benefit of the provisions of this Agreement in the same manner and to the
same extent as the Founder who proposes to Transfer such Shares. For purposes of
this Agreement, a "Permitted Transfer" shall mean any Transfer of Securities:
(1) by any Founder who is a natural person to such Founder's spouse, parents,
siblings, children or grandchildren (or a trust established for their benefit),
or by will or the laws of descent and distribution on account of the death of
such Founder to such Founder's spouse, parents, siblings or descendants; (2) by
any Founder in connection with a public offering, provided, the Investors are
offered the right to participate in such offering on the same terms and
conditions as the Founders participating in such offering and each Investor is
permitted (but not required) to sell in such offering not less than an amount of
such Investor's Stock equal to the amount of such Investor's Stock multiplied by
a fraction, the numerator of which is the number of shares of Investor Stock
then held by such Investor and the denominator of which is the sum of the number
of shares of Investor Stock then held by such Investor plus the number of Shares
to be sold by all Founders and the other Investor in such offering; (3) by any
Founder to (I) any corporation, partnership or other business entity in which
such Founder or Founders owns, directly or indirectly, all of the equity
interests of such entity (provided that such Founder or Founders, together with
any person described in clause (1) above, continues to beneficially own, whether
directly or indirectly, all of the equity interests of such entity), or (II) to
any of the Founders on the date hereof; or (III) to any employee or consultant
of the Company at the time of transfer.
(c) Prior to any proposed Transfer of any Shares (other than a
Transfer described by clause (2) of the definition of "Permitted Transfer"
above), the Founder (i) shall give written notice to the Company describing the
manner and circumstances of the proposed Transfer, and (ii) unless waived by the
Company, shall deliver a written opinion of legal counsel, addressed to the
Company and the transfer agent, if other than the Company, and in customary form
and substance to each addressee, to the effect that the proposed Transfer of the
Shares may be effected without registration under the Securities Act and
applicable state securities laws.
13. LEGEND. Each certificate evidencing Shares issued following the
date hereof shall bear a legend substantially as follows:
"The shares represented by this certificate are subject to the
terms and conditions of a certain Second Amended and Restated
Voting and Stockholders Agreement dated as of January 1, 2000,
a copy of which the Company will furnish to the holder of this
certificate upon request and without charge."
14. SPECIFIC ENFORCEMENT; OTHER REMEDIES. The Stockholders and the
Company acknowledge and agree that they would be irreparably damaged in the
event any of the provisions of this Agreement were not performed in accordance
with its specific terms or were otherwise breached. It is accordingly agreed
that the non-breaching party shall be entitled to an
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injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state thereof having jurisdiction, in addition
to any other remedy to which such non-breaching party may be entitled at law or
equity. The remedy contained in this Section shall not be deemed to be the
exclusive remedy for material breach by any party of this Agreement, nor shall
such right be deemed to prejudice, or to operate as a waiver of, any remedy
contained herein, or any other remedy to which any party may be entitled at law
or equity.
15. TERM; STOCKHOLDERS VOTING AGREEMENT. This Agreement shall terminate
on the earlier to occur of the following: (i) absolutely as to all parties upon
the consummation of the Initial Public Offering, or (ii) absolutely as to all
parties upon the consummation of the sale of Real Media Europe pursuant to
Section 10 hereof. Concurrently with the closing of the Initial Public Offering
the Stockholders shall enter into the Stockholders Voting Agreement
substantially in the form attached hereto as Exhibit B .
16. NOTICES. All notices or other communications given hereunder shall
be in writing and shall be deemed effective upon delivery at the address of the
party to be notified and shall be mailed by certified or registered mail, return
receipt requested, delivered by courier, telecopied, or sent by other facsimile
method (notices by telecopy or facsimile must be confirmed by next day courier
delivery to be effective), addressed to the address specified below such party's
signature hereto or such other address as such party may subsequently notify the
other parties of in writing.
17. ENTIRE AGREEMENT AND AMENDMENTS; TERMINATION OF OTHER AGREEMENTS.
This Agreement constitutes the entire agreement of the parties with respect to
the subject matter hereof and supersedes in its entirety the 1998 Stockholders
Agreement, the Original Stockholder's Agreement (as defined in the 1998
Agreement), Original Voting Agreement (as defined in the 1998 Agreement) and the
PubliGroupe Stock Purchase Agreement (as defined in the 1998 Agreement). The
rights and obligations created by this Agreement are in addition to any rights
existing under the Certificate of Incorporation and Bylaws of the Company.
Neither this Agreement nor any provision hereof may be waived, modified, amended
or terminated except by a written agreement signed by the Company, Founders
holding at least sixty-six and two thirds percent (66 2/3%) of the Founders'
Shares, and both of the Investors.
18. GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Agreement shall be
governed and construed in accordance with the laws of the State of Delaware
(without giving effect to its conflicts of laws principles) and shall bind and
inure to the benefit of the heirs, personal representatives, executors,
administrators, successors and assigns of the parties. Without limiting the
generality of the foregoing, all covenants and agreements of the Founders shall
bind any and all subsequent holders of Shares, and the Company agrees that it
shall not transfer on its records any such Shares unless (i) the transferor
Founder shall have first delivered to the Company and the Investor the written
agreement of the transferee to be bound by this Agreement to the same extent as
if such transferee had originally been a Founder hereunder, as the case may be,
and (ii) the certificate or certificates evidencing the Shares so transferred
bear the legend specified in Section 13.
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19. CAPTIONS. Captions are for convenience only and are not deemed to
be part of this Agreement.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Voting and Stockholders Agreement as of the day and year
first above written.
REAL MEDIA, INC. FOUNDERS
By:______________________________ ______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Address:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
______________________________
▇▇▇ ▇▇▇▇▇
Address:
PUBLIGROUPE USA HOLDING, INC.
By:______________________________ ______________________________
▇▇▇▇ ▇▇▇▇▇▇
Address:
ADVANCE INTERNET, INC.
By:______________________________ ______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
Address:
PUBLIGROUPE S.A.
By:______________________________ ______________________________
▇▇▇▇▇▇ ▇▇▇▇▇
Address:
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EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
REAL MEDIA, INC.
CONVERTIBLE PROMISSORY NOTE
$ _______, 2000
FOR VALUE RECEIVED, the undersigned, REAL MEDIA, INC., a Delaware
corporation (the "Company"), hereby promises to pay to [_____________] (the
"Lender") the principal sum of US [____________________] DOLLARS (US
$________.00), together with interest from the date hereof on the outstanding
principal amount hereof at the rate of ____% per annum [the rate per annum equal
to the prime rate published from time to time in the Wall Street Journal,
Eastern Edition], computed on the basis of the actual number of days elapsed in
a year consisting of 365 days (the "Note"). Interest on this Note is payable on
the unpaid principal amount outstanding until paid in full.
This Note is being issued to Lender pursuant to the terms of a Second
Amended and Restated Stockholders and Voting Agreement dated __________, 2000 by
and among the Lender, the Company and certain other stockholders of the Company
(the "Second Amended Stockholders Agreement").
1. Conversion. This Note is and shall be convertible pursuant to the
terms and conditions of this Section 1 at the option of the Lender upon written
notice to the Company (the "Conversion") into shares of the Company's Common
Stock, $.001 par value per share (the "Common Stock"). The Lender shall have the
option to convert the unpaid principal balance of this Note, in whole or in
part, into shares of Common Stock on _________ and at any time after [January 1,
2001]. The number of shares of Common Stock into which this Note is convertible
shall be determined by dividing the principal balance of this Note to be
converted by the "fair market value" (as such term is defined in Section 7(c) of
the Second Amended Stockholders Agreement) of a share of Common Stock. Upon the
Conversion, the Lender shall surrender this Note to the Secretary of the
Company, and the outstanding principal balance shall be applied against the
purchase price of the shares of Common Stock being issued to the Lender
hereunder, and the Company shall issue to the Lender a replacement Note in
principal amount of the outstanding principal balance of this Note not converted
into Common Stock. In lieu of any fractional shares, cash shall be paid by the
Company to Lender. The provisions of this paragraph shall terminate upon the
repayment of the entire outstanding principal balance of, and all accrued
interest on, this Note.
2. Maturity Date. The entire unpaid and outstanding principal balance
and all unpaid accrued interest under this Note shall be fully due and payable
on the earlier of (a) the
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date of closing for the Initial Public Offering (as defined in the Second
Amended Stockholders Agreement), or (b) the date which is one year after the
date of the first loan made to the Company under the Second Amended Stockholders
Agreement (the "Maturity Date"). The outstanding principal balance, plus accrued
interest on this Note may be prepaid by the Company at any time without premium
or penalty.
3. Payment. Principal and interest due hereunder shall be paid in
lawful money of the United States in immediately available funds or the
equivalent at the address of Lender set forth below or at such other address as
Lender may designate. All payments made hereunder shall first be applied to
interest then due and payable and any excess payment shall then be applied to
reduce the principal amount payable on this Note. Interest due on any
outstanding principal amount hereunder shall be due and payable on the Maturity
Date.
4. Subordination. The Company and the Lender agree that the
indebtedness represented by this Note, and the payment of principal and interest
hereunder, are subordinate and subject in right of payment to the prior payment
in full of all indebtedness and interest thereon of the Company incurred in
connection with any External Financing (as defined in Section 8(b) of the Second
Amended Stockholders Agreement).
5. Remedies. The remedies of Lender herein provided for are cumulative
and not exclusive of any remedies provide by law. No failure on the part of
Lender to exercise, no delay by Lender in exercising, and no course of dealing
with respect to any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise by Lender of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. A waiver
by Lender of any breach of any provision of this Note shall not operate or be
construed as a waiver of similar or dissimilar provisions at the same time or at
any prior or subsequent time. The Company hereby waives any right to set-off or
counterclaim against Lender with respect to the obligations the Company under
this Note.
6. Costs of Enforcement. The Company agrees to pay all reasonable costs
and expenses incurred by Lender in enforcement of the Company's obligations
hereunder, including, without limitation, attorney's fees and expenses.
7. No Assignment. This Note may not be assigned by Lender and the
Company may not assign, delegate or otherwise transfer any of its obligations
hereunder.
8. Waiver; Governing Law. The Company hereby waives presentment,
protest, notice of protest, notice of nonpayment, notice of dishonor and any and
all other notices or demands relative to this Note and the benefit of any
statute of limitations with respect to any action to enforce this Note. This
Note shall be construed in accordance with the laws of the State of New York.
9. Amendment. This Note may not be changed orally, but only by an
instrument in writing executed by the Company and Lender. No agreements or
representation, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by the Company or Lender which are not set
forth expressly in this Note. The invalidity or
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unenforceability of any provision or provisions of this Note shall not affect
the validity or enforceability of any other provisions of this Note, which shall
remain in full force and effect. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
any provision or provisions of this Note.
REAL MEDIA, INC.
BY:__________________________
Name:
Title:
Acknowledged and agreed:
[Lender]
BY:___________________________
Name:
Title:
Date:
Address: _______________________
_______________________
_______________________
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EXHIBIT B
STOCKHOLDERS VOTING AGREEMENT
THIS STOCKHOLDERS VOTING AGREEMENT (this "Agreement") is made as of
this ___ day of __________, 2000, by and among Real Media, Inc., a Delaware
corporation (the "Company"), PubliGroupe USA Holding, Inc., a Delaware
corporation ("PubliGroupe USA"), PubliGroupe S.A., ., a company, organized under
the laws of Switzerland (together with PubliGroupe USA, "PubliGroupe" or an
"Investor"), Advance Internet, Inc., a New Jersey corporation ("Advance" or an
"Investor") and the persons listed as Founders on the signature page hereto (the
"Founders" and, with the Investors, the "Stockholders").
BACKGROUND
PubliGroupe and the Company have entered into a Stock Purchase
Agreement dated ____________, 2000 (the "Acquisition Agreement"). In the
transactions contemplated by the Acquisition Agreement (the "Acquisition"), the
Company acquired certain companies owned by PubliGroupe and PubliGroupe received
additional shares of the Company's common stock, par value $.001 per share (the
"Common Stock") and shares of the Company's Series A Convertible Preferred
Stock. After giving effect to the Acquisition, PubliGroupe, Advance and the
Founders will own 72%, 11.44% and 12.45%, respectively, of the equity securities
of the Company (calculated in accordance with the Acquisition Agreement).
The Company is contemplating an initial, firm commitment public
offering of its Common Stock (the "Public Offering"). The parties have
previously entered into a Second Amended and Restated Voting and Stockholders
Agreement dated as of __________, 2000 (the "Second Amended Stockholders
Agreement") which set forth certain rights and obligations with respect to the
election of directors, transfer of shares and other matters pertaining to the
Company. The Second Amended Stockholders Agreement will terminate upon the
closing of the Public Offering and the parties desire to provide for the voting
of their shares of Common Stock for the election of directors of the Company
following the Public Offering and for the transfer of their shares of Real Media
Common Stock.
NOW, THEREFORE, in consideration of the agreements set forth below, the
parties agree as follows:
1. DEFINITION. As used in this Agreement, the term "Shares" means all
shares of Common Stock and other voting securities of the Company (i) now or
hereafter owned (either beneficially or of record) by a Stockholder, and (ii)
which a Stockholder does not own (either beneficially or of record) but as to
which it now or hereafter has the right to exercise voting control.
2. DESIGNATION OF NOMINEES.
(a) The Board of Directors of the Company shall be composed of
no more than nine members. PubliGroupe shall have the right to designate three
nominees for election as directors of the Company (the "PubliGroupe Nominees").
Two nominees for election as directors of the Company shall be designated by the
Founders owning at least a majority of the total number of Shares held by the
Founders (the "Founder Nominees"). The Chief
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Executive Officer of the Company on the date hereof (the "CEO Nominee") shall be
designated as a nominee for election as a director of the Company. The remaining
three directors shall be "Independent Directors." The initial Independent
Director nominees have been designated and elected in accordance with the
provisions of the Second Amended Stockholders Agreement (the Independent
Director nominees so designated being hereinafter referred to as the
"Independent Director Nominees"). Each Independent Director Nominee shall
continue to serve until such Independent Director Nominee resigns or is removed
as a Director in accordance with the terms of this Agreement
(b) At any time when the Founders and Advance shall own in the
aggregate less than 10% of the outstanding Common Stock of the Company, the
number of Founder Nominees to the Board of Directors shall be reduced from two
to one and the Board of Directors shall select a successor Nominee, which shall
be an Independent Director, designated by a majority vote of the remaining
members of the Board of Directors.
(c) In the event that either (i) the Stockholders shall cease
to own in the aggregate at least 51% of the outstanding shares of Common Stock
of the Company, or (ii) Advance and the Founders shall cease to own in the
aggregate at least 5% of the outstanding shares of Common Stock of the Company
(a "Dilution Event"), then the number of Founder Nominees to the Board of
Directors shall be reduced to zero. The Board of Directors shall thereafter
continue to be composed of nine members, five of whom shall be Independent
Directors, three of whom shall be PubliGroupe Nominees and one of whom shall be
the CEO Nominee. The two new Independent Director Nominees needed to replace the
Founder Nominees shall be proposed by PubliGroupe and the duly qualified
successor Independent Director Nominees proposed by PubliGroupe shall be elected
by a majority vote of the remaining members of the Board of Directors (excluding
the Founder Nominees being replaced) within ten (10) days thereafter.
(d) A Founder Nominee being replaced pursuant to this
provision shall continue to serve until a duly qualified successor Independent
Director shall have been elected by the Board of Directors.
(e) An "Independent Director" means an individual who (i) is
"independent" as defined in the listing standards of NASDAQ for purposes of
serving as a member of an audit committee, (ii) is not an officer, director or
other employee of the Company or the Investors, or of any entity controlled by,
controlling or under common control with, the Company or the Investors (a
"Prohibited Employee"); (iii) is not an individual who is an employee, officer,
director, partner, member, or 10% or greater equity owner in any entity that,
during the year of determination, had liabilities owing to or from the Company
or the Investors in an amount exceeding 10% of such entity's revenues for such
year or 10% of the Company's or Investors' revenues for the immediately
preceding year, as the case may be (a "Prohibited Business Partner"); or (iv) is
not a family member of a Founder, Prohibited Employee or Prohibited Business
Partner.
3. ELECTION OF DIRECTORS. The Stockholders shall take, at any time and
from time to time, all action necessary (including voting the shares owned by
him or it or delivering written consents) to cause the election of nominees to
the Board of Directors designated in
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accordance with Section 2 above and to otherwise implement the terms of this
Agreement. In addition, the Stockholders and the Company shall take all other
action necessary so that the Bylaws and Certificate of Incorporation of the
Company are consistent with this Agreement and neither the Stockholders nor the
Company shall take any action (e.g., by amending the By-laws or the Certificate
of Incorporation or otherwise) which would in any way derogate from the rights
granted to the Stockholders hereunder.
4. SUCCESSOR DIRECTORS.
(a) If any PubliGroupe Nominee shall cease to serve as a
director for any reason, PubliGroupe shall have the right to designate a
successor PubliGroupe Nominee, and the Board of Directors shall promptly take
such action as is necessary to elect the designated successor Nominee.
(b) If any Founder Nominee shall cease to serve as a director
for any reason, the Founders owning at least a majority of the total number of
Shares then held by the Founders shall have the right to designate a successor
Founder Nominee, and the Board of Directors shall promptly take such action as
is necessary to elect the designated successor Nominee.
(c) If (i) PubliGroupe notifies the Company that it desires to
remove any of the PubliGroupe Nominees as a director, or (ii) the Founders
owning at least a majority of the total number of Shares then held by the
Founders notify the Company that they desire to remove a Founder Nominee, the
Board of Directors of the Company shall promptly take such action as is
necessary to effect such removal and to elect any successor Nominee which has
been designated in accordance with Sections 3(a) or (b) above .
(d) If the CEO Nominee shall cease to be the Chief Executive
Officer of the Company for any reason, the Board of Directors shall have the
right to remove the CEO Nominee as a director of the Company by the affirmative
vote of a majority of the remaining members of the Board of Directors. If the
CEO Nominee shall cease to serve as a director for any reason, the Board of
Directors of the Company shall elect a replacement CEO Nominee or an additional
Independent Director, as a majority of the remaining members of the Board of
Directors shall determine.
(e) If any Independent Director Nominee shall cease to serve
as a director for any reason, the Board of Directors of the Company shall
promptly elect the replacement Independent Director Nominee which is designated
by a majority vote of the remaining members of the Board of Directors. If at the
time of election of the replacement Independent Director Nominee there are fewer
than two Independent Director Nominees who are non-United States residents, then
such replacement shall be a non-United States resident unless otherwise
consented to by PubliGroupe. Each Independent Director Nominee elected under
this clause (e) shall continue to serve until such Independent Director Nominee
resigns or is removed as a Director in accordance with the terms of this
Agreement
(f) An Independent Director Nominee may be removed only by the
vote or consent of at least 75% of the entire Board of Directors. If an
Investor, or the Founders
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owning at least a majority of the total number of Shares then held by the
Founders, notify the Company that it or they desire to remove an Independent
Director, the Board of Directors of the Company shall take such action as may be
necessary to ensure that a meeting of the Board of Directors is promptly called
for the purpose of voting upon such removal.
5. RESTRICTIONS ON TRANSFER.
(a) None of the Stockholders shall sell, assign, transfer,
pledge, hypothecate, make gifts of, grant any option with respect to, or in any
manner whatsoever dispose of (other than in connection with a redemption or
purchase by the issuer thereof) or encumber (any such sale, assignment,
transfer, pledge, hypothecation, gift or disposition being hereinafter referred
to in this Section 5 as a "Transfer") any Shares or any interest therein, except
pursuant to a Permitted Transfer in accordance with Section 5(b). Any purported
Transfer by a Stockholder in violation of this Agreement shall be null and void
and of no force and effect and the purported transferee shall have no rights or
privileges in or with respect to the Company.
(b) For purposes of this Agreement, a "Permitted Transfer"
shall mean any Transfer of Shares by a Stockholder:
(i) to the Company, another Stockholder, to an
affiliate of any Stockholder or to any other person or entity that executes an
instrument in form and substance acceptable to the Company agreeing to be bound
by the terms of this Agreement as if an original signatory hereto;
(ii) to the public pursuant to a registration
statement filed by the Company with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Securities Act"), or open market
sales made in accordance with Rule 144 promulgated under the Securities Act on
(A) the Swiss Exchange or (B) NASDAQ.
(iii) pursuant to a tender offer, a merger,
recapitalization or other business combination, which is recommended to the
Stockholders of the Company generally by a majority of the entire Board of
Directors of the Company; or
(iv) to any person or entity pursuant to Section 6
(Right of First Offer) below;
6. RIGHT OF FIRST OFFER.
(a) If, at any time a Stockholder (the "Offeror") desires to
Transfer (other than a Permitted Transfer pursuant to Section 5(b)(i)-(iii)
above), all or any portion of the Shares owned by him or it, the Offeror shall
promptly so notify the other Stockholders (the "Other Stockholders") in writing,
and shall offer to sell to the Other Stockholders (the "Offer") all, but not
less than all, of such Shares it desires to sell (the "Offered Securities") at
the price, and on the terms and conditions, upon which the Offeror would be
willing to sell the Offered Securities to the Other Stockholders or to a third
party negotiating at arms-length. It is understand and agreed that the Offeror
may specify the price as the "then current market price" (or a percentage
thereof) and such specification shall be sufficient for the written notice of
Offer. At any time during the first fifteen (15) business days following the
making of the Offer, any or
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all of the Other Stockholders may notify the Offeror that they exercise their
right to purchase all or any portion of the Offered Securities on the same terms
and conditions as are specified in the Offer (an "Acceptance Notice"). Each
Other Stockholder shall specify in its Acceptance Notice any maximum number of
shares of the Offered Securities which such Other Stockholder is willing to
purchase. If the Offeror shall receive one or more Acceptance Notices sufficient
individually or in the aggregate to purchase all but not less than all of the
Offered Securities within such fifteen (15) business day period, it shall be
obligated to consummate such transaction with the party or parties who exercised
such right, and the party or parties giving the Acceptance Notices shall be
obligated to purchase all, but not less than all, of the Offered Securities on
the tenth (10th) business day following the Offeror's receipt of the last such
Acceptance Notice. In such case, the right to purchase shares of Offered
Securities shall be allocated to the Other Stockholders pro rata in accordance
with the aggregate number of shares of Common Stock owned by such Other
Stockholders on the date of the Offer (but not in excess of the maximum number
of shares they are willing to purchase as indicated in their respective
Acceptance Notices), with any remaining purchase rights being successively
re-allocated on the same basis until either no purchase rights remain or all
Other Stockholders have been allocated the maximum number of shares they have
indicated they are willing to purchase in their respective Acceptance Notices.
(b) If the Offeror shall not receive any Acceptance Notice or
shall not receive Acceptance Notices sufficient to sell all of the Offered
Securities, it shall have the right to sell all, but not less than all, of the
Offered Securities to any person or entity at a price equal to 100% or more of
the price set forth in the Offer, and upon such other terms and conditions as
are no less favorable to such Offeror than those set forth in the Offer;
provided, however, that such sale must be consummated within forty-five (45)
business days from the date of the Offer.
(c) With respect to each purchase of Securities by Other
Stockholders under this Section 6, the Closing therefor shall be held at the
principal office of the Company, on the date determined in accordance with
Section 6(a) hereof. The purchase price for the Offered Securities shall be paid
in full at such closing in cash or by certified check payable to the order of
the Offeror, or by wire transfer in immediately available funds, against
delivery of the appropriate stock certificates or instruments evidencing such
Offered Securities, duly endorsed or with duly executed stock powers attached
thereto. Securities delivered at each closing hereunder shall be free and clear
of all liens, charges and encumbrances, and all title thereto, and all rights
and privileges of ownership thereof immediately shall be vested in the
purchasers thereof. (d) The Company agrees not to effect or permit any Transfer
of Securities by any Stockholder or until it has received evidence reasonably
satisfactory to it that the provisions of this Section 6 or Section 5, if
applicable to such Transfer, have been complied with.
7. VOTING OF PUBLIGROUPE SHARES. In addition to the voting and
governance obligations set forth in Sections 2, 3 and 4 hereof, so long as
PubliGroupe owns more than 33-1/3% of the total outstanding shares of Common
Stock of the Company, PubliGroupe shall vote all shares which it holds in excess
of 33-1/3% ("Excess Shares") in accordance with the recommendation of a majority
of the entire Board of Directors on all matters submitted for
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approval by the Stockholders of the Company. PubliGroupe shall not vote or
otherwise take any action or consent with respect to the Excess Shares in the
absence of such recommendation by the Board of Directors. Notwithstanding the
foregoing, PubliGroupe shall be empowered to vote the Excess Shares in its
discretion in connection with (i) any merger or other business combination
pursuant to which the shares would be converted into cash or another security,
(ii) any merger or other business combination in which the stockholders of the
entity combining with the Company would own a majority of the voting power of
the combined entity or (iii) any sale of all or substantially all of the
Company's assets. The provisions of this Section 7 shall terminate upon the
occurrence of a Dilution Event (as defined in Section 2(c) above).
Notwithstanding the occurrence of a Dilution Event, the other rights and
obligations of the parties to this Agreement, including without limitation, the
provisions of Sections 2, 3 and 4 hereof, shall continue and remain in full
force and effect until this Agreement is duly terminated pursuant to Section 11
hereof.
8. FUNDAMENTAL TRANSACTION. The Company shall not sell or otherwise
dispose of Real Media Europe (as defined in the Reorganization Agreement) unless
such transaction is approved by at least 75% of the members of the Company's
Board of Directors.
9. RIGHT OF FIRST OFFER FOR RMSA.
(a) If at any time during the term of this Agreement, the
Company desires to sell all of the outstanding capital stock or substantially
all of the assets of RMSA (as defined in the Acquisition Agreement), the Company
shall deliver a written notice (the "Sale Notice") to PubliGroupe describing in
reasonable detail the proposed transaction, including the price and other
material terms of sale (including the material terms of any technology and
trademark licenses and non-competition arrangements). PubliGroupe shall have the
right to purchase RMSA on the proposed terms and shall notify the Company
whether or not it wishes to exercise its right to purchase within fifteen (15)
business days after receipt of the Sale Notice. If PubliGroupe exercises its
right to purchase hereunder, the Company and PubliGroupe shall promptly
negotiate in good faith the other terms and conditions of sale for RMSA.
(b) If PubliGroupe does not exercise its right to purchase
within such fifteen (15) business day period or if PubliGroupe and the Company
are unable to enter into a definitive agreement for the sale of RMSA within
forty-five (45) days of PubliGroupe's receipt of the Sale Notice, then the
Company may effect the sale of RMSA to a third party at a price no less than and
on terms no more favorable to such third party than those specified in the Sale
Notice and those last offered by the Company during any negotiations of the
definitive agreement with PubliGroupe, so long as such sale is completed within
one hundred eighty (180) days of the date of the Sale Notice.
10. LEGEND. Each certificate evidencing Shares issued following the
date hereof shall bear a legend substantially as follows:
"The shares represented by this certificate are subject to the
terms and conditions of a certain Stockholders Voting
Agreement dated as of ___________, 2000."
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11. TERMINATION. This Agreement shall terminate on the earliest to
occur of the following: (i) the date on which PubliGroupe shall cease to own at
least 36% of the outstanding shares of Common Stock of the Company or, (ii) the
date on which (A) the Stockholders shall cease to own in the aggregate at least
51% of the outstanding shares of Common Stock of the Company and (B) Advance
shall cease to own at least 90% of the total number of Shares it owns on the
date of this Agreement; or (iii) the date on which (A) Advance and the Founders
shall cease to own in the aggregate at least 5% of the outstanding shares of
Common Stock of the Company, and (B) Advance shall cease to own at least 90% of
the Shares it owns on the date of this Agreement. This Agreement may also be
terminated by either Investor or the Founders holding at least sixty-six and
two-thirds percent (66 2/3%) of the Founders' Shares, if the provisions for the
election of directors set forth in Sections 2 through 4 hereof, inclusive, shall
not be complied with in all material respects and such failure to comply (i) is
not cured within fifteen (15) business days after written notice thereof is
given to the Company and the other Stockholders by the Stockholder seeking
termination under this clause and (ii) is not the result of any action or
inaction on the part of the Stockholder seeking termination or its designees to
the Board of Directors.
12. NOTICES. All notices or other communications given hereunder shall
be in writing and shall be deemed effective upon delivery at the address of the
party to be notified and shall be mailed by certified or registered mail, return
receipt requested, delivered by courier, telecopied, or sent by other facsimile
method (notices by telecopy or facsimile must be confirmed by next day courier
delivery to be effective), addressed to the address specified below such party's
signature hereto or such other address as such party may subsequently notify the
other parties of in writing.
13. ENTIRE AGREEMENT AND AMENDMENTS; TERMINATION OF OTHER AGREEMENTS.
This Agreement constitutes the entire agreement of the parties with respect to
the subject matter hereof and supersedes in its entirety the Second Amended
Agreement. The rights and obligations created by this Agreement are in addition
to any rights existing under the Certificate of Incorporation and Bylaws of the
Company. Neither this Agreement nor any provision hereof may be waived,
modified, amended or terminated except by a written agreement signed by the
Company, Founders holding at least sixty-six and two thirds percent (66 2/3%) of
the Founders' Shares, and both of the Investors.
14. SPECIFIC ENFORCEMENT; OTHER REMEDIES. The Stockholders and the
Company acknowledge and agree that they would be irreparably damaged in the
event any of the provisions of this Agreement were not performed in accordance
with its specific terms or were otherwise breached. It is accordingly agreed
that the non-breaching party shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state thereof having jurisdiction, in addition to any other remedy to
which such non-breaching party may be entitled at law or equity. The remedy
contained in this Section shall not be deemed to be the exclusive remedy for
material breach by any party of this Agreement, nor shall such right be deemed
to prejudice, or to operate as a waiver of, any remedy contained herein, or any
other remedy to which any party may be entitled at law or equity.
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15. GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Agreement shall be
governed and construed in accordance with the laws of the State of Delaware
(without giving effect to its conflicts of laws principles) and shall bind and
inure to the benefit of the heirs, personal representatives, executors,
administrators, successors and assigns of the parties.
16. CAPTIONS. Captions are for convenience only and are not deemed to
be part of this Agreement.
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Voting Agreement as of the day and year first above written.
REAL MEDIA, INC. FOUNDERS
By:______________________________ ______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Address:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
______________________________
▇▇▇ ▇▇▇▇▇
Address:
PUBLIGROUPE USA HOLDING, INC.
By:______________________________ ______________________________
▇▇▇▇ ▇▇▇▇▇▇
Address:
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ADVANCE INTERNET, INC.
By:______________________________ ______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
Address:
PUBLIGROUPE S.A.
By:______________________________ ______________________________
▇▇▇▇▇▇ ▇▇▇▇▇
Address:
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EXHIBIT C
INTERIM ADMINISTRATIVE SERVICES AGREEMENT
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EXHIBIT C
INTERIM ADMINISTRATIVE SERVICES AGREEMENT
THIS INTERIM ADMINISTRATIVE SERVICES AGREEMENT (this "Agreement") is
made as of February __, 2000, by and between PubliGroupe S.A. a company
organized under the laws of Switzerland ("PubliGroupe"), and Real Media Europe
Holding S.A., a company organized under the laws of Switzerland ("Real Media
Europe").
BACKGROUND
WHEREAS, PubliGroupe, Real Media Europe and Real Media, Inc. ("Real
Media") have entered into a Stock Purchase Agreement dated February _, 2000 (the
"Acquisition Agreement"). Pursuant to the Acquisition Agreement, on the date
hereof Real Media will acquire Real Media Europe and certain other Acquired
Corporations (as defined in the Acquisition Agreement) and PubliGroupe will
receive shares of Common and Preferred Stock of Real Media;
WHEREAS, PubliGroupe has been providing certain management,
administrative and other services to Real Media Europe and its subsidiaries;
WHEREAS, in order continue to enjoy the benefits of PubliGroupe's
experience and skills after closing under the Acquisition Agreement in the
operation of the business of Real Media Europe, Real Media Europe desires to
retain PubliGroupe to continue to provide (or cause to provide) certain services
to Real Media Europe and its subsidiaries, and PubliGroupe desires to accept
such retention, all on the terms and conditions of this Agreement; and
WHEREAS, it is a condition to the closing of the transactions
contemplated by the Acquisition Agreement that the parties enter into this
Agreement.
TERMS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Retention of PubliGroupe. Real Media Europe hereby retains
PubliGroupe to provide the administrative and other services set forth in
Section 3 below (the "Services") to Real Media Europe, and the other Acquired
Corporations, and PubliGroupe hereby accepts such retention by Real Media
Europe, all in accordance with the terms and conditions of this Agreement.
PubliGroupe may utilize employees of its affiliates or consultants in providing
Services hereunder. Real Media Europe may request that PubliGroupe expand,
reduce or terminate the services provided by PubliGroupe under this Agreement,
in which case the parties will discuss, without obligation, such expansion,
reduction or termination as well as an additional charge or reduction in charges
for such Services.
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2. Performance of Services. PubliGroupe shall perform the Services with
the same degree of care, skill and prudence customarily exercised for its own
operations and it is understood and agreed that the Services will be
substantially the same in nature, quality and jurisdictional scope to the
Services performed by PubliGroupe for Real Media Europe and the other Acquired
Corporations during the years prior to the execution of this Agreement, except
to the extent of any modifications which may be necessary as a result of Real
Media becoming a public company through the public offering of its Common Stock.
3. Services. During the term of this Agreement and subject to the terms
and provisions hereof, PubliGroupe shall provide, or cause its affiliates or
consultants to provide, such Services as PubliGroupe and Real Media Europe
mutually may consider necessary, appropriate or desirable for the normal
operation of Real Media Europe and the other Acquired Corporations following the
closing under the Acquisition Agreement. The Services to be provided to Real
Media Europe consist of various services required in the conduct of the business
of Real Media Europe and the other Acquired Corporations, including, by way of
illustration and not limitation, the following:
(a) Financial management, including:
(i) Accounting and reporting services - billing and
time reporting support, fixed asset, construction accounting, capital asset
recovery and analysis, accounting internal auditing and internal and external
reporting and analysis;
(ii) Taxes - including tax filings compliance and
audit, tax research and planning, benefit plan compliance and tax policy;
(iii) Treasury- including cash management and
banking, investment management, corporate finance, risk management and insurance
services;
(iv) Financial Analysis and Planning-including
financial forecasting assistance, acquisition analysis, actuarial services and
financial analysis; and
(b) Information technology and network services, including
providing access to data bases and enterprise application systems, procedures
and processes relating to customer satisfaction, enterprise management, deploy
solutions and customer surveys.
(c) Legal and contract services, including (i) the review of
and reporting on relevant legislation; (ii) the provision where possible,
depending on available capacities, of advice and counsel regarding the drafting,
negotiation and interpretation of various contracts; (iii) the provision where
possible, depending on available capacities, of advice, counsel and assistance
regarding mergers and acquisitions, antitrust, labor and employment matters; and
(iv) the supervision of outside counsel retained by Real Media Europe.
(d) Corporate planning services, including assistance with
corporate budgeting.
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4. Budget; Fees.
(a) Real Media Europe shall pay PubliGroupe and its
affiliates, as the case may be, for the following reasonable costs which are
incurred by PubliGroupe or its affiliates attributable to the performance by
PubliGroupe or its affiliates of the Services, (i) all costs incurred by
PubliGroupe or its affiliates to vendors or other third parties in providing
Services and related supplies and goods; (ii) the directly allocated costs of
employees of PubliGroupe and its affiliates (based on the average salary and all
other compensation and costs attributable to such employees) allocated to Real
Media Europe based on the time expended by employees of PubliGroupe and its
affiliates in providing such Services; (iii) all other out of pocket costs
directly attributable to the rendering of the Services; and (iv) an amount equal
to 5% of the amount of (ii) above.
(b) As soon as practicable following execution of this
Agreement, Real Media Europe and PubliGroupe shall jointly establish a budget
(the "Budget") for the costs of PubliGroupe under Section 4(a)(i) through (iii)
above for providing the services contemplated hereunder. PubliGroupe and Real
Media Europe shall review and revise the Budget from time to time as needed to
reflect any change in the estimated cost of services to be provided hereunder.
Real Media Europe shall have no obligation to pay PubliGroupe for any such costs
(or any fee payable under Section 4(a)(iv) with respect thereto) which exceed by
15% or more the amount set forth in the Budget(as amended from time to time).
(c) PubliGroupe shall submit to Real Media Europe a quarterly
statement showing in reasonable detail the calculation for the reimbursable
costs and the corresponding amounts therefor contained in the Budget and the
fee, which amounts, subject to clause (b) above, shall be due and payable,
except as expressly provided herein, within thirty (30) days of receipt of such
statement by Real Media Europe.
5. Confidentiality. Each party hereto may from time to time be provided
information that is confidential and proprietary to the other party hereto.
Accordingly, each party agrees that it will not reveal such information or any
of it, which is not otherwise in the public domain, to a third party without the
consent of the other party except as required by law or as necessary to perform
obligations or enforce rights hereunder; that such information will be
distributed only to those of its own employees and officers who have a
reasonable need for it in order to carry out the purposes of this Agreement;
that such information will not be used in any manner except for the purpose for
which provided; and that upon termination of this Agreement, all documents
containing such confidential and proprietary information upon request will be
returned promptly to the party to which such information belongs. Each party
shall take such steps as are reasonably necessary to protect the confidential or
proprietary information of the other. For purposes hereof, confidential or
proprietary information shall include customer lists and other customer
information, and financial, technical or business information relating to one
party and provided by such party to the other.
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6. Term and Termination.
(a) Term. This Agreement shall commence on February _, 2000
and terminate on January 31, 2001, unless earlier extended or terminated in
accordance with the terms of this Agreement.
(b) Renewal. This Agreement will automatically renew for
additional terms of three (3) months each, unless either party provides written
notice to the other party not less than thirty (30) days prior to the end of the
initial term or any such renewal term of its intent to terminate this Agreement.
(i) Termination upon Notice. This Agreement may also
be terminated by either party upon ninety (90) days prior written notice to the
other party or on such shorter notice as applicable law may require.
(c) Termination upon Change of Control. PubliGroupe may
terminate this Agreement by written notice to Real Media Europe upon a Change of
Control (as defined below) with respect to Real Media . A "Change in Control" of
Real Media shall be deemed to have occurred if PubliGroupe or its affiliates
shall own shares representing less than a majority of the then outstanding
common stock of Real Media.
(d) Survival upon Termination. Notwithstanding the foregoing,
the provisions of Section 5 (Confidentiality) shall survive the termination or
expiration of this Agreement.
7. General.
(a) Entire Agreement. This Agreement constitutes the entire
understanding between the parties and supersedes any prior understandings
respecting the subject matter thereof.
(b) Amendment; Waiver. This Agreement shall not be amended,
modified, waived, released or discharged except by a writing signed by an
officer or authorized representative of each of the parties.
(c) Successors and Assigns. No party hereto shall assign its
rights and obligations under this Agreement or any part thereof, nor shall any
party assign or delegate any of its rights or duties hereunder without the prior
written consent of the other party, and any assignment made without such consent
shall be void.
(d) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Nothing in this Agreement, expressed or implied, is intended
or shall be construed to confer upon any person, any right, remedy or claim
under or by reason of this Agreement.
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(e) Further Assurances. The parties shall execute and deliver
such further instruments and perform such further acts as may reasonably be
required to carry out the intent and purposes of this Agreement.
(f) Counterparts. This Agreement may be executed in one or
more counterparts, and each of such counterparts shall for all purposes be
deemed to be an original, but all such counterparts together shall constitute
but one instrument.
(g) Notices. Any notice, request, instruction or other
document to be given hereunder by any party to the others shall be in writing
and shall be deemed to have been duly given on the next business day after the
same is sent, if delivered personally or sent by telecopy or overnight delivery,
or five calendar days after the same is sent, if sent by registered or certified
mail return receipt requested, postage prepaid, as set forth below, or to such
other persons or addresses as may be designated in writing in accordance with
the terms hereof by the party to receive such notice.
(i) If to PubliGroupe, to:
PubliGroupe S.A.
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇
▇▇ - ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Facsimile No.:
Attn:
(ii) If to Real Media Europe, to:
c/o Real Media, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: President
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Switzerland without giving effect to
the principles of conflict of laws thereof.
(i) No Agency. This Agreement shall not be deemed expressly or
by implication to create an agency, employee, or servant relationship between or
among any of the parties hereto, or any Affiliates of the parties hereto for any
purpose whatsoever.
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IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date hereinabove indicated.
REAL MEDIA EUROPE HOLDING S.A.
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
PUBLIGROUPE S.A.
By:__________________________________
Name:
Title:
By:_________________________________
Name:
Title:
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EXHIBIT D
RMSA STOCKHOLDERS AGREEMENT
80
EXHIBIT D
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made this ___ day of February,
2000 among Real Media Inc., a Delaware corporation ("Real Media USA"), Real
Media Europe Holding S.A. ("Real Media Europe"), and PubliGroupe S.A.
("PubliGroupe", and, together with Real Media USA and Real Media Europe, the
"Parties"), the latter two companies both organized under the laws of
Switzerland.
BACKGROUND
WHEREAS, the Parties have entered into a Stock Purchase Agreement dated
February, 2000 (the "Acquisition Agreement"). Pursuant to the Acquisition
Agreement, on the date hereof Real Media USA will acquire Real Media Europe and
its subsidiaries, and PubliGroupe will receive additional shares of Common Stock
and Preferred Stock of Real Media USA;
WHEREAS, as a result of the transactions contemplated inter alia by the
Acquisition Agreement, PubliGroupe will become the owner of 51% of the
outstanding capital stock of Real Media S.A., a company organized under the laws
of Switzerland ("RMSA"), and Real Media USA will, through its acquisition of
Real Media Europe, become the indirect owner, and Real Media Europe the direct
owner, of 49% of the outstanding capital stock of RMSA (Real Media Europe and
PubliGroupe are sometimes hereinafter referred to as "Stockholders");
WHEREAS, it is a condition to the closing of the transactions contemplated by
the Acquisition Agreement that the Parties enter into this Agreement.
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TERMS
NOW, THEREFORE, in consideration of the agreements set forth below, the Parties
agree as follows:
1. DEFINITION. As used in this Agreement, the term "Shares" means all shares
of equity securities of RMSA (i) now or hereafter owned (either beneficially or
of record) by a Stockholder, and (ii) which a Stockholder does not own (either
beneficially or of record) but as to which it now or hereafter has the right to
exercise voting control.
2. DESIGNATION OF NOMINEES. The Board of Directors of RMSA shall be composed
of no more than five members. PubliGroupe shall have the right to designate
three nominees for election as directors of RMSA (the "PubliGroupe Nominees")
and Real Media Europe shall have the right to designate two nominees for
election as directors of RMSA (the "Real Media Nominees").
3. ELECTION OF DIRECTORS. The Stockholders shall take, at any time and from
time to time, all action necessary (including voting the shares owned by him or
it or delivering written consents) to cause the election of nominees to the
Board of Directors designated in accordance with Section 2 above and to
otherwise implement the terms of this Agreement.
4. SUCCESSOR DIRECTORS.
a) If any PubliGroupe Nominee shall cease to serve as a director for any
reason, PubliGroupe shall have the right to designate a successor
PubliGroupe Nominee, and the Stockholders shall promptly take such action
as is necessary to elect the designated successor Nominee.
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b) If any Real Media Nominee shall cease to serve as a director for any
reason, Real Media Europe shall have the right to designate a successor
Real Media Nominee, and the Stockholders shall promptly take such action as
is necessary to elect the designated successor Nominee.
c) If (i) PubliGroupe notifies RMSA that it desires to remove any of the
PubliGroupe Nominees, or (ii) Real Media Europe notifies RMSA that it
desires to remove a Real Media Nominee, the Stockholders of RMSA shall
promptly take such action as is necessary to effect such removal and to
elect any successor Nominee which has been designated in accordance with
Section 2 above.
5. MANAGEMENT AND CONTROL. The Chairman of the Board of Directors shall be
elected by a majority of the Board of Directors. Subject to applicable law,
the Stockholders shall cause and instruct their respective nominees to the
Board of Directors that they shall not take, or allow to be taken by any
officer of RMSA, any of the actions set below without the affirmative vote
or consent of both Stockholders:
a) except for any loans by PubliGroupe to RMSA under Section 6 below, incur
or refinance any existing indebtedness of RMSA;
b) issue, purchase or redeem any equity securities under any authorized or
conditional capital of RMSA;
c) adopt or effect any plan of sale, merger, consolidation, dissolution,
reorganization or recapitalization of RMSA or enter into any joint venture,
technology license (other than licenses pursuant to the Technology Transfer
Agreement dated the date hereof) or technology development or other similar
agreements; sell all or substantially all of the assets of RMSA;
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d) sells all or substantially all of the assets of RMSA;
e) enter into a significant new line of business which is unrelated to RMSA's
then existing business, abandon any significant line of business, or
otherwise fundamentally change the nature of RMSA's business; or
f) amend or circumvent in any manner the provisions set forth in this
Agreement.
g) other than as contemplated by the Acquisition Agreement and the Exhibits
thereto, enter into any transaction with either Party providing for the
furnishing of services by or to, or the sale of products by or to, or rental
of real or personal property from or to, or otherwise requiring cash
payments by or to, any such Party in excess of an aggregate of US
$50,000.--.
6. LOANS. PubliGroupe shall fund the operations of RMSA through loans as
needed for working capital and other general corporate purposes. Each loan made
by PubliGroupe to RMSA hereunder shall be evidenced by a promissory note of
RMSA having the following terms: (i) the unpaid principal balance of any loan
shall bear interest at the annual rate equal to the prime rate announced from
time to time by the banks of Switzerland; (ii) RMSA shall pay interest on the
loan on the date of its maturity; (iii) the principal amount of any loans shall
become due and payable on the date of closing of either RMSA option pursuant to
Section 4.1 of the Acquisition Agreement (the "RMSA Option").
7. RESTRICTIONS ON TRANSFER BY STOCKHOLDERS. For a period of 5 years, neither
Stockholder shall sell, assign, transfer, pledge, hypothecate, make gifts of or
in any manner whatsoever dispose of or encumber (any such sale, assignment,
transfer, pledge, hypothecation, gift or disposition being hereinafter referred
to in this Section 7 as a "Transfer") any Shares owned by a Stockholder (the
"Stockholder Stock") or
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any interest therein, except as provided for in the Acquisition Agreement
or the Stockholders Voting Agreement dated February , 2000 by and among
Real Media USA, PubliGroupe, PubliGroupe USA Holding Inc., Advance
Internet, Inc. and the persons listed as founders on the signature page
thereto (the "Stockholders Voting Agreement").
8. SPECIFIC ENFORCEMENT; OTHER REMEDIES. The Parties acknowledge and agree
that they would be irreparably damaged in the event any of the provisions
of this Agreement were not performed in accordance with its specific terms
or were otherwise breached. It is accordingly agreed that the non-breaching
Party shall be entitled to an injunction or injunctions to prevent breaches
of the provisions of this Agreement and to enforce specifically the terms
and provisions hereof in any court having jurisdiction, in addition to any
other remedy to which such nonbreaching Party may be entitled at law or
equity. The remedy contained in this Section shall not be deemed to be the
exclusive remedy for material breach by any Party of this Agreement, nor
shall such right be deemed to prejudice, or to operate as a waiver of, any
remedy contained herein, or any other remedy to which any Party may be
entitled at law or equity.
9. TERM; STOCKHOLDERS VOTING AGREEMENT. This Agreement shall remain valid for
so long as Real Media Europe and PubliGroupe remain direct Stockholders and
Real Media USA remains indirect shareholder of RMSA and shall terminate
absolutely as to all Parties upon the consummation of the RMSA Option or
upon a transaction provided for under Section 9(a) of the Stockholders
Voting Agreement.
10. NOTICES. All notices or other communications given hereunder shall be in
writing and shall be deemed effective upon delivery at the address of the
Party to be notified and shall be mailed by certified or registered mail,
return receipt requested, delivered by courier, telecopied, or sent by
other facsimile method (notices by
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telecopy or facsimile must be confirmed by next day courier delivery to be
effective), addressed to the address specified below such Party's signature
hereto or such other address as such Party may subsequently notify the other
Party of in writing.
11. ENTIRE AGREEMENT AND AMENDMENTS; TERMINATION OF OTHER AGREEMENTS. This
Agreement constitutes the entire agreement of the Parties with respect to
the subject matter hereof. The rights and obligations created by this
Agreement are in addition to any rights existing under the organizational
documents of RMSA. Neither this Agreement nor any provision hereof may be
assigned waived, modified, amended or terminated except by a written
agreement signed by the Parties.
12. In respect of the obligations to which Real Media USA is not subject itself
(because it being only indirect shareholder of RMSA and not Stockholder), it
will -- as parent company of Real Media Europe -- cause Real Media Europe to
fully comply at all times with such obligations.
13. GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Agreement shall be governed and
construed in accordance with the laws of Switzerland (without giving effect
to its conflicts of laws principles); it shall bind and inure to the benefit
of the permitted successors and assigns of the Parties.
14. CAPTIONS. Captions are for convenience only and are not deemed to be part
of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in three or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first above written.
REAL MEDIA, INC.
By: ----------------------------
Name:
Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
PUBLIGROUPE S.A.
By: ---------------------------- By: ----------------------------
Name: Name:
Title: Title:
Address: Address:
REAL MEDIA EUROPE HOLDING S.A.
By: ---------------------------- By: ----------------------------
Name: Name:
Title: Title:
Address: Address:
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EXHIBIT E
TECHNOLOGY TRANSFER AGREEMENT
88
EXHIBIT E
TECHNOLOGY TRANSFER AGREEMENT
THIS AMENDED AND RESTATED TECHNOLOGY TRANSFER AGREEMENT (the
"Agreement"), is made this __ day of February, 2000 between REAL MEDIA, INC., a
Delaware corporation ("Real Media USA"), Real Media S.A., a company, organized
under the laws of Switzerland ("RMSA"), and 51% owned subsidiary company of
PubliGroupe S.A., a company organized under the laws of Switzerland
("PubliGroupe").
Background
WHEREAS, PubliGroupe and Real Media USA have entered into a Stock
Purchase Agreement dated February __, 2000 (the "Acquisition Agreement").
Pursuant to the Acquisition Agreement, on the date hereof Real Media USA will
acquire Real Media Europe Holding S.A. and its subsidiaries ("Real Media
Europe") from PubliGroupe, and PubliGroupe will receive additional shares of
Common and Preferred Stock of Real Media USA;
WHEREAS, as a result of the transactions contemplated by the
Acquisition Agreement; PubliGroupe will become the owner of 51% of RMSA and Real
Media USA will become the owner of 49% of RMSA;
WHEREAS, it is a condition to the closing of the transactions
contemplated by the Acquisition Agreement that the parties enter into this
Technology Transfer Agreement.
Terms
NOW THEREFORE, for good and valuable consideration and intending to be
legally bound hereby, the parties agree as follows:
1. Definitions. Capitalized Terms not otherwise defined herein shall
have the meanings set forth below.
"Business" shall mean the business of providing Online Content
Providers in Switzerland with integrated planning, placement and measurement of
advertising and other content using the Technology.
"Online Content Provider in Switzerland" shall mean an online content
provider whose primary offices are located in Switzerland or which publishes
online content designed primarily for readers in Switzerland and seeks
advertising for products and services marketed in Switzerland.
"Products" shall mean the software products set forth on Exhibit B and
such other software products that utilize the Technology primarily for the
Business.
"Technology" shall mean the technology referred to by Real Media USA as
the AdStream system used in the management of online content, as described in
Exhibit A attached hereto, including improvements thereto as described in
Section 7 of this Agreement.
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"Trademark Agreement" shall mean the Trademark and Tradename
Agreement dated the date hereof among Real Media USA, PubliGroupe and RMSA, as
such Agreement may be amended from time to time.
2. Grant of License; Use of Technology. Real Media USA grants RMSA the
license and right to use, reproduce, modify and enhance solely in connection
with the operation of the Business in Switzerland, the Technology. RMSA shall
not use the Technology in connection with any other service, product or business
other than the Business, or in any other country or territory other than
Switzerland. Real Media USA has delivered to RMSA copies of discs, documents,
tapes, source codes and other records and media in which the Technology has been
written, recorded, or otherwise embodied (the "Technology Records").
3. Exclusivity.
Subject to Paragraph 12 hereof and with the exception of the Netscape
Bundled Software (as defined below), during the term of this Agreement neither
Real Media USA nor its affiliates will use, nor will any of them grant the right
to any third party to use, reproduce, modify, enhance, relicense, market and
exploit the Technology and/or the Products in connection with the Business in
Switzerland. Real Media USA retains all rights to use and license the use of the
Technology outside Switzerland. For purposes of this Agreement the term
"Netscape Bundled Software" shall mean any suite of software products offered by
Netscape (or its successors) that includes the Products only so long as (i) RMSA
is paid a fee of 25% of the revenue received by Real Media USA from Netscape for
sales of the Netscape Bundled Software in Switzerland. Real Media USA will
provide RMSA with reasonable details of any ongoing negotiations with Netscape
for bundled software incorporating the Products to be sold in Switzerland and
Real Media USA will solicit the cooperation and assistance of RMSA in developing
the strategy for marketing the Netscape Bundled Software in Switzerland.
4. Reseller Arrangements.
(a) RMSA shall have the exclusive right to relicense the
Products and to provide related services in Switzerland, in its sole and
complete discretion, including, but not limited to the right to set relicense
fees and the charges for related technical services. All of the costs and
expenses incurred by RMSA relating to the relicensing of the Products and the
provision of related services, or otherwise will be borne by RMSA. RMSA is not,
and shall not do business as the representative, agent, franchisee, servant or
employee of Real Media USA but shall act solely as an independent contractor.
RMSA may relicense the Products and provide related services, only upon
procuring from each customer a properly completed and executed non-exclusive
Product license agreement in a form substantially similar to the attached Annex
A; this licensing agreement may be properly completed and executed online by the
licensees.
(b) RMSA shall ensure that all copies of the Products
delivered to customers shall retain the proprietary and copyright notices and
legends supplied by Real Media
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USA and shall keep a record identifying each copy of the Product and the
customer to whom it has been delivered.
(c) RMSA shall report and pay Real Media USA on a quarterly
basis a fee on all receipts for Products and related services sold in the
previous quarter. Payments to Real Media USA shall be computed as a percentage
of the net sales price for the Products and related services sold to end users
calculated in accordance with the fee schedule attached as Schedule 1 based upon
all such sales from and after the date hereof and subject to the credit for
prepaid fees set forth thereon. Payments shall be made in United States currency
to a Bank designated by Real Media USA within thirty (30) days of end of each
quarter.
5. Regulatory Matters.
(a) RMSA shall comply with the laws of Switzerland relating to
the marking of products with suitable patent and/or copyright notices, as
applicable.
(b) RMSA shall not, without the prior written consent of Real
Media USA, transmit any Technology or any information received from Real Media
USA, directly or indirectly, to any country to which export of such information
or product is prohibited by United States government regulations as issued from
time to time relating to the exportation of technical data of United States
origin. Real Media USA shall take reasonable steps to undertake to comply with
United States laws and regulations which result in the least restriction on the
use of the Technology by RMSA.
(c) Notwithstanding any other provision of this Agreement,
Real Media USA may grant non-exclusive licenses under the Technology to third
parties, to the extent necessary to comply with applicable compulsory license
requirements and to keep any patents of the Technology in full force.
(d) To the extent that Real Media USA deems it necessary or
desirable to obtain approval of, record, or register this license, RMSA shall at
Real Media USA's expense, cooperate fully with Real Media USA or Real Media
USA's designee (including the execution of all documents which Real Media USA
deems necessary or desirable) in seeking such approval and effecting such
recording or registration, and in withdrawing or canceling any such approval,
recording or registration upon the termination of this Agreement.
6. Delivery of Technology. Except as required by the terms of any
relicensing of the Products as permitted under this Agreement, RMSA will not
cause any additional copies of the Technology Records to be made without Real
Media USA's prior written consent. RMSA will treat the Technology as secret and
confidential, will take all reasonable precautions to prevent the unauthorized
disclosure of the Technology (including without limitation following the most
stringent security procedures that it follows with its own trade secrets and
confidential information), and will not disclose the Technology to anyone other
than those of its employees and agents who require such knowledge in order that
RMSA may carry out its duties under this Agreement. RMSA obligation to maintain
secrecy and confidentiality
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shall not extend to any issued patents or any Technology which is or becomes
public knowledge through no act or omission of RMSA.
7. Improvements.
(a) If Real Media USA invents, develops, acquires or learns of
any improvements to the Technology during the period beginning with the date of
this Agreement and ending on December 31 2005, Real Media USA will promptly
notify RMSA of such improvements, and such improvements will be considered
"Technology" for the purposes of this Agreement; provided, however, that if the
license granted hereunder shall be rendered non-exclusive in accordance with
Paragraph 12 hereof, any improvements made thereafter to the Technology shall
not be subject to the terms of this Agreement.
(b) If RMSA invents, develops, acquires or learns of any
improvements to the Technology during the period beginning with the date of this
Agreement and ending on December 31, 2005, RMSA, will promptly notify Real Media
USA of such improvements. RMSA hereby grant to Real Media USA a fully paid-up
license to all rights to use and market such improvements for the term of this
Agreement; provided, however, that if the license granted hereunder shall be
rendered non-exclusive in accordance with Paragraph 12 hereof, any improvements
made thereafter to the Technology shall not be subject to the terms of this
Agreement.
8. Patent and Copyright Protection. Real Media USA makes no
representations or warranties concerning the Technology or its patentability,
and no representations or warranties that RMSA's use of any Technology will not
infringe the rights of any third party. Real Media USA has no obligation to
indemnify RMSA in the event that RMSA's use of Technology, conduct of the
Business, or sale of a product or service, infringes or is claimed to infringe
the rights of any third party. Notwithstanding the foregoing, Real Media USA at
its own expense will seek such patent and copyright protection in Switzerland as
Real Media USA deems advisable, and take such steps as Real Media USA and RMSA
together deem prudent to protect the Technology against infringement, and RMSA
shall provide reasonable co-operation to Real Media USA in relation to the
seeking of such protection. If local copyright law in Switzerland is not
adequate to protect the Technology, RMSA acknowledges that Real Media USA shall
be entitled to patent the Technology in such country, and RMSA shall reimburse
to Real Media USA the reasonable costs and fees of obtaining such patents in
Switzerland. RMSA shall not, directly or indirectly, (i) apply for any patents
in respect of any aspect of the Technology, (ii) enter into any Agreement with
any third party which in any way alters, diminishes, or restricts the rights of
Real Media USA or RMSA in any aspect of the Technology or places any
restrictions or conditions upon the use of any Technology (provided that nothing
contained herein shall preclude the grant of any relicense of the Products as
permitted under this Agreement), or (iii) take any other action that would
prejudice or interfere with Real Media USA's ownership of any Technology or the
patents in any Technology. Nothing in this Paragraph 8 shall restrict or prevent
the RMSA from prosecuting or defending as applicable any
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action in Switzerland for infringement involving the Technology and/or the
Products in accordance with Paragraph 9.
9. Infringement.
(a) If either RMSA or Real Media USA become aware of any
unauthorized use or infringement by any third party of any Technology in
Switzerland, each of them will promptly notify the other. Following such
notification, Real Media USA and RMSA shall for the period of 21 days following
such notification attempt in good faith to agree what action should be taken
and: (i) if either Real Media USA or RMSA wants to take action to prevent such
infringement continuing (the "Proceeding Party") but the other party declines to
take action (the "Declining Party"), the Proceeding Party shall be entitled upon
the expiration of such period or at any time thereafter to proceed at its
discretion and shall pay the costs of the action and retain any amounts
recovered, and the Declining Party shall provide reasonable co-operation and
assistance in connection with such action at the Proceeding Party's cost; or
(ii) if both Real Media USA and RMSA want to take action but they cannot agree
on the form of action to take within such period, RMSA shall be solely entitled
to bring any claim for infringement by any third party in respect of the use of
the Technology in Switzerland and retain any amounts recovered, and Real Media
USA shall at its own cost provide such reasonable co-operation and assistance as
may be requested by RMSA in connection with any such action.
(b) If RMSA or Real Media USA become aware of any assertion by
any third party that RMSA's use of any Technology constitutes patent, copyright,
or trade secret infringement, or any other tortious act, each of them will
promptly notify the other.
(c) In the event that such any such assertion as described in
sub-paragraph (b) of this Clause 9 results in a claim being brought in
Switzerland against RMSA: (i) RMSA shall have the right at its discretion to
defend any such claim and shall be responsible for paying the costs of the
defense; and (ii) Real Media USA shall provide reasonable co-operation and
assistance to RMSA in connection with the defense of such claim, provided that
RMSA shall not be entitled to settle any claim or make any admission in respect
of such claim which would prejudice Real Media USA's ownership of the Technology
without the written consent of Real Media USA. If Real Media USA declines to
give consent within 21 days of a request made by the RMSA in circumstances where
RMSA wish to settle a claim or make an admission as described in the preceding
sentence, Real Media USA shall have conduct of and shall be responsible for
bearing all the costs of the defense of such claim as of the expiration of such
21 day period.
(d) In the event that any such assertion as described in
sub-paragraph (b) of this Clause 9 results in a claim being brought in
Switzerland against Real Media USA, the following shall apply: (i) Real Media
USA shall have the right at its discretion to defend any such claim and shall be
responsible for paying the costs of the defense; and (ii) RMSA shall provide
reasonable assistance to Real Media USA in connection with the defense of such
claim, provided that Real Media USA shall not be entitled to settle any claim or
make any admission in respect of such claim which could prejudice or harm the
rights of RMSA under this Agreement
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without the prior written consent of RMSA. If RMSA decline to give consent
within 21 days of a request made by Real Media USA in circumstances where Real
Media USA wishes to settle a claim or make an admission as described in the
preceding sentence, RMSA shall have conduct of and shall be responsible for
bearing all the costs of the defense of such claim as of the expiration of such
21 day period.
10. Liability. Real Media USA makes no representation, guarantee or
warranty, express or implied, as to the results to be expected from use of any
of the inventions contained in the Technology or from the manufacture or sale of
any product or service using or embodying the Technology. Real Media USA shall
have no responsibility under any legal principle to RMSA, or others for the
quality or performance of any product or service using or embodying the
Technology, for the claims of third parties relating to any product or service
using or embodying the Technology or sold by RMSA. In no event shall Real Media
USA be liable to the RMSA or others for indirect, special, incidental or
consequential damages under this Agreement or otherwise.
11. Term and Termination. This Agreement will commence on the date of
this Agreement and, continue until December 31, 2005, unless terminated upon the
mutual agreement of Real Media USA and RMSA, or unless terminated as follows:
(a) Real Media USA may terminate this Agreement immediately if
RMSA, becomes insolvent, or is unable to pay its debts when due, or makes any
assignment for the benefit of creditors, or shall file any petition under the
bankruptcy or insolvency laws of any jurisdiction, county or place, or be
adjudicated bankrupt or insolvent.
(b) If Real Media USA on the one hand, or RMSA on the other
hand, commits a breach of any of the material terms and provisions of this
Agreement or the Trademark Agreement, the non-breaching party may terminate this
Agreement after providing written notice describing such breach and the steps
needed to cure such breach, and allow the breaching party thirty (30) days after
the delivery of such notice in which to cure such breach. If the breach is not
cured, then this Agreement shall terminate sixty (60) days after the date of
delivery of notice. The failure of a party to terminate this Agreement for any
one or more acts or instances constituting a breach shall in no way be construed
as a waiver, express or implied, of such party's right to terminate for any
other act or instance of like or different nature.
12. Effect of Termination.
(a) Upon the termination of this Agreement for the reasons set
forth in Subsections 11(a) or 11(b) by reason of a breach by RMSA, (i) except
for those continuing rights described in Subsection (b) below, RMSA's right to
use the Technology and all of RMSA's other rights under this Agreement shall
cease except with respect to licensees of RMSA subject to the terms provided in
such licensing agreements, (ii) RMSA will immediately return to Real Media USA
all copies of all Technology Records and will erase or destroy all other copies
in its possession or control other than those needed in connection with the
continuing rights described in Subsection (b) below, and (iii) and subject to
Subsection (b) below, all of the other rights,
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duties and obligations of the parties hereunder shall terminate except RMSA's
obligations (1) under Section 6, and (2) to cooperate in Real Media USA or
RMSA's prosecution or defense of any infringement claims in accordance with
Section 9.
(b) Upon termination of this Agreement for the reasons set
forth in Subsections 11(a) or 11(b) by reason of a breach by RMSA, Real Media
USA acknowledges that any sub-licenses granted by RMSA in respect of the
Technology which are in force as at the date of termination shall continue in
force until the date of expiration or termination of each such sub-license in
accordance with its terms. The parties agree that the provisions of this
Agreement shall continue to apply as between the parties in respect of any
sub-licenses as described in this Subsection (b) to the extent required to give
effect to the provisions of this Subsection (b).
(c) Upon the termination of this Agreement for any reason
other than those set forth in Subsections 11(a) or 11(b) by reason of a breach
by RMSA, (i) RMSA shall continue to have the right to use and to relicense the
Technology on a non-exclusive basis, (ii) all of RMSA's other rights under this
Agreement shall cease, including without limitation the right to receive
improvements under Subsection 7(a).
13. Assignment, Sublicensing. The rights granted to RMSA under this
Agreement are personal to RMSA. Subject to the express terms hereof, Real Media
USA does not grant, and nothing in this Agreement shall be construed as
granting, RMSA the right to directly or indirectly sublicense or authorize
others to use the Technology. RMSA may not directly or indirectly assign or
transfer to any third party all or any part of its rights or duties under this
Agreement.
14. Miscellaneous.
(a) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, addressed as follows: (i) if to Real Media USA, Real Media, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: President, with a copy to
Dechert Price & ▇▇▇▇▇▇, 4000 ▇▇▇▇ Atlantic Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇ ▇. ▇▇▇▇, Esq.; and (ii) if to RMSA, ▇/▇
▇▇▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, with
a copy to Squadron, Ellenoff, Plesent & ▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; or, in any such case, at
such other address or addresses as shall have been furnished in writing by such
party to the other.
(b) This Agreement shall be governed by the laws of the State
of New York, Unites States of America, and may be amended or modified only by a
writing executed by all parties, and shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns.
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(c) The invalidity of any provision of this Agreement will not
affect the validity of the remaining provisions, and this Agreement will be
construed as if such invalid provision had been omitted.
(d) In the event of a breach by any party hereto of the terms
of this Agreement, the other party or parties shall be entitled to all of their
remedies at law or in equity. The parties hereto acknowledge that a breach of
this Agreement will cause irreparable damage to the other party or parties, the
exact amount of which will be difficult or impossible to ascertain, and that
remedies at law for any such breach will be inadequate. Accordingly, the parties
hereto acknowledge that, upon a breach of this Agreement, the other party or
parties shall be entitled to injunctive or other equitable relief, without
posting bond or other security.
(e) This Agreement sets forth all of the promises and
undertakings between the parties relating to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings, express
or implied, oral or written with respect to the subject matter hereof.
This Agreement has been written in the English language. In the event of
conflict between the English version and any version in any other language, the
English version shall prevail.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date and year first above written.
REAL MEDIA, INC.
By: _________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
REAL MEDIA S.A.
By: _________________________
Name:
Title:
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Exhibit A
For purposes of the Technology Agreement, the "Technology" shall be defined as
all computer software, source code and systems created, modified or enhanced by
Real Media USA relating to the development and operation of its Open AdStream
technology or any successor thereto which in any manner performs the same or
substantially similar function and all other software, source code and systems
which shall be developed during the applicable periods which is used for the
Business.
98
Exhibit B
Products
Open AdStream
99
Schedule 1
Commissions Percentage of Gross End User Sales*
----------- -----------------------------------
Annual Revenue (US Dollars) Initial Sale Renewal
--------------------------- ------------ -------
0 - 100,000 17.5% 10%
101,000 - 200,000 15.0% 7.5%
Over 200,000 12.5% 5.0%
* Based on revenue received by RMSA for relicense and related services,
exclusive of taxes and governmental fees, where the amounts paid by the
end user of the Products are known to RMSA.
Additionally, commissions shall be payable equal to thirty percent of
revenue received by RMSA for relicense and related services, exclusive
of taxes and governmental fees, where the amounts paid by the end users
of the Products are not known to RMSA.
RMSA shall be entitled to a credit of US $_________ against the payment
of fees payable to Real Media USA hereunder.
100
EXHIBIT F
COOPERATION AGREEMENT
101
EXHIBIT F
COOPERATION AGREEMENT BETWEEN PUBLIGROUPE S.A. AND REAL MEDIA, INC.
Background
PubliGroupe has a strategic interest in developing its advertising activities in
interactive media at a worldwide scale through Real Media to a large extent. It
is committed to develop best possible synergies between its existing activities
in traditional media and the opportunities opened in interactive media,
particularly in developing close working relationships between its international
division, the Publicitas Promotion Network (PPN) and Real Media (RM).
PPN is a division of PubliGroupe which in the past and in the foreseeable future
has been and will be positioned as a media promotion and advertising sales
network. Real Media is a company partly owned by PubliGroupe which in the past
and in the foreseeable future will focus its core activities on developing
advertising solution for digital media, including interactive ad management
technology, online advertising sales and providing related media services.
Agreement
1. Advertising. The main purpose of this agreement ("THE AGREEMENT") is for
PPN and RM to develop synergies in advertising sales based on: (i) the
partnerships with print and online content publishers (the "PARTNERS"),
(ii) the relationships with advertisers and agencies (the "CLIENTS")
established by both parties.
The focus of the cooperation is to develop commercial offers for CLIENTS
which combine a print and an online component, so-called "Print Plus"
offers. These offers will be developed jointly with PARTNERS of both
companies and will be sold to CLIENTS in coordination by the sales
organizations of PPN and RM. Remuneration will be based on a commission
split agreement, to be defined within the Regional Agreements(9).
PPN will, in addition, use its reasonable efforts to promote RM as an
online sales organization of choice towards its PARTNERS. PPN will also
redirect any contacts with CLIENTS which specifically are looking for
advertising services in digital media. Any online advertising sales leads
generated by PPN for RM will be compensated by a share of RM's sales
commission, to be defined within the Regional Agreements(9).
RM commits to use its reasonable efforts to promote PPN as a transnational
print media representation and sales organization of choice towards its
PARTNERS, also active in print media, it has relationships with. RM will,
in addition, redirect any contacts with CLIENTS which specifically are
looking for print media advertising opportunities. Any print
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advertising sales leads generated by RM for PPN will be compensated by a
share of PPN's sales commission, to be defined within the Regional
Agreements(9).
2. Technology. PPN will use its reasonable efforts to promote Open AdStream
towards its PARTNERS as the technology of choice. Any sales leads generated
by PPN will be compensated by a 8% sales commission on the initial one year
Open AdStream licensing fee charged to the client.
3. Equal Pricing. PPN and RM will practice and get the guarantee from the
other party to always be in a position to offer the same-price
(best-price-practice) as the other party for the same offer.
4. Information. PPN and RM will share all information directly related to THE
AGREEMENT on a ongoing basis.
5. Confidentiality. Any information disclosed by one party to the other is
for the exclusive use of the other party for the purpose of THE AGREEMENT
and will not be disclosed to any third party unless such disclosure is
required by applicable law.
6. Promotion. PPN and RM will in their communication and promotion activities
promote one another. Both will refrain from activities which could
negatively affect the other party's image.
7. Employees. PPN and RM agree that any transfers of employees from one
company to the other have to be discussed and agreed on by the appropriate
management-level of each company before any contracts with employees are
negotiated or signed.
8. Competition. During the term of this Agreement, Real Media will not
actively seek relationships with companies that compete with PPN's Core
Business of i) the representation of print media for the sale and promotion
of advertising including print-plus programs, ii) the sale of advertising
in printed and electronic telephone and professional directories, and iii)
the creation and management of web sites, such as Autoweb in Europe ("PPN
Core Business") and PPN will not actively seek relationships with companies
that compete with Real Media's Core Business of i) the sale and promotion
of internet advertising, ii) the sale of advertising management technology
to web sites, and iii) the sale of media and marketing services to web
sites. Real Media may develop relationship(s) with a PARTNER that has a
relationship with a company that competes with a PPN Core Business as
defined above. PPN may develop relationship(s) with a PARTNER that has a
relationship with a company that competes with Real Media's Core Business
as defined above. In such an event each Party will use its reasonable best
efforts to convince the PARTNER to work with Real Media or PPN,
respectively. Each party agrees that it will not develop activities that
compete with each other's Core Businesses.
9. Term and Termination. THE AGREEMENT is valid for a period of three years
upon the date of signature. It will be renewed automatically for subsequent
periods of one year unless
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either party gives notice six months before. It can be terminated at any
time upon mutual agreement. PPN can terminate the agreement unilaterally
with a six month notice should (i) RM significantly change the focus of
its activities, or (ii) should PubliGroupe's share in RM's capital fall
under 40%.
THE AGREEMENT will be complemented by detailed Regional Agreements which
will be discussed and finalized in respect of the guidelines set in THE
AGREEMENT on a region-by-region-basis (US, Latin America, Europe,
Asia/Pacific) by the Regional Managing Directors of PPN and RM. The
Regional Agreements will be re-discussed on a yearly basis.
10. Effect of Termination. Upon the termination of this agreement, PPN and RM
regain full rights to work independently without any obligations towards
the other party.
11. Exclusions. This Agreement covers all regions and countries of the world
with the exclusion of Switzerland. All areas of advertising are covered by
this agreement with the exclusion of classified advertising, an area in
which both parties shall pursue opportunities independently.
12. Succession. This Agreement shall supercede and replace any and all existing
Agreements currently in place between the Parties that pertains to the
subject matter hereof.
13. Governing Law; Arbitration. This Agreement shall be governed by the laws of
Switzerland. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by binding arbitration
conducted before one arbitrator who is knowledgeable in the fields of law
and business applicable to this Agreement, or if a dispute pertains to
issues affecting the financial obligations of the Parties, the arbitrator
shall be a lawyer and a certified public accountant. The site of any such
arbitration shall be in Zurich, Switzerland. The judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Each Party shall bear its own costs and expenses, including fee
and expenses of counsel, associated with the arbitration. The arbitrator
shall not be empowered to award punitive damages to either Party.
Publigroupe S.A.
-------------------------------
Real Media, Inc.
-------------------------------
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EXHIBIT G
TRADEMARK AND TRADENAME AGREEMENT
105
EXHIBIT G
TRADEMARK AND TRADENAME AGREEMENT
THIS TRADEMARK AND TRADENAME AGREEMENT (the "Agreement"), is made
this ___ day of ___________, 2000 between REAL MEDIA, INC., a Delaware
corporation ("Real Media USA"), Real Media, S.A., a company, organized under the
laws of Switzerland ("RMSA"), and 51% owned subsidiary company of PubliGroupe,
S.A., a company organized under the laws of Switzerland ("PubliGroupe").
BACKGROUND
PubliGroupe and Real Media USA have entered into a Stock Purchase
Agreement dated February __, 2000 (the "Acquisition Agreement"). Pursuant to the
Acquisition Agreement, on the date hereof Real Media USA will acquire Real Media
Europe, S.A. and its subsidiaries ("Real Media Europe")from PubliGroupe, and
PubliGroupe will receive additional shares of Common and Preferred Stock of Real
Media USA. As a result of the transactions contemplated by the Acquisition
Agreement; PubliGroupe will become the owner of 51% of RMSA and Real Media USA
will become the owner of 49% of RMSA;
Real Media USA has created technology, which it refers to as the
AdStream system, for use in the management of online content as more fully
defined in the Technology Transfer Agreement of even date by and between the
parties hereto (the "Technology"). RMSA provides Online Content Providers in
Switzerland with integrated planning and placement of advertising and other
content on their online sites using the Technology and similar technology (the
"Business"). As used in this Agreement, an "Online Content Provider in
Switzerland" shall mean an online content provider whose primary offices are
located in Switzerland or which provides online content designed primarily for
readers in Switzerland and seeks advertising for products and services marketed
in Switzerland. Real Media USA and RMSA have entered into a Technology Transfer
Agreement (the "Technology Transfer Agreement") on this date, pursuant to which
Real Media USA will provide RMSA with the Technology and certain support
services. RMSA wishes to use the corporate name and trade name REAL MEDIA S.A.,
the trademark REAL MEDIA and the trademark ADSTREAM in connection with the
Business in Switzerland, and other marks developed in conjunction with the
business, pursuant to the terms of this Agreement.
It is a condition to the closing of the transactions contemplated by
the Acquisition Agreement that the parties enter into this Trademark and
Tradename Agreement.
TERMS
NOW, THEREFORE, for good and valuable consideration and intending to
be legally bound hereby, the parties agree as follows:
1. USE OF MARKS. Real Media USA grants RMSA the right to use, solely
in connection with the operation of the Business in Switzerland, the trade name
and corporate name REAL MEDIA S.A., the trademark REAL MEDIA, the trademark
ADSTREAM, and the
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trademark MEDIAEXPRESS and such other trademarks and tradenames as shall be
employed by Real Media USA in connection with the operation of the Business
outside Switzerland. RMSA shall not use the Marks or any variations of the Marks
in connection with any other service, product or business other than the
Business, or in any other country or territory other than Switzerland.
2. EXCLUSIVITY. During the term of this Agreement Real Media USA
will not use, and will not grant the right to any third party to use, the Marks
in connection with the Business in Switzerland. Real Media USA retains all
rights to use and license the use of the Marks outside Switzerland.
3. APPEARANCE OF MARKS. Real Media USA and RMSA will together
develop and agree upon advertisements, brochures, displays, and other
advertising or promotional material bearing the Licensed ▇▇▇▇.
4. REGULATORY MATTERS. To the extent that Real Media USA deems it
necessary or desirable to obtain approval of, record, or register this license,
or to record or register RMSA as a registered user of the Marks, RMSA shall
cooperate fully with Real Media USA or Real Media USA's designee (including the
execution of all documents which Real Media USA reasonably deems necessary or
desirable) in seeking such approval and effecting such recording or
registration, and in withdrawing or canceling any such approval, recording or
registration upon the termination of this Agreement.
5. REGISTRATION AND MAINTENANCE. Real Media USA makes no
representations or warranties that the Marks are available for use in
Switzerland, no representations or warranties as to the availability,
protectability, registrability, validity or enforceability of any ▇▇▇▇, and no
representations or warranties that RMSA's use of any ▇▇▇▇ will not infringe the
rights of any third party. Real Media USA has no obligation to indemnify RMSA in
the event that RMSA's use of a ▇▇▇▇, conduct of the Business, or sale of a
product or service, infringes or is claimed to infringe the rights of any third
party. Notwithstanding the foregoing, Real Media USA will seek, in Real Media
USA's name, such registrations of the Marks as RMSA requests or Real Media USA
deems advisable, and take such steps as Real Media USA and RMSA together deem
prudent to protect the Marks against infringement, including RMSA preemptively
registering marks in Switzerland (following prior written notice to Real Media
USA of such intent to preemptively register) that will be transferred to Real
Media USA upon demand. RMSA shall fully cooperate with Real Media USA in the
taking of any such actions, and reimburse Real Media USA for the costs and fees
incurred in connection with the clearance, registration, maintenance, and
protection of the Marks in Switzerland. In the event that Real Media USA or its
counsel determines that a ▇▇▇▇ is not available for use, registrable or
protectible in Switzerland, or that RMSA determines that the Business requires
marks in addition to the Marks, Real Media USA and RMSA will together select
such alternate or additional marks, and such alternate or additional marks will
be considered "Marks" under this Agreement, and Real Media USA will seek to
register them in Real Media USA's name. RMSA will not, directly or indirectly,
(i) prosecute any application for registration of any ▇▇▇▇, (ii) enter into
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any agreement with any third party which in any way alters, diminishes or
restricts the rights of Real Media USA or RMSA in any ▇▇▇▇ or places any
restrictions or conditions upon the use or appearance of any ▇▇▇▇, (iii)
prosecute or defend any action alleging infringement or similar action involving
the Marks, or (iv) take any other action that would prejudice or interfere with
the validity or Real Media USA's registration or ownership of any ▇▇▇▇.
6. INFRINGEMENT. If RMSA becomes aware of (i) any unauthorized use
or infringement by any third party of any ▇▇▇▇, and (ii) any assertion by any
third party that RMSA's use of any ▇▇▇▇ constitutes trademark, service ▇▇▇▇,
trade dress or trade name infringement, unfair competition or any other tortious
act, RMSA will promptly notify Real Media USA. Real Media USA and RMSA will
determine together in good faith what action Real Media USA should take, and
RMSA will fully cooperate with such action, bear the costs of such action, and
retain any amounts recovered. In the absence of such a determination, Real Media
USA may take such action as it deems advisable at its own expense and retain any
amounts recovered, and RMSA will fully cooperate with such action. If Real Media
USA notifies RMSA that the use of any Marks is adjudicated infringing or
unprotectable, or that Real Media had determined in its reasonable judgment to
settle any action by modifying or ceasing the use of any ▇▇▇▇, the RMSA will
immediately cease the use of such ▇▇▇▇ or modify such ▇▇▇▇ consistent with Real
Media USA's instructions.
7. TERM AND TERMINATION. This Agreement will continue in perpetuity
unless terminated upon the mutual agreement of Real Media USA and RMSA, or
unless terminated as follows:
(a) Real Media USA may terminate this Agreement on thirty (30)
days notice in the event that RMSA becomes insolvent, or is unable to pay its
debts when due, or makes any assignment for the benefit of creditors, or shall
file any petition under the bankruptcy or insolvency laws of any jurisdiction,
county or place, or be adjudicated bankrupt or insolvent.
(b) If Real Media USA on the one hand, or RMSA on the other
hand, breaches any of the terms and provisions of this Agreement or the
Technology Transfer Agreement, the non-breaching party may terminate this
Agreement after providing written notice describing such breach and the steps
needed to cure such breach, and allow the breaching party thirty (30) days after
the delivery of such notice in which to cure such breach. If the breach is not
cured, then this Agreement shall terminate sixty (60) days after the date of
delivery of notice. The failure of a party to terminate this Agreement for any
one or more acts or instances constituting a breach shall in no way be construed
as a waiver, express or implied, of such party's right to terminate for any
other act or instance of like or different nature.
8. EFFECT OF TERMINATION. Upon the termination of this Agreement
under operation of Sections 7(a) or 7(b) by reason of a breach by RMSA, (a)
RMSA's right to use the Marks and all of RMSA's other rights under this
Agreement shall cease, (b) RMSA shall immediately cease all use of the Marks and
all materials bearing the Marks, and shall not adopt or use any similar marks,
trade names, or corporate names, and (c) all of the other rights, duties and
obligations of the parties hereunder shall terminate except RMSA's obligations
to cooperate
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in Real Media USA's prosecution or defense of any infringement claims in
accordance with Section 6.
9. ASSIGNMENT; SUBLICENSING. The rights granted to RMSA under this
Agreement are personal to RMSA. Real Media USA does not grant, and nothing in
this Agreement shall be construed as granting, RMSA the right to directly or
indirectly sublicense or authorize others to use the Marks except as may be
granted to online content providers and advertisers for limited use of the Marks
on their own sites. RMSA may not directly or indirectly assign or transfer to
any third party all or any part of its rights or duties under this Agreement;
provided, however, that Real Media USA and RMSA may freely assign or transfer
their rights and obligations under this Agreement to a corporate affiliate or to
the successor of the business to which this Agreement relates.
10. MISCELLANEOUS.
(a) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, addressed as follows: (i) if to Real Media USA: Real Media, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: President; with a copy to
Dechert Price & ▇▇▇▇▇▇, 4000 ▇▇▇▇ Atlantic Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇ ▇. ▇▇▇▇, Esq.; and (ii) if to RMSA: ▇/▇
▇▇▇▇▇▇▇▇▇▇▇ , ▇.▇., ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
with a copy to Squadron, Ellenoff, Plesent & ▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; or, in any such case, at
such other address or addresses as shall have been furnished in writing by such
party to the other.
(b) This Agreement shall be governed by the laws of the State
of New York, United States of America, and may be amended or modified only by a
writing executed by all parties, and shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns.
(c) The invalidity of any provision of this Agreement will not
affect the validity of the remaining provisions, and this Agreement will be
construed as if such invalid provision had been omitted.
(d) In the event of a breach by any party hereto of the terms
of this Agreement, the other party or parties hereto shall be entitled to all of
their remedies at law and in equity. The parties hereto acknowledge that a
breach of this Agreement will cause irreparable damage to the other party or
parties, the exact amount of which will be difficult or impossible to ascertain,
and that remedies at law for any such breach will be inadequate. Accordingly,
the parties hereto acknowledge that upon a breach of this Agreement, the other
party or parties shall be entitled to injunctive or other equitable relief,
without posting bond or other security.
(e) This Agreement sets forth all of the promises and
undertakings between the parties relating to the subject matter hereof and
supersedes all prior and
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contemporaneous agreements and understandings, express or implied, oral or
written with respect to the subject matter hereof.
(f) This Agreement has been written in the English language.
In the event of conflict between the English version and any version in any
other language, the English version shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date and year first above written.
REAL MEDIA, INC.
By:___________________________
Name:
Title:
REAL MEDIA, S.A.
By:___________________________
Name:
Title:
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