STOCKHOLDER AGREEMENT dated as of February 29, 2000
(this "Agreement"), among XXXXXXX.XXX, INC., a Delaware
corporation ("Target"), and the individuals and other
parties listed on Schedule A hereto (each, a "Stockholder"
and, collectively, the "Stockholders").
WHEREAS, Target, Evergreen Acquisition Sub Corp., a Delaware
corporation ("Sub"), and 24/7 Media, Inc., a Delaware corporation ("Parent"),
propose to enter into an Agreement and Plan of Merger dated as of the date
hereof (as the same may be amended or supplemented, the "Merger Agreement";
capitalized terms used but not defined herein shall have the meanings set
forth in the Merger Agreement) providing for the merger of Sub with and into
Target; and
WHEREAS, each Stockholder owns the number of shares of Parent Common
Stock set forth opposite his, her or its name on Schedule A hereto (such
shares of Parent Common Stock, together with any other shares of capital stock
of Parent acquired by such Stockholder after the date hereof and during the
term of this Agreement (including through the exercise of any stock options,
warrants or similar instruments), being collectively referred to herein as the
"Parent Subject Shares" of such Stockholder); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Target has requested that each Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, agree as follows:
SECTION 1. Representations and Warranties of Each Stockholder. Each
Stockholder hereby, severally and not jointly, represents and warrants to
Target as of the date hereof in respect of himself, herself or itself as
follows:
(a) Authority; Execution and Delivery; Enforceability. The
Stockholder has all requisite power and authority to execute this Agreement
and to consummate the transactions contemplated hereby. The Stockholder has
duly executed and delivered this Agreement, and this Agreement constitutes the
legal, valid and binding obligation of the Stockholder, enforceable against
the Stockholder in accordance with its terms. The execution and delivery by
the Stockholder of this Agreement do not, and the
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consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancelation or acceleration of any obligation or to
loss of a material benefit under, or result in the creation of any Lien upon
any of the properties or assets of the Stockholder under, any provision of any
Contract to which the Stockholder is a party or by which any properties or
assets of the Stockholder are bound, or, subject to the filings and other
matters referred to in the next sentence, any provision of any judgment, order
or decree (collectively, "Judgment") or any statute, law, ordinance, rule or
regulation (collectively, "Applicable Law") applicable to the Stockholder or
the properties or assets of the Stockholder. No consent, approval, order or
authorization (collectively, "Consent") of, action by or in respect of, or
registration, declaration or filing with, any Governmental Entity is required
to be obtained or made by or with respect to the Stockholder in connection
with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, other than (i)
compliance with and filings under the HSR Act, if applicable to the
Stockholder's receipt in the Merger of Parent Common Stock, and (ii) such
reports under Sections 13(d) and 16 of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby. If
the Stockholder is married and the Parent Subject Shares of the Stockholder
constitute community property or otherwise need spousal or other approval to
be legal, valid and binding, this Agreement has been duly authorized, executed
and delivered by, and constitutes a valid and binding agreement of, the
Stockholder's spouse, enforceable against such spouse in accordance with its
terms.
(b) The Parent Subject Shares. Except as set forth on Schedule A
hereto, the Stockholder is the record and beneficial owner of, or is the
trustee of a trust that is the record holder of, and whose beneficiaries are
the beneficial owners of, and has good and marketable title to, the Parent
Subject Shares set forth opposite his, her or its name on Schedule A attached
hereto, free and clear of any Liens. The Stockholder does not own, of record
or beneficially, any outstanding shares of capital stock of Parent other than
the Parent Subject Shares set forth opposite his, her or its name on Schedule
A attached hereto. Except as set forth on Schedule A hereto, the Stockholder
has the sole right to vote such Parent Subject Shares, and except as
contemplated by this Agreement, none of such Parent Subject Shares is subject
to any voting trust or
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other agreement, arrangement or restriction with respect to the voting of such
Parent Subject Shares.
SECTION 2. Representations and Warranties of Target. Target hereby
represents and warrants to each Stockholder as follows: Target has all
requisite corporate power and authority to execute this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
Target of this Agreement and consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of
Target. Target has duly executed and delivered this Agreement, and, assuming
this Agreement constitutes the legal, valid and binding obligation of each of
the other parties hereto, this Agreement constitutes the legal, valid and
binding obligation of Target, enforceable against Target in accordance with
its terms. The execution and delivery by Target of this Agreement do not, and
the consummation of the transactions contemplated hereby and compliance with
the terms hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancelation or acceleration of any obligation or to
loss of a material benefit under, or result in the creation of any Lien upon
any of the properties or assets of Target under, any provision of any Contract
to which Target is a party or by which any properties or assets of Target are
bound or, subject to the filings and other matters referred to in the next
sentence, any provision of any Judgment or Applicable Law applicable to Target
or the properties or assets of Target. No Consent of, action by or in respect
of, or registration, declaration or filing with, any Governmental Entity is
required to be obtained or made by or with respect to Target in connection
with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, other than such reports
under Sections 13(d) and 16 of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby.
SECTION 3. Covenants of Each Stockholder. Each Stockholder,
severally and not jointly, covenants and agrees, except as set forth on
Schedule A hereto, as follows:
(a) At any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the stockholders of Parent called to seek
Parent Stockholder Approval or in any other circumstances upon which a vote,
consent or other approval (including by written consent) with respect to the
issuance of shares of Parent Common
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Stock in connection with the Merger or any other transaction contemplated by
the Merger Agreement is sought, the Stockholder shall, including by executing
a written consent solicitation if requested by Target, vote (or cause to be
voted) the Parent Subject Shares of the Stockholder in favor of the issuance
of shares of Parent Common Stock in connection with the Merger or any other
transaction contemplated by the Merger Agreement.
(b) The Stockholder hereby irrevocably grants to, and appoints,
Target and E. Xxxxxx Xxxxxx, Xx. and Xxxxxxx X. Xxxxxxx, Xx., or any of them,
and any individual designated in writing by any of them, and each of them
individually, as the Stockholder's proxy and attorney-in- fact (with full
power of substitution), for and in the name, place and stead of the
Stockholder, to vote the Parent Subject Shares of the Stockholder, or grant a
consent or approval in respect of the Parent Subject Shares of the
Stockholder, in favor of the issuance of shares of Parent Common Stock in
connection with the Merger or any other transaction contemplated by the Merger
Agreement. The Stockholder understands and acknowledges that Target is
entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement. The Stockholder hereby affirms that
the irrevocable proxy set forth in this Section 3(b) is given in connection
with the execution of the Merger Agreement, and that such irrevocable proxy is
given to secure the performance of the duties of the Stockholder under this
Agreement. The Stockholder hereby further affirms that the irrevocable proxy
is coupled with an interest and may under no circumstances be revoked. The
Stockholder hereby ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 212(e) of the DGCL. The irrevocable proxy granted hereunder shall
automatically terminate upon the termination of Sections 3(a) and 3(b) in
accordance with Section 4.
(c) The Stockholder shall use all reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by the Merger
Agreement. The Stockholder shall not issue any press release or make any other
public statement with respect to the Merger Agreement, the Merger or any other
transaction contemplated by the
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Merger Agreement without the prior written consent of Target, except as may be
required by Applicable Law.
(d) The Stockholder hereby consents to and approves the actions
taken by the Board of Directors of Parent in approving the Merger Agreement
and this Agreement, the Merger, the issuance of shares of Parent Common Stock
in connection with the Merger and the other transactions contemplated by the
Merger Agreement.
SECTION 4. Termination. This Agreement shall terminate upon the
earliest of (i) the Effective Time and (ii) the termination of the Merger
Agreement in accordance with its terms.
SECTION 5. Additional Matters. (a) Each Stockholder shall, from time
to time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as Target may
reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
(b) No person executing this Agreement who is or becomes during the
term hereof a director or officer of Parent makes any agreement or
understanding herein in his or her capacity as such a director or officer of
Parent. Each Stockholder signs solely in his, her or its capacity as the
record holder and beneficial owner of, or the trustee of a trust whose
beneficiaries are the beneficial owners of, such Stockholder's Parent Subject
Shares and nothing herein shall limit or affect any actions taken by any
Stockholder in his capacity as an officer or director of Parent to the extent
specifically permitted by the Merger Agreement.
SECTION 6. General Provisions. (a) Amendments. This Agreement may
not be amended except by an instrument in writing signed by each of the
parties hereto.
(b) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to Target in accordance with
Section 8.02 of the Merger Agreement and to the Stockholders at their
respective addresses set forth on Schedule A hereto (or at such other address
for a party as shall be specified by like notice).
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(c) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
(d) Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement.
This Agreement shall become effective against Target when one or more
counterparts have been signed by Target and delivered to each Stockholder.
This Agreement shall become effective against any Stockholder when one or more
counterparts have been executed by such Stockholder and delivered to Target.
Each party need not sign the same counterpart.
(f) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i) constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof and (ii) is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware regardless of
the laws that might otherwise govern under applicable principles of conflicts
of law thereof.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or
in part, by operation of law
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or otherwise, by Target without the prior written consent of each Stockholder
(except that Target may assign, in its sole discretion, any or all of its
rights, interests and obligations hereunder, to any direct or indirect wholly
owned subsidiary of Target) or by any Stockholder without the prior written
consent of Target, and any purported assignment without such consent shall be
void. Subject to the preceding sentences, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
(i) Enforcement. The parties agree that irreparable damage would
occur and that the parties would not have any adequate remedy at law in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
State of Delaware or in any Delaware state court, the foregoing being in
addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated by this Agreement, (ii) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, (iii) agrees that it will not
bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a Federal court sitting
in the State of Delaware or any Delaware state court and (iv) waives any right
to trial by jury with respect to any claim or proceeding related to or arising
out of this Agreement or any transaction contemplated by this Agreement.
(j) Agent for Service of Process. Each Stockholder hereby appoints
The Corporation Service Company, with offices on the date hereof at 0000
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, as its authorized agent (the
"Authorized Agent"), upon whom process may be served in any suit, action or
proceeding arising out of or relating to this Agreement or any transaction
contemplated by this Agreement that may be instituted in any court described
in Section 6(i)(i). Each Stockholder agrees to take any and all action,
including the filing of any and all documents, that may be necessary to
establish and continue such appointment in full force and effect as aforesaid.
Each
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Stockholder agrees that service of process upon the Authorized Agent shall be,
in every respect, effective service of process upon such Stockholder.
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IN WITNESS WHEREOF, each party has duly executed this
Agreement, all as of the date first written above.
XXXXXXX.XXX, INC.,
by
/s/ E. Xxxxxx Xxxxxx, Xx.
----------------------------------
Name: E.Xxxxxx Xxxxxx, Xx.
Title: Chief Executive Officer
THE TRAVELERS INSURANCE COMPANY,
by
/s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Asst. Corporate
Secretary
BIG FLOWER DIGITAL SERVICES, INC.,
by
/s/ R. Xxxxxxxx Xxxxx
----------------------------------
Name: R. Xxxxxxxx Xxxxx
PROSPECT STREET NYC
DISCOVERY FUND, L.P.,
by
/s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Managing General Partner
PROSPECT STREET NYC
CO-INVESTMENT FUND, L.P.,
by
/s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Managing General Partner
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FRESHWATER CONSULTING LTD.,
by
/s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
GALMOS HOLDINGS, INC.,
by
/s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
XXXXX X. XXXXX,
/s/ Xxxxx X. Xxxxx
----------------------------------
XXXX XXXXXXXXXXXX,
/s/ Xxxx Xxxxxxxxxxxx
-----------------------------------
XXXXX XXXX,
/s/ Xxxxx Xxxx
-----------------------------------
XXXXX X. XXXXXXX,
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
XXXX X. XXXXXXX,
/s/ Xxxx X. Xxxxxxx
-----------------------------------
XXXXX XXXXX,
/s/ Xxxxx Xxxxx
-----------------------------------
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SCHEDULE A
NUMBER OF
SHARES OF
PARENT
COMMON STOCK
HELD OF
NAME ADDRESS RECORD
---- ------- ------
Travelers Insurance Company1 Xxx Xxxxx Xxxxxx 0,000,000
Xxxxxxxx, XX 00000-0000
Xxxxx X. Xxxxx c/o 24/7 Media, Inc. 887,343
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Big Flower Holdings 0 Xxxx 00xx Xxxxxx 000,000
Xxx Xxxx, XX 00000
Prospect Street Discovery Fund 00 Xxxx 00xx Xxxxxx 000,000
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxxxxxxxxx c/o 24/7 Media, Inc. 653,062
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxx c/o 24/7 Media, Inc. 626,938
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
--------
1/ Nothing in this Agreement shall restrict the ability of Travelers
Insurance Company to transfer its shares of Parent Common Stock without regard
to the irrevocable proxy or any other restriction set forth in this Agreement.
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NUMBER OF
SHARES OF
PARENT
COMMON STOCK
HELD OF
NAME ADDRESS RECORD
---- ------- ------
Xxxxx X. Xxxxxxx c/o 24/7 Media, Inc. 508,371
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxxxx c/o 24/7 Media, Inc. 495,836
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Prospect Street Co-Investment Fund 00 Xxxx 00xx Xxxxxx 000,000
00xx Xxxxx
Xxx Xxxx, XX 00000
Freshwater Consulting Ltd. c/o 24/7 Media, Inc. 156,294
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Galmos Holdings, Inc. c/o 24/7 Media, Inc. 156,294
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxx c/o 24/7 Media, Inc. 156,294
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
