EXHIBIT 10.2
MAXWORLDWIDE, INC.
STOCKHOLDERS AGREEMENT
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STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of July 10, 2002,
by and among the stockholders of MaxWorldwide, Inc., a Delaware corporation (the
"Company"), identified on the signature pages hereto (collectively, the
"Stockholders").
WHEREAS, as part of the transactions contemplated by the Agreement and
Plan of Merger, dated as of June 29, 2002 (the "Merger Agreement"), by and among
the Company, DoubleClick Inc., a Delaware corporation ("DoubleClick"), and
certain other parties, the Company is issuing to DoubleClick the Securities (as
such term is defined in the Merger Agreement);
WHEREAS, the Stockholders desire to enter into this Agreement for the
purpose of governing certain aspects of the Stockholders' relationships with
each other; and
WHEREAS, it is in the best interests of the Stockholders that such
aspects of their relationships be so governed.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and intending to be legally bound the parties hereto
hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
shall have the meanings ascribed to them below:
(a) "Affiliate" of any Person means any other Person which directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such Person. The term "control" (including the
terms "controlled by" and "under common control with") as used with respect to
any Person means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
(b) "Common Stock" means the common stock, par value $0.001 per share,
of the Company.
(c) "DoubleClick Designee" has the meaning set forth in Section 2.
(d) "own," "hold" or "held" (and words of similar import), with respect
to any shares of Voting Stock, means either held of record or beneficially owned
within the meaning of Rule 13d-3 under the Exchange Act of 1934, as amended.
(e) "Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, incorporated organization,
association, corporation, institution, public benefit corporation, government
(whether federal, state, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or department
thereof) or other entity.
(f) "Stockholder" means each Stockholder and, as the context requires,
their respective transferees to the extent that they are required to be bound by
the terms and provisions hereof and/or to the extent that they have succeeded to
the transferor's rights hereunder pursuant to the terms and provisions hereof.
(g) "Voting Stock" shall mean shares of Common Stock and any other
class of securities of the Company having the power to elect directors to the
Company's Board of Directors and any other general voting power (and shall
include any shares of Voting Stock issuable upon exercise, exchange or
conversion of securities exercisable or exchangeable for or convertible into
shares of Voting Stock).
(h) "Voting Stock Equivalents" means any right, warrant, option or
security of the Company which is exercisable or exchangeable for or convertible
into, or represents the right to otherwise acquire, directly or indirectly,
Voting Stock, whether at the time of issuance or upon the passage of time or the
occurrence of some future event. Each Voting Stock Equivalent shall count as a
number of shares of Voting Stock equal to the number of shares of Common Stock
into which such Voting Stock Equivalent is then convertible, exchangeable or
exercisable.
Section 2. Election of Directors. During the term of this Agreement,
the Stockholders hereby agree to vote all of the Voting Stock held by them as of
the date hereof or acquired by them in the future in favor of the slate of
directors proposed by the Company at any annual or special meeting of the
stockholders of the Company (or in any action by written consent), which slate
of directors shall (x) consist of not more than nine (9) designees and (y)
include one designee of DoubleClick (the "DoubleClick Designee") (and, upon the
resignation, removal or death of such designee, such other individual as is
designated by DoubleClick as the director which DoubleClick is entitled to
designate pursuant to the terms hereof). All of the persons so selected shall
serve as members of the Board of Directors until the next election of the
members of the Board of Directors.
Section 3. Effectiveness of Agreement; Termination. Without affecting
any other provision or parties to this Agreement, this Agreement shall terminate
and the rights and obligations of the parties hereto shall have no force or
effect upon such time as the Voting Stock held by DoubleClick represents less
than 5% of the total Voting Stock.
Section 4. Amendments. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
without the prior written consent of each of the parties hereto. This Agreement
cannot be changed, modified, discharged or terminated by oral agreement.
Section 5. No Inconsistent Agreement. No Stockholder shall enter into
any agreement with respect to the Voting Stock or Voting Stock Equivalents
beneficially owned or held of record by it which is inconsistent with this
Agreement or otherwise conflicts with the provisions hereof.
Section 6. Notices. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and shall be
hand delivered, sent by nationally-recognized overnight courier, mailed postage
prepaid by registered or certified mail or transmitted by facsimile transmission
(with immediate telephonic confirmation thereafter),
(a) If to DoubleClick:
DoubleClick Inc.
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Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or (b) if to any other Stockholder, to the address(es) set forth on the
counterpart signature pages of this Agreement signed by such Stockholders;
or at such other address as a Stockholder each may specify by written notice to
the others, and each such notice, request, consent and other communication shall
for all purposes of the Agreement be treated as being effective or having been
given when delivered if delivered personally, on the next Business Day (as
defined in the Merger Agreement) if dispatched by overnight courier, upon
receipt of facsimile confirmation if transmitted by facsimile, or, if sent by
mail, at the earlier of its receipt or seventy-two (72) hours after the same has
been deposited in a regularly maintained receptacle for the deposit of United
States mail, addressed and postage prepaid as aforesaid.
Section 7. Successors and Assigns. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective parties hereto, the successors and permitted assigns of each
party hereto, whether so expressed or not; provided, however that this Agreement
shall not be binding upon non-Affiliate transferees of Voting Stock in bona-fide
sale transactions.
Section 8. Counterparts. This Agreement may be executed in any number
of counterparts (including by facsimile) and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
This Agreement shall become effective when each party hereto shall have received
counterparts signed by all of the other parties hereto.
Section 9. Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
Section 10. Governing Law. The internal laws, and not the laws of
conflicts, of New York shall govern the enforceability and validity of this
Agreement, the construction of its terms and the interpretation of the rights
and duties of the parties.
Section 11. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
Section 12. Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
Section 13. Specific Performance. Each party hereto, in addition to
being entitled to exercise all rights provided herein or granted by law,
including recovery of damages, will be entitled to seek specific performance of
its rights under this Agreement. Each party hereto hereby agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
Section 14. Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal or state court located in the County and State of New York, and each
of the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 6 shall be deemed
effective service of process on such party.
Section 15. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 16. Aggregation of Stock. All Voting Stock or Voting Stock
Equivalents held by or acquired by any Affiliates will be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
[Execution Page Follows]
IN WITNESS WHEREOF, this Agreement has been duly executed by each of
the parties hereto as of the date first written above.
DOUBLECLICK INC.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President,
Corporate Development