EXHIBIT 2.4
ANNEX D
GUARANTEE
This Guarantee ("GUARANTEE") dated as of October 30, 2001, made by 24/7
Media, Inc., a Delaware corporation ("PARENT") in favor of PubliGroupe USA
Holding, Inc., a Delaware corporation ("PRINCIPAL STOCKHOLDER").
RECITALS:
WHEREAS, simultaneously herewith, the parties are entering into an
Agreement and Plan of Merger (the "MERGER AGREEMENT") pursuant to which
Continuum Holding Corp. shall be merged with and into Real Media, Inc., a
Delaware corporation ("COMPANY");
WHEREAS, in connection with the Merger Agreement, Company shall issue that
certain unsecured promissory note in the principal amount of $4,500,000 on
October 30, 2001 in favor of Principal Stockholder (the "FIRST NOTE"); and
WHEREAS, as a condition to its willingness to deliver in immediately
available funds by wire transfer the principal amount of the First Note,
Principal Stockholder has required that Parent agree to the matters set forth
herein, and Parent is willing to agree to such matters.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. GUARANTEE. Parent, unconditionally and irrevocably, hereby
guarantees to Principal Stockholder the prompt and complete payment when due of
all required payments of Company under the First Note (the "OBLIGATIONS"), and
Parent further agrees to pay any and all expenses (including, without
limitation, all reasonable fees and disbursements of counsel) which may be paid
or incurred by Principal Stockholder in enforcing any rights with respect to, or
collecting, any or all of the Obligations, or enforcing any rights with respect
to, or collecting against, Parent under this Guarantee. Company's obligations to
make payments and Parent's obligations hereunder shall be subject to adjustment
in accordance with Article IX of the Merger Agreement.
2. SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon Parent
and its successors and assigns, and shall inure to the benefit of Principal
Stockholder and its permitted assigns.
3. WAIVER OF NOTICE; REINSTATEMENT.
(a) Parent waives presentation to, demand of payment from and
protest to Company of any of the Obligations, and also waives notice of
acceptance of this Guarantee and notice of protest for nonpayment. The
obligations of Parent hereunder shall not be affected by the failure of
Principal Stockholder to assert any claim or demand or to enforce any right or
remedy against Company under the provisions of the First Note or any other
agreement or otherwise. Parent further agrees that this Guarantee constitutes a
guarantee of payment when due and not of collection.
(b) Other than as specifically set forth in Article IX of the Merger
Agreement, the obligations of Parent hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense of set-off, indemnity,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of Parent hereunder shall not
be discharged or impaired or otherwise affected by the failure of Principal
Stockholder to assert any claim or demand or to enforce any remedy under the
First Note or by any waiver or modification of the First Note or any other
agreement, or by any other act or omission which may or might in any manner or
to any extent vary the risk of Parent or would otherwise operate as a discharge
of Parent as a matter of law or equity.
(c) Parent further agrees that this Guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of all or any portion of the Obligations must be restored by
Principal Stockholder upon such payment or payments, or any part thereof being
invalidated, determined to be fraudulent or preferential, set aside and/or
required to be repaid to any trustee, receiver, assignee or other party whether
upon the bankruptcy or reorganization of Company or Parent or similar
proceedings for relief of debtors under federal or state law hereinafter
initiated by or against Company or Parent, or as a result of or in connection
with proceedings under federal or state fraudulent conveyance law hereinafter
initiated against Company or Parent or for any other reason.
4. REPRESENTATIONS OF PARENT. Parent has the corporate power and
authority to enter into and deliver this Guarantee and to perform its
obligations hereunder. The execution, delivery and performance of this Guarantee
by Parent have been duly authorized by all required corporate action on behalf
of Parent, and this Guarantee has been duly and validly executed and delivered
by Parent and constitutes a legal, valid and binding obligation of Parent,
enforceable against it in accordance with its terms. Parent is not subject to,
or a party to, any charter, by-law, mortgage, lien, lease, license, permit,
agreement, contract, instrument, law, rule, ordinance, regulation, order,
judgment or decree, or any other restriction of any kind or character, which
would prevent compliance by it with the terms, conditions and provisions of this
Guarantee. The execution, delivery and performance of this Guarantee will not
(i) violate, conflict with or result in the breach of any provision of the
articles of organization or by-laws of Parent; (ii) violate, conflict with or
result in the breach or modification of any of the terms of, or constitute (or
with notice or lapse of time or both constitute) a default under, or give any
other contracting party the right to accelerate or terminate, any obligation,
contract, agreement, lien, judgment, decree or other instrument to which Parent
is a party or by or to which Parent or any of its assets or properties may be
bound or subject; (iii) violate any order, writ, judgment, injunction, award or
decree of any court, arbitrator or governmental or regulatory body against, or
binding upon, Parent or upon its assets; or (iv) result in the violation by
Parent of any statute, law or regulation of any jurisdiction which violation
would have a material adverse effect on the condition, financial or otherwise,
or on the results of operations of Parent and its subsidiaries.
5. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy
or facsimile, by registered or certified mail (postage prepaid, return receipt
requested) or by a nationally recognized courier service to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 3):
If to Parent:
24/7 Media, Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: General Counsel
Fax: (000) 000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx, Esq.
Facsimile: (000) 000-0000
If to Principal Stockholder:
PubliGroupe USA Holding, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
6. GOVERNING LAW. This Guarantee shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed entirely in that State.
7. SEVERABILITY. If any provision of this Guarantee is invalid,
illegal, or unenforceable, the balance of this Guarantee shall remain in effect,
and if any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances.
8. MODIFICATION. No modification, amendment or waiver of any provision
of, nor any consent required by, this Guarantee, nor any consent to any
departure by Parent therefrom, shall in any event be effective unless the same
shall be in writing and signed by Principal Stockholder, and then such
modification, amendment, waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand on
Parent in any case shall entitle Parent to any other or further notice or demand
in the same, similar or other circumstances.
9. REMEDIES CUMULATIVE, ETC. No right, power or remedy herein conferred
upon or reserved to Principal Stockholder is intended to be exclusive of any
other right, power or remedy, and each and every right, power and remedy of
Principal Stockholder pursuant to this Guarantee,
or now or hereafter existing at law or in equity or by statute or otherwise
shall, to the extent permitted by law, be cumulative and concurrent and shall be
in addition to every other right, power or remedy pursuant to this Guarantee or
now or hereafter existing at law or in equity or by statute or otherwise, and
the exercise or beginning of the exercise by Principal Stockholder of any one or
more of such rights, powers or remedies shall not preclude the simultaneous or
later exercise by Principal Stockholder of any or all such other rights, powers
or remedies.
10. NO WAIVER, ETC. No failure or delay by Principal Stockholder to
insist upon the strict performance of any term, condition, covenant or agreement
of this Guarantee, or to exercise any right, power or remedy hereunder or
consequent upon a breach hereof, shall constitute a waiver of any such term,
condition, covenant, agreement, right, power or remedy or of any such breach, or
preclude Principal Stockholder from exercising any such right, power or remedy
at any later time or times.
IN WITNESS WHEREOF, Parent has caused this Guarantee to be duly executed
as of the date first written above.
24/7 MEDIA, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: President
