EXHIBIT 4.1
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of September __, 1999 (this
"Agreement"), by the stockholders listed on the signature page(s) hereto
(collectively, "Stockholders" and each individually, a "Stockholder") to and
for the benefit of CMGI, Inc., a Delaware corporation ("Acquiror").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Merger Agreement referred to
below.
WHEREAS, as of the date hereof, the Stockholders collectively own of
record and beneficially shares of capital stock of AdForce, Inc., a Delaware
corporation (the "Company"), as set forth on Schedule I hereto (such shares
or any other voting or equity securities of the Company, hereafter acquired
by any Stockholder prior to the termination of this Agreement, being referred
to herein collectively as the "Shares");
WHEREAS, concurrently with the execution of this Agreement, Acquiror and
the Company are entering into an Agreement and Plan of Merger, dated as of
the date hereof (the "Merger Agreement"), pursuant to which, upon the terms
and subject to the conditions thereof, a subsidiary of Buyer will be merged
with and into the Company, and the Company will be the surviving corporation
(the "Merger"); and
WHEREAS, as a condition to the willingness of the Company and Acquiror
to enter into the Merger Agreement, Acquiror has requested that the
Stockholders agree, and in order to induce Acquiror to enter into the Merger
Agreement, the Stockholders are willing to agree to vote in favor of adopting
the Merger Agreement and approving the Merger, upon the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree, severally and not jointly, as follows:
Section 1. VOTING OF SHARES. Each Stockholder covenants and agrees
that until the termination of this Agreement in accordance with the terms
hereof, at the Company Meeting or any other meeting of the stockholders of
the Company, however called, and in any action by written consent of the
stockholders of the Company, such Stockholder will vote, or cause to be
voted, all of his, her or its respective Shares (a) in favor of adoption of
the Merger Agreement and approval of the Merger contemplated by the Merger
Agreement, as the Merger Agreement may be modified or amended from time to
time in a manner not adverse to the Stockholders, and (b) against any other
Alternative Transaction. In addition, such Stockholder agrees that it will,
upon request by Acquiror, furnish written confirmation, in form and substance
reasonably acceptable to Acquiror, of such Stockholder's vote in favor of the
Merger Agreement and the Merger. Each Stockholder covenants and agrees to
deliver to Acquiror upon request prior to any vote contemplated by the first
sentence of this Section 1, a proxy substantially in the form attached hereto
as ANNEX A (a "Proxy"), which Proxy shall be irrevocable during the term of
this Agreement to the extent permitted under Delaware law, and Acquiror
agrees to vote the Shares subject to such Proxy in favor of the approval and
adoption of the Merger Agreement and the Merger. Each Stockholder
acknowledges receipt and review of a copy of the Merger Agreement. Each
Stockholder acknowledges and agrees that the Proxy, if and when given, shall
be coupled with an interest, shall constitute, among other things, an
inducement for Acquiror to enter into the Merger Agreement, shall be
irrevocable and shall not be terminated by operation of law or otherwise upon
the occurrence of any event and that no subsequent proxies with respect to
such Shares shall be given (and if given shall not be effective); provided
however that any such proxy shall terminate automatically and without further
action on behalf of the Stockholders upon the termination of this Agreement.
In the event that a Stockholder does not provide the Proxy upon request of
Acquiror, such Stockholder hereby grants Buyer a power of attorney to execute
and deliver such Proxy for and on behalf of such Stockholder, which
power of attorney is coupled with an interest and shall survive any death,
disability, bankruptcy or any other such impediment of such Stockholder.
Upon the execution of this Agreement by each Stockholder, such Stockholder
hereby revokes any and all prior proxies or powers of attorney given by such
Stockholder with respect to the Shares.
Section 2. TRANSFER OF SHARES. Each Stockholder covenants and
agrees that such Stockholder will not directly or indirectly, (a) sell,
assign, transfer (including by merger, testamentary disposition, interspousal
disposition pursuant to a domestic relations proceeding or otherwise by
operation of law), pledge, encumber or otherwise dispose of any of the
Shares, (b) deposit any of the Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Shares or grant any proxy
or power of attorney with respect thereto which is inconsistent with this
Agreement or (c) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect sale, assignment, transfer
(including by merger, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise by operation of law)
or other disposition of any Shares (each such case, a "Transfer"), unless the
transferee to which any such Shares are or may be Transferred shall have
executed a counterpart of this Agreement and agreed in writing to hold such
Shares subject to all the terms and conditions of this Agreement.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder on its own behalf hereby severally represents and warrants to
Acquiror with respect to itself and its or her ownership of the Shares as
follows:
(a) OWNERSHIP OF SHARES. On the date hereof, the Shares held by such
Stockholder are owned beneficially by such Stockholder or its nominee. Such
Stockholder has sole voting power, without restrictions, with respect to all
of such Shares.
(b) POWER, BINDING AGREEMENT. Such Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations, under
this Agreement. The execution, delivery and performance of this Agreement by
such Stockholder will not violate any material agreement to which such
Stockholder is a party, including, without limitation, any voting agreement,
stockholders' agreement, partnership agreement or voting trust. This
Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles
of equity (regardless of whether enforcement is sought in a proceeding at law
or in equity).
(c) NO CONFLICTS. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby by such
Stockholder 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, cancellation or acceleration of any obligation or to
loss of a material benefit under, any provision of any loan or credit
agreement, note, bond, mortgage, indenture, lease, or other agreement,
instrument, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to such Stockholder or
any of its properties or assets, other than such conflicts, violations or
defaults or terminations, cancellations or accelerations which individually
or in the aggregate do not materially impair the ability of such Stockholder
to perform its obligations hereunder.
Section 4. NO SOLICITATION. Subject to the provisions of Section 7
below, prior to the termination of this Agreement in accordance with its
terms, each Stockholder agrees, in its individual capacity as a stockholder
of the Company that (i) it will not, nor will it authorize or permit any of
its employees, agents and representatives to, directly or indirectly, (a)
initiate, solicit or encourage any inquiries or the making of any Acquisition
Proposal (as defined in the Merger Agreement), (b) enter into any agreement
with respect to any Acquisition Proposal, or (c) participate in any
discussions or
negotiations regarding, or furnish to any person any information with respect
to, or take any other action to facilitate any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal, and (ii) it will notify Acquiror as soon as possible if
any such inquiries or proposals are received by, any information or documents
is requested from, or any negotiations or discussions are sought to be
initiated or continued with, it or any of its affiliates in its individual
capacity.
Section 5. TERMINATION. This Agreement shall terminate upon the
earliest to occur of (i) the Effective Time (as such term is defined in the
Merger Agreement) or (ii) any termination of the Merger Agreement in
accordance with the terms thereof; PROVIDED that no such termination shall
relieve any party of liability for a willful breach hereof prior to
termination.
Section 6. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.
Section 7. FIDUCIARY DUTIES. Each Stockholder is signing this
Agreement solely in such Stockholder's capacity as an owner of his, her or
its respective Shares, and nothing herein shall prohibit, prevent or preclude
such Stockholder from taking or not taking any action in his or her capacity
as an officer or director of the Company, to the extent permitted by the
Merger Agreement.
Section 8. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, between the parties
with respect thereto. This Agreement may not be amended, modified or
rescinded except by an instrument in writing signed by each of the parties
hereto.
(b) 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 a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated to
the fullest extent possible.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to the principles of
conflicts of law thereof.
(d) This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
w be signed individually or by its respective duly authorized officer as of
the date first written above.
CMGI, INC.
By:
STOCKHOLDERS:
Print Name
(Signature)
ANNEX A
IRREVOCABLE PROXY
The undersigned stockholder of AdForce, Inc., a Delaware corporation
("Company"), hereby irrevocably (to the fullest extent permitted by the
Delaware General Corporation Law) appoints the members of the Board of
Directors of CMGI, Inc., a Delaware corporation ("Buyer"), and each of them,
or any other designee of Buyer, as the sole and exclusive attorneys and
proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the
fullest extent that the undersigned is entitled to do so) with respect to all
of the shares of capital stock of Company that now are or hereafter may be
beneficially owned by the undersigned, and any and all other shares or
securities of Company issued or issuable in respect thereof on or after the
date hereof (collectively, the "Shares") in accordance with the terms of this
Irrevocable Proxy. Upon the undersigned's execution of this Irrevocable
Proxy, any and all prior proxies given by the undersigned with respect to any
Shares are hereby revoked and the undersigned agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date
(as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided in the
Delaware General Corporation Law), is coupled with an interest, including,
but not limited to, that certain Stockholder Agreement dated as of even date
herewith by and among Buyer and certain stockholders of the Company,
including the undersigned, and is granted in consideration of Buyer entering
into that certain Agreement and Plan of Merger (the "Merger Agreement") by
and among Buyer, a wholly owned subsidiary of Buyer ("Merger Sub"), and
Company, which Merger Agreement provides for the merger of Merger Sub with
and into Company (the "Merger"). As used herein, the term "Expiration Date"
shall mean the earlier to occur of (i) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the Merger
Agreement, and (ii) the date of termination of the Merger Agreement.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting and other similar rights of the
undersigned with respect to the Shares (including, without limitation, the
power to execute and deliver written consents pursuant to the Delaware
General Corporation Law), at every annual, special or adjourned meeting of
the stockholders of Company and in every written consent in lieu of such
meeting:
in favor of approval and adoption of the Merger Agreement and of the
transaction contemplated thereby.
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided above. The undersigned
stockholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Signature
Print Name:
Shares beneficially owned:
__________ shares of Company Common Stock
