EXHIBIT 10.1
INVESTMENT AGREEMENT
--------------------
by and among
INTERACTIVE COUPON MARKETING GROUP, INC.,
a Michigan corporation
and
LEND LEASE INTERNATIONAL PTY. LIMITED,
an Australian company
June 1, 1998
TABLE OF CONTENTS
INDEX OF DEFINED TERMS................................................................................. iv
LIST OF EXHIBITS....................................................................................... vii
RECITALS............................................................................................... 1
ARTICLE I. ISSUANCE AND SALE OF THE COMMON STOCK....................................................... 2
1.1 Investment Amount; Authorization of Issuance and Reservation of Common Stock................... 2
1.2 Phase One...................................................................................... 2
1.3 Phases Two, Three and Four..................................................................... 3
1.4 Closings....................................................................................... 8
1.5 Issuance of Additional Shares.................................................................. 8
1.6 Grant of Technology License on Occurrence of Certain Events.................................... 8
ARTICLE II. RIGHT OF FIRST REFUSAL..................................................................... 9
2.1 Right of First Refusal in the Private Offering................................................. 9
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE
CORPORATION................................................................... 11
3.1 Organization and Standing; Articles and Bylaws................................................ 11
3.2 Capitalization................................................................................ 11
3.3 Voting Agreements............................................................................. 12
3.4 Corporate Power: Authorization................................................................ 12
3.5 Validity of Investment Shares................................................................. 13
3.6 Consents and Waivers.......................................................................... 13
3.7 Litigation.................................................................................... 13
3.8 Shareholder Lists and Agreements.............................................................. 13
3.9 Subsidiaries.................................................................................. 13
3.10 Financial Statements.......................................................................... 14
3.11 Absence of Undisclosed Liabilities............................................................ 14
3.12 Absence of Certain Developments............................................................... 15
3.13 Title to Assets............................................................................... 15
3.14 Real Property................................................................................. 16
3.15 Tax Matters................................................................................... 16
3.16 Contracts and Commitments..................................................................... 16
3.17 Proprietary Rights; Employee Restriction...................................................... 17
3.18 Effect of Transactions........................................................................ 17
3.19 Insurance..................................................................................... 18
3.20 Securities Act Registration................................................................... 18
3.21 Business; Compliance with Laws................................................................ 18
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3.22 Books and Records.............................................................................. 18
3.23 Employee Benefit Plans......................................................................... 19
3.24 Brokerage...................................................................................... 19
3.25 Employees...................................................................................... 19
3.26 Related Party Transactions..................................................................... 19
3.27 Disclosure..................................................................................... 20
3.28 Proprietary Information and Inventions Agreement............................................... 20
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR............................................. 20
4.1 Representations and Warranties................................................................. 20
4.2 Investment..................................................................................... 21
4.3 Federal and State Securities Laws.............................................................. 21
ARTICLE V. PRIOR OR SIMULTANEOUS ACTIONS............................................................... 22
ARTICLE VI. COVENANTS.................................................................................. 23
6.1 Business Plan.................................................................................. 23
6.2 Affiliated Transaction......................................................................... 23
6.3 Inspection..................................................................................... 23
6.4 Material Changes and Litigation................................................................ 24
6.5 Use of Proceeds................................................................................ 24
6.6 Shareholders Agreement......................................................................... 24
6.7 Termination.................................................................................... 24
ARTICLE VII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES: INDEMNIFICATION............................... 24
7.1 Survival of Representations and Warranties..................................................... 24
7.2 Indemnification................................................................................ 25
ARTICLE VIII. RESTRICTIONS ON TRANSFER................................................................. 25
8.1 Parties to the Shareholder Agreement; Limitation on Transfer................................... 25
8.2 Restrictive Legend............................................................................. 26
ARTICLE IX. MISCELLANEOUS.............................................................................. 27
9.1 Staff and Advisers............................................................................. 27
9.2 Standard of Performance........................................................................ 28
9.3 Notices Etc.................................................................................... 28
9.4 Delays or Omissions............................................................................ 29
9.5 Assignments; Successors and Assigns............................................................ 29
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9.6 Amendments..................................................................................... 29
9.7 Counterparts................................................................................... 29
9.8 Headings and Construction...................................................................... 30
9.9 Entire Agreement............................................................................... 30
9.10 Governing Law, Venue and Jurisdiction.......................................................... 30
9.11 Joint Drafting................................................................................. 30
9.12 Attorneys Fees................................................................................. 31
9.13 Disclosure on Completion of First Phase........................................................ 31
9.14 Exhibits....................................................................................... 31
9.15 No Joint Venture............................................................................... 31
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INDEX OF DEFINED TERMS
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"80% Call Notice" shall have the meaning ascribed to it in Section 1.3(d)(ii).
"90% Call Notice" shall have the meaning ascribed to it in Section 1.3(f)(i).
"Act" shall have the meaning ascribed to it in Section 4.2.
"Affiliate" shall have the meaning ascribed to it in Section 9.5.
"Agreement" shall have the meaning ascribed to it in the first paragraph of the
Investment Agreement.
"Alliance Agreements" shall have the meaning ascribed to it in Section 3.4.
"Annual Financial Statements" shall have the meaning ascribed to it in Section
3.10(a)(i).
"Benefit Plans" shall have the meaning ascribed to it in Section 3.23.
"Board of Directors" shall have the meaning ascribed to it in Section 3.22.
"Business" shall have the meaning ascribed to it in Recital A.
"Business Plan" shall have the meaning ascribed to it in Section 6.1.
"Core Business" shall have the meaning ascribed to it in Section 1.6.
"Corporation" shall have the meaning ascribed to it in the first paragraph of
the Investment Agreement.
"Corporation Group" shall have the meaning ascribed to it in Section 7.2(b).
"Disclosure Letter" shall have the meaning ascribed to it in the first paragraph
of Article III.
"Employee Plan" shall have the meaning ascribed to it in Section 3.2.
"Financial Statements" shall have the meaning ascribed to it in Section
3.10(a)(ii).
"Fully Diluted Shares" shall have the meaning ascribed to it in Section 1.1(b).
"GAAP" shall have the meaning ascribed to it in Section 3.10(b).
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"Initial Public Offering" shall have the meaning ascribed to it in Section 2.1.
"Integrated Business Activities" shall have the meaning ascribed to it in
Section 1.6.
"Intellectual Property Rights" shall have the meaning ascribed to it in Section
3.17.
"Interim Balance Sheet" shall have the meaning ascribed to it in Section
3.10(a)(ii).
"Interim Balance Sheet Date" shall have the meaning ascribed to it in Section
3.10(a)(ii).
"Interim Financial Statements" shall have the meaning ascribed to it in Section
3.10(a)(ii).
"Investment" shall have the meaning ascribed to it in Recital B.
"Investor Directors" shall have the meaning ascribed to it -in Section
1.3(c)(iii).
"Investor Group" shall have the meaning ascribed to it in Section 7.2(a).
"Investment Notice" shall have the meaning ascribed to it in Section 1.3(a)(i).
"Investment Shares" shall have the meaning ascribed to it in Recital C.
"Investor" shall have the meaning ascribed to it in the first paragraph of the
Investment Agreement.
"License" shall have the meaning ascribed to it in Section 1.6
"Milestone" shall have the meaning ascribed to it in Section 1.3(a).
"Non-Employee Plan" "Investor Directors" shall have the meaning ascribed to it
in Section 3.2.
"Option Notice" shall have the meaning ascribed to it in Section 1.3(a)(i).
"Other Shareholders" shall have the meaning ascribed to it in Section 6.6.
"Permits" shall have the meaning ascribed to it in Section 3.21.
"Permitted Liens" shall have the meaning ascribed to it in Section 3.13.
"Phase" shall have the meaning ascribed to it in Section 1.l(a).
"Phase One Closing" shall have the meaning ascribed to it in Section 1.2(b).
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"Phase One Shares" shall have the meaning ascribed to it in Section 1.2(a).
"Phase Three or Phase Four Exercise Period" shall have the meaning ascribed to
it in Section 1.3(a)(iii).
"Phase Three or Phase Four Grace Period" shall have the meaning ascribed to it
in Section 1.3(a)(iii).
"Phase Two Election Period" shall have the meaning ascribed to it in Section
1.3(a)(ii).
"Phase Two Due Date" shall have the meaning ascribed to it in Section
1.3(a)(ii).
"Phases" shall have the meaning ascribed to it in Section 1.1(a).
"Private Offering" shall have the meaning ascribed to it in Section 2.1.
"Private Offering Notice" shall have the meaning ascribed to it in Section
2.1(a).
"Put Notice" shall have the meaning ascribed to it in Section 1.3(c)(ii).
"Shareholders Agreement" shall have the meaning ascribed to it in Sections 3.5
and 6.6.
"Threshold Amount" shall have the meaning ascribed to it in Section 7.2(c).
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LIST OF EXHIBITS
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Exhibit A Articles of Incorporation
Exhibit 1.4A Opinion of the Corporation's Counsel
Exhibit 1.4B Corporation Certificate
Exhibit 1.4C Investor Certificate
Exhibit 3.0 Disclosure Letter
Exhibit 4.3A Accredited Investor Definition
Exhibit 4.3B Confidential Statement of Investor Suitability
Exhibit 4.3C Investor Address
Exhibit 5.5A Corporation Certificate
Exhibit 5.5B Investor Certificate
Exhibit 5.6 Opinion of Counsel
Exhibit 6.1 Business Plan
Exhibit 6.6 Shareholders Agreement
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INVESTMENT AGREEMENT
--------------------
THIS INVESTMENT AGREEMENT (this "Agreement") is entered into as of June 1,
1998, by and among INTERACTIVE COUPON MARKETING GROUP, INC., a Michigan
corporation (the "Corporation"), and LEND LEASE INTERNATIONAL PTY. LIMITED, an
Australian company (the "Investor").
RECITALS
This Agreement is entered into on the basis of the following facts,
understandings and intentions of the parties:
A. The Corporation has developed a proprietary system for offering
coupons and other direct promotions over the Internet (the "Business"). The
Investor has developed a concept that provides a service to retailers and
consumers that has some common features to the Business and in connection
therewith has developed contacts, technologies, ideas, tools and supporting
materials which could provide enhancement of and support to the Business.
B. The Investor desires to acquire common stock of the Corporation for the
monetary consideration set forth in this Agreement (the "Investment"), to
contribute contacts, technologies, ideas, tools and supporting materials to the
Corporation in accordance with the Initial Business Plan attached hereto as
Exhibit 6.1, as the same may from time to time be hereafter amended by action of
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the Board of Directors (the "Business Plan"), and to participate in directing
and operating the Business, all in consideration of the commitments made by the
Corporation in this Agreement.
C. In connection with the Investment, the Corporation shall issue to the
Investor on a fully diluted basis an amount of shares (the "Investment Shares")
of the Corporation's common stock (the "Common Stock"), with the voting powers,
designations, preferences, limitations, and relative participating, optional or
other rights set forth in this Agreement, the Articles of Incorporation of the
Corporation, as amended (the "Articles of Incorporation") attached as Exhibit A,
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and the Shareholders Agreement attached hereto as Exhibit 6.6, on the terms and
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conditions set forth in this Agreement and the Shareholders Agreement.
D. The proceeds of the Investment will be used in accordance with the
Business Plan.
NOW, THEREFORE, the parties agree as follows:
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ARTICLE I
ISSUANCE AND SALE OF THE COMMON STOCK
1.1 Investment Amount; Authorization of Issuance and Reservation of Common
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Stock.
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(a) The Investment shall be made in four phases (each a "Phase", and
collectively the "Phases") as set forth in Sections 1.2 and 1.3 herein, for
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an aggregate purchase price of U.S. $18,500,000.
(b) Subject to the terms and conditions hereof, the Corporation has
authorized the issuance of up to Thirty percent (30%) of its Common Stock,
without par value, on a fully diluted basis (the "Fully Diluted Shares") in
four Phases at the purchase price for each Phase set forth below. The Fully
Diluted Shares means, immediately following any issuance of Common Stock to
the Investor hereunder, all of the Corporation's issued and outstanding
Common Stock and all shares of Common Stock issuable upon exercise of, or
pursuant to, all outstanding rights, options, warrants, preemptive rights,
conversion rights or agreements for the purchase, acquisition or receipt
from the Corporation of any shares of its Common Stock.
(c) The Corporation shall reserve that number of shares of Common
Stock to ensure the availability at all times of Thirty percent (30%) of
the Fully Diluted Shares for issuance to the Investor and shall reserve
additional shares of Common Stock for issuance to the Investor, all as is
required pursuant to the terms of this Agreement in order to comply with
the provisions of this Agreement for issuance of Common Stock to the
Investor.
1.2 Phase One.
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(a) Subject to the terms and conditions herein, and in reliance on
the representations, warranties and agreements contained herein, the
Corporation shall issue and sell to the Investor that number of shares of
Common Stock equal to Ten percent (10%) of the Fully Diluted Shares for a
purchase price of U.S $5,000,000 (the "Phase One Shares").
(b) The purchase and sale of the Phase One Shares shall occur at a
closing (the "Phase One Closing") to be held as soon as is practicable, but
in any event, not later than June 1, 1998, or such other time and place as
shall be mutually agreed upon by the Corporation and the Investor.
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1.3 Phases Two, Three and Four.
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Following the Phase One Closing, the remainder of the Investment, totaling
U.S. $13,500,000, shall be staged in three Phases pursuant to the terms and
subject to the conditions of this Section 1.3, for the following purchase prices
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such that after issuance, the Investor shall own the following percentages of
the Fully Diluted Shares in addition to any percentages of Fully Diluted Shares
owned prior to any such issuance:
% of Fully Diluted Shares
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Phase Purchase Price after issuance to the Investor
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Phase Two US $5,000,000 7.5%
Phase Three US $5,000,000 7.5%
Phase Four US $3,500,000 5.0%
(a) Upon the Corporation achieving the milestones for each Phase set forth
in the Business Plan (a "Milestone"), the Investor shall have the option to
invest the full amounts and for the percentages of Fully Diluted Shares as
set forth above. The decision as to whether or not to invest in any Phase
under this Section 1.3 shall be determined by the Investor in its sole
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discretion, provided however, if the Investor fails to exercise the option
to invest in any Phase, the Investor shall be deemed to have waived the
right to purchase that percentage of Fully Diluted Shares available to it
in the Phase in which it did not invest, but such waiver shall not affect
any further unexercised options as to a Phase following the Phase not
exercised. The option for each Phase shall be exercised as follows:
(i) Within thirty (30) days after the date the Corporation must
achieve the Milestone for a Phase, the Corporation shall notify the
Investor, in writing, whether or not the Milestone has been achieved
(the "Investment Notice") and that the Investor must give notice to
exercise the option or not exercise the option as to that Phase (the
"Option Notice").
(ii) Within fifteen (15) days after the date the Investor
receives the Investment Notice for Phase Two (the "Phase Two Election
Period"), if the Investor elects to exercise its option to invest, the
Investor shall notify the Corporation of its decision to invest and
shall deliver the Option Notice to the Corporation. The Corporation's
failure to receive the Option Notice for Phase Two within the Phase
Two Election Period shall be deemed receipt of notice from the
Investor of its election not to invest in Phase Two. If the Investor
delivers the Option Notice which states an election to invest within
the Phase Two Exercise Period, the Investor shall have forty-five (45)
days after the Phase Two Election Period to deliver the purchase price
to the Corporation (the "Phase Two Due Date").
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(iii) Within thirty (30) days after the date of the Investment
Notice for Phase Three or Phase Four (the "Phase Three or Phase Four
Exercise Period"), if the Investor elects to exercise its option to
invest, the Investor shall notify the Corporation of its decision to
invest and shall deliver the Option Notice and, prior to the end of
the Phase Three or Phase Four Exercise Period, deliver the purchase
price for Phase Three or Phase Four to the Corporation. The
Corporation's failure to receive the Option Notice for Phase Three or
Phase Four within the respective Phase Three or Phase Four Exercise
Period shall be deemed receipt of notice from the Investor of its
election not to invest. If the Option Notice states an election to
invest within the Phase Three or Phase Four Exercise Period, but the
Investor fails to deliver the applicable purchase price to the
Corporation prior to the end of the Phase Three or Phase Four Exercise
Period, the Corporation shall notify the Investor of the failure to
deliver the purchase price and the Investor shall have a grace period
of seven (7) days after such notice to deliver the purchase price to
the Corporation (the "Phase Three or Phase Four Grace Period").
(b) The Corporation's failure to achieve a Milestone for any Phase will
not in any way affect the Investor's right to invest in that or any other
Phase whether or not the Corporation achieves or fails to achieve the
Milestone for such other Phase, except if the Corporation or the Investor
exercises their respective rights, if applicable, under Sections
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1.3(c)(ii), 1.3(d)(ii), 1.3(e)(ii) or 1.3(g)(i), in which event the
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Investor shall have no further rights to exercise any option for any Phase
after such right is exercised.
(c) In the event the Corporation fails to achieve the Milestone for Phase
Two, and the Investor elects in its sole discretion not to invest in Phase
Two, all of the following shall apply:
(i) The Corporation shall be entitled to raise capital through
the issuance of debt or equity. If it raises capital through the
issuance of equity, Investor shall be pro-rata diluted with all other
shareholders of the Corporation; provided, however, the Investor shall
have the right to purchase equity in such offering, at the per share
price in such offering, less discounts and commissions, in an amount
necessary to maintain its then percentage equity interest of the Fully
Diluted Shares; and
(ii) The Investor shall have the right, within thirty (30) days
from the date of the Option Notice, or if the Option Notice is not
given, thirty (30) days from the date the Option Notice was due, to
notify the Corporation of its desire to have the Corporation redeem
the Investor's entire equity interest in the Corporation (the "Phase
Two Put Notice") at a price equal to Ninety percent (90%) of the
aggregate purchase price paid by the Investor for the Investment. Upon
receipt of the Phase Two Put
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Notice, the Corporation shall be obligated to redeem the Investor's
entire equity interest for said price, on a date selected by the
Corporation (but in no event later than six (6) months from the date
of the Phase Two Put Notice); and
(iii) In the event the Corporation raises capital through the
issuance of debt or equity as provided in Section 1.3(c)(i), upon the
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closing of the issuance of such debt or equity, the Corporation shall
be entitled to reduce the number of directors selected by the Investor
and elected pursuant to the terms of the Shareholder Agreement (as
described in Section 6.6) (the "Investor Directors") all in accordance
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with Section 1.3 of the Shareholders Agreement.
(d) In the event the Corporation achieves the Milestone for Phase Two, and
the Investor elects in its sole discretion not to exercise its option for
Phase Two, or elects to invest in Phase Two but fails to pay the Phase Two
purchase price on or before the Phase Two Due Date, then the Corporation
shall have all of the following rights and remedies, as determined by the
Corporation in its sole discretion:
(i) The Corporation shall be entitled to raise capital through
the issuance of debt or equity. If it raises capital through the
issuance of equity, Investor shall be pro-rata diluted with all other
shareholders of the Corporation, and the Investor shall not have the
right to purchase equity in such offering; and
(ii) The Corporation shall have the right (i) within sixty (60)
days after the date the Corporation receives (or is deemed to have
received) notice from the Investor that it has elected not to invest,
or (ii) if the Investor has provided timely notice of its decision to
invest, and has failed to invest by the Phase Two Due Date, within
sixty (60) days after the Phase Two Due Date, to notify the Investor
of its desire to redeem the Investor's entire equity interest in the
Corporation (the "80% Call Notice") at a price equal to eighty percent
(80%) of the aggregate purchase price paid by the Investor for its
Investment. Upon receipt of the 80% Call Notice, the Investor shall be
obligated to sell the Investor's entire equity interest to the
Corporation for said price, on a date selected by the Corporation (but
in no event later than six (6) months from the date of the 80% Call
Notice); and
(iii) The Corporation shall be entitled to reduce the number of
Investor Directors in accordance with Section 1.3 of the Shareholders
Agreement; and
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(iv) The Corporation shall be entitled to terminate the
Shareholder Agreement; and
(v) Only in the event the Investor elects to invest in Phase
Two but it fails to pay the purchase price by the Phase Two Due Date,
and the Corporation does not elect the 80% Call Notice, in addition to
all rights and remedies provided in this Section 1.3(d), the
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Corporation shall have all other rights and remedies available at law
and equity; and
(vi) If the Corporation issues its 80% Call Notice but fails to
deliver the purchase price to the Investor within the period provided
by Section 1.3(d)(ii) above, any action taken by the Corporation under
Section 1.3(d)(ii)-(iv) above, shall be deemed void and of no effect.
(e) In the event the Corporation fails to achieve a Milestone for either
Phase Three or Four and the Investor in its sole discretion elects not to
invest in the applicable Phase, all of the following shall apply:
(i) The Corporation shall be entitled to raise capital through
the issuance of debt or equity as determined by the Board. If it
raises capital through the issuance of equity, the Investor shall be
pro-rata diluted with all other shareholders of the Corporation;
provided, however, the Investor shall have the right to purchase
equity in such offering, at the per share price in such offering, less
discounts and commissions, in an amount necessary to maintain its then
percentage equity interest of Fully Diluted Shares; and
(ii) The Investor shall have the right, within thirty (30) days
from the due date of the Option Notice, or if the Option Notice is not
given, thirty (30) days from the date the Option Notice was due, to
notify the Corporation of its desire to have the Corporation redeem
the Investor's entire equity interest in the Corporation (the "Phase
Three or Phase Four Put Notice") at a price equal to ninety percent
(90%) of the aggregate purchase price paid by the Investor for the
Investment. Upon receipt of the Phase Three or Phase Four Put Notice,
the Corporation shall be obligated to redeem the Investor's entire
equity interest for said price, on a date selected by the Corporation
(but in no event later than six (6) months from the date of the Phase
Three or Phase Four Put Notice); and
(iii) In the event the Corporation raises capital through the
issuance of equity, but not debt, as provided in Section 1.3(e)(i),
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upon the closing of the issuance of equity, the Corporation shall be
entitled to alter the number of directors pursuant to Section 1.3.3 of
the Shareholders Agreement.
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(f) In the event the Corporation achieves the Milestone for Phase Three or
Four, and the Investor elects not to invest in the applicable Phase, the
Corporation shall have all of the following rights, as determined by the
Corporation in its sole discretion:
(i) The Corporation shall be entitled to raise capital through the
issuance of debt or equity. If it raises capital through the issuance
of equity, Investor shall be pro-rata diluted with all other
shareholders of the Corporation, and the Investor shall not have the
right to purchase equity in such offering; and
(ii) The Corporation shall be entitled to reduce the number of
Investor Directors in accordance with Section 1.3 of the Shareholders
Agreement.
(g) In the event the Investor elects to invest in Phase Three or Phase
Four but it fails to pay the purchase price for that Phase within the Phase
Three or Phase Four Grace Period, the Corporation shall have all of the
following rights and remedies, as determined by the Corporation in its sole
discretion:
(i) The Corporation shall have the right, within sixty (60)
days after the Phase Three or Phase Four Grace Period as the case may
be, to notify the Investor of its desire to redeem the Investor's
entire equity interest in the Corporation (the "90% Call Notice") at a
price equal to ninety percent (90%) of the aggregate purchase price
paid by the Investor for its Investment. Upon receipt of the 90% Call
Notice, the Investor shall be obligated to sell the Investor's entire
equity interest to the Corporation for said price, on a date selected
by the Corporation (but in no event later than six (6) months from the
date of the 90% Call Notice); and
(ii) The Corporation shall be entitled to reduce the number of
Investor Directors in accordance with Section 1.3 of the Shareholders
Agreement; and
(iii) The Corporation shall be entitled to terminate the
Shareholder Agreement; and
(iv) The Corporation shall have all other rights and remedies
available at law and equity.
(h) In the event the Corporation elects to proceed with an Initial Public
Offering, as defined in Section 2.1, prior to the date the specified
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Milestones for all Phases were to have been achieved (such that the
Investor did not have the opportunity to purchase the percentage of Fully
Diluted Shares for the entire US $13,500,000 set forth above for Phases
Two, Three and Four), then, subject to completion of the Initial Public
Offering, the Investor shall be entitled to purchase
7
the percentage of Fully Diluted Shares after completion of the Initial
Public Offering it would have been able to purchase had all of the
Milestones been achieved prior to the Initial Public Offering, at the
offering price to the public less underwriters' discounts and commissions,
provided that the Investor agrees to abide by the managing underwriter's
restrictions on resale of its shares.
1.4 Closings.
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Closings for Phases Two, Three and Four shall be held at such time and
place (but in no event later than any applicable deadlines set forth above) as
shall be mutually agreed upon by the Corporation and the Investor. At each of
the Phase Two, Three and Four Closings hereunder: (i) the Corporation shall
deliver to the Investor a certificate representing the Phase Two, Three or Four
Shares registered in the Investor's name and the Investor shall pay the purchase
price for the Phase Two, Three or Four Shares by (at the option of the
Corporation) either cashier's check payable in immediately available funds
payable to the order of the Corporation or by wire transfer of funds payable to
the order of the Corporation; (ii) the Corporation shall deliver to the Investor
an opinion of the Corporation's counsel in the form attached hereto as Exhibit
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1.4A; and (iii) the Corporation and the Investor shall exchange reconfirmation
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certificates in the forms attached as Exhibit 1.4B and Exhibit 1.4C,
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respectively.
1.5 Issuance of Additional Shares
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The Corporation shall issue to Investor additional shares of Common Stock
as and when required by sections 3.2 and 3.11 of the Disclosure Letter.
1.6 Grant of Technology License on Occurrence of Certain Events.
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In the event that (i) the Corporation reduces the number of Investor
Directors pursuant to Section 1.3 (d)(iii), 1.3(e)(iii), 1.3(f)(ii) or
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1.3(g)(ii) above, or (ii) the Corporation fails to pay the purchase price when
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due after the giving of a Phase Two, a Phase Three or a Phase Four Put Notice,
then the Corporation shall grant to the Investor, or any Affiliate of the
Investor (as defined in Section 9.5 below), one or more non-exclusive technology
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licenses for the Corporation's technology (including technology documentation
and related patents) necessary for the uses and purposes set forth in the
following sentence (each a "License"), on the general terms and conditions
specified in this Section 1.6. The License shall be granted to the Investor, or
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an Affiliate of the Investor (as designated by the Investor), for the limited
purposes and uses of maintaining the core business activities of the Investor or
such Affiliate (the "Core Business") which have integrated (without infringing
upon the Intellectual Property Rights of the Corporation) some or all aspects of
the Corporation's technology services into its active business operations (the
"Integrated Business Activities"). The License shall only be effective upon the
Corporation ceasing to offer such technology services to businesses similar to
the Core Business of the Investor or its Affiliates, and shall only apply to
those technology services previously offered to the Core Business of the
Investor or its
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Affiliates which the Corporation is no longer offering. If the Corporation is
offering such technology services to businesses similar to the Core Business of
the Investor or its Affiliates, then the Corporation shall offer such technology
services to the Investor and its Affiliates upon the same standard terms and
conditions as it offers such technology services to similarly situated third
parties in such businesses as long as the Investor and its Affiliates abide by
such standard terms and conditions. The License shall only entitle the Investor
or its Affiliates to offer such technology services (a) in conjunction with
providing the services of its Core Business, and (b) to third parties not owned
or operated by Investor or its Affiliates as part of the Integrated Business
Activities. The License shall contain industry standard terms and conditions
(including the term of the License and the amount of the annual fee for the
License) for similar technology licenses. Promptly after the Investor delivers
the Option Notice for Phase Two, the parties shall diligently negotiate in good
faith the specific terms and conditions of the License and conclude such
negotiations within sixty (60) days after delivery of such Option Notice. The
failure of the parties to agree in good faith upon the terms and conditions of
the License within such sixty (60) day period shall not excuse either party from
performing any other obligations, or limit either party's remedies, under this
Agreement (including those set forth in Sections 1.3(e), 1.3(f), and 1.3(g)). A
-----------------------------------
breach of this Section 1.6 shall only entitle a party to pursue specific
-----------
performance under this Section 1.6, or damages arising from a breach of this
-----------
Section 1.6, as an independent action.
-----------
ARTICLE II
RIGHT OF FIRST REFUSAL
2.1 Right of First Refusal in the Private Offering.
----------------------------------------------
The "Initial Public Offering" shall mean the Corporation's initial public
offering pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offer and sale of shares of the
Corporation's Common Stock. If, prior to the Initial Public Offering, the
Corporation proposes to seek financing in addition to the Investment by offering
any shares of, or securities convertible into or exercisable for any shares of,
any class of its stock (each, a "Private Offering"), and the Investor has then
invested US $18,500,000 pursuant to this Agreement, the Corporation shall first
offer a portion of each Private Offering to the Investor in accordance with the
following provisions:
(a) The Corporation shall deliver a written notice (a "Private
Offering Notice") to the Investor stating (i) its bona fide intention
to make the Private Offering, (ii) the number of shares of, or
securities convertible into or exercisable for any shares of, any
class of its stock, to be offered, and (iii) the price and terms, if
any, upon which it proposes to make the Offering.
9
(b) Within forty-five (45) days after the date of the Private
Offering Notice, the Investor may elect by written notice to the
Corporation to purchase or obtain, a portion of the Private Offering,
at a discount of ten percent (10%) off the price specified in the
Private Offering Notice; provided however, that: (i) the Investor's
right of first refusal provided for in this Section 2.1 shall be
-----------
limited to that portion of the Private Offering which when combined
with the Investment will not exceed forty percent (40%) of the
Corporation's Fully Diluted Shares; and (ii) the Investor must close
the purchase within fifteen (15) days of the date of said written
notice.
(c) Following the expiration of the forty-five (45) day period
set forth in subsection (b) above, the Corporation may make the
Private Offering to third parties for the portion of the Private
Offering that the Investor was not entitled to purchase and for the
remaining portion of the Private Offering that the Investor did not
properly elect to purchase in accordance with this Section 2.1;
-----------
provided however, that all such offers to third persons shall be at a
price not less than, and upon terms no more favorable to the offeree
than, those specified in the Private Offering Notice. If the
Corporation does not close the sale of the interests offered in the
Private Offering within any time limit set forth in the Private
Offering, the right provided hereunder shall be deemed to be revived,
and that portion of the Private Offering which was subject to the
Investor's rights under this Section 2.1 shall not be offered or
-----------
transferred to any third parties unless first re-offered to the
Investor in accordance herewith.
(d) The right of first refusal in this Section 2.1 shall
-----------
not be applicable (i) to the issuance or sale of shares of Common
Stock (as adjusted to reflect any stock splits, combinations or other
events involving the Common Stock) to employees, consultants or
members of the Board of Directors pursuant to employee or director
stock plans which are approved in writing by the Corporation's Board
of Directors, (ii) to the Initial Public Offering (as defined) or to
any offering after consummation of the Initial Public Offering, (iii)
to the issuance of securities pursuant to the conversion or exercise
of convertible or exercisable securities of the Corporation, (iv) to
securities issued in connection with any acquisition or business
combination transaction approved by the Board of Directors of the
Corporation, or (v) to securities issued in connection with equipment
lease financings or other financings with commercial lenders, or in
strategic transactions involving the Corporation and other entities,
including joint ventures or marketing, distribution or development
arrangements, in each case provided that any issuance pursuant to this
clause (v) has been approved by the Board of Directors of the
Corporation.
10
(e) Investor's exercise of any right of first refusal in this
Section 2.1, or its failure to elect any right of first refusal in
-----------
this Section 2.1, shall not affect Investor's right to invest in a
-----------
future Private Offering, provided that in any event, the Investor's
aggregate ownership shall not exceed forty percent (40%) of the
Corporation's Fully Diluted Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
A disclosure letter is attached hereto as Exhibit 3.0 (the "Disclosure
-----------
Letter"). The Corporation warrants and represents that all information in the
Disclosure Letter is true, complete and correct. To the extent that any
information in the Disclosure Letter conflicts with any of the representations
and warranties of this Article III, that information will be deemed an exception
to such representation or warranty. The Corporation hereby represents and
warrants to the Investor as follows:
3.1 Organization and Standing; Articles and Bylaws.
----------------------------------------------
The Corporation is a corporation duly organized, validly existing and in
good standing under the laws of the State of Michigan, and the Corporation is
authorized to exercise all of its corporate powers, rights, and privileges. The
Corporation has all required corporate power and authority to own its property,
to carry on its business as presently conducted or contemplated. True and
accurate copies of the Articles of Incorporation and the Bylaws of the
Corporation, each as in effect on the date hereof, have been delivered to the
Investor. The Corporation is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify, would have a
material adverse effect on its business.
3.2 Capitalization.
--------------
The authorized capital stock of the Corporation on the date hereof consists
solely of 60,000 shares of Common Stock. On the date hereof, 17,259.97 shares
of Common Stock are issued and outstanding. The Common Stock has the rights,
preferences and privileges as set forth in the Articles of Incorporation. On
December 4, 1997, the Corporation's Board of Directors adopted the Interactive
Coupon Marketing Group, Inc. 1997 Non-Employee Director Stock Option Plan (the
"Non-Employee Plan") and the Interactive Coupon Marketing Group, Inc. 1997 Stock
Option Plan (the "Employee Plan"). On the date of this Agreement, options to
acquire 1,045 shares of Common Stock are outstanding pursuant to the Employee
Plan, options to acquire 200 shares of Common Stock are outstanding pursuant to
the Non-Employee Plan, and options to acquire 282.38 shares of Common Stock are
outstanding to a key employee pursuant to his Employment Agreement. The
Corporation has reserved 1,527.38 shares of Common Stock for issuance upon
exercise of these options. On the date of this Agreement, warrants to
11
acquire 750 shares of Common Stock are outstanding. The Corporation has reserved
750 shares of Common Stock for issuance upon exercise of these warrants. Except
as set forth above, there are no outstanding rights, options, warrants,
preemptive rights, conversion rights or agreements for the purchase, acquisition
or receipt from the Corporation of any shares of capital stock or any other
securities of the Corporation. The Corporation is not a party to any existing
agreement with any person or entity which requires the Corporation to purchase
from such person or entity any of its capital stock, any securities convertible
into or exchangeable or exercisable for any of its capital stock, or any right,
options or warrants for its capital stock. All outstanding securities of the
Corporation have been issued in accordance with all applicable state and Federal
securities laws.
3.3 Voting Agreements.
-----------------
Other than the Shareholders Agreement, the Corporation is not a party to
any agreement or understanding, and the Corporation is not aware of any
agreement or understanding between any persons that affects or relates to the
voting or giving of written consents with respect to any security or the voting
by a director of the Corporation.
3.4 Corporate Power: Authorization.
-------------------------------
The Corporation has all requisite legal and corporate power to enter into
this Agreement, to issue and sell the Investment Shares as provided hereunder,
and to carry out and perform its obligations (i) under the terms of this
Agreement and (ii) any other agreements to which the Corporation is a party or
the execution and delivery of which is contemplated hereby (the "Alliance
Agreements"). All corporate action on the part of the Corporation and its
officers, directors and shareholders that is necessary for the authorization,
execution and delivery of this Agreement by the Corporation, for the performance
of the Corporation's obligations hereunder and for the issuance and delivery of
the Investment Shares has been taken, except for future transactions as
specified in this Agreement, and this Agreement constitutes a legal and binding
obligation of the Corporation, enforceable against the Corporation in accordance
with its terms subject to the terms and conditions of this Agreement and: (i)
judicial principles respecting or limiting the availability of specific
performance, injunctive relief and other equitable remedies; and (ii)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect generally relating to or affecting creditors' rights. The
Corporation is not in violation of any term of its Articles of Incorporation or
Bylaws, or in violation of any term of any judgment, decree, order, statute,
rule or government regulation applicable to the Corporation or to which the
Corporation is a party. The Corporation is not in violation of any term of any
agreement or instrument applicable to the Corporation or to which the
Corporation is a party where such violation could be materially adverse to the
Corporation's financial condition, business or operations.
12
3.5 Validity of Investment Shares.
-----------------------------
The Investment Shares, when issued, sold and delivered in accordance with
the terms of this Agreement, will be duly and validly issued, fully paid and
non-assessable and will be free and clear of any liens, encumbrances or
restrictions of any kind; provided, however, that the Investment Shares may be
subject to restrictions on transfer under state and federal securities laws and
the Shareholders Agreement, among the Corporation and the Shareholders (as
defined therein).
3.6 Consents and Waivers.
--------------------
The Corporation has obtained any and all consents, permits, and waivers and
made all filings necessary or appropriate for consummation of the transactions
contemplated by this Agreement and no consent, approval, qualification, order or
authorization of, or filing with, any local, state, or federal governmental
authority is required on the part of the Corporation in connection with the
Corporation's valid execution, delivery or performance of this Agreement or the
offer, sale or issuance of the Investment Shares.
3.7 Litigation.
----------
To the knowledge of the Corporation, there is no action, suit,
investigation or proceeding pending or, threatened against the Corporation or
related to the business conducted by the Corporation or that questions the
validity of any Alliance Agreement or the right of the Corporation to enter into
such agreements, or to consummate the transactions contemplated hereby or
thereby, or that might result, either individually or in the aggregate, in any
material adverse change in the assets, business, properties or financial
condition of the Corporation, or any material change in the current equity
ownership of the Corporation. The Corporation is not a party or subject to the
provisions of any order, writ, injunction, judgment, or decree of any court or
government agency or instrumentality. There is no action, suit, proceeding or
investigation by the Corporation currently pending or which the Corporation
intends to initiate.
3.8 Shareholder Lists and Agreements.
--------------------------------
Set forth in the Disclosure Letter is a true and complete list of all
shareholders of the Corporation and persons holding options or warrants to
acquire shares of the Corporation from the Corporation, showing the number of
shares of capital stock held, or acquirable upon exercise of the option or
warrant, by each such person in each case as of the date of this Agreement.
3.9 Subsidiaries.
------------
The Corporation has no subsidiaries and does not own, directly or
indirectly, any interest in any corporation, association, or business entity.
13
3.10 Financial Statements.
--------------------
(a) The Disclosure Letter contains true, correct and complete copies
of:
(i) The audited balance sheet of the Corporation, as at December
31, 1997, and the related statements of operations, shareholders'
deficit and cash flows of the Corporation for the period covered
thereby, including the footnotes thereto (all of foregoing being
hereinafter collectively called the "Annual Financial Statements");
and
(ii) The interim balance sheet of the Corporation (the "Interim
Balance Sheet") as at April 30, 1998 (the "Interim Balance Sheet
Date"), and the interim statements of operations and cash flows of the
Corporation for the three (3) month period then ended, including any
footnotes thereto (all of the foregoing, including the Interim Balance
Sheet, being hereinafter collectively referred to as the "Interim
Financial Statements" and together with the Annual Financial
Statements collectively, the "Financial Statements").
(b) The Financial Statements taken as a whole (i) fairly present in
all material respects (subject, in the case of the Interim Financial
Statements, to normal, recurring year-end adjustments which are not
material individually or in the aggregate) the financial position of the
Corporation as of the dates indicated and the results of operations of the
Corporation for the periods indicated, (ii) have been prepared in
accordance with Generally Accepted Accounting Principles ("GAAP")
throughout the periods covered thereby (subject, in the case of the Interim
Financial Statements, to normal, recurring year-end adjustments which are
not material individually or in the aggregate and the absence of footnote
disclosure which may otherwise be required by GAAP) and (iii) are in
accordance with the books and records of the Corporation which have been
maintained in a manner consistent with historical practice. All reserves
established and set forth in the Interim Balance Sheet are reasonable and
adequate. By September 30, 1998, the Corporation will have established and
will continue to maintain a standard system of accounting established and
administered in accordance with GAAP.
3.11 Absence of Undisclosed Liabilities.
----------------------------------
The Corporation has no liabilities or obligations of any nature, whether
matured or unmatured, known or unknown, or fixed or contingent, except (a) to
the extent expressly reflected or reserved against on the Interim Balance Sheet
or expressly disclosed in the notes thereto; and (b) liabilities and obligations
arising since the Interim Balance Sheet Date in the ordinary course of business
consistent with past practice (other
14
than any such liability or obligation arising from breach of contract, breach of
warranty, tort, infringement, or violation of any legal requirement). The
Corporation is not a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation.
3.12 Absence of Certain Developments.
-------------------------------
Except as reflected in the Financial Statements, since the Interim Balance
Sheet Date, there has been (i) no material adverse change in the condition
(financial or otherwise) of the Corporation or in the assets, liabilities, or
properties of the Corporation; (ii) no declaration, setting aside or payment of
any dividend or other distribution with respect to, or any direct or indirect
redemption or acquisition by the Corporation of, any of the capital stock of the
Corporation; (iii) no waiver of any valuable right of the Corporation or
cancellation of any debt or claim held by the Corporation; (iv) no loan or
guarantee by the Corporation to any officer, director, employee or shareholder
of the Corporation, or any agreement or commitment therefor; (v) no increase,
direct or indirect, in the compensation paid or payable to or for the benefit of
any officer, director, employee or agent of the Corporation; (vi) no material
loss, destruction or damage to any property of the Corporation, whether or not
insured; (vii) no labor disputes involving the Corporation and no material
change in the personnel of the Corporation or the terms and conditions of their
employment; (viii) no acquisition or disposition of any assets (or any contract
or arrangement therefor), nor any other transaction by the Corporation otherwise
than for fair value in the ordinary course of business; (ix) no occurrence of
any other event or condition of any character that might materially and
adversely affect the business, properties, or financial condition of the
Corporation; or (x) no agreement or commitment by the Corporation to do any of
the things described in this Section 3.11.
------------
3.13 Title to Assets.
---------------
The Corporation has good and marketable title to all of the assets
reflected as being owned by the Corporation on the Interim Balance Sheet or
acquired subsequent thereto (except for inventory sold or otherwise disposed of
in the ordinary course of business for fair value and accounts and notes
receivable paid in full since the date of the Interim Balance Sheet), free and
clear of all encumbrances, except for those encumbrances set forth in the
Disclosure Letter and Permitted Liens. Such assets are in good operating
condition and repair (normal wear and tear excepted), are adequate and suitable
for the uses for which they are used in the Corporation's business, are not
subject to any condition which interferes with the economic value or use
thereof, and constitute all assets necessary to permit the Corporation to carry
on its business after the consummation of the transactions contemplated by this
Agreement as generally conducted by the Corporation prior thereto. The term
"Permitted Liens" means (i) liens arising by operation of law in the ordinary
course of business that, individually and in the aggregate, do not in any
material respect interfere with the use of any of the assets subject thereto;
(ii) minor imperfections of title which do not materially detract from the value
of the property affected or materially impair the operations of the Corporation;
(iii) liens for taxes not yet due and payable; and (iv) landlords liens, if any,
relating to leases.
15
3.14 Real Property.
-------------
The Corporation does not own directly or indirectly any real property.
3.15 Tax Matters.
-----------
The Corporation has filed all federal, state and local income, excise or
franchise tax returns, real estate and personal property tax returns, sales and
use tax returns and other tax returns required to be filed by it and has paid
all taxes owed by it, except taxes which have not yet accrued or otherwise
become due or for which adequate provision has been made in the pertinent
Financial Statements. The provision for taxes on the Interim Balance Sheet is
sufficient as of its date for the payment of all accrued and unpaid federal,
state, county and local taxes of any nature of the Corporation whether or not
assessed or disputed. All taxes and other assessments and levies which the
Corporation is required to withhold or collect have been withheld and collected
and have been paid over when due to the proper governmental authorities. With
regard to the income tax returns of the Corporation, the Corporation has never
received notice of any audit or of any proposed deficiencies from any taxing
authority and no controversy with respect to taxes of any type is pending or, to
the knowledge of the Corporation, threatened. There are in effect no waivers of
applicable statutes of limitations with respect to any taxes owed by the
Corporation for any year. The Corporation does not conduct any foreign or
international operations that would ordinarily subject it to taxation in any
jurisdiction outside of the United States.
3.16 Contracts and Commitments.
-------------------------
The Corporation (i) is not a party to any contract, lease, obligation or
commitment, written or oral, absolute or contingent which involves a potential
commitment in excess of U.S. $25,000 or which is otherwise material and not
entered into in the ordinary course of business; and (ii) does not have any
employment contracts; stock redemption or purchase agreements; financing
agreements; licenses; distributor or sales representative agreements; agreements
with officers, directors, employees or shareholders of the Corporation or
persons or organizations related to or affiliated with any such persons; leases;
agreements relating to product development; or pension, profit-sharing,
retirement or stock option plans. As to each agreement or understanding set
forth in the Disclosure Letter: (a) it is in full force and effect and
constitutes a valid and binding obligation of the Corporation and to the best
knowledge of the Corporation, the other party thereto; (b) the Corporation has
performed in all material respects the obligations required to be performed by
it except for obligations not yet due to be performed; (c) the Corporation is
not, and has not been, in default or received notices that it is in default in
any material respect; (d) there exists no known event or condition that, after
notice or lapse of time, or both, would constitute a default; and (e) there are
no material defaults by any other party to any such agreement or understanding
as to which any notice of default has been given. The Corporation has made
available to the Investor
16
correct and complete copies of all documents set forth in the Disclosure Letter.
For purposes of this paragraph, contracts with labor unions, license agreements
and any other agreements relating to the acquisition or disposition of the
Corporation's Intellectual Property Rights technology, shall not be considered
to be contracts entered into in the ordinary course of business.
3.17 Proprietary Rights; Employee Restriction.
----------------------------------------
The Corporation has disclosed in the Disclosure Letter all copyright
registrations, trademark registrations and applications for registration,
patents and patent applications, trademarks, trade secrets or other proprietary
rights (collectively, "Intellectual Property Rights") registered, used or, to
the best of the Corporation's knowledge, to be used in the Corporation's
business as presently conducted and all licenses, assignments and leases
relating to Intellectual Property Rights of others embodied in products of the
Corporation. The Corporation has exclusive ownership of or license to use, all
Intellectual Property Rights identified in the Disclosure Letter and, to the
best knowledge of the Corporation, it has obtained any licenses, releases or
assignments to use all third parties' Intellectual Property Rights embodied in
products of the Corporation. To the best knowledge of the Corporation, neither
the present business activities nor products of the Corporation infringe any
Intellectual Property Rights of others. The Corporation has not received any
notice or other claim from any person asserting that any of the Corporation's
present activities infringe or may infringe on any Intellectual Property Rights
of such person. The Corporation has the right to use, free and clear of claims
or rights of others, all trade secrets, customer lists, manufacturing processes,
hardware designs, programming processes, software and other information required
for or incident to its products or its business as presently conducted. The
Corporation has taken all commercially reasonable steps to establish and
preserve its ownership of all copyright, trade secret and other proprietary
rights with respect to its products and technology, except such rights as the
Corporation has reasonably determined are not material to the Corporation's
continuing business operations. The Corporation is not aware of any
infringement by others of its copyrights or other Intellectual Property Rights
to which it has exclusive use in any of its products, technology or services, or
any violation of the confidentiality of any of its proprietary information. The
Corporation is not making unlawful use of any confidential information or trade
secrets of any past or present employees of the Corporation. Neither the
Corporation nor, to the Corporation's knowledge, any of the key employees of the
Corporation have any agreements or arrangements with former employers of such
employees relating to confidential information or trade secrets of such
employers.
3.18 Effect of Transactions.
----------------------
The execution, delivery and performance by the Corporation of this
Agreement and the documents executed and delivered in connection therewith will
not conflict with or result in any default under any material contract,
obligation or commitment of the Corporation, or any charter provision, bylaw or
corporate restriction of the Corporation, or the suspension, revocation,
impairment, forfeiture or nonrenewal of any material
17
permit, license, authorization or approval applicable to the Corporation, its
business or operations, or any of its assets or properties, or the creation of
any lien, charge or encumbrance of any nature upon any of the properties or
assets of the Corporation, except pursuant to this Agreement. The Corporation's
execution and delivery of this Agreement and the documents executed and
delivered in connection therewith and its performance of the transactions
contemplated thereby will not violate any instrument, agreement, judgment,
decree, order, statute, rule or regulation of any federal, state or local
government or agency applicable to the Corporation.
3.19 Insurance.
---------
The Corporation maintains valid and effective insurance policies, issued by
financially sound and reputable insurers, as identified in the Disclosure
Letter. The Corporation has paid all premiums due with respect to all said
policies of insurance.
3.20 Securities Act Registration.
---------------------------
Assuming that the representations and warranties of the Investor contained
herein are true, the offer, sale and delivery of the Investment Shares in the
manner contemplated by this Agreement are each exempt from registration under
the Securities Act and are exempt or will be exempt under applicable state
securities laws regulating the issuance or sale of securities upon the timely
filing of notices with the appropriate states. Neither the Corporation nor any
authorized agent acting on its behalf will take any action hereafter that would
cause the loss of such exemption.
3.21 Business; Compliance with Laws.
------------------------------
The Corporation (i) is in compliance with, in all respects all legal
requirements applicable to it and its business and (ii) has all material
federal, state, local and foreign governmental licenses, permits and approvals
(collectively, "Permits") used or necessary in the conduct of its business.
Such Permits are in full force and effect, no violations with respect to any
thereof are recorded, and no legal proceeding is pending or, to the best
knowledge of the Corporation, threatened to revoke or limit any thereof.
3.22 Books and Records.
-----------------
The copy of minute books of the Corporation provided to the Investor
contain complete and accurate records of all meetings and other corporate
actions of its shareholders and its board of directors (the "Board of
Directors") and committees thereof. The stock ledger of the Corporation is
complete and accurately reflects all issuances, transfers, repurchases, and
cancellations of shares of capital stock of the Corporation.
18
3.23 Employee Benefit Plans.
----------------------
Each employee benefit plan, program, arrangement, practice or contract,
whether formal or informal, maintained or contributed to by the Corporation
providing current or retirement benefits or compensation to or on behalf of
employees or former employees of the Corporation (the "Benefits Plans"), are in
compliance in all material respects with the presently applicable laws.
3.24 Brokerage.
---------
No person or entity acting on behalf or under the authority of the
Corporation is or will be entitled to any broker's, finder's, or similar fee or
commission in connection with the sale of the Investment Shares.
3.25 Employees.
---------
The Corporation has no collective bargaining agreement with any of its
employees. There is no labor union organizing activity neither pending nor, to
the best knowledge of the Corporation, threatened with respect to the
Corporation. The Corporation is not aware that any officer or key employee
intends to terminate his or her relationship with the Corporation, nor does the
Corporation have any present intention of terminating the employment of any
officer or key employee. To the best of its knowledge, the Corporation has
complied in all material respects with all applicable state and federal equal
employment opportunity and other laws related to employment. To the best of the
Corporation's knowledge, no employee of the Corporation is in violation of any
judgment, decree or order, or any term of any employment contract, patent
disclosure agreement or other contract or agreement relating to the relationship
of any such employee with the Corporation or any other party because of the
nature of the business conducted or to be conducted by the Corporation or to the
utilization by the employee of his best efforts with respect to such business,
which violation would have a material adverse affect on the business. Subject to
general principles related to wrongful termination of employees, the employment
of each officer and employee of the Corporation is terminable at the will of the
Corporation, except as set forth in the Disclosure Letter.
3.26 Related Party Transactions.
--------------------------
No employee, officer, or director of the Corporation or member of his or
her immediate family thereof is indebted to the Corporation, nor is the
Corporation indebted (or committed to make loans or extend or guarantee credit)
to any of them. To the best of the Corporation's knowledge, none of such persons
has any direct or indirect ownership interest in any firm or corporation with
which the Corporation is affiliated or with which the Corporation has a business
relationship, or any firm or corporation that competes with the Corporation,
except that employees, officers or directors of the Corporation and members of
their immediate families may own stock in publicly traded companies that
19
may compete with the Corporation. To the best of the Corporation's knowledge, no
officer or director or any member of their immediate families is, directly or
indirectly, interested in any material contract with the Corporation.
3.27 Disclosure.
----------
The Corporation has provided the Investor with all the information
reasonably available to it without undue expense that the Investor has requested
for deciding whether to purchase the Investment Shares and all information which
the Corporation believes is reasonably necessary to enable the Investor to make
such decision.
3.28 Proprietary Information and Inventions Agreement.
------------------------------------------------
Each employee and officer of the Corporation has executed a General Rules
of Conduct substantially in the form or forms that have been delivered to
special counsel for the Investor.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
4.1 Representations and Warranties.
------------------------------
The Investor hereby represents and warrants to the Corporation as follows:
(a) All action on the part of the Investor necessary for the
execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby has been taken, except for future
transactions as specified in this Agreement, and, assuming due execution
and delivery by the Corporation, this Agreement constitutes a legal, valid,
binding and enforceable obligation of the Investor, subject to the terms
and conditions of this Agreement and: (i) judicial principles respecting
or limiting the availability of specific performance, injunctive relief and
other equitable remedies; and (ii) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect generally
relating to or affecting creditors' rights.
(b) The Investor is an entity and represents and warrants that: (i)
the Investor is an existing entity, and has not been organized or
reorganized for the purpose of making the Investment (or if not true, such
fact shall be disclosed to the Corporation in writing along with
information concerning the beneficial owners of the Investor), (ii) the
undersigned has the authority to execute this Agreement and the
"Confidential Statement of Investor Suitability" attached as Exhibit 4.3B
------------
hereto and any other documents in connection with an investment in the
Investment Shares on the Investor 's behalf, and (iii) the Investor has
the
20
power, right and authority to invest in the Investment Shares and enter
into the transactions contemplated hereby, and the Investment is suitable
and appropriate for the Investor and its beneficiaries (given the risks and
illiquid nature of the Investment).
4.2 Investment.
----------
(a) The Investor has been advised that the Investment Shares have not
been registered under the Securities Act of 1933, as amended (the "Act"),
or registered or qualified under any applicable state securities laws on
the ground that no distribution or public offering of the Investment Shares
is to be effected, and that in this connection the Corporation is relying
in part on the representations of the Investor set forth in this Article
IV;
(b) The Investor has been further advised that no public market now
exists for any of the securities issued by the Corporation and that a
public market may never exist for the Investment Shares;
(c) The Investor is purchasing the Investment Shares for its own
account and not for any other person, subject to the Investor's right to
transfer the Investment Shares and rights hereunder to any of its
Affiliates;
(d) By reason of its business or financial experience, the Investor
has the capacity to protect its own interest in connection with the
transactions contemplated hereunder, is able to bear the risks of an
investment in the Corporation, and can afford a complete loss of such
investment;
(e) The Investor is aware of the Corporation's business affairs and
financial condition and has acquired sufficient information about the
Corporation to reach an informed and knowledgeable decision to acquire the
Investment Shares; and
(f) The Investor has had the opportunity to ask questions regarding
the Corporation and the Corporation has provided information in response to
the questions.
4.3 Federal and State Securities Laws.
---------------------------------
In order to enable the Corporation to determine whether the sale of the
Investment Shares is exempt from registration under the Act and applicable state
securities laws, the Investor represents that it is an "Accredited Investor" (as
defined in Exhibit 4.3A hereof), has completed truthfully the appropriate items
------------
in the Confidential Statement of Investor Suitability attached as Exhibit 4.3B
------------
hereto, and is acquiring the Investment Shares for its own account, for
investment, and not with a view to, or for sale in connection with, any
distribution thereof. The Investor is not a resident of the United States and
the address of
21
the Investor set forth on Exhibit 4.3C attached hereto is the Investor's true
------------
and correct residence or place of business.
ARTICLE V
PRIOR OR SIMULTANEOUS ACTIONS
Before or at the Phase One Closing, the following actions have been or will
be taken:
5.1 The Investor and the holders of not less than forty-five percent (45%)
of the Fully Diluted Shares, have executed and delivered the Shareholders
Agreement to the Corporation.
5.2 The Investor has received certified copies of all requisite corporate
actions taken by the Corporation to authorize its execution and delivery of
this Agreement and the documents contemplated herein, its performance of
its obligations thereunder, and its consummation of the transactions
contemplated thereby.
5.3 The Investor shall have received the requisite approval of its Board
of Directors (or such lesser internal authority with the requisite
authority) to effect the transactions contemplated by this Agreement.
5.4 The Corporation and Investor shall have performed and complied with
all of their obligations under this Agreement which are to be performed or
complied with on or prior to the Phase One Closing.
5.5 The Corporation and the Investor shall exchange certificates in the
form attached as Exhibit 5.5A and Exhibit 5.5B executed by their respective
------------ ------------
officers to the effect that all representations and warranties made by the
Corporation and the Investor in this Agreement shall have been true and
correct in all material respects on the date of this Agreement and shall be
true and correct on the closing date with the same force and effect as if
they had been made on and as of said date.
5.6 The Corporation shall deliver to Investor an opinion of its counsel in
the form attached as Exhibit 5.6.
-----------
5.7 The Corporation shall deliver to the Investor a certificate
representing the Phase One Shares registered in the Investor's name and the
Investor shall pay the purchase price for the Phase One Shares by (at the
option of the Corporation), either cashier's check payable in immediately
available funds to the order of the Corporation or by wire transfer of
funds payable to the order of the Corporation.
22
ARTICLE VI
COVENANTS
6.1 Business Plan.
-------------
Attached to this Agreement as Exhibit 6.1 is the initial Business Plan
-----------
which has been jointly formulated and completed by the Corporation and the
Investor to provide the Corporation with a guide to developments leading to the
Initial Public Offering (the "Initial Business Plan). The Corporation and the
Investor hereby adopt the Initial Business Plan for all purposes under this
Agreement. The Corporation shall comply with the Business Plan and perform the
requirements and obligations of the Business Plan. The Board of Directors may
amend the Business Plan from time to time as it deems necessary or appropriate
to correlate the Business Plan to the realities of the business affairs and
progress of the Corporation, except that the Milestones set forth in the Initial
Business Plan (or amended Business Plan) may not be amended without the approval
of two (2) of the Investor Directors and two (2) of the directors elected by the
ICMG Shareholders (as defined in the Shareholders Agreement). In the event of
any inconsistencies in the terms of the Business Plan and this Agreement, the
terms of this Agreement shall govern.
6.2 Affiliated Transaction.
----------------------
All transactions by and between the Corporation and any officer, employee
or shareholder of the Corporation or persons controlled by or affiliated with
such officer, employee or shareholder, shall be conducted on an arms-length
basis, shall be on terms and conditions no less favorable to the Corporation
than could be obtained from unrelated persons and shall be approved by the Board
after full disclosure of the terms thereof.
6.3 Inspection.
----------
The Corporation shall, upon reasonable prior notice, permit authorized
representatives of the Investor to visit and inspect any of the properties of
the Corporation including its tangible and intangible personal property, and
books of account (and to make copies thereof and take extracts therefrom), and
to discuss the affairs, finances and accounts of the Corporation with its
officers, administrative employees and independent auditors, all at the expense
of the Investor and at such reasonable times and as often as may be reasonably
requested.
23
6.4 Material Changes and Litigation.
-------------------------------
The Corporation shall promptly notify the Investor or its transferees of
any material adverse change in the business, properties, assets, or condition
(financial or otherwise) of the Corporation and of any litigation or
governmental proceeding or investigation pending (or, to the best knowledge of
the Corporation, threatened) against the Corporation or against any officer,
director, key employee, or principal shareholder of the Corporation, that
materially and adversely affects (or if adversely determined, could materially
and adversely affect) its present or proposed business, properties, assets, or
condition (financial or otherwise) taken as a whole.
6.5 Use of Proceeds.
---------------
The Corporation shall use the proceeds from the Investment solely for
working capital and other general corporate purposes in the ordinary course of
business, and/or consistent with the Business Plan.
6.6 Shareholders Agreement.
----------------------
In connection with this Agreement, the Investor and the Corporation have
negotiated the terms of a shareholders agreement (the "Shareholders Agreement"),
a copy of which is attached hereto as Exhibit 6.6. The Corporation shall use
-----------
its best efforts to cause the shareholders of the Corporation (other than the
Investor and the shareholders executing the Shareholders Agreement pursuant to
Section 5.1 above) and any holders of options to acquire shares of capital stock
-----------
of the Corporation, to execute the Shareholders Agreement, or to execute and
deliver a joinder agreement pursuant to which such shareholder agrees to be
bound by the terms of the Shareholders Agreement, by July 15, 1998.
6.7 Termination.
-----------
The covenants set forth in Article VI hereof shall terminate upon the
----------
consummation of the Initial Public Offering.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
7.1 Survival of Representations and Warranties.
------------------------------------------
The representations and warranties contained in this Agreement, as made and
given as to each Closing, shall survive such Closing and shall remain in full
force and effect until one (1) year from the date of such Closing.
24
7.2 Indemnification.
---------------
(a) In addition to all other rights and remedies available to the
Investor, the Corporation shall indemnify, defend, protect and hold harmless the
Investor and its Affiliates and their respective partners, officers, directors,
employees, agents and representatives (the "Investor Group")against any loss,
liability, demand, claim, action, cause of action, cost, damage, deficiency,
tax, penalty, fine or expense (including legal and accounting fees and expenses
related thereto or incurred in enforcing this Article VII) (collectively,
------------
"Claims") arising from the untruth, inaccuracy or breach of any of the
representations, warranties, covenants or agreements of the Corporation
contained in this Agreement (including all Exhibits to this Agreement) or in the
Disclosure Letter.
(b) In addition to all other rights and remedies available to the
Corporation, the Investor shall indemnify, defend, protect and hold harmless the
Corporation and its affiliates and their respective partners, officers,
directors, employees, agents and representatives (the "Corporation Group")
against any loss, liability, demand, claim, action, cause of action, cost,
damage, deficiency, tax, penalty, fine or expense (including legal and
accounting fees and expenses related thereto or incurred in enforcing this
Article VII) (collectively, "Claims") arising from the untruth, inaccuracy or
-----------
breach of any of the representations, warranties, covenants or agreements of the
Investor contained in this Agreement.
(c) Any provision of this Agreement to the contrary notwithstanding,
neither the Investor Group nor the Corporation Group, as the case may be, will
be entitled to indemnification under this Article VII unless the aggregate of
-----------
all Claims to be indemnified against is more than One Hundred Thousand Dollars
($100,000) (the "Threshold Amount"). When the aggregate amount of all such
Claims hereunder equals or exceeds the Threshold Amount, the Investor Group or
the Corporation Group, as the case may be, shall be entitled to full
indemnification of all Claims exceeding the Threshold Amount.
ARTICLE VIII
RESTRICTIONS ON TRANSFER
8.1 Parties to the Shareholder Agreement; Limitation on Transfer.
------------------------------------------------------------
The Common Stock subject to the terms of the Shareholders Agreement shall
not be transferable by any shareholder that is a party to the Shareholders
Agreement except in accordance with the conditions set forth in the Shareholders
Agreement.
25
8.2 Restrictive Legend.
------------------
(a) Each certificate representing the Investment Shares issued
hereunder shall (unless otherwise permitted by the provisions of Section
-------
8.2 (b) and (c) below) be stamped or otherwise imprinted with a legend in
---------------
substantially the following form:
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
OR OTHERWISE TRANSFERRED TO ANY RESIDENT OF THE
UNITED STATES FOR A PERIOD OF TWELVE MONTHS IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS
TO THE SECURITIES UNDER THE ACT AND APPLICABLE
STATE SECURITIES LAWS OR UNLESS AN OPINION OF
COUNSEL ACCEPTABLE TO THE CORPORATION HAS BEEN
OBTAINED TO THE EFFECT THAT THE PROPOSED TRANSFER
COMPLIES WITH REGULATION S UNDER THE ACT OR OTHER
EXEMPTION FROM REGISTRATION UNDER THE ACT AND WITH
APPLICABLE STATE SECURITIES LAWS.
(b) The holder of any of the Investment Shares by acceptance thereof
agrees, prior to any transfer of any of the Investment Shares, to give
written notice to the Corporation of such holder's intention to effect such
transfer and to comply in all other respects with the provisions of this
Section. Each such notice shall describe the manner and circumstances of
the proposed transfer. Upon request by the Corporation, the holder
delivering such notice shall deliver a written opinion, addressed to the
Corporation, of counsel for the holder of the Investment Shares, stating
that in the opinion of such counsel (which opinion and counsel shall be
reasonably satisfactory to the Corporation) such proposed transfer does not
involve a transaction requiring registration or
26
qualification of such Securities under the Securities Act or the securities
or "blue sky" laws of any state of the United States. Such holder of the
Investment Shares shall be entitled to transfer such Securities in
accordance with the terms of the notice delivered to the Corporation, if
the Corporation does not reasonably object to such transfer on the basis
that such proposed transfer involves a transaction requiring registration
or qualification of such securities under the Securities Act or the
securities or "blue sky" laws of any state of the United States and
requests an opinion with respect to such issue within five days after
delivery of such notice, or, if it requests such opinion, does not
reasonably object to such transfer within five days after delivery of such
opinion. Each certificate or other instrument evidencing the securities
issued upon the transfer of any of the Investment Shares (and each
certificate or other instrument evidencing any untransferred balance of
such Securities) shall bear the legend set forth in Section 8.2(a) above
--------------
unless (i) in such opinion of counsel registration of any future transfer
is not required by the applicable provisions of the Securities Act; or (ii)
the Corporation shall have waived the requirement of such legends or any
other legends deemed necessary by the Corporation.
(c) Notwithstanding the foregoing provisions of this Section 8.2, the
-----------
restrictions imposed by this Section upon the transferability of any
Securities shall cease and terminate when (i) any of the Investment Shares
are sold or otherwise disposed of (A) pursuant to an effective registration
statement under the Securities Act or (B) in a transaction contemplated by
Section 8.2 (b) above which does not require that the Securities so
-----------
transferred bear the legend set forth in Section 8.2 (a) hereof; or (ii)
-----------
the holder of such Securities has met the requirements for transfer of such
Securities under Rule 144 or any successor Rule. Whenever the restrictions
imposed by this Section 8.2 shall terminate, the holder of any of the
-----------
Investment Shares as to which such restrictions have terminated shall be
entitled to receive from the Corporation, without expense, a new
certificate not bearing the restrictive legend set forth in Section 8.2(a)
--------------
above and not containing any other reference to the restrictions imposed by
this Section 8.2.
-----------
ARTICLE IX
MISCELLANEOUS
9.1 Staff and Advisers.
------------------
(a) In connection with Investor's Investment and participation in the
operation of the Corporation, the Investor, in consultation with the
Corporation, and subject to the approval of the Board of Directors, may
appoint the Chief Financial Officer of the Corporation. All members of the
staff of the Corporation appointed by the Investor shall be employees of
the Corporation and shall be paid by the Corporation commensurate with
their positions.
(b) The Investor shall to supply at any one time three (3) advisers
to the Corporation for a period of four months from and after the date of
this Agreement. The Investor will be reimbursed for the services of the
three advisers on a reasonable basis to be agreed upon by the Corporation
and the Investor. The
27
advisers will be selected from the following people or people with
equivalent qualifications:
(i) Xxxxxxxx Xxxxx: Business Development;
(ii) Xxxxxxxxxx XxXxxxx: Focus on building relationships with
retailers and shopping centers for period of time to be determined;
(iii) Xxxxxxx Xxxxxxx: Consumer and shopping center specialist
with fifteen (15) years experience and considerable connections with
media on an ongoing part time basis; and
(iv) Xxxxx Xxxxxxx: Focus on the overall development of the
business and its strategic growth, while also providing key contacts
with technology manufacturers, technology partners and key Internet
figures on an ongoing part time basis.
9.2 Standard of Performance.
-----------------------
Whenever a party has been specifically granted a right to exercise its
business judgment, or act, in a subjective manner, with respect to any matter,
or the right to act in its sole and absolute discretion or sole judgment, or the
right to make a subjective judgment under any provision of this Agreement,
whether or not "objectively" reasonable under the circumstances, any such
exercise shall not be deemed inconsistent with any covenant of good faith and
fair dealing otherwise implied by law to be part of this Agreement.
9.3 Notices Etc.
-----------
All notices and other communications required or permitted hereunder shall
be in writing and shall be deemed effectively given upon the first to occur of
personal delivery or the day of actual delivery if sent by registered air mail,
postage prepaid, or Federal Express or other internationally recognized
overnight courier service or facsimile addressed (i) if to the Investor, as
indicated on Exhibit 9.3 attached hereto, or at such other address as it shall
-----------
have furnished to the Corporation, (ii) if to the Corporation, to Interactive
Coupon Marketing Group, Inc., 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000 or via facsimile at (000) 000-0000 and addressed to the attention
of the corporate secretary, or at such other address or facsimile number as the
Corporation shall have furnished to the Investor, or (iii) if to any other
holder of the Investment Shares at such address as such holder shall have
furnished to the Corporation in writing, or, until such holder so furnishes an
address to the Corporation, then to and at the address of the last holder of
such Securities issued pursuant to this Agreement or shares of Common Stock
issued upon conversion of the Securities issued pursuant to this Agreement, who
so furnished an address to the Corporation. In addition, any notice delivered
to an address outside the United States shall be duplicated by counterpart
telex, Internet e-mail, or facsimile notice (if available). For purposes of
giving notice under this Agreement, "business day" shall mean a business day
where the recipient of the notice is located.
28
9.4 Delays or Omissions.
-------------------
No delay or omission to exercise any right, power or remedy accruing to any
holder of any Securities issued or sold or to be issued or sold hereunder, upon
any breach or default of the Corporation under this Agreement shall impair any
such right, power or remedy of such holder nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or in any
similar breach or default thereafter occurring, nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any holder of any breach or default under
this Agreement, or any waiver on the part of any holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
9.5 Assignments; Successors and Assigns.
-----------------------------------
Except in connection with any transfer of the Investment Shares in
accordance with this Agreement, and except as specifically provided by this
Section 9.5 as to the Investor and its Affiliates, the rights of each party
-----------
under this Agreement may not be assigned. The provisions of this Agreement
shall bind and inure to the benefit of the respective successors, assigns,
heirs, executors, and administrators of the parties hereto. Investor shall have
the right to cause any of its Affiliates to pay all or a portion of the purchase
price for Investment Shares hereunder; and subject to the restrictions on
transfer provided in the Shareholders Agreement, the Investor shall have the
right to cause the Corporation to issue any shares hereunder to any of its
Affiliates. As used herein and elsewhere in this Agreement, "Affiliate" means
Lend Lease Corporation, Ltd., an Australian corporation, and any of its
affiliates as defined in the Securities and Exchange Act of 1934.
9.6 Amendments.
----------
The terms and provisions of this Agreement may not be modified or amended,
except pursuant to a written instrument signed by the Corporation and the
Investor.
9.7 Counterparts.
------------
This Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. Photostatic or
facsimile reproductions of this Agreement may be made and relied upon to the
same extent as originals.
29
9.8 Headings and Construction.
-------------------------
The Section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Use in this Agreement of the words
"including", "such as", or words of similar import, when following any general
term, statement or matter, shall not be construed to limit such statement, term
or matter to the specific items or matter, whether or not language of non-
limitation such as "without limitation" or "but not limited to", or words of
similar import, are used with reference thereto, but rather shall refer to all
other terms or matters that could reasonably fall within the broadest possible
scope of such statement, term or matter. Unless otherwise stated, all
references to "Sections" and "Exhibits" are references to the Sections and
Exhibits of this Agreement.
9.9 Entire Agreement.
----------------
This Agreement, including all Exhibits attached or to be attached hereto,
is and shall be deemed to be the complete and final expression of the agreement
between the parties as to the matters herein contained and relative thereof,
sets forth the sole and complete standards pursuant to which their obligations
are to be judged and their performance measured, and supersedes any previous
agreements between the parties pertaining to such matters.
9.10 Governing Law, Venue and Jurisdiction.
-------------------------------------
This Agreement shall be governed in all respects by the laws of the State
of Michigan and the United States of America, without giving effect to
principles of conflicts of laws. Each undersigned party hereby consents to the
personal and subject-matter jurisdiction of the courts of the State of Michigan
and the United States of America over all matters arising from or in connection
with the making and operation of this Agreement and the entire relationship of
the parties. Any dispute or action among any of the parties hereto with respect
to the making or operation of this Agreement, or any matter concerning the
Corporation, shall be brought exclusively in the Federal District Court for the
Eastern District of Michigan. In the event that the Federal Court for the
Eastern District of Michigan does not have jurisdiction over any dispute or
action among any of the parties hereto, such dispute or action shall be tried in
the Michigan Circuit Court for the County of Oakland. This Section 9.10 shall
------------
survive the termination or expiration of this Agreement.
9.11 Joint Drafting.
--------------
Each of the parties hereto has joined in and contributed to drafting this
Agreement; there shall be no presumption favoring or burdening any one or more
parties hereto based upon draftsmanship.
30
9.12 Attorneys Fees.
--------------
If any arbitration, litigation or similar proceedings are brought by either
party to enforce any obligation or to pursue any remedy under this Agreement,
the party prevailing in any such arbitration, litigation or similar proceedings
will be entitled to costs of the proceeding and of collection, if any, and
reasonable attorneys fees incurred in connection with such proceedings and in
collecting or enforcing any award granted therein.
9.13 Disclosure on Completion of First Phase.
---------------------------------------
The Investor and Corporation may upon completion of Phase One, if they so
agree, make a joint public announcement describing the transactions contemplated
by this Agreement. Each party agrees to keep in confidence the transactions
contemplated by this Agreement until a joint public announcement is made, except
as may be required by applicable law, in connection with the filing of any tax
returns, in litigation between the parties, or disclosure to third party
consultants with a need to know (subject to the foregoing confidentiality
requirements) and the Corporation's shareholders.
9.14 Exhibits.
--------
The Exhibits, to which reference is made in this Agreement, are deemed
incorporated into this Agreement in their entirety.
9.15 No Joint Venture.
----------------
This Agreement does not create any partnership or joint venture or similar
relationship between the Corporation and the Investor.
[The remainder of this page intentionally left blank.]
31
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
themselves or by their respective representatives thereunto duly authorized as
of the date first above written.
INTERACTIVE COUPON MARKETING
GROUP, INC., a Michigan corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name:
-------------------------------
Title: CEO
------------------------------
LEND LEASE INTERNATIONAL PTY LIMITED,
an Australian company
By: /s/ X.X. Pomett
---------------------------------
Name:
-------------------------------
Title: Director
------------------------------
32
