This STOCKHOLDER AGREEMENT (this "Agreement") is made and
entered into as of June 13, 1999 between DoubleClick, Inc., a Delaware
corporation ("Parent"), and the undersigned stockholder ("Stockholder") of
Abacus Direct Corporation, a Delaware corporation ("Company"). Capitalized terms
used and not otherwise defined herein shall have the respective meanings set
forth in the Merger Agreement described below.
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger and
Reorganization dated as of June 13, 1999 by and among Parent, Atlanta Merger
Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger
Sub") and Company (such agreement as it may be amended is hereinafter referred
to as the "Merger Agreement"). Parent has agreed to acquire the outstanding
securities of Company pursuant to a statutory merger of Merger Sub with and into
Company (the "Merger"), in which each outstanding share of capital stock of
Company (the "Company Capital Stock") will be converted into shares of common
stock of Parent (the "Parent Shares") at the exchange rate set forth in the
Merger Agreement (the "Transaction");
WHEREAS, in order to induce Parent to enter into the Merger
Agreement and consummate the Transaction, Company has agreed to use its
reasonable best efforts to cause each stockholder of Company who is an affiliate
of Company to execute and deliver to Parent a Stockholder Agreement upon the
terms set forth herein; and
WHEREAS, Stockholder is or may become the registered and
beneficial owner (within the meaning of Rule 13d-3 of the Exchange Act) of
capital stock of Company (the "Shares").
NOW, THEREFORE, the parties agree as follows:
1. TRANSFER AND ENCUMBRANCE. Stockholder is the beneficial
owner of the Shares. The Shares constitute the only shares of capital stock and
voting securities of Company beneficially owned by Stockholder. To Stockholder's
knowledge, the Shares are, and will be at all times up until the Expiration
Date, free and clear of any liens, claims, options, charges or other
encumbrances except as disclosed on the signature page hereto. Stockholder's
principal residence or place of business is accurately set forth on the
signature page hereto.
1.2 NEW SHARES. Stockholder agrees that any shares of capital
stock or voting securities of Company that Stockholder purchases or with respect
to which Stockholder otherwise acquires beneficial ownership after the date of
this Agreement and prior to the Expiration Date ("New Shares") shall be subject
to the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. AGREEMENT TO VOTE SHARES. Prior to the Expiration Date, at
every meeting of the stockholders of Company at which any of the following is
considered or voted upon, and at every adjournment thereof, and on every action
or approval by written resolution of the stockholders of Company with respect to
any of the following, Stockholder shall vote the Shares and any New Shares in
favor of approval and adoption of the Merger Agreement and of the Transaction.
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3. IRREVOCABLE PROXY. Stockholder hereby agrees to timely
deliver to Parent a duly executed proxy in the form attached hereto as Exhibit I
(the "Proxy"), such Proxy to cover the Shares and all New Shares in respect of
which Stockholder is entitled to vote at each meeting of the stockholders of
Company (including, without limitation, each written consent in lieu of a
meeting). In the event that Stockholder is unable to provide any such Proxy in a
timely manner, Stockholder hereby grants Parent a power of attorney to execute
and deliver such Proxy for and on behalf of Stockholder, such power of attorney,
which being coupled with an interest, shall survive any death, disability,
bankruptcy, or any other such impediment of Stockholder. Upon the execution of
this Agreement by Stockholder, Stockholder hereby revokes any and all prior
proxies or powers of attorney given by Stockholder with respect to the Shares
and agrees not to grant any subsequent proxies or powers of attorney with
respect to the Shares until after the Expiration Date.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER.
Stockholder hereby represents, warrants and covenants to Parent as follows:
(a) Stockholder has full power and legal capacity to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Stockholder and constitutes the valid and
binding obligation of Stockholder, enforceable against Stockholder in accordance
with its terms except as may be limited by (i) the effect of bankruptcy,
insolvency, conservatorship, arrangement, moratorium or other laws affecting or
relating to the rights of creditors generally, or (ii) the rules governing the
availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether considered in a
proceeding in equity or at law. To Stockholder's knowledge, the execution and
delivery of this Agreement by Stockholder does not, and the performance of
Stockholder's obligations hereunder will not, result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any right to terminate, amend,
accelerate or cancel any right or obligation under, or result in the creation of
any lien or encumbrance on any Shares or New Shares pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Stockholder is a party or by which
Stockholder or the Shares or New Shares are or will be bound or affected.
(b) Until the Expiration Date, Stockholder will not (and will
use Stockholder's reasonable best efforts to cause Company, its affiliates,
officers, directors and employees and any investment banker, attorney,
accountant or other agent retained by Stockholder, Company or any of the same,
not to, except to the extent otherwise permitted under Section 6.04 of the
Merger Agreement): (i) initiate or solicit, directly or indirectly, any
proposal, plan or offer to acquire all or any material part of the business or
properties or capital stock of Company, whether by merger, purchase of assets,
tender offer or otherwise, or to liquidate Company or otherwise distribute to
the stockholders of Company all or any substantial part of the business,
properties or capital stock of Company (each, an "Acquisition Proposal"); (ii)
initiate, directly or indirectly, any contact with any person in an effort to or
with a view towards soliciting any Acquisition Proposal; (iii) furnish
information concerning Company's business,
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properties or assets to any corporation, partnership, person or other entity or
group (other than Parent, or any associate, agent or representative of Parent)
under any circumstances that could reasonably be expected to relate to an actual
or potential Acquisition Proposal; or (iv) negotiate or enter into discussions
or an agreement, directly or indirectly, with any entity or group with respect
of any potential Acquisition Proposal. In the event Stockholder shall receive or
become aware of any Acquisition Proposal subsequent to the date hereof,
Stockholder shall promptly inform Parent as to any such matter and the details
thereof to the extent possible without breaching any other agreement to which
such Stockholder is a party or violating its fiduciary duties. Notwithstanding
the foregoing, the provisions of this Section 4(b) shall not be operative for
any non-executive director of Company for so long as such director serves on
Company's board of directors.
(c) Stockholder understands and agrees that if Stockholder
attempts to transfer, vote or provide any other person with the authority to
vote any of the Shares other than in compliance with this Agreement, Company
shall not, and Stockholder hereby unconditionally and irrevocably instructs
Company to not, permit any such transfer on its books and records, issue a new
certificate representing any of the Shares or record such vote unless and until
Stockholder shall have complied with the terms of this Agreement.
5. ADDITIONAL DOCUMENTS. Stockholder hereby covenants and
agrees to execute and deliver any additional documents necessary or desirable,
reasonably necessary and desirable, to carry out the purpose and intent of this
Agreement.
6. TERMINATION. This Agreement and the Proxy delivered in
connection herewith shall terminate and shall have no further force or effect as
of the Expiration Date.
7. MISCELLANEOUS.
7.1 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
7.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without the prior written consent of the other. This
Agreement is intended to bind Stockholder solely as a securityholder of Company
only with respect to the specific matters set forth herein.
7.3 AMENDMENT AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
7.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties
hereto acknowledge
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that Parent will be irreparably harmed and that there will be no adequate remedy
at law for a violation of any of the covenants or agreements of Stockholder set
forth herein. Therefore, it is agreed that, in addition to any other remedies
that may be available to Parent upon any such violation, Parent shall have the
right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Parent at law or in equity
and Stockholder hereby waives any and all defenses which could exist in its
favor in connection with such enforcement and waives any requirement for the
security or posting of any bond in connection with such enforcement.
7.5 NOTICES. All notices, requests, demands or other
communications that are required or may be given pursuant to the terms of this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed by registered or certified mail, postage prepaid, or
sent by facsimile transmission, as follows:
(a) If to Stockholder, at the address set forth below
Stockholder's signature at the end hereof.
(b) if to Parent, to:
DoubleClick Inc.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
or to such other address as any party hereto or any Indemnified Person may
designate for itself
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by notice given as herein provided.
9.6 GOVERNING LAW. This Agreement shall be governed by,
construed and enforced in accordance with the internal laws of the State of
Delaware without giving effect to the principles of conflicts of law thereof.
9.7 ENTIRE AGREEMENT. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
9.8 COUNTERPART. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
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SIGNATURE PAGE TO STOCKHOLDER AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Stockholder
Agreement to be executed as of the date first above written.
DOUBLECLICK INC. STOCKHOLDER
By:
Name: (Signature)
Title:
(Signature of Spouse)
(Print Name of Stockholder)
(Print Street Address)
(Print City, State and Zip)
(Print Telephone Number)
(Social Security or Tax I.D. Number)
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EXHIBIT I
IRREVOCABLE PROXY
TO VOTE STOCK OF
ABACUS DIRECT CORPORATION
The undersigned stockholder of Abacus Direct Corporation, a
Delaware corporation ("Company"), hereby irrevocably (to the full extent
permitted by the Delaware General Corporation Law) appoints the members of the
Board of Directors of DoubleClick Inc., a Delaware corporation ("Parent"), and
each of them, or any other designee of Parent, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of Company that now are or hereafter may be beneficially
owned by the undersigned, and any and all other shares or securities of Company
issued or issuable in respect thereof on or after the date hereof (collectively,
the "Shares") in accordance with the terms of this Irrevocable Proxy. Upon the
undersigned's execution of this Irrevocable Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided
in the Delaware General Corporation Law), is coupled with an interest,
including, but not limited to, that certain Company Affiliate Agreement dated as
of even date herewith by and among Parent, and the undersigned, and is granted
in consideration of Parent entering into that certain Agreement and Plan of
Merger and Reorganization (the "Merger Agreement") by and among Parent and
Atlanta Merger Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), and Company which Merger Agreement provides for the
merger of Merger Sub with and into Company (the "Merger"). As used herein, the
term "Expiration Date" shall mean the earlier to occur of (i) such date and time
as the Merger shall become effective in accordance with the terms and provisions
of the Merger Agreement, and (ii) the date of termination of the Merger
Agreement.
The attorneys and proxies named above, and each of them are
hereby authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting and other similar rights of the undersigned
with respect to the Shares (including, without limitation, the power to execute
and deliver written consents pursuant to the Delaware General Corporation Law),
at every annual, special or adjourned meeting of the stockholders of Company and
in every written
consent in lieu of such meeting:
in favor of approval and adoption of the Merger Agreement
and of the transaction contemplated thereby.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
stockholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or
incapacity of the undersigned and any obligation of the undersigned hereunder
shall be binding upon the heirs, personal representatives, successors and
assigns of the undersigned.
This Irrevocable Proxy is coupled with an interest as
aforesaid and is irrevocable.
Dated: June 13, 1999
-------------------------------------
(Signature of Stockholder)
-------------------------------------
(Print Name of Stockholder)
Shares beneficially owned:
__________ shares of Company Common Stock
SIGNATURE PAGE TO IRREVOCABLE PROXY
