1
Exhibit 10.9
CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED BY MEANS OF BLACKOUT
OF THE TEXT (THE "XXXX"). THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION WITHOUT THE XXXX PURSUANT TO THE COMPANY'S
APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 UNDER THE
SECURITIES ACT.
STOCK PURCHASE AGREEMENT
This Agreement is made March 29, 1999 among REAL MEDIA, INC., a Delaware
corporation ("Real Media"), ADVANCE INTERNET INC., a New Jersey corporation
("Advance"), and PUBLIGROUPE USA HOLDING INC., a PubliGroupe Ltd. corporation
("PUBLIGroupe"). Each of Advance and PUBLIGroupe are sometimes referred to
hereinafter as a "Purchaser").
Subject to the terms and conditions herein, the parties agree as follows:
ARTICLE I
SALE AND PURCHASE
1.1. SALE AND PURCHASE OF SHARES. Simultaneously with the execution and
delivery of this Agreement, Real Media is issuing and selling to the Purchasers,
and the Purchasers are purchasing from Real Media, free and clear of all claims,
liens, security interests and other encumbrances ("Liens"), an aggregate of one
million, one hundred and eleven thousand, one hundred and eleven (1,111,111)
shares of the common stock, $.001 par value, of Real Media (the "Shares"). Each
Purchaser is purchasing from Real Media the number of Shares set forth opposite
such Purchaser's name below at a price of $2.70 per share, for an aggregate
purchase price of Three Million Dollars ($3,000,000.00):
PUBLIGroupe - 277,778 Shares (25%)
Advance - 833,333 Shares (75%)
1.2. STOCKHOLDERS AGREEMENT. The parties hereto acknowledge that the sale
and purchase of the Shares hereunder is being made in compliance with the
provisions of Section 7 (Right of First Offer) of the Amended and Restated
Voting and Stockholders Agreement dated April 8, 1998 among Real Media,
PUBLIGroupe, Advance and certain other stockholders of Real Media (the
"Stockholders Agreement").
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF PURCHASERS
2.1. REPRESENTATIONS AND WARRANTIES OF ADVANCE. Each Purchaser severally
represents and warrants to Real Media as to itself as follows:
2
2.1.1. EXISTENCE AND POWER. Each Purchaser is a corporation validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has the full corporate power and authority to enter into and
perform this Agreement and to carry on its business as now conducted.
2.1.2. AUTHORIZATION. The execution, delivery and performance of this
Agreement by each Purchaser have been duly authorized by all necessary action on
the part of such Purchaser, and this Agreement constitutes the valid and binding
obligation of each Purchaser enforceable against each Purchaser in accordance
with its terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
2.1.3. NO CONFLICTS; CONSENTS. Except for conflicts, breaches,
terminations, accelerations, defaults and violations specified in (b) and (c)
below that could not reasonably be expected to have a material adverse effect on
a Purchaser's ability to perform its obligations under this Agreement, the
execution, delivery and performance of this Agreement by each Purchaser will
not: (a) violate or conflict with the Certificate of Incorporation or By-Laws of
such Purchaser, (b) conflict with, or result in the breach, termination or
acceleration of, or constitute a default under, any lease, agreement, commitment
or other instrument to which a Purchaser is a party or by which it or its
properties are bound; (c) constitute a violation of any law, regulation, order,
writ, judgment, injunction or decree applicable to a Purchaser or any of its
properties or (d) require any governmental consent or approval.
2.1.4. INVESTMENT REPRESENTATION. The Shares purchased by each
Purchaser pursuant to this Agreement are being acquired for investment only and
not with a view to any resale or distribution thereof, in whole or in part, in
violation of the Securities Act of 1933, as amended, and to the best knowledge
of each Purchaser, the Shares have not been offered to, or acquired by, it
through any advertisement or general solicitation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF REAL MEDIA
3.1. REPRESENTATIONS AND WARRANTIES OF REAL MEDIA. Real Media represents
and warrants to each Purchaser as follows:
- 2 -
3
3.1.1. EXISTENCE AND POWER. Real Media is a corporation validly
existing and in good standing under the laws of the State of Delaware and has
the full corporate power and authority to enter into and perform this Agreement
and to carry on its business as now conducted and to own, lease and operate its
properties as it now does. Real Media is qualified to do business as a foreign
corporation in all jurisdictions where the failure to be so qualified would have
a material adverse effect on Real Media's assets, business or properties.
3.1.2. AUTHORIZATION. The execution, delivery and performance of this
Agreement by Real Media have been duly authorized by all necessary action, and
this Agreement constitutes the valid and binding obligation of Real Media
enforceable against it in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
in general and subject to general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
3.1.3. NO CONFLICTS; CONSENTS. Except for conflicts, breaches,
terminations, accelerations, defaults and violations specified in (b) and (c)
below that could not reasonably be expected to have a material adverse effect on
Real Media's ability to perform its obligations under this Agreement, or have a
material adverse effect on its business or properties, the execution, delivery
and performance of this Agreement by Real Media will not: (a) violate or
conflict with the Articles of Incorporation or By-Laws of Real Media; (b)
conflict with, or result in the breach, termination or acceleration of, or
constitute a default under, any lease, agreement, commitment or other instrument
to which Real Media is a party or by which it or its properties are bound; (c)
constitute a violation of nay law, regulation, order, writ, judgment, injunction
or decree applicable to Real Media or any of its properties; (d) require any
governmental consent or approval; or (e) result in the creation of any Lien upon
the properties or assets of Real Media.
3.1.4. LITIGATION. There is no litigation or proceeding or any
governmental investigation pending or, to the knowledge of Real Media,
threatened, nor is there any order, injunction or decree outstanding, against
Real Media that could reasonably be expected to have a material adverse effect
on Real Media or its ability to perform its obligations under this Agreement.
3.1.5. SUBSIDIARIES. Real Media does not own any equity interest in
any other business.
3.1.6. RECORDS. The copies of the Articles of Incorporation and
By-Laws of Real Media that have been delivered to each Purchaser are complete
and
- 3 -
4
correct, and the minutes books of Real Media that have been exhibited to Advance
are complete and correct in all material respects as of the date hereof.
3.1.7. CAPITALIZATION. Schedule 3.1.7 sets forth the authorized
capital stock of Real Media, the number of issued and outstanding shares
thereof, the name of each owner of record and each beneficial owner and the
number of shares owned by each. All of the issued and outstanding shares of
capital stock of Real Media were duly authorized for issuance and are validly
issued, fully paid and nonassessable.
Except as set forth on Schedule 3.1.7, there are no outstanding
options or rights of any kind to acquire any capital stock or any securities
convertible into any capital stock of Real Media, nor are there any obligations
to issue any such capital stock, rights or securities. Except as provided in the
Stockholders Agreement, there are no restrictions of any kind on the transfer of
the outstanding capital stock of Real Media, except those imposed by applicable
federal and state securities laws. Except as set forth in the Stockholders
Agreement or as set forth on Schedule 3.1.7, there are no contracts or other
understandings (whether formal or informal, written or oral, firm or contingent)
that require or may require Real Media to repurchase any of its capital stock,
nor are there any preemptive or similar rights with respect to Real Media's
capital stock. Except as set forth in the Stockholders Agreement, neither Real
Media nor, to the best of Real Media's knowledge, any shareholder of Real Media
is a party to any voting agreement, voting trust, proxy or any other agreement
or understanding with respect to the voting of any capital stock of Real Media,
or any agreements with respect to the transferability, purchase or redemption of
any capital stock of Real Media. Upon transfer of the Shares pursuant to this
Agreement, Advance will own twenty nine and thirty eight hundredths percent
(29.38%) and PUBLIGroupe will own twenty nine and eighty six hundredths percent
(29.86%) of the total capital stock of Real Media.
3.1.8. FINANCIAL STATEMENTS. The unaudited balance sheet of Real
Media at December 31, 1998 and the related unaudited statements of income and
cash flows of Real Media for the twelve months then ended previously provided to
Advance have been prepared in accordance with generally accepted accounting
principles ("GAAP"), consistently applied at such dates and for such periods,
and present fairly the financial condition and results of operations of Real
Media at such dates and for such periods. There is no material liability or
obligation of any kind, whether accrued, absolute, fixed or contingent, of Real
Media that is not reflected or reserved for in such financial statements as of
their respective dates, other than liabilities incurred in the ordinary course
of business since December 31, 1998.
- 4 -
5
3.1.9. ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1998,
Real Media has operated its business only in the ordinary course consistent with
past practice, and there has not been with respect to Real Media:
(a) any change, development or other event that could
reasonably be expected, individually or in the aggregate, to have a material
adverse effect on Real Media;
(b) any incurrence of indebtedness for money borrowed or the
creation of any Lien on any properties or assets (whether tangible or
intangible);
(c) any general increase in the salaries, wages, compensation,
bonuses, commissions or pensions or other benefits payable by Real Media to its
directors, officers, employees or agents, or any specific increase in any of the
foregoing payable by Real Media to any director, officer, employee or agent;
(d) the entering into any new or amended agreement, plan,
policy, program or arrangement to pay pensions, profit sharing, deferred
compensation, retirement allowances or other employee benefits to any director,
officer, employee or agent, whether past or present, including any severance or
consulting arrangement;
(e) any termination, discontinuance, closing or disposition of
any plant, facility or business operation, any lay-offs of employees or
implementation of any early retirement or separation program;
(f) any transfer or grant of any rights under or in respect of
any agreements, leases, licenses or intellectual property;
(g) any capital expenditure, except those made in the ordinary
course of business consistent with past practice which did not exceed $50,000 in
the aggregate;
(h) any material damage, destruction or loss (not covered by
insurance) to any physical assets or properties of Real Media in excess of
$50,000 in book value in the aggregate;
(i) any declaration, setting aside or payment of any dividend
or other distribution on or in respect of its shares of capital stock or any
direct or indirect redemption, retirement, purchase or other acquisition of any
such shares; or
- 5 -
6
(j) any announcement or agreement to do any of the foregoing.
3.1.10. TAXES. Real Media has (a) filed with the appropriate federal,
state and local taxing authorities all tax returns required to be filed by or
with respect to Real Media, and those tax returns are correct and complete in
all material respects, and (b) paid in full or made adequate provision for the
payment of all taxes shown to be due on those tax returns. Real Media has not
received any notice of deficiency or assessment from any federal, state or local
taxing authority with respect to liabilities for taxes that have not been fully
paid or finally settled.
3.1.11. MATERIAL CONTRACTS. Set forth on Schedule 3.1.11 is a list
of: (a) each commitment or agreement to which Real Media is a party for the
purchase of any materials, supplies or services that involves or will involve an
expenditure by Real Media of more than $50,000; (b) each personal property lease
under which Real Media is either a lessor or lessee that involves annual
payments or receipts of more than $50,000; (c) each agreement with customers
that involves annual payments to Real Media of more than $50,000; (d) each
agreement between Real Media, on the one hand, and any of its affiliates,
associates or shareholders, on the other hand; (e) each other commitment,
agreement and instrument (including, without limitation, mortgages, indentures
and other agreements and instruments relating to indebtedness for borrowed
money) to which Real Media is a party or by which it or its properties are bound
that requires annual payments by Real Media of more than $50,000. In this
Agreement, the term "Material Contract" means any commitment, agreement, lease,
order or instrument required to be disclosed under this Section 3.1.11.
3.1.12. REAL PROPERTY. Set forth on Schedule 3.1.12 is a brief
description of each lease of real property to which Real Media is a party and
all real property owned by Real Media.
3.1.13. DEFAULTS. Real Media is not in default under any Material
Contract or real property lease, which may reasonably be expected to result in
termination of the Material Contract or real property lease or a claim for
material damages thereunder. Real Media is not in default of any payment
obligation under any loan or credit agreement to which it is a party. No party
has notified Real Media of its intention to cease to perform any of its
obligations under any Material Contract or real property lease and each of the
Material Contracts and real property leases is in full force and effect.
- 6 -
7
3.1.14. AGREEMENTS REGARDING EMPLOYEES. Real Media is not a party to
or bound by any collective bargaining or similar labor agreement and is not
aware of efforts or actions by any employees to organize or join a labor union
or similar organization for collective bargaining purposes. Real Media is in
compliance in all material respects with all applicable laws and regulations
respecting labor, employment, fair employment practices, terms and conditions of
employment and wage and hour restrictions. Real Media is not a party to or bound
by any agreement, arrangement or understanding with any current or former
employee or consultant that cannot be terminated by Real Media on notice of
sixty (60) days or less without material liability to it. Set forth on Schedule
3.1.14 is a list of all employees of Real Media and their cash compensation as
of the date of this Agreement. No senior officer or key employee or group
thereof has notified Real Media that he, she or they intend to terminate his,
her or their employment with Real Media, and Real Media does not have a present
intention to terminate any senior officer or key employee or group thereof.
There are no existing or threatened disputes involving the current or former
employees of Real Media.
3.1.15. PROPRIETARY RIGHTS. Set forth on Schedule 3.1.15 is a list of
all patents, trademarks, trade names, service marks, copyrights (other than
routine promotional and similar materials) and applications therefor owned or
used or held for use by Real Media ("Proprietary Rights"), specifying as to
each, as applicable: (a) the nature of the Proprietary Right; (b) the user of
the Proprietary Right; and (c) material licenses, sublicenses and other
agreements to which Real Media is a party and pursuant to which any person is
authorized to use the Proprietary Right. Real Media has used the Proprietary
Rights without infringing any other party's rights and is not a party in any
pending or, to the best of Real Media's knowledge, threatened suit, action or
proceeding that involves a claim of infringement of any Proprietary Right. No
Proprietary Right is subject to any outstanding order, judgment, decree,
stipulation or agreement restricting its use by Real Media or restricting the
licensing thereof to any person by Real Media.
3.1.16. ENVIRONMENTAL MATTERS. Real Media is in compliance in all
material respects with all applicable federal, state and local laws, ordinances,
regulations, rules or administrative orders relating to employee health and
safety, air, water and noise pollution or otherwise relating to public health
and safety or environmental protection (including the protection of endangered
species), or the use, generation, manufacture, accumulation, storage, discharge,
release, disposal or transportation of hazardous materials.
3.1.17. PERMITS AND LICENSES. Real Media has all material permits,
licenses, franchises and other authorizations necessary for the conduct
- 7 -
8
of its business as currently conducted, and all such permits, licenses,
franchises and authorizations are valid and in full force and effect.
3.1.18. RELATED PARTY TRANSACTIONS. Other than the Stockholders
Agreement, Real Media is not engaged in any transaction with any of its
shareholders or any of their affiliates or associates.
3.1.19. INSURANCE. The insurance policies Real Media has in effect in
the aggregate constitute adequate insurance for the business in which Real Media
is engaged within accepted industry standards.
3.1.20. COMPLIANCE WITH LAW. Real Media is not in violation of any
applicable law, regulation, ordinance or other requirement of any governmental
body or court, which violations in the aggregate would have a material adverse
effect on Real Media, and no written notices have been received by Real Media
alleging any such violations.
ARTICLE IV
COVENANTS OF REAL MEDIA
4.1. BOOKS AND RECORDS. Real Media will maintain current and complete
records and books of account, in which will be entered fully and accurately all
transactions of the company. The books of Real Media shall be kept on an accrual
basis of accounting in accordance with GAAP. All such books and records shall be
maintained at the principal offices of Real Media. Purchaser and its
representatives shall be entitled at its own expense, during normal business
hours, to inspect all of the facilities, properties, books, records, contracts
and commitments of Real Media and Real Media shall make its officers and
personnel available to purchaser and its representatives, as such may be
requested from time to time.
4.2. FINANCIAL REPORTS AND NOTICES OF MATERIAL LITIGATION. Real Media
shall prepare and deliver to each Purchaser:
(a) Promptly upon availability, but in any event within thirty
days of the end of each month, (i) a consolidated balance sheet as of the end of
such month; and (ii) consolidated statements of income or loss and of cash flows
for the interim period through the end of such month and for the month then
ended, and setting forth in each case in comparative form the figures for such
previous fiscal periods and comparisons to the budget, with an explanation of
all material variances;
- 8 -
9
(b) Promptly upon availability but in any event within forty
days of the end of each quarter, (i) a consolidated balance sheet as of the end
of such quarter; and (ii) consolidated statements of income or loss and of cash
flows for the interim period through the end of such quarter and for the quarter
then ended, and setting forth in each case in comparative form the figures for
such previous fiscal periods and comparisons to budget, with an explanation of
all material variances;
(c) Promptly upon availability but in any event within
one-hundred and twenty days of the end of each fiscal year of Real Media audited
financial statements consisting of, a consolidated balance sheet of the company
as of the end of such fiscal year, and a consolidated statement of income or
loss and a statement of cash flows for such fiscal year, all in reasonable
detail, setting forth in each case in comparative form the figures for the
previous year, with an explanation of all material variances, certified by Real
Media's auditors;
(d) With reasonable promptness, such other financial
information and reports, which shall include (without limitation) a summary of
intercompany transactions and payments and transactions between Real Media and
its stockholders and a statement of income for each of its subsidiaries, if any,
and such projections as from time to time may be requested by a Purchaser; and
(e) prompt notice of the commencement or institution by or
against Real Media or any dispute, litigation, suit, action or other proceeding
before any court or other governmental, administrative or taxing authority which
Real Media in good faith determines is reasonably likely to have a material
adverse effect upon a Purchaser or any of its affiliates.
ARTICLE V
INDEMNIFICATION
5.1. INDEMNIFICATION BY REAL MEDIA. Subject to the provisions of this
Article V, Real Media shall indemnify and hold each Purchaser harmless from and
against all losses, liabilities, damages and expenses (including reasonable
attorneys' fees) ("Losses") resulting from any breach of representation or
warranty or failure to perform any covenant or agreement by Real Media under
this Agreement.
5.2. INDEMNIFICATION BY ADVANCE. Subject to the provisions of this Article
V, each Purchaser shall indemnify and hold Real Media harmless from and against
all Losses resulting from any breach of representation or warranty or
- 9 -
10
failure to perform any covenant or agreement by such Purchaser under this
Agreement.
5.3. TIME AND MANNER OF CERTAIN CLAIMS. The representations, warranties,
covenants and agreements contained in this Agreement shall survive the execution
and delivery hereof for a period of three years, except for the covenants
contained in Article IV hereof, which shall survive for the benefit of each
Purchaser as long as such Purchaser owns any Shares of Real Media. Any notice of
claim hereunder shall set forth the representation, warranty, covenant or
agreement with respect to which the claim is made, the facts giving rise to and
the alleged basis for the claim and the amount of liability asserted by reason
of the claim.
5.4. DEFENSE OF CLAIMS BY THIRD PARTIES. If any claim is made against any
person or entity that, if sustained, would give rise to a liability of a party
for breach of representation or warranty or failure to perform any covenant or
agreement under this Agreement, the parties shall cooperate to cause notice of
the claim to be delivered promptly to the party who may be liable under this
Agreement, and shall afford that party and its counsel, at that party's sole
expense, the opportunity to defend or settle the claim.
ARTICLE VI
MISCELLANEOUS
6.1. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed wholly in New York.
6.2. NOTICES. All notices and other communications under this Agreement
shall be in writing and may be given by personal delivery, facsimile
transmission, registered or certified mail, postage prepaid, return receipt
requested or overnight delivery service. Notices shall be sent to the
appropriate party at its address or facsimile number given below (or at such
other address or facsimile number for that party as shall be specified by notice
given under this Section 6.2):
if to Real Media, to:
Real Media, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Tel: (000) 000-0000
- 10 -
11
Fax: (000) 000-0000
with a copy to:
Dechert Price & Xxxxxx
Princeton Pike Corporate Center
000 Xxxxx Xxxxx
Xxxxxxxx #0, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attention: Xxx X. Xxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
if to Advance, to:
Advance Internet Inc.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx, Xxxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to PUBLIGroupe, to:
PUBLIGroupe USA Holding, Inc.
x/x Xxxxxxxxxx Xxxxxxxx, X.X.
Xxxxxx xxx Xxxxxxxxxx 0, XX-0000
Xxxxxxxx, Xxxxxxxxxxx
Attention:
Tel:
Fax:
With a copy to:
- 11 -
12
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
All such notices and communications shall be deemed received upon
(a) actual receipt by the addressee, (b) actual delivery to the appropriate
address or (c) in the case of a facsimile transmission, upon transmission by the
sender and issuance by the transmitting machine of a confirmation slip
confirming the number of pages constituting the notice have been transmitted
without error.
6.3. FURTHER ASSURANCES. From time to time, each party shall take such
action and execute and deliver such documents as the other may reasonably
request to carry out the transactions contemplated by this Agreement.
6.4. FEES AND EXPENSES. Neither party shall be responsible for the other's
fees or expenses, including, without limitation, those in connection with the
transactions contemplated by this Agreement.
6.5. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be considered an original, but both of which together shall
constitute the same instrument.
- 12 -
13
6.6 ENTIRE AGREEMENT. This Agreement contains a complete statement of
all the arrangements between the parties with respect to its subject matter,
supersede all existing agreements between them with respect to that subject
matter, provided, however, that nothing in this Agreement shall supersede or
amend the Stock Purchase Agreement dated April 8, 1998 between RealMedia and
Advance, which Agreement shall remain in full force and effect in accordance
with its terms. This Agreement may not be changed or terminated orally and any
amendment or modification must be in writing and signed by the party to be
charged.
REAL MEDIA, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: President
ADVANCE INTERNET INC.
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Executive Vice President
PUBLIGroupe USA HOLDING INC.
By: /s/ illegible signature
---------------------------------
Name:
Title:
Date : 11.03.1999 PubliGroupe Ltd
(the ultimate shareholder of
PubliGroupe USA Holding Inc.)
/s/ Xxxxx Xxxxx /s/ J. Sofia
Xxxxx Xxxxx J. Sofia
- 13 -
14
CAPITALIZATION SCHEDULE 2.1.7
PERSON STOCK OPTIONS TOTAL
------ ----- ------- -----
Xxxxx Xxxxxx 1,088,000 20,000 1,108,000
Xxx Xxxxx 1,004,000 10,000 1,014,000
Xxxx Xxxxxx 1,044,000 121,720 1,165,720
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
15
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
-------------- --------------
3,445,062 684,250 4,130,312
REMAINING BASKET 60,688
PUBLIGROUPE 2,800,000
ADVANCE INTERNET 2,196,000
AUTHORIZED:
COMMON STOCK 16,000,000
PREFERRED STOCK 9,000,000
[*] Confidential treatment requested
16
MATERIAL CONTRACTS SCHEDULE 3.1.11
(a) Purchase of materials, supplies, and services involving expenditure
of more than $50,000
Microserve (contract provided 4/8/98)
(b) Personal property lease involving payments of more than $50,000
none
(c) Agreement with customers involving annual payments of more than
$50,000
none
(d) Agreement between Real Media and associates
Technology Transfer Agreement with Publigroupe dated as of
April 6, 1998
(e) Other agreements involving payments of more than $50,000
Advertising Sales Agent Agreement with Publicitas/Globe Media
Other contracts provided: Netscape, Lexis-Nexis, Business Week, Deloitte &
Touche, DoubleByte (provided 4/8/98). M&C Sarachi Inc., Relevant
Knowledge, Journal Square Interactive, ICL (by Real Media, UK)
17
REAL PROPERTY SCHEDULE 3.1.12
Description of each lease of real property
00 Xxxx 00xx Xxxxxx, 0xx xxxxx, Xxx Xxxx, XX 00000
- $2,500 per month through September 1998
- $2,625 per month through April 1999
000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000
- $8,750 per month 2/1/99-1/31/00
- $9,056 per month 2/1/00-1/31/01
- $8,573 per month 2/1/01-1/31/02
000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxx Xxxxxxxxxx, XX 00000
- $1,000 per month - month to month lease with 60 days notice
- $4,250 from 3/1/99, 1 year term
0000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000
- $1,260 per month through September 1998, then $1,880 per month
- new lease under negotiation
Real property owned
none
18
EMPLOYEES SCHEDULE 3.1.14
Employees Compensation
--------- ------------
[*] [*]
*CONFIDENTIAL TREATMENT REQUESTED
19
[*] [*]
*CONFIDENTIAL TREATMENT REQUESTED
20
PROPRIETARY RIGHTS SCHEDULE 3.1.15
Trade Marks
Real Media
----------
(a) nature of proprietary right common law use
(b) user of proprietary right
(c) material (sub)licenses PubliGroupe, South Africa, Hong Kong/Korea
On August 6, 1997, Real Media, Inc. filed an opposition proceeding in the U.S.
Patent and Trademark Office challenging the application of Real Networks, Inc.
(f/k/a Progressive Network, Inc.) to register REAL MEDIA as a trademark for
"computer software which allows the viewing and transmitting of picture and/or
video and/or text segments and audio segments over global information networks
that transfer and disseminate a wide range of information." The use has been
limited to a naming protocol for its software architecture. In its Notice of
Opposition, Real Media has asserted that it has prior rights in the xxxx REAL
MEDIA in connection with its on-line advertising services and related
proprietary software and that Real Networks' use of the same xxxx on the goods
specified in its application is likely to cause confusion. The parties are
currently engaged in negotiations to resolve the dispute and various related
issues, including the proposed assignment to Real Media of various domain name
registrations, including xxxxxxxx.xxx and xxxxxxxxxxxx.xxx.
Open AdStream
-------------
(a) nature of proprietary right common law use - in process of filing federal
trademark application
(b) user of proprietary right
(c) material (sub)licenses PubliGroupe
AdStream
--------
(a) nature of proprietary right common law use
(b) user of proprietary right
(c) material (sub)licenses
"Innovation on the Internet" filed an application to register ADSTREAMS for
internet advertising, but has since abandoned the application.
Digital Business Resource, Inc. ("DBR"), a small value added reseller ("VAR")
company, has a pending application to register ADSTREAM for "a digital,
downloadable, computer-based messaging device" - namely a software application
that stores and transmits audio advertisements into convenience stores and gas
stations and tracks the play times. Real Media has not opposed DBR's application
even though Real Media has a priority of use, believing that DBR's use will not
pose a significant threat of confusion among Real Media's clients, online media
publishers.
