EXHIBIT 2
MAXWORLDWIDE, INC.
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of July
10, 2002, by and among the stockholders of MaxWorldwide, Inc., a Delaware
corporation (the "Company"), identified on the signature pages hereto
(collectively, the "Stockholders").
WHEREAS, as part of the transactions contemplated by the
Agreement and Plan of Merger, dated as of June 29, 2002 (the "Merger
Agreement"), by and among the Company, DoubleClick Inc., a Delaware corporation
("DoubleClick"), and certain other parties, the Company is issuing to
DoubleClick the Securities (as such term is defined in the Merger Agreement);
WHEREAS, the Stockholders desire to enter into this Agreement
for the purpose of governing certain aspects of the Stockholders' relationships
with each other; and
WHEREAS, it is in the best interests of the Stockholders that
such aspects of their relationships be so governed.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein and intending to be legally bound the parties
hereto hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the
following terms shall have the meanings ascribed to them below:
(a) "Affiliate" of any Person means any other Person which
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. The term "control"
(including the terms "controlled by" and "under common control with") as used
with respect to any Person means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
(b) "Common Stock" means the common stock, par value $0.001
per share, of the Company.
(c) "DoubleClick Designee" has the meaning set forth in
Section 2.
(d) "own," "hold" or "held" (and words of similar import),
with respect to any shares of Voting Stock, means either held of record or
beneficially owned within the meaning of Rule 13d-3 under the Exchange Act of
1934, as amended.
(e) "Person" means any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust, incorporated
organization, association, corporation, institution, public benefit corporation,
government (whether federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body or
department thereof) or other entity.
(f) "Stockholder" means each Stockholder and, as the context
requires, their respective transferees to the extent that they are required to
be bound by the terms and provisions hereof and/or to the extent that they have
succeeded to the transferor's rights hereunder pursuant to the terms and
provisions hereof.
(g) "Voting Stock" shall mean shares of Common Stock and any
other class of securities of the Company having the power to elect directors to
the Company's Board of Directors and any other general voting power (and shall
include any shares of Voting Stock issuable upon exercise, exchange or
conversion of securities exercisable or exchangeable for or convertible into
shares of Voting Stock).
(h) "Voting Stock Equivalents" means any right, warrant,
option or security of the Company which is exercisable or exchangeable for or
convertible into, or represents the right to otherwise acquire, directly or
indirectly, Voting Stock, whether at the time of issuance or upon the passage of
time or the occurrence of some future event. Each Voting Stock Equivalent shall
count as a number of shares of Voting Stock equal to the number of shares of
Common Stock into which such Voting Stock Equivalent is then convertible,
exchangeable or exercisable.
Section 2. Election of Directors. During the term of this
Agreement, the Stockholders hereby agree to vote all of the Voting Stock held by
them as of the date hereof or acquired by them in the future in favor of the
slate of directors proposed by the Company at any annual or special meeting of
the stockholders of the Company (or in any action by written consent), which
slate of directors shall (x) consist of not more than nine (9) designees and (y)
include one designee of DoubleClick (the "DoubleClick Designee") (and, upon the
resignation, removal or death of such designee, such other individual as is
designated by DoubleClick as the director which DoubleClick is entitled to
designate pursuant to the terms hereof). All of the persons so selected shall
serve as members of the Board of Directors until the next election of the
members of the Board of Directors.
Section 3. Effectiveness of Agreement; Termination. Without
affecting any other provision or parties to this Agreement, this Agreement shall
terminate and the rights and obligations of the parties hereto shall have no
force or effect upon such time as the Voting Stock held by DoubleClick
represents less than 5% of the total Voting Stock.
Section 4. Amendments. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given without the prior written consent of each of the parties
hereto. This Agreement cannot be changed, modified, discharged or terminated by
oral agreement.
Section 5. No Inconsistent Agreement. No Stockholder shall
enter into any agreement with respect to the Voting Stock or Voting Stock
Equivalents beneficially owned or held of record by it which is inconsistent
with this Agreement or otherwise conflicts with the provisions hereof.
Section 6. Notices. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and shall be
hand delivered, sent by nationally-recognized overnight courier, mailed postage
prepaid by registered or certified mail or transmitted by facsimile transmission
(with immediate telephonic confirmation thereafter),
(a) If to DoubleClick:
DoubleClick Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxx
Facsimile No.: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or (b) if to any other Stockholder, to the address(es) set forth
on the counterpart signature pages of this Agreement signed by such
Stockholders; or at such other address as a Stockholder each may specify by
written notice to the others, and each such notice, request, consent and
other communication shall for all purposes of the Agreement be treated as
being effective or having been given when delivered if delivered personally,
on the next Business Day (as defined in the Merger Agreement) if dispatched
by overnight courier, upon receipt of facsimile confirmation if transmitted
by facsimile, or, if sent by mail, at the earlier of its receipt or
seventy-two (72) hours after the same has been deposited in a regularly
maintained receptacle for the deposit of United States mail, addressed and
postage prepaid as aforesaid.
Section 7. Successors and Assigns. All the terms and
provisions of this Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective parties hereto, the successors and
permitted assigns of each party hereto, whether so expressed or not; provided,
however that this Agreement shall not be binding upon non-Affiliate transferees
of Voting Stock in bona-fide sale transactions.
Section 8. Counterparts. This Agreement may be executed in any
number of counterparts (including by facsimile) and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. This Agreement shall become effective when each party hereto shall
have received counterparts signed by all of the other parties hereto.
Section 9. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 10. Governing Law. The internal laws, and not the laws
of conflicts, of New York shall govern the enforceability and validity of this
Agreement, the construction of its terms and the interpretation of the rights
and duties of the parties.
Section 11. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, 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
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
Section 12. Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
Section 13. Specific Performance. Each party hereto, in
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, will be entitled to seek specific
performance of its rights under this Agreement. Each party hereto hereby agrees
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
Section 14. Jurisdiction. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in any federal or state court located in the County and State of New
York, and each of the parties hereby consents to the jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 6 shall be deemed
effective service of process on such party.
Section 15. Waiver of Jury Trial. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 16. Aggregation of Stock. All Voting Stock or Voting
Stock Equivalents held by or acquired by any Affiliates will be aggregated
together for the purpose of determining the availability of any rights under
this Agreement.
[Execution Page Follows]
IN WITNESS WHEREOF, this Agreement has been duly executed by
each of the parties hereto as of the date first written above.
DOUBLECLICK INC.
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxx
------------------------- ------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxx
c/o L90, Inc. Title: Vice-President
0000 Xxxxxxx Xxx Corporate Development
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
