Exhibit 2
FORM OF STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT (this "Agreement") is made and entered into as
of July 12, 1999 between DoubleClick Inc., a Delaware corporation ("Parent"),
and the undersigned stockholder ("Stockholder") of NetGravity, Inc., 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 July 12, 1999 by and among Parent, NJ Merger Corporation, 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 the registered and beneficial owner of such number
of shares of the outstanding capital stock of Company as is indicated on the
signature page of this Agreement (the "Shares").
NOW, THEREFORE, the parties agree as follows:
1. SHARES.
1.1 OWNERSHIP OF SHARES. Stockholder is the beneficial owner of (I.E., has
sole or shared voting or investment power with respect to) the Shares. The
Shares constitute Stockholder's entire interest in the outstanding capital stock
and voting securities of Company. The Shares are free and clear of any liens,
claims, options, charges or other encumbrances. Stockholder's principal
residence or place of business is accurately set forth on the signature page
hereto. As used herein, the term "Expiration Date" shall mean the earlier to
occur of (i) the Effective Time or (ii) termination of the Merger Agreement in
accordance with the terms thereof.
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 for so long as they are held by Stockholder.
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 each case as
to which Stockholder then has voting control, in favor of approval and adoption
of the Merger Agreement and of the Transaction.
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
and held by Stockholder as of the record date for such meeting (including,
without limitation, each written consent in lieu of a meeting) solely for
purposes of voting such shares in favor of approval and adoption of the Merger
Agreement; PROVIDED, THAT, such proxy shall only survive for so long as the
Merger Agreement is in effect. 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. 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, 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) Except to the extent otherwise permitted under Section 6.04 of the
Merger Agreement, until the Expiration Date, Stockholder will not (and will use
Stockholder's reasonable best efforts to cause its affiliates, officers,
directors and employees and any investment banker, attorney, accountant or other
agent retained by Stockholder, not to: (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, 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.
(c) Stockholder understands and agrees that if Stockholder attempts to vote
or provide any other person with the authority to vote any of the Shares held by
Stockholder as of the record date for any meeting at which such Shares are to be
voted other than in compliance with this Agreement, Company shall not, and
Stockholder hereby unconditionally and irrevocably instructs Company to not
record such vote unless and until Stockholder shall have complied with the terms
of this Agreement.
5. NO LIMITATION ON DISCRETION AS DIRECTOR. If the Stockholder is a natural
person and is a member of the board of directors of Company, then this Agreement
will apply to the exercise by Stockholder in his individual capacity of rights
attaching to ownership of the Shares, and nothing herein shall be deemed to
apply to, or to limit in any manner the discretion of Stockholder with respect
to, any action which may be taken or omitted by him acting in his fiduciary
capacity as a director of Company.
6. ADDITIONAL DOCUMENTS. Stockholder hereby covenants and agrees to execute
and deliver any additional documents necessary or desirable, in the reasonable
opinion of Parent, to carry out the purpose and intent of this Agreement.
7. CONSENT AND WAIVER. Stockholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Transaction under the
terms of any agreement to which Stockholder is a party or pursuant to any rights
Stockholder may have.
8. 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.
9. CONFIDENTIALITY. Stockholder agrees (i) to hold any information
regarding this Agreement and the Transaction in strict confidence, and (ii) not
to divulge any such information to any third person, except to the extent any of
the same is hereafter publicly disclosed by Parent.
10. MISCELLANEOUS.
10.1 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.
10.2 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.
10.3 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.
10.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge 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.
10.5 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, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxx, General Counsel
Facsimile No: (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
or to such other address as any party hereto or any Indemnified Person may
designate for itself by notice given as herein provided.
10.6 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.
10.7 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.
10.8 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.
10.9 EFFECT OF HEADINGS. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this 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:
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Name: (Signature)
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Title:
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(Signature of Spouse)
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(Print Name of Stockholder)
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(Print Street Address)
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(Print City, State and Zip)
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(Print Telephone Number)
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(Social Security or Tax I.D. Number)
Total Number of Shares of Company Capital Stock owned on the date hereof:
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Common Stock:
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State of Residence:
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SIGNATURE PAGE TO STOCKHOLDER AGREEMENT
EXHIBIT I
IRREVOCABLE PROXY
TO VOTE STOCK OF
NETGRAVITY, INC.
The undersigned stockholder of NetGravity, Inc., 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. The proxy granted hereunder
shall be solely for the purpose of voting the Shares in favor of approval and
adoption of the Merger Agreement; PROVIDED, THAT, such proxy shall only survive
for so long as the Merger Agreement is in effect. The Shares beneficially owned
by the undersigned stockholder of Company as of the date of this Irrevocable
Proxy are listed on the final page 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 NJ Merger
Corporation, 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 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: July 12, 1999
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(Signature of Stockholder)
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(Print Name of Stockholder)
Shares beneficially owned:
shares of Company Common Stock
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