EXHIBIT 99.1
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.
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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
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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.
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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.
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(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.
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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:
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
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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:
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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
SIGNATURE PAGE TO IRREVOCABLE PROXY
