Exhibit 10 (a) (16)
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (the "Agreement") is made as of this ___
day of December, 1999, by and among Inter*Act Electronic Marketing, Inc., a
North Carolina corporation (the "Company"), the stockholders of the Company
identified as such on the signature pages hereto (the "Stockholders"), and the
holders of the Convertible Preferred Stock and Warrants received in the
Exchange, and any assignees or transferees thereof (each, an "Investor" and
collectively, the "Investors").
WHEREAS, the Company entered into a Purchase Agreement, dated as of
July 30, 1996 (the "Purchase Agreement"), between the Company and the initial
purchasers named therein, pursuant to which the Company sold and issued to such
initial purchasers 142,000 units (the "Units"), each Unit consisting of one
$1,000 principal amount of 14% Senior Discount Notes due 2003 (the "Notes") and
one Warrant entitling the holder thereof to purchase shares of Common Stock, no
par value, of the Company (the "Common Stock") at an exercise price of $.01 per
share.
WHEREAS, pursuant to the terms of the Exchange Offer and Consent
Solicitation Memorandum (the "Offering Memorandum"), dated as of December 9,
1999, and the letter of consent and transmittal attached thereto (the "Letter of
Transmittal"), the holders of Notes that have duly executed a Letter of
Transmittal have agreed to tender and exchange their respective Notes (the
"Exchange") to the Company, and the Company and Inter*Act Operating Co., Inc., a
North Carolina corporation and wholly-owned subsidiary of the Company
("Inter*Act"), have agreed to issue and sell to such holders in exchange for
each $1,000 principal amount of such Notes (i) $500 principal amount of Senior
Pay-In-Kind Notes Due 2003 issued by Inter*Act, (ii) one warrant (collectively,
the "Warrants") entitling the holder thereof to purchase 17.96 shares of Common
Stock from the Company at an exercise price of $.01 per share, subject to
adjustment as provided in that certain Warrant Agreement, dated as of December
15, 1999, and (iii) one share of 14% Series B Senior Mandatorily Convertible
Preferred Stock, no par value, of the Company (the "Convertible Preferred
Stock"), with an initial liquidation preference of $500 plus accrued and unpaid
dividends therein, which Convertible Preferred Stock is convertible into shares
of Common Stock.
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the transactions contemplated by the Offering Memorandum.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I DEFINITIONS
SECTION 1.1 CONSTRUCTION OF TERMS. As used herein, the masculine,
feminine or gender neutral, and the singular or plural number, shall be deemed
to be or to include the other genders or number, as the case may be, whenever
the context so indicates or requires.
SECTION 1.2 DEFINED TERMS. The following capitalized terms, as used
in this Agreement, shall have the meanings set forth below.
An "AFFILIATE" of any Person (as defined herein) means a Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with the first mentioned Person. A
Person shall be deemed to control another Person if such first Person possesses,
directly or indirectly, the power to direct, or cause the direction of, the
management and policies of the second Person, whether through the ownership of
voting securities, by contract or otherwise.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"COMMON STOCK" means the Common Stock and any other common equity
securities issued by the Company, and any other shares of stock issued or
issuable with respect thereto (whether by way of a stock dividend or stock split
or in exchange for or upon conversion of such shares or otherwise in connection
with a combination of shares, recapitalization, merger, consolidation or other
corporate reorganization), including, without limitation, the Shares.
"COMPANY" shall refer to the Company and any successor or successors
thereto.
"MAJORITY INTEREST" means the Investors holding not less than a
majority of the outstanding Shares (as hereinafter defined) held by all of the
Investors.
"PERSON" means an individual, a corporation, an association, a joint
venture, a partnership, a limited liability company, an estate, a trust, an
unincorporated organization and any other entity or organization, governmental
or otherwise.
"PREFERRED STOCK" means the Convertible Preferred Stock, together with
any shares issued or issuable with respect thereto (whether by way of a stock
dividend or stock split or in exchange for or in replacement of such shares or
otherwise in connection with a combination of shares, recapitalization, merger,
consolidation or other corporate reorganization).
"QUALIFIED PUBLIC OFFERING" means the first underwritten offering to
the public of shares of the Company's Common Stock pursuant to an effective
registration statement under the Securities Act, in which the aggregate gross
proceeds attributable to sales of shares of Common Stock covered by such
registration statement for the account of the Company equals or exceeds
$30,000,000.
"SHARES" means (i) with respect to the Investors, the shares of Common
Stock subject to acquisition upon the conversion of the Preferred Stock (such
number being subject to possible adjustment in accordance with the terms of the
Company's Restated Articles of Incorporation) and the exercise of the Warrants,
together with the shares of Common Stock held by the Investors at the relevant
time if conversion of any of the Preferred Stock or
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exercise of any of the Warrants has then occurred and (ii) with respect to the
Stockholders, all shares of Common Stock then held by the Stockholders.
"TRANSFER" means any direct or indirect transfer, donation, sale,
assignment, pledge, hypothecation, grant of a security interest in or other
disposal or attempted disposal of all or any portion of a security or of any
rights. "Transferred" means the accomplishment of a Transfer, and "Transferee"
means the recipient of a Transfer.
ARTICLE II RIGHT OF FIRST REFUSAL; CO-SALE PROVISIONS
The following provisions of this Article II shall terminate immediately
upon and shall not apply with respect to, the closing of a Qualified Public
Offering.
SECTION 2.1 RIGHT OF FIRST REFUSAL. In the event that any of the
Stockholders receives a bona fide offer to purchase all or any portion of the
Shares held by such person (a "Transaction Offer") from a non-Affiliate (the
"Offeror"), such Stockholder (a "Transferring Stockholder") may, subject to the
provisions of Section 2.2 hereof, Transfer such Shares pursuant to and in
accordance with the following provisions of this Section 2.1:
(a) Such Transferring Stockholder shall cause
the Transaction Offer and all of the terms thereof to be reduced to writing and
shall promptly notify each of the Investors of such Transferring Stockholder's
desire to accept the Transaction Offer and otherwise comply with the provisions
of this Section 2.1 and, if applicable, Section 2.2 (such notice, the "Offer
Notice"). The Transferring Stockholder's Offer Notice shall constitute an
irrevocable offer to sell all but not less than all of the Shares which are the
subject of the Transaction Offer to the Investors, on the basis described
below, at a purchase price equal to the price contained in, and on the same
terms and conditions of, the Transaction Offer. The Offer Notice shall be
accompanied by a true copy of the Transaction Offer (which shall identify the
Offeror and all relevant information in connection therewith).
(b) Upon receipt of an Offer Notice, the
Investors may elect to accept the offer to sell with respect to all (but not
less than all) of the Shares subject thereto and shall give written notice of
such election to the Transferring Stockholder as provided below. Each Investor
shall have the right to purchase up to that number of Shares covered by the
Transaction Offer as shall be equal to the product obtained by multiplying (i)
the total number of Shares subject to the Transaction Offer by (ii) a fraction,
the numerator of which is the total number of Shares owned by such Investor,
and the denominator of which is the total number of Shares held by all
Investors, in each case as of the date of the Offer Notice, subject to increase
as hereinafter provided. The number of Shares that each Investor is entitled to
purchase under this Section 2.1 as provided in the immediately preceding
sentence shall be referred to as its "Pro Rata Fraction." Subject to Section
2.4 hereof, each Investor shall have the right to transfer its right to any Pro
Rata Fraction or part thereof with respect to any proposed Transaction Offer to
any transferee. In the event an Investor does not elect to purchase or transfer
its right to purchase its Pro Rata Fraction, then any Investors who have
elected to purchase Shares shall have the right to purchase, on a pro rata
basis with any
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other Investors who so elect, any Pro Rata Fraction not purchased by an Investor
or its transferee and to transfer such right to any transferee.
(c) Each Investor shall have the right to
accept the Transferring Stockholder's offer to sell the shares by giving
written notice of such acceptance (the "Right of First Refusal Acceptance
Notice") to the Transferring Stockholder as provided herein within thirty (30)
business days after receipt of the Offer Notice (the "Right of First Refusal
Election Period"), which notice shall indicate the maximum number of Shares
subject thereto which the Investor and its transferee(s) are willing to
purchase, including the number of Shares it would purchase if one or more other
Investors do not elect to purchase their Pro Rata Fractions. In the event that
the price set forth in the Offer Notice is stated in consideration other than
cash or cash equivalents, the Transferring Stockholder and a Majority Interest
of the Investors shall determine the fair market value of such consideration,
reasonably and in good faith, and the Investors and their transferees may
exercise their right to purchase under this Section 2.1 by payment of such fair
market value in cash or cash equivalents.
(d) Upon the expiration of the Right of First
Refusal Election Period, the number of Shares to be purchased by each Investor
and its transferees shall be determined as follows: (i) first, there shall be
allocated to each Investor and/or transferee electing to purchase a number of
Shares equal to the lesser of (A) the number of Shares as to which such
Investor or transferee accepted as set forth in its respective Right of First
Refusal Acceptance Notice or (B) such Investor's Pro Rata Fraction, and (ii)
second, the balance, if any, not allocated under clause (i) above, shall be
allocated to those Investors and transferees who within the Right of First
Refusal Election Period delivered a Right of First Refusal Acceptance Notice
that set forth a number of Shares that exceeded their respective Pro Rata
Fractions, in each case on a pro rata basis in proportion to the amount of such
excess. The closing for any purchase of Shares by the Investors and/or their
transferees under this Section 2.1 shall take place following the expiration of
the Right of First Refusal Election Period at the offices of the Company or on
such other date or at such other place as may be agreed to by the Transferring
Stockholder and such Investors and/or their transferees.
(e) In the event that the Investors and their
transferees do not elect to exercise the rights to purchase under this Section
2.1 with respect to all of the Shares proposed to be sold, the Transferring
Stockholder may sell such Shares to the Offeror on the terms and conditions set
forth in the Offer Notice, subject to the provisions of Section 2.2. If the
Transferring Stockholder's sale to an Offeror is not consummated in accordance
with the terms of the Transaction Offer within the later of (i) ninety (90)
calendar days after the expiration of the Right of First Refusal Election
Period under this Section 2.1 and the Co-Sale Election Period set forth in
Section 2.2 below, if applicable, and (ii) the satisfaction of all governmental
approval or filing requirements, the Transaction Offer shall be deemed to
lapse, and any Transfers of Shares pursuant to such Transaction Offer shall be
deemed to be in violation of the provisions of this Agreement unless the
Transferring Stockholder once again complies with the provisions of this
Section 2.1 with respect to such Transaction Offer.
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SECTION 2.2 CO-SALE OPTION OF INVESTORS. In the event that any
Transferring Stockholder receives a Transaction Offer from an Offeror, and the
right to purchase under Section 2.1 is not exercised by the Investors or their
transferees with respect to all of the Shares proposed to be so Transferred,
such Transferring Stockholder may Transfer such Shares only pursuant to and in
accordance with the following provisions of this Section 2.2:
(a) As soon as practicable following the
expiration of the Right of First Refusal Election Period, and in no event later
than ten (10) days thereafter, the Transferring Stockholder shall notify each
of the Investors (the "Co-Sale Notice") of its right to participate in the
Transaction Offer with respect to any Shares subject thereto which were not
purchased pursuant to Section 2.1 (the "Co-Sale Option"). Each of the Investors
shall have the right to exercise its Co-Sale Option by giving written notice of
such intent to participate (the "Co-Sale Acceptance Notice") to the
Transferring Stockholder within ten (10) days after receipt by such Investor of
the Co-Sale Notice (the "Co-Sale Election Period"). Each Co-Sale Acceptance
Notice shall indicate the maximum number of Shares subject thereto which the
Investor wishes to sell including the number of Shares it would sell if one or
more other Investors do not elect to participate in the sale on the terms and
conditions stated in the Offer Notice. Any Investor holding Preferred Stock or
Warrants shall be permitted to sell to the relevant Offeror in connection with
any exercise of the Co-Sale Option shares of Common Stock acquired upon
conversion of such Preferred Stock or exercise of such Warrants.
(b) Each Investor shall have the right to sell
a portion of its Shares pursuant to the Transaction Offer which is equal to or
less than the product obtained by multiplying (i) the total number of Shares
available for sale to the Offeror subject to the Transaction Offer by (ii) a
fraction, the numerator of which is the total number of Shares owned by such
Investor and the denominator of which is the total number of Shares held by all
Investors and the Transferring Stockholder, in each case as of the date of the
Offer Notice, subject to increase as hereinafter provided. In the event an
Investor does not elect to sell the full amount of such Shares which such
Investor is entitled to sell pursuant to this Section 2.2, then any Investors
who have elected to sell Shares shall have the right to sell, on a pro-rata
basis with any other Investors and up to the maximum number of Shares stated in
each such Investor's Co-Sale Acceptance Notice, any Shares not elected to be
sold by such Investor.
(c) Within ten (10) calendar days after the
end of the Co-Sale Election Period, the Transferring Stockholder shall promptly
notify each participating Investor of the number of Shares held by such
Investor that will be included in the sale and the date on which the
Transaction Offer will be consummated, which shall be no later than the later
of (i) thirty (30) calendar days after the end of the Co-Sale Election Period
and (ii) the satisfaction of any governmental approval or filing requirements,
if any.
(d) Each participating Investor may effect its
participation in any Transaction Offer hereunder by delivery to the Offeror, or
to the Transferring Stockholder for delivery to the Offeror, of one or more
instruments or certificates, properly endorsed for transfer, representing the
Shares it elects to sell pursuant thereto, provided that no Investor
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shall be required to make any representations or warranties or to provide any
indemnities in connection therewith other than with respect to title to the
Shares being conveyed. At the time of consummation of the Transaction Offer, the
Offeror shall remit directly to each participating Investor that portion of the
sale proceeds to which the participating Investor is entitled by reason of its
participation with respect thereto (less any adjustments due to the conversion
of any convertible securities or the exercise of any exercisable securities). No
Shares may be purchased by the Offeror from the Transferring Stockholder unless
the Offeror simultaneously purchases from the participating Investors all of the
Shares that they have elected to sell pursuant to Section 2.2(b).
Notwithstanding anything contained herein to the contrary, in the event that the
delivery mechanics for participation as described in this Section 2.2(d) are in
contravention of federal or state laws or regulations with respect to a
particular participating Investor, then the delivery mechanics shall be adjusted
by mutual agreement of such Investor, the Offeror and the Transferring
Stockholder such that the transfer of Shares hereunder conforms with all
applicable federal and state laws and regulations.
(e) Any Shares held by a Transferring
Stockholder which are the subject of the Transaction Offer that the
Transferring Stockholder desires to Transfer following compliance with this
Section 2.2 may be sold to the Offeror only during the period specified in
Section 2.2(c) and only on terms no more favorable to the Transferring
Stockholder than those contained in the Offer Notice. Promptly after such
Transfer, the Transferring Stockholder shall notify the Company, which in turn
shall promptly notify the Investors, of the consummation thereof and shall
furnish such evidence of the completion and time of completion of the Transfer
and of the terms thereof as may reasonably be requested by a Majority Interest
of the Investors. So long as the Offeror is neither a party nor an Affiliate of
or relative of a party to this Agreement, such Offeror shall take the Shares so
Transferred free and clear of any further restrictions of this Article II. In
the event that the Transaction Offer is not consummated within the period
required by this Section 2.2 or the Offeror fails timely to remit to each
participating Investor its respective portion of the sale proceeds, the
Transaction Offer shall be deemed to lapse, and any Transfer of Shares pursuant
to such Transaction Offer shall be deemed to be in violation of the provisions
of this Agreement unless the Transferring Stockholder once again complies with
the provisions of Section 2.1 and this Section 2.2 hereof with respect to such
Transaction Offer.
SECTION 2.3 CONTEMPORANEOUS TRANSFERS. If two or more Stockholders
propose concurrent Transfers which are subject to this Article II, then the
relevant provisions of Section 2.1 and Section 2.2, as applicable, shall apply
separately to each such proposed Transfer.
SECTION 2.4 ASSIGNMENT. Subject to Section 3.11 hereof, each Investor
shall have the right to assign its rights to any transferee of such Investor's
Shares, and shall further have the right to assign and transfer such Investor's
right to accept particular Transaction Offers as contemplated by this Article
II, and any such transferee shall be deemed within the definition of an
"Investor" for purposes of this Article II.
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SECTION 2.5 PROHIBITED TRANSFERS. If any Transfer is made or attempted
contrary to the provisions of this Agreement, such purported Transfer shall be
void ab initio; the Company and the other parties hereto shall have, in addition
to any other legal or equitable remedies which they may have, the right to
enforce the provisions of this Agreement by actions for specific performance (to
the extent permitted by law); and the Company shall have the right to refuse to
recognize any Transferee as one of its stockholders for any purpose.
SECTION 2.6 PERMITTED TRANSFERS. The provisions of Sections 2.1 and 2.2
shall not apply to any Transfers by a Stockholder to a Permitted Transferee;
provided, however, that as a condition to such Transfer, the Permitted
Transferee shall enter into a joinder agreement providing that all Shares so
Transferred shall continue to be subject to all provisions of this Agreement as
if such Shares were still held by the transferring Stockholder. For purposes
hereof, the term "Permitted Transferee" shall mean (i) a Stockholder's spouse or
children, or a trust for the benefit of the transferring Stockholder, his spouse
or children; (ii) any member of the "Richardson Family" (defined as the
descendants of Lunsford Richardson, Sr., their spouses, trusts, corporations in
which they own a majority interest and charitable organizations established by
such descendants) who has received Shares from another member of the Richardson
Family; and (iii) any member of the "LCH Family" (defined as Leonard C. Horvitz,
his lineal descendants, and his or their current or former spouses, including
widows and widowers, estates of, and trusts for the benefit of any of the
forgoing, and any partnerships, foundations, or philanthropic funds or other
entities created by any of the forgoing, or created by another for their
benefit) who has received Shares from another member of the LCH Family.
SECTION 2.7 DEMINIMUS TRANSFERS. The provisions of Sections 2.1 and 2.2
shall not apply to any Transfers by a Stockholder, at any one time or from time
to time, which in the aggregate do not exceed ten percent (10%) of the Shares
held by such Stockholder as of the date hereof; provided, that Transfers made to
Permitted Transferees pursuant to Section 2.6 hereof shall not apply to or count
against the ten percent (10%) limitation described herein.
ARTICLE III MISCELLANEOUS PROVISIONS
SECTION 3.1 SURVIVAL OF COVENANTS. Each of the parties hereto agrees
that each covenant and agreement made by it in this Agreement or in any
certificate, instrument or other document delivered pursuant to this Agreement
is material, shall be deemed to have been relied upon by the other parties and
shall remain operative and in full force and effect after the date hereof
regardless of any investigation. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties hereto and
their respective successors and permitted assigns to the extent contemplated
herein.
SECTION 3.2 LEGEND ON SECURITIES. The Company, the Investors and the
Stockholders acknowledge and agree that the following legend shall be typed on
each
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certificate evidencing any of the securities held at any time by the
Stockholders or the Investors:
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF A
CERTAIN STOCKHOLDERS AGREEMENT, DATED AS OF DECEMBER 28, 1999. A COMPLETE AND
CORRECT COPY OF SUCH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL
OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST AND WITHOUT
CHARGE.
SECTION 3.3 AMENDMENT AND WAIVER; ACTIONS OF THE BOARD. Any party may
waive any provision hereof intended for its benefit in writing. No failure or
delay on the part of any party hereto in exercising any right, power or remedy
hereunder shall operate as a waiver thereof. The remedies provided for herein
are cumulative and are not exclusive of any remedies that may be available to
any party hereto at law or in equity or otherwise. This Agreement may be amended
with the prior written consent of the Company, a majority-in-interest of the
Stockholders, and a Majority Interest of the Investors. Any consent given as
provided in the preceding sentence shall be binding on all Stockholders and all
Investors, respectively, and no Stockholder or Investor shall have any cause of
action against any other Person for any action taken by such Person in reliance
upon such consent.
SECTION 3.4 NOTICES. All notices and other communications provided for
herein shall be in writing and shall be deemed to have been duly given,
delivered and received (a) if delivered personally or (b) if sent by facsimile,
registered or certified mail (return receipt requested) postage prepaid, or by
courier guaranteeing next day delivery, in each case to the party to whom it is
directed at the following addresses (or at such other address for any party as
shall be specified by notice given in accordance with the provisions hereof,
provided that notices of a change of address shall be effective only upon
receipt thereof). Notices delivered personally shall be effective on the day so
delivered, notices sent by registered or certified mail shall be effective five
days after mailing, notices sent by facsimile shall be effective when receipt is
acknowledged, and notices sent by courier guaranteeing next day delivery shall
be effective on the earlier of the second business day after timely delivery to
the courier or the day of actual delivery by the courier:
If to the Company:
Inter*Act Electronic Marketing, Inc.
74 Westport Avenue
Norwalk, Connecticut 06851
Facsimile:
Attn: President and Chief Executive Officer
If to the Investors:
At such Investor's address for notice as set forth in the books and
records of the Company, or at such other address as shall be designated
in writing by such Investor.
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If to the Stockholders:
At such Stockholder's address for notice as set forth in the books and
records of the Company, or at such other address as shall be designated in
writing by such Stockholders.
SECTION 3.5 HEADINGS. The Article and Section headings used or
contained in this Agreement are for convenience of reference only and shall not
affect the construction of this Agreement.
SECTION 3.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts 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 together
shall be deemed to constitute one and the same agreement.
SECTION 3.7 REMEDIES; SEVERABILITY. It is specifically understood and
agreed that any breach of the provisions of this Agreement by any Person subject
hereto will result in irreparable injury to the other parties hereto, that the
remedy at law alone will be an inadequate remedy for such breach, and that, in
addition to any other legal or equitable remedies which they may have, such
other parties may enforce their respective rights by actions for specific
performance (to the extent permitted by law) and the Company may refuse to
recognize any unauthorized Transferee as one of its stockholders for any
purpose, including, without limitation, for purposes of dividend and voting
rights, until the relevant party or parties have complied with all applicable
provisions of this Agreement.
In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
SECTION 3.8 ENTIRE AGREEMENT. This Agreement is intended by the parties
as a final expression of their agreement and intended to be complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
SECTION 3.9 ADJUSTMENTS. All references to share prices and amounts
herein shall be equitably adjusted to reflect stock splits, stock dividends,
recapitalizations and similar changes affecting the capital stock of the
Company.
SECTION 3.10 LAW GOVERNING. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of New York
(without giving effect to principles of conflicts of law). Each party also
waives trial by jury in any action relating to this Agreement.
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SECTION 3.11 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the respective successors and permitted assigns
of the parties hereto as contemplated herein, and any successor to the Company
by way of merger or otherwise shall specifically agree to be bound by the terms
hereof as a condition of such successor. The rights of the Investors hereunder
shall be assignable, without the need for an express assignment, to transferees
of their Shares as contemplated herein, and by taking and holding such Shares,
such transferee shall be conclusively deemed to have agreed to be bound by and
to perform all of the terms and conditions of this Agreement and such transferee
shall be entitled to receive the benefits hereof.
SECTION 3.12 THIRD PARTY BENEFICIARIES. The beneficial owners of the
Shares with respect to the Investors, together with their successors and
assigns, are third party beneficiaries to this Agreement, and shall be entitled
to the rights, and subject to the obligations, of Investors contained herein as
if each were an original party to this Agreement.
SECTION 3.13 DISPUTE RESOLUTION. Before any of the parties hereto
commences a legal action arising out of or relating to this Agreement, he shall
notify the other parties hereto and the Company in writing of his intention to
commence an action and of the basis for the action and, except as hereinafter
provided, shall not commence an action for at least 30 days after such written
notification. During such 30-day period, the parties to the dispute that is the
subject of the threatened action shall make reasonable and good faith efforts to
resolve the such dispute, by means of nonbinding arbitration or a similar
nonbinding procedure.
SECTION 3.14 TERMINATION. This Agreement shall terminate immediately
upon the closing of a Qualified Public Offering.
IN WITNESS WHEREOF, the parties hereto have caused this Stockholders
Agreement to be duly executed as of the date first set forth above.
THE COMPANY:
INTER*ACT ELECTRONIC MARKETING,
INC.
By: /s/ Thomas McGoldrick
____________________________
Thomas McGoldrick
Executive Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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STOCKHOLDERS:
SMITH RICHARDSON FOUNDATION, INC.
By:
____________________________
Name:
Title:
PIEDMONT ACORN INVESTORS LIMITED
PARTNERSHIP
By: /s/ Ludsford Richardson, Jr.
____________________________
Name: Lundsford Richardson, Jr.
Title: General Partner
PIEDMONT HARBOR-PIEDMONT
ASSOCIATES LIMITED PARTNERSHIP
By:
____________________________
Name:
Title:
/s/ Stephen R. Leeolou
________________________________
Stephen R. Leeolou
THE LEEOLOU FAMILY LIMITED
PARTNERSHIP
By: /s/ Stephen R. Leeolou
____________________________
Name: Stephen R. Leeolou
Title: General Partner
LJR LIMITED PARTNERSHIP
By: Mark F. Polzin
____________________________
Name:
Title: Trust Administrator of
the LJR Trust,
General Partner
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