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EXHIBIT 10.2
BLAXXUN INTERACTIVE, INC.
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement (hereinafter referred to as the
"Stockholders' Agreement") is entered into as of September __, 1998, by and
among blaxxun interactive, Inc., a Delaware corporation (the "Company"), CMG
Information Services, Inc., a Delaware corporation ("CMGI"), CMG@Ventures, Inc.,
a Delaware corporation and wholly-owned subsidiary of CMGI ("@Ventures"), the
founders of the Company set forth in Schedule I attached hereto (the "Founders")
and EBIT Eigenkapital Beteiligungsgesellschaft fuer Innovative
Technologieunternehmen Gesellschaft Buergerlichen Rechts, with limitation of
liability ("EBIT). This Stockholders' Agreement amends and restates in its
entirety the Second Amended and Restated Founders' Agreement, dated as of May
24, 1996, between the Company, CMGI, @Ventures, the Founders and EBIT, as
amended to date, which agreement and all amendments thereto shall become null
and void upon the execution hereof.
WHEREAS, CMGI, @Ventures, and the Founders previously entered into a
Founders' Agreement dated as of July 31, 1995 (the "Original Agreement") and a
Series A Convertible Preferred Stock Purchase Agreement dated as of July 31,
1995 (the "Stock Purchase Agreement");
WHEREAS, CMGI, @Ventures and the Founders entered into an Amended and
Restated Founders' Agreement dated as of July 24, 1996 (the "Restated
Agreement") to amend and restate in its entirety the Original Agreement;
WHEREAS, EBIT purchased an aggregate of 400,000 shares of Series B
Convertible Preferred Stock, par value $.01 per share, of the Company (the
"Series B Preferred Stock"), pursuant to a Series B Convertible Preferred Stock
Purchase Agreement dated as of May 24, 1996 (the "EBIT Purchase Agreement");
WHEREAS, concurrently with the EBIT Purchase Agreement, CMGI,
@Ventures, the Founders and EBIT entered into a Second Amended and Restated
Founders' Agreement (the "Second Restated Agreement") to amend and restate in
its entirety the Restated Agreement to include EBIT as a party thereto;
WHEREAS, CMGI, @Ventures, EBIT and the Founders entered into an
Amendment No. 1, dated as of September __, 1997, to the Second Restated
Agreement ("Amendment No. 1") in order to, among other things, modify the
composition of the Board of Directors of the Company;
WHEREAS, the Corporation previously entered into a certain Stock
Exchange Agreement, dated as of September 13, 1995 (as amended to date) with the
Founders and blaxxun interactive Aktiengesellschaft (the "AG"), whereby the
Founders have the right at any time to exchange their entire equity interest in
the AG for 1,976,000 shares of Common Stock of the
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Corporation, as more fully set forth in the Stock Exchange Agreement (the
"Exchange", and the occurrence of such Exchange is referred to herein as the
"Exchange Event").
WHEREAS, the Founders with the exception of Peter Graf (the
"Participating Founders") have effected the Exchange in accordance with the
terms of the Stock Exchange Agreement and the Restated Founders' Agreement,
except that the Company and the Participating Founders have agreed to modify the
terms of the Exchange so that each of the Participating Founders shall exchange
his or her equity interest in the AG for that number of shares of the Company's
newly authorized Series D Preferred Stock, $.01 par value per share (the "Series
D Preferred") listed opposite such Participating Founders' name on Schedule I
attached hereto, in lieu of exchanging his or her equity interest in the AG for
shares of the Company's Common Stock, as previously contemplated;
WHEREAS, the Company, CMGI, @Ventures, EBIT and the Founders desire to
amend and restate the Second Restated Agreement in its entirety in order to (i)
account for the modification of the terms of the Exchange by replacing any
references to the Founders' Common Stock in the Second Restated Founders'
Agreement with references to the Founders' Series D Preferred, which such Series
D Preferred is convertible at any time into Common Stock, so that the rights and
restrictions placed on the Common Stock by the Second Restated Founders'
Agreement shall now be applicable to the Series D Preferred Stock, (ii)
eliminate the provisions of the Second Restated Agreement which are no longer
applicable, (iii) restate the rights, obligations and restrictions with respect
to the sale, transfer, pledge or other disposition of the shares of capital
stock of the Company now or hereafter owned by any of the undersigned, and (iv)
change the name of this Agreement from "Second Restated Founders' Agreement" to
"Stockholders' Agreement";
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that the
Second Restated Agreement shall be further amended and restated as follows:
1. Election of Directors: Compensation.
1.1 Election of Directors. Prior to the completion of a
Qualified IPO or Qualified Sale, at each annual meeting of the stockholders of
the Company, or at each special meeting of the stockholders of the Company
involving the election of directors of the Company, and at any other time at
which stockholders of the Company will have the right to or will vote for or
render consent in writing regarding the election of directors of the Company,
then and in each event, @Ventures, CMGI, EBIT and each of the Founders hereby
covenants and agrees to vote all shares of capital stock ("Capital Stock") of
the Company presently owned or hereafter acquired by them (including such shares
owned of record or over which any one or more of them exercises voting control)
in favor of the following actions:
(a) to fix and maintain the number of Directors of the Company
at not more than three Directors;
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(b) to cause and maintain the election to the Board of
Directors of the
Company of one designated representative of the Founders nominated by Founders,
who shall
be initially Franz W. Buchenberger (the "Management Director");
(c) to cause and maintain the election to the Board of
Directors of the Company of one designated representative of @Ventures nominated
by @Ventures, who shall
be initially Guy A. Bradley (the "@Ventures Director");
(d) to cause and maintain the election to the Board of
Directors of the Company of one designated representative of EBIT nominated by
EBIT, who shall initially be Heydan von Frankenberg; and
(e) to cause and maintain the election by the Board of
Directors of the Company of a Compensation Committee of the Board comprised of
the three Directors specified above.
1.2 Vacancies and Removal. The Management Director designated above in
Section 1.1 shall be elected at any annual or special meeting of stockholders
(or by written consent in lieu of a meeting of stockholders) by the holders of a
majority of the outstanding shares of Series D Preferred Stock and shall serve
until his successor is designated by the Founders and elected and qualified or
until his earlier death, resignation or removal. The Management Director may be
removed during his term of office by and only by the affirmative vote or written
consent of the holders of a majority of the outstanding shares of Series D
Preferred Stock and the consent of the Founders. Upon the Management Director's
death, resignation or removal, his successor shall be designated by the Founders
and elected and qualified immediately. The Founders may not assign their rights
under this Section 1.2.
1.3 Compensation Committee. The Compensation Committee shall determine
the compensation of the members of the management team (including salary,
bonuses and options).
2. Right of First Refusal on Dispositions: Co-Sale Rights.
2.1 Receipt of Third-Party Offer. If at any time prior
to the completion of a Qualified IPO or Qualified Sale as hereinafter defined,
any Founder or EBIT (the "Selling Holder") desires to sell for cash, cash
equivalents or any other form of consideration (including a promissory note) all
or any part of its shares of Capital Stock of the Company pursuant to an offer
(or proposed offer) from any third party (the "Proposed Transferee"), the
Selling Holder shall submit a written offer (the "Offer") to sell such shares
(the "Offered Shares") to all the holders of Series A Preferred Stock of the
Company on terms and conditions, including price, not less favorable to such
holders than those on which the Founder or EBIT, as the case may be, proposes to
sell such Offered Shares to the Proposed Transferee. The Offer shall disclose
the identity of the Proposed Transferee, the number of Offered Shares proposed
to be sold, the total
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number of shares owned by the Selling Holder, the terms and conditions,
including price, of the proposed sale, and any other material facts relating to
the proposed sale. The Offer shall further state that the holders of Series A
Preferred Stock may acquire, in accordance with the provisions of this
Agreement, all of the Offered Shares offered by any one Selling Holder and all
or any part of the Offered Shares offered by more than one of the Selling Holder
(if such shares represent in excess of 10% of the voting Common Stock of the
Company) for the price and upon the other terms and conditions, including
deferred payment (if applicable), set forth therein.
2.2 Notice of Intent to Purchase. If any one or more of the
holders of Series A Preferred Shares desires to purchase all or any part of the
Offered Shares, such holder or holders shall each have the right to purchase its
pro-rata share of the Offered Shares in proportion to its holdings of such
Preferred Shares (together with a right to purchase all or any part of such
Offered Shares not purchased by other holders of Series A Preferred Shares also
in proportion, in each instance, to the holdings of such Preferred Shares among
those holders desiring to purchase such Offered Shares) and such holder or
holders shall communicate in writing its or their election to purchase to the
Selling Holder, which communication shall state the number of Offered Shares
such holder or holders desire to purchase and shall be delivered in person or
mailed to the Selling Holder within 20 days of the receipt of the Offer by the
holders of Series A Preferred Stock. Such communication shall, when taken in
conjunction with the Offer, be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of the Offered Shares. Sales of
the Offered Shares to be sold to the holders of Series A Preferred Stock
pursuant to this Section 5 shall be made at the offices of the Company on the
40th day following the date the Offer is received by such holders (or if such
40th day is not a business day, then on the next succeeding business day) or on
such other day and at such time and place as the parties shall mutually agree.
Such sales shall be effected by the Selling Holder's delivery to such holders of
a certificate or certificates evidencing the Offered Shares (or any portion
thereof) to be purchased by it, duly endorsed for transfer to such holders,
against payment to the Selling Holder of the purchase price therefor by such
holders.
2.3 Sale to Third Party. If the holders of Series A
Preferred Stock do not purchase all of the Offered Shares, the Offered Shares
may be sold by the Selling Stockholder, at any time within 90 days after the
date the Offer was made, subject to the provisions of this Section 5. Any such
sale shall be to the Proposed Transferee, at not less than the price and upon
other terms and conditions, if any, not more favorable to the Proposed
Transferee than those specified in the Offer. Any Offered Shares not sold within
the 90 day period shall continue to be subject to the requirements of a prior
offer pursuant to this Section 5. If Offered Shares are sold pursuant to this
Section 5 to any purchaser who is not a party to this Agreement, the Offered
Shares so sold shall no longer be subject to any of the restrictions imposed by
this Agreement.
2.4 Limitations on Pledge. Each Founder agrees that he or she
will not mortgage, pledge, hypothecate or otherwise encumber his or her
respective shares of Series D Preferred Stock of the Company without the prior
written consent of the holders of a majority of the Series A Preferred Shares.
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2.5 Co-Sale Right. If at any time any holder of Series A
Preferred Stock, any Founder or EBIT desires to sell all or any part of the
shares of Capital Stock of the Company (the "Co-Sale Shares") owned by such
holder (the "Selling Stockholder") to any person or entity (excluding sales to
one or more of the holders of Series A Preferred Stock pursuant to the right of
first refusal set forth in Sections 5.1 and 5.2 above), such Selling Stockholder
shall provide written notice to all the holders of Series A Preferred Stock, the
Founders and EBIT of the terms and conditions of such proposed sale at least 20
days prior to the closing of such sale and each holder of Series A Preferred
Stock, each Founder and EBIT shall have the right to sell to the Purchaser, at
the same price per share and on the same terms and conditions as involved in
such sale by the Selling Stockholder, such number of shares of Capital Stock of
the Company owned by such holder as is equal to the number of Co-Sale Shares
(which term shall include the number of shares of Common Stock into which shares
of Series A Preferred Stock, Series B Preferred Stock and Series D Preferred
Stock being sold by the Selling Stockholder could be converted and the number of
shares of Common Stock issuable upon the exercise of presently exercisable
options) multiplied by a fraction, the numerator of which is the aggregate
number of shares of Common Stock of the Company owned by such holder (including
the aggregate number of shares of Common Stock into which shares of Series A
Preferred Stock, Series B Preferred Stock and Series D Preferred Stock owned by
such holder or Founder could be converted and the aggregate number of shares of
Common Stock issuable upon the exercise of any presently exercisable options
owned by such Founder), and the denominator of which is the sum of all shares of
Capital Stock of the Company owned by the holders of Series A Preferred Stock
and Series B Preferred Stock, by the Founders and by EBIT on an as if converted
basis and upon exercise of options as aforesaid.
2.6 Notice of Intent to Participate. If any holder wishes to
so participate in any sale under Section 2.5, it shall notify the Selling
Stockholder in writing of such intention as soon as practicable after receipt of
the Offer made pursuant to Section 2.5, and in any event within 20 days after
the date such Offer was made. Such notification shall be delivered in person or
mailed to the Selling Stockholder.
2.7 Sale of Co-Sale Shares. The Selling Stockholder and any
participating holder shall sell to the Purchaser all, or at the option of the
Purchaser, any part of the shares proposed to be sold by them at not less than
the price and upon other terms and conditions, if any, not more favorable to the
Purchaser than those in the Offer provided by the Selling Stockholder under
Section 2.5 above; provided, however, that any purchase of less than all of such
shares by the Purchaser shall be made from the Selling Stockholder and any
participating holder pro rata based upon the relative amounts of the shares that
the Selling Stockholder and any participating holder are otherwise entitled to
sell pursuant to Section 2.5.
2.8 Release of Shares. Any shares sold pursuant to Section 2.7
shall no longer be subject to the restrictions imposed by this Agreement and
shall no longer be entitled to the benefits conferred by this Agreement. On and
after August 1, 2000, EBIT shall be released from its obligations under Section
2.5, 2.6 and 2.7 hereof, but shall remain subject to the other terms and
conditions of this Agreement.
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2.9 Permitted Transfer. The terms and conditions of this
Section 2 shall not apply to any Permitted Transfer by any holder of Series A or
B Preferred Stock or the Founders. For purposes of this Agreement, "Permitted
Transfer" means (i) any transfer by a Founder to his or her Immediate Family
Member or a trust solely for the benefit of an Immediate Family Member or (ii)
any transfer by any holder of Series A Preferred Stock of any of its shares of
Capital Stock of the Company to or for the benefit of any Affiliate of
@Ventures, or (iii) any transfer by any holder of Series B Preferred Stock or
any of its shares of Capital Stock of the Company to or for the benefit of any
Affiliate or EBIT or (iv) on or after the date of filing by the Company for
bankruptcy or for the initiation of insolvency proceedings, any transfer by EBIT
to a German governmental agency which has provided financing to the Company (the
"German Partner"), but only to the extent that the transfer to the German
Partner is pursuant to the exercise of a purchase right granted by EBIT to the
German Partner as an inducement for the German Partner to provide financing to
the Company; provided that it shall be a condition of each such transfer that
the transferee agrees to be bound by the terms of this Agreement as though no
such transfer had taken place. For purposes of the Agreement the term
"Affiliate" means any person or entity controlling, controlled by or under
common control with, @Ventures or EBIT, as the case may be.
2.10 Right of First Refusal in Company Sales.
(a) Right of First Refusal on Company Issuances. The Company
shall, prior to any proposed issuance by the Company of any of its securities,
first offer to each of the holders of Series A Preferred Stock, the holders of
the Series B Preferred Stock and to each of the Founders (the "Offerees"), by
written notice the right, for a period of 30 days, to purchase for cash at an
amount equal to the price or other consideration for which such securities are
to be issued, a number of such securities so that, after giving effect to such
issuance (and the conversion, exercise and exchange into or for (whether
directly or indirectly) shares of Common Stock of such securities that are so
convertible, exercisable or exchangeable), each of the Offerees will continue to
maintain in its same proportionate equity ownership (on a fully-diluted basis)
in the Company as of the date of such notice (treating each such party, for the
purpose of such computation, as the holder of the number of shares of Common
Stock which would be issuable to such party upon conversion, exercise and
exchange of all securities held by such party on the date such offer is made,
that are convertible, exercisable or exchangeable into or for (whether directly
or indirectly) shares of Common Stock and assuming the like conversion, exercise
and exchange of all such other securities held by other persons).
(b) Exceptions to Right of First Refusal. The participation
rights of each of the Offerees pursuant to this Section 2.10 shall not apply to
securities issued or issuable: (A) upon conversion of any of the Company's
outstanding convertible securities (including without limitation any class or
series of Preferred Stock, including the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock),
(B) as a stock dividend or upon any subdivision of shares of Common Stock,
provided that the securities pursuant to such stock dividend or subdivision are
limited to additional shares of Common Stock, (C) pursuant to subscriptions,
warrants, options, convertible securities, or other rights which are outstanding
on the date of this Agreement, (D) solely in consideration for the
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acquisition (whether by merger or otherwise) by the Company or any of its
subsidiaries of all or substantially all of the stock or assets of any other
entity, (E) pursuant to a public offering, (F) pursuant to the exercise of
options or warrants to purchase Common Stock granted in the future to directors,
officers, employees or consultants of the Company and approved after the date of
this Agreement by the Compensation Committee, and (G) upon the exercise of any
right which was not itself in violation of the terms of this Section 2.10.
(c) Mechanics of Right of First Refusal. The Company's written
notice to the Offerees shall describe the securities proposed to be issued by
the Company and specify the number, price and payment terms. Each of the
Offerees may accept the Company's offer as to the full number of securities
offered to it or any lesser number, by written notice thereof given by it to the
Company prior to the expiration of the aforesaid 30 day period, in which event
the Company shall sell and such party shall buy, upon the terms specified, the
number of securities agreed to be purchased by such party at such time and
commensurate with the sale by the Company of all of the remainder of such
securities and as hereinafter provided. The Company shall be free at any time
prior to 180 days after the date of its notice of offer to each of the Offerees,
to offer and sell to any third party or parties the remainder of such securities
proposed to be issued by the Company (including but not limited to the
securities not agreed by the Offerees to be purchased by them), at a price and
on payment terms no less favorable to the Company than those specified in such
notice of offer to the Offerees. However, if such third party sale or sales are
not consummated within such 180 day period, the Company shall not sell such
securities as shall not have been purchased within such period without again
complying with this Section 2.10. The issuance by the Company of any of its
securities to @Ventures or an entity affiliated with @Ventures shall be subject
to appraisal in the manner and to the extent provided in Section 3 below.
3. Merger or Sale of Company. Any merger or sale of the Company will be
carried out in such a way so that all shareholders benefit equally in proportion
to their share-holdings. Any merger or sale (or partial sale) of the Company to
an entity affiliated with @Ventures will be carried out at arms length and
according to fair market value. If the Founders disagree with the value defined
by @Ventures, the following arbitration process will be followed. @Ventures and
the Founders will each commission an independent appraisal firm to estimate the
fair market value of the Company. If the differences between the two values is
less than or equal to 10% of the upper value, then the average of the two values
will be defined as the fair market value. Otherwise the two appraisal firms will
agree on a third appraisal firm, which will estimate a third value. The fair
market value will then be defined as the average of the third value and the
closest of the other two. Appraisal costs will be paid by the Company. If
@Ventures or an entity affiliated with @Ventures invests an additional sum in
the Company, then if the Founders disagree with the implied valuation of the
Company the appraisal process described in this Section 3 will be used to
determine the valuation to be used.
4. Interested Transactions Except as expressly contemplated by this
Agreement, the Company shall not buy, sell, lease or license any substantial
assets from, borrow from or lend any money to, or deal with or enter into any
other material transactions or agreements with
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CMGI, @Ventures or an Affiliate of either of them, unless such transaction is
negotiated in good faith in the ordinary course of business and on an
arm's-length basis.
5. Control. From and after the First Closing, @Ventures shall have all
the rights of a control stockholder under Delaware law commensurate with its
ownership of Capital Stock of the Company so long as @Ventures owns a majority
of the voting securities of the Company.
6. Miscellaneous.
6.1 Termination of Covenants. The covenants set forth in this
Agreement shall terminate and be of no further force or effect upon the first to
occur of (i) the closing of the Company's Qualified Initial Public Offering or
Qualified Sale as defined below (except with respect to Co-Sale Rights), or (ii)
the Company first becoming subject to the periodic reporting requirements of
Sections 12(g) or 15(d) of the 1934 Act, or (iii) the redemption of all the
Company's Series A Preferred Stock and Series B Preferred Stock, or (iv) written
agreement between the Company, @Ventures or its successors or assigns, the
Founders and EBIT. The term "Qualified Initial Public Offering" shall mean an
underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, covering the offer and sale of
shares of Common Stock of the Company but only if (i) the Common Stock of the
Company is sold at a price to the public of not less than ten times the average
price per share paid to the Company for the Series A Preferred Stock (such
amount to be equitably adjusted whenever there shall occur a stock split,
combination, reclassification or other similar event affecting the Common
Stock), (ii) the aggregate proceeds (before deduction of any underwriting
discounts, commissions or expenses) received by the Company from such public
offering, at the public offering price shall equal or exceed $10 million; and
(iii) each of the underwriters participating in such public offering shall be
obligated to buy on a "firm commitment" basis all shares of capital stock of the
Company which such underwriters shall have agreed to distribute. The term
"Qualified Sale" shall mean a sale of substantially all the assets of the
Company or a merger of the Company but only if the Preferred Stock of the
Company, sold on an "as-if" converted basis, is sold at a price per share or for
other consideration valued at not less than ten times the average price per
share paid to the Company for the Series A Preferred Stock (such amount to be
equitably adjusted whenever there shall occur a stock split, combination,
reclassification or other similar event effecting the Common Stock).
6.2 Transfer of Stock. Except as otherwise expressly provided
by this Agreement, each party to this Agreement agrees not to transfer any of
its shares of Capital Stock of the Company unless the transferee agrees in
writing to be bound by the terms and conditions of this Agreement and executes a
counterpart of this Agreement, and unless such Investor has compiled with
applicable law in connection with such transfer.
6.3 Legend. Each certificate representing shares of Common
Stock, Series A Preferred Stock, Series B Preferred Stock and Series D Preferred
Stock shall bear the following legends, until such time as the shares of Common
Stock, Series A Preferred Stock, Series B Preferred Stock or Series D Preferred
Stock represented thereby are no longer subject to the provisions hereof.
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"The sale, transfer or assignment of the securities
represented by this certificate are subject to the terms and
conditions of a certain Stockholders' Agreement dated as of
September ___, 1998, among the Company and certain of its
stockholders. Copies of such Agreement may be obtained at no
cost by written request made by the holder of record of its
certificate to the Secretary of the Company."
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
applicable state securities laws. These securities have been
acquired for investment and not with a view to distribution or
resale, and may not be sold, offered for sale, mortgaged,
pledged, hypothecated or otherwise transferred without a
registration statement for such securities being in effect
under the Securities Act of 1933 and any applicable state
securities laws or an opinion of counsel satisfactory to the
Company to the effect that such registrations are not
required."
6.4 Severability; Governing Law. If any provisions of this
Agreement shall be determined to be illegal or unenforceable by any court of
law, the remaining provisions shall be several and enforceable in accordance
with their terms. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Massachusetts.
6.5 Injunctive Relief. It is acknowledged that it will be
impossible to measure the damages that would be suffered by the parties hereto
if any party fails to comply with the provisions of this Agreement and that in
the event of any such failure, the other parties will not have an adequate
remedy at law. The parties hereto shall, therefore, be entitled to obtain
specific performance of all obligations hereunder and to obtain immediate
injunctive relief. No party shall urge, as a defense to any proceeding for such
specific performance or injunctive relief, that any other party has an adequate
remedy at law.
6.6 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns, legal representatives and heirs.
6.7 Modification or Amendment. Neither this Agreement nor any
provision hereof can be modified, amended, changed, discharged, waived or
terminated except by an instrument in writing, signed by all the parties hereto,
except that the Founders can be bound by the decision of a majority vote of the
outstanding shares of Series D Preferred Stock held by the Founders.
6.8 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original. but all of
which taken together shall constitute one and the same instrument.
6.9 Notices. All notices and other communications which by
any provision of this Shareholder Agreement are required or permitted to be
given shall be given in writing and
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shall be (a) mailed by first-class or express mail, postage prepaid, (b) sent by
telex, telecopy or other form of rapid transmission, confirmed by mailing (by
first class or express mail, postage prepaid) written confirmation at
substantially the same time as such rapid transmission or (c) personally
delivered to the receiving party (which if other than an individual shall be an
officer or other responsible party of the receiving party). All such notices and
communications she be mailed, sent or delivered as follows:
If to @VENTURES, to: CMG@Ventures Management Services, Inc.
100 Brickstone Square
Andover, MA 01810
Attn: Guy Bradley
Facsimile: (978) 684-3672
with a copy to: William Williams II, Esq.
Palmer & Dodge
One Beacon Street
Boston, MA 02108
Facsimile: (617) 227-4420
If to the Founders, to: The Founders at the addresses set
forth on Schedule I
with a copy to: Michael J. Riccio Jr., Esq.
Hutchins, Wheeler & Dittmar
101 Federal Street
Boston, MA 02110
Facsimile: (617) 951-1295
If to the Company, to: blaxxun interactive, Inc.
14 Juri Street
San Francisco, CA 94110
Facsimile: (415) 273-7001
with a copy to: Michael J. Riccio, Jr., Esq.
Hutchins, Wheeler & Dittmar
101 Federal Street
Boston, MA 02110
Facsimile: (617) 951-1295
If to EBIT, to: EBIT Eigenkapital Beteiligungsgesellschaft
fuer Innovative Technologieunternehmen
Gesellschaft Buergerlichen Rechts,
with limitation of liability
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c/o Equity Research & Management
Aktiengesellschaft
fuer Beteiligungsberatung
Facsimile: 49 89 29095499
with a copy to: Andreas Rodin, Esq.
Baker & McKenzie
Pollath + Partner
Friedrichstrasse 200
D-10117 Berlin-Mitte
10787 Berlin, Germany
Facsimile: *49-30-2233-2200
or to such other person(s), telex or facsimile number(s) or address(es) as the
party to receive any such communication or notice may have designated by written
notice to the other party.
6.10 Merger Provision; Termination of Restated Agreement. This
Agreement constitutes the entire agreement by any of the parties hereto
pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, whether oral or written, of any
of the parties hereto concerning the subject matter hereof. Concurrently with
the execution and delivery of this Agreement by CMGI, @Ventures and the
Founders, the Second Restated Agreement shall be terminated and of no further
force or effect.
6.11 Mutual Intent. CMGI, @Ventures, EBIT, the Founders and the
Company intend to work towards the goal of maximizing shareholder value through
a long-term partnership culminating in an IPO or a sale of the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Stockholders'
Agreement to be executed as of the date first above written.
BLAXXUN INTERACTIVE, INC. CMG@VENTURES, INC.
By:____________________________ By:________________________________
Name: Franz Buchenberger Name:
Title: President Title:
CMG INFORMATION SERVICES, INC.
By:________________________________
Name:
Title:
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Franz W. Buchenberger
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Peter Graf
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Bernd-Michael Habermeyer
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Rainer Heigenmoser
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Kristof Nast-Kolb
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Claudia Rockwell
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Robert Schoeller
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13
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Thilo Schwerdfeger
EBIT Eigenkapital Beteiligungsgesell
schaft fuer Innovative
Technologieunternehmen Gesellschaft
Buergerlichen Rechts, with
limitation of liability
By:________________________________
Name: Klaus Hufnagel / Heydan
von Frankenberg
Title: Directors
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14
BLAXXUN INTERACTIVE, INC.
STOCKHOLDERS' AGREEMENT
SCHEDULE 1
Founders Series D Preferred
Stock
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Franz W. Buchenberger 402,135.00
Parchetwiesen 33 365,925.00
D-82362 weilheim
Bernd-Michael Habermeyer
Herzogstandstrasse 21
D-82362 Weilheim
Ingrid Buchenberger 329,726.00
Parchetwiesen 33 146,369.00
D-82362 weilheim
Claudia Rockwell *
Milloeckerstrasse 34A
D-81477 Muenchen
Rainer Heigenmoser 146,369.00
Ausser Muenchnerstrasse 1
D-83026 Rosenheim
Kristof Nast-Kolb 146,369.00
Alte Bahnhofstrasse 13
D-82343 Poecking
Robert Schoeller 146,369.00
Brunnenweg 14
D-85757 Karlsfeld
Peter Graf ** 146,369.00
14 Juri Street
San Francisco, CA 94110
Thilo Schwerdfeger 146,369.00
Karlstrasse 118
D-80335 Muenchen
TOTAL 1,976,000.00
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* Includes portion of the AG held in the name of Robert Rockwell.
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