Stock Purchase Agreement - CMG Information Services Inc. and Microsoft Corp.
CMG STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made and entered into
as of December 10, 1996 by and between CMG Information Services, Inc., a
Delaware corporation ("CMG"), and Microsoft Corporation, a Washington
corporation ("MICROSOFT").
RECITALS
WHEREAS, CMG, CMG @Ventures, Inc., a Delaware corporation ("@VENTURES"),
NetCarta Corporation, a California corporation ("NETCARTA"), Microsoft, and M/I
Acquisition Corporation, a Washington corporation and subsidiary of Microsoft
("SUB"), have entered into an agreement and plan of reorganization dated as of
December 10, 1996 (the "APR");
WHEREAS, concurrently with the execution of the APR, Microsoft has agreed
to enter into a stock purchase agreement between CMG and Microsoft pursuant to
which Microsoft would purchase four and nine-tenths percent (4.9%) of CMG's
common stock;
WHEREAS, CMG desires to sell to Microsoft, and Microsoft desires to
purchase from CMG, shares of CMG's common stock on the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, INTENDING TO BE LEGALLY BOUND, and in consideration of the
premises and the mutual representations, warranties, covenants and agreements
contained herein, Microsoft and CMG hereby agree as follows:
1. AGREEMENT TO PURCHASE AND SELL STOCK
1.1. SALE AND ISSUANCE OF STOCK.
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Subject to the terms and conditions of this Agreement, CMG has authorized
and agrees to sell and issue to Microsoft at the Closing (as defined below), and
Microsoft agrees to purchase from CMG at the Closing, that number of shares of
Common Stock (as defined below) equal to four and nine-tenths percent (4.9%) of
the Common Stock outstanding as of the second trading day prior to the Closing
Date at a per-share price equal to the lesser of: (i) $14.50 or (ii) the
average closing price as Common Stock over the four (4) consecutive trading days
ending three (3) trading days prior to the Closing Date (as defined below)
publicly reported for the Nasdaq Stock Market as of 4:15 p.m. Eastern Time (the
aggregate price is referred to herein as "PURCHASE PRICE"). The shares of
Common Stock purchased and sold pursuant to this Agreement will be collectively
hereinafter referred to as the "Purchased Shares."
1.2. CLOSING.
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The purchase and sale of the Purchased Shares will take place at the
offices of Preston Gates & Ellis, Seattle, Washington, 701 Fifth Avenue, Suite
5000, Seattle, Washington 98104,
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immediately after the Effective Time (as defined in the APR) of the merger of
Sub with and into NetCarta pursuant to the APR or at such other times and places
as CMG and Microsoft mutually agree upon (the "CLOSING"). At the Closing, (i)
CMG will deliver to Microsoft a certificate in the name of Microsoft or in such
nominee name(s) as designated by Microsoft, representing the number of Purchased
Shares that Microsoft has agreed to purchase hereunder, together with executed
copies of the agreements, documents and certificates required pursuant to this
Agreement, and (ii) Microsoft will pay by wire transfer to CMG upon CMG's
delivery of such documents to Microsoft the Purchase Price of such Purchased
Shares.
2. REPRESENTATIONS AND WARRANTIES
2.1. REPRESENTATIONS AND WARRANTIES OF CMG AND OTHERS.
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CMG hereby represents and warrants to Microsoft at the date of execution of
this Agreement and at the Closing Date (as defined in the APR) (the "CLOSING
DATE") that, except as set forth in the CMG disclosure schedule ("CMG DISCLOSURE
SCHEDULE") attached to this Agreement as Schedule 2.1 (which CMG Disclosure
Schedule will be deemed to be representations and warranties to Microsoft by CMG
under this Section 2.1), the statements in the following paragraphs of this
Section 2.1 are all true, complete and correct:
2.1.1. ORGANIZATION, STANDING AND POWER.
--------------------------------
CMG is a corporation duly organized, validly existing and in good standing
under the laws of Delaware, has all requisite corporate power and authority to
own, lease and operate its properties and assets and to carry on its business as
now being conducted and as presently proposed to be conducted, and is duly
qualified and in good standing to do business in each jurisdiction where failure
to so qualify would have a material adverse effect on the Business Condition (as
hereinafter defined) of CMG and its Subsidiaries. As used in this Agreement,
"BUSINESS CONDITION" with respect to any entity will mean the business,
financial condition, results of operations, assets or prospects (as defined
below) (without giving effect to the consequences of the transactions
contemplated by this Agreement) of such entity or entities including
Subsidiaries taken as a whole. As used in this Agreement "to the knowledge of
CMG" means the actual knowledge of David S. Wetherell, Andrew J. Hajducky III,
and Peter H. Mills; provided as of the Closing Date, such representations will
be made after due inquiry which will include a review of the representations and
warranties with all of the officers of CMG and the chief executive officer of
each Subsidiary of CMG. In this Agreement, a "SUBSIDIARY" of any corporation or
other entity means a corporation, partnership, limited liability company, or
other entity of which such corporation or entity directly or indirectly owns or
controls voting securities or other interests which are sufficient to elect a
majority of the Board of Directors or other managers of such entity, and
"PROSPECTS" will mean events, conditions, facts or developments which are known
to an entity and which in the reasonable course of events are expected to have a
material effect on future operations of the business as presently conducted by
such entity. References to "CMG" will include its Subsidiaries. CMG has
delivered to Microsoft complete and correct copies of the restated certificate
of incorporation and bylaws ("CHARTER DOCUMENTS") of CMG, in each case, as
amended to the date hereof.
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2.1.2. CAPITAL STRUCTURE.
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The authorized CMG stock consists of: (i) 40,000,000 shares of CMG common
stock, $.01 par value per share (the "COMMON STOCK"); and 5,000,000 shares of
preferred stock, $.01 par value per share (the "PREFERRED STOCK"). The Common
Stock and Preferred Stock are referred to collectively as the "CMG SHARES." As
of the date hereof, there are (i) 9,100,132 CMG Common Shares issued and
outstanding; (ii) no shares of Preferred Stock issued and outstanding; and (iii)
1,104,604 CMG Common Shares reserved for issuance upon the exercise of
outstanding employee stock options or other rights to issuance excluding rights
under the CMG 1996 Employee Stock Purchase Plan. Those items described in (i),
(ii), and (iii) above as well as the CMG Stock Options are collectively referred
to as the "CMG SECURITIES." No CMG Securities or other securities issued or
granted by CMG are held by CMG in its treasury. All outstanding CMG Shares are,
and all CMG Shares to be issued upon conversion or exercise of the CMG Stock
Options will be, validly issued, fully paid, nonassessable and not subject to
any preemptive rights, or to any agreement to which CMG is a party or by which
CMG may be bound. There are no options, warrants, calls, conversion rights
(including rights of holders of securities which have been converted, canceled
or retired as a result of corporate action), commitments, agreements, contracts,
understandings, restrictions, arrangements or rights of any character to which
CMG is a party or by which any of them may be bound obligating CMG to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
the capital stock or other securities of CMG, or obligating CMG to grant, extend
or enter into any such option, warrant, call, conversion right, commitment,
agreement, contract, understanding, restriction, arrangement or right. CMG does
not have outstanding any bonds, debentures, notes or other indebtedness the
holders of which have the right to vote (which are convertible or exercisable
into securities having the right to vote) with holders of CMG Common Shares on
any matter.
The CMG Securities have been, and the Purchased Shares will be, issued in
full compliance with applicable federal and state securities laws. The
Purchased Shares have been duly and validly reserved for issuance and, upon
issuance and sale in accordance with the terms of CMG's Restated Certificate of
Incorporation (the "CERTIFICATE OF INCORPORATION"), will be duly and validly
issued, fully paid and nonassessable. The rights, preferences and privileges of
the Common Stock, including the Purchased shares, will be as stated in the
Certificate of Incorporation and as provided by law.
2.1.3. AUTHORITY.
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The execution, delivery, and performance of this Agreement by CMG have been
duly authorized by all necessary action of CMG's Board of Directors. Copies of
the resolutions adopted by CMG's Board of Directors approving this Agreement
have been provided to Microsoft. CMG has duly and validly executed and
delivered this Agreement, and this Agreement constitutes a valid, binding, and
enforceable obligation of CMG in accordance with the terms of such agreements,
except that such enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to creditors' rights
generally, and is subject to general principles of equity.
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2.1.4. COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS.
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To the knowledge of CMG, CMG holds, and at all times has held, all
applicable licenses, permits, and authorizations from all Governmental Entities
(as defined below) necessary for the lawful conduct of its business pursuant to
all applicable statutes, laws, ordinances, rules, and regulations of all such
authorities having jurisdiction over it or any part of its operations,
excepting, however, when such failure to hold would not have a material adverse
effect on CMG's Business Condition. To the knowledge of CMG, there are no
violations or claimed violations known by CMG of any such license, permit, or
authorization or any such statute, law, ordinance, rule or regulation, except,
however, violations that would not have a material adverse affect on CMG's
Business Condition. To the knowledge of CMG, neither the execution and delivery
of this Agreement by CMG nor the performance by CMG of its obligations under
this Agreement will violate any provision of applicable laws, or conflict with,
result in the breach of any of the material terms or conditions of, constitute a
breach of any of the material terms or conditions of, constitute a default
under, permit any party to accelerate any material right under, renegotiate, or
terminate, require consent, approval, or waiver by any party under, or result in
the creation of any lien, charge, encumbrance, or restriction upon any of the
properties, assets, or CMG Securities pursuant to any of the Charter Documents
of CMG or any Subsidiary of CMG, or any agreement (including government
contracts), indenture, mortgage, franchise, license, permit, lease or other
instrument of any kind to which CMG or a Subsidiary of CMG is a party or by
which CMG or a Subsidiary of CMG or any of its assets is bound, except if any of
the foregoing would not have a material adverse effect on CMG's Business
Condition. To the knowledge of CMG, no failure to acquire or receive a consent,
approval, order or authorization of or registration, declaration or filing with
or exemption (collectively "CONSENTS") by, any court, administrative agency or
commission or other governmental authority or instrumentality, whether domestic
or foreign (each a "GOVERNMENTAL ENTITY") or by any other party required by or
with respect to CMG in connection with the execution and delivery of this
Agreement by CMG or the consummation by CMG of the transactions contemplated
hereby has occurred, which failure would have a material adverse effect on CMG's
Business Condition.
2.1.5. TECHNOLOGY.
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2.1.5.1. CMG INTELLECTUAL PROPERTY.
--------------------------
All material patents, trademarks, trade names, service marks, copyrights
and any renewal rights therefor, mask works, net lists, schematics, technology,
manufacturing processes, supplier lists, trade secrets, know-how, moral rights,
computer software programs or applications (in both source and object code
form), applications for any of the foregoing, and all other tangible or
intangible proprietary information or materials that are or have been used in
(including without limitation in the development of) the CMG business and/or in
any product, technology or process (i) currently being or formerly manufactured,
published or marketed by CMG, or (ii) previously or currently under development
for possible future manufacturing, publication, marketing or other use by
NetCarta will hereinafter be referred to as the "CMG INTELLECTUAL PROPERTY."
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2.1.5.2. RIGHTS TO CMG INTELLECTUAL PROPERTY.
-----------------------------------
To the knowledge of CMG, the CMG Intellectual Property consists solely of
items and rights which are: (i) owned by CMG; (ii) in the public domain; or
(iii) rightfully used by CMG and its successors pursuant to a valid license,
except in instances which would not have a material adverse effect on CMG's
Business Condition. To the knowledge of CMG, CMG has all rights in the CMG
Intellectual Property necessary to carry out CMG's current, former, and
anticipated (up to the Closing) activities, including without limitation rights
to make, use, exclude others from using, reproduce, modify, adapt, create
derivative works based on, translate, distribute (directly and indirectly),
transmit, display and perform publicly, license, rent, lease, assign, and sell
the CMG Intellectual Property in all geographic locations and fields of use, and
to sublicense any or all such rights to third parties, including the right to
grant further sublicenses, except in instances which would not have a material
adverse effect on CMG's Business Condition.
2.1.5.3. THIRD PARTY AGREEMENTS.
----------------------
To the knowledge of CMG, CMG is not, nor as a result of the execution or
delivery of this Agreement, or performance of CMG's obligations hereunder, will
CMG be, in material violation of any license, sublicense or agreement to which
CMG is a party or otherwise bound except where such violation would not have a
material adverse effect on CMG's Business Condition.
2.1.5.4. THIRD PARTY CLAIMS.
------------------
To the knowledge of CMG the use, reproduction, manufacturing, distribution,
licensing, sublicensing, sale, or any other exercise of rights in any product,
work, technology or process as now used or offered or proposed for use,
licensing or sale by CMG does not infringe on any copyright, trade secret,
trademark, service mark, trade name, firm name, logo, trade dress, mask work,
moral rights, or patent of any person except in instances which would not have a
material adverse effect on CMG's Business Condition. To the knowledge of CMG no
claims (i) challenging the validity, effectiveness, or ownership by CMG of any
of the CMG Intellectual Property, or (ii) to the effect that the use,
distribution, licensing, sublicensing, sale or any other exercise of rights in
any product, work, technology or process as now used or offered or proposed for
use, licensing, sublicensing or sale by CMG infringes or will infringe on any
intellectual property or other proprietary right of any person have been
asserted or, to the knowledge of CMG, are threatened by any person nor are there
any valid grounds for any bona fide claim of any such kind except in instances
which would not have a material adverse effect on CMG's Business Condition. To
the knowledge of CMG, all granted or issued patents and mask works and all
registered trademarks of CMG and all copyright registrations held by CMG are
valid, enforceable and subsisting except in instances which would not have a
material adverse effect on CMG's Business Condition. To CMG's knowledge, there
is no material unauthorized use, infringement or misappropriation of any of the
CMG Intellectual Property by any third party, employee or former employee except
in instances which would not have a material adverse effect on CMG's Business
Condition.
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2.1.5.5. OWNERSHIP.
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To the knowledge of CMG, CMG has secured from all parties who have created
any portion of, or otherwise have any rights in or to, the CMG Intellectual
Property valid and enforceable written assignments of any such work or other
rights to CMG except in instances which would not have a material adverse effect
on CMG's Business Conditions.
2.1.6. SEC DOCUMENTS AND FINANCIAL STATEMENTS
--------------------------------------
CMG has furnished Microsoft with a true and complete copy of each
statement, report, schedule, registration statement and definitive proxy or
information statement filed by CMG, or any present or former Subsidiary, with
the Securities and Exchange Commission ("SEC") since July 31, 1995 (the "CMG SEC
DOCUMENTS"), which are all the documents (other than preliminary material) that
CMG, or any present or former Subsidiary, was required to file with the SEC
since such date. As of their respective filing dates, the CMG SEC Documents
complied in all material respects with the requirements of the Securities
Exchange Act of 1934 (the "1934 ACT") or the Securities Act of 1933 ("1933
ACT"), as the case may be, and the rules and regulations of the SEC thereunder
applicable to such CMG SEC Documents, and none of the CMG SEC Documents
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of CMG included in the CMG SEC Documents
(the "CMG FINANCIAL STATEMENTS") comply as to form in all material respects with
all applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto and have been prepared in accordance
with generally accepted accounting principles consistently applied (except as
may be indicated in the notes thereto) and fairly present the consolidated
financial position of CMG and its Subsidiaries as at the dates thereof and the
results of their operations and cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal, recurring audit adjustments not
material in scope or amount). There has been no change in CMG's accounting
policies or the methods of making accounting estimates or changes in estimates
that are material to CMG Financial Statements, except as described in the notes
thereto.
2.1.7. MAJOR CONTRACTS AND SEC EXHIBITS.
--------------------------------
Other than as disclosed in the CMG SEC Disclosure Documents, CMG is not a
party to or subject to any agreement, contract or other document which is or
will be required to be filed as an exhibit to the CMG SEC Disclosure Documents
pursuant to Regulation S-K as promulgated under the 1933 and 1934 Acts
("REGULATION S-K") including without limitation the following to the extent any
is or will be required to be so filed:
2.1.7.1. Any union contract, or any employment contract or
arrangement to which CMG is a party providing for
future compensation, written or oral, with any
officer, consultant, director or employee not
terminable at will by CMG;
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2.1.7.2. Any plan or contract or arrangement, written or
oral, requiring CMG to provide bonuses, pensions,
deferred compensation, retirement payments,
profit-sharing, or the like;
2.1.7.3. Any joint venture contract or arrangement or any
other agreement which has involved or is expected
to involve a sharing of profits;
2.1.7.4. Any OEM agreement, distribution agreement, volume
purchase agreement, corporate end user sales or
service agreement or manufacturing agreement;
2.1.7.5. Any lease for real or personal property;
2.1.7.6. Any material agreement, license, franchise,
permit, indenture or authorization which has not
been terminated or performed in its entirety and
not renewed which may be, by its terms,
terminated, impaired or adversely affected by
reason of the execution of this Agreement, the
Closing of the transaction, or the consummation of
the transactions contemplated hereby or thereby;
2.1.7.7. Except for trade indebtedness incurred in the
ordinary course of business, any instrument
evidencing or related in any way to indebtedness
incurred in the acquisition of companies or other
entities or indebtedness for borrowed money by way
of direct loan, sale of debt securities, purchase
money obligation, conditional sale, guarantee, or
otherwise;
2.1.7.8. Any material license agreement, either as licensor
or licensee (excluding non-exclusive hardware and
software licenses granted to customers or end-
users in the ordinary course of business); or
2.1.7.9. Any contract containing covenants purporting to
limit CMG's freedom to compete in any line of
business in any geographic area.
All contracts, arrangements, plans, agreements, leases, licenses,
franchises, permits, indentures, authorizations, instruments and other
commitments which are listed in the CMG Disclosure Schedule or the CMG SEC
Documents are valid and in full force and effect, and CMG is not in breach of
any material provisions of, or in default in any material respect under the
terms
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thereof except for instances which would not have a material adverse effect on
CMG's Business Condition.
2.1.8. TAXES.
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To the knowledge of CMG, CMG and each of its Subsidiaries has timely filed
(or caused to be filed) all federal, state, local and foreign tax returns,
reports and information statements required to be filed by each of them, which
returns, reports and statements are true, correct and complete in all material
respects, and paid all taxes required to be paid as shown on such returns,
reports and statements except for instances which would not have a material
adverse effect on CMG's Business Condition. To the knowledge of CMG, all taxes
required to be paid in respect of the periods covered by such returns ("RETURN
PERIODS") have either been paid or fully accrued on the books of CMG except for
instances which would not have a material adverse effect on CMG's Business
Condition. To the knowledge of CMG, CMG and each of its Subsidiaries has fully
accrued all unpaid taxes in respect of all periods (or the portion of any such
periods) subsequent to the Return Periods except in instances which would not
have a material adverse effect on CMG's Business Condition. To the knowledge of
CMG, there is no material difference between the amounts of the book basis and
the tax basis of any assets of CMG and its Subsidiaries that is not reflected in
an appropriate accrual of deferred tax liability on the books of CMG, except in
instances which would not have a material adverse effect on CMG's Business
Condition. To the knowledge of CMG, no deficiencies or adjustments for any tax
have been claimed, proposed or assessed, or threatened, except in instances
which would not have a material adverse effect on CMG's Business Condition. To
the knowledge of CMG, the CMG Disclosure Schedule accurately sets forth the
years for which CMG's federal and state income tax returns, respectively, have
been audited and any years which are the subject of a pending audit by the
Internal Revenue Service and the applicable state agencies, except in instances
which would not have a material adverse effect on CMG's Business Condition.
Except as so disclosed, to the knowledge of CMG, CMG is not subject to any
pending or threatened, tax audit or examination and CMG has not waived any
statute of limitation with respect to the assessment of any tax, except in
instances which would not have a material adverse effect on CMG's Business
Condition. To the knowledge of CMG, the CMG Financial Statements contain
adequate accruals for all unpaid taxes, except in instances which would not have
a material adverse effect on CMG's Business Condition. For the purposes of this
Agreement, the terms "TAX" and "TAXES" will include all federal, state, local
and foreign taxes, assessments, duties, tariffs, registration fees, and other
governmental charges including without limitation all income, franchise,
property, production, sales, use, payroll, license, windfall profits, severance,
withholding, excise, gross receipts and other taxes, as well as any interest,
additions or penalties relating thereto and any interest in respect of such
additions or penalties. To the knowledge of CMG, no consent or agreement has
been made under Section 341 of the Internal Revenue Code of 1986 as amended (the
"CODE"), by or on behalf of CMG or any predecessor thereof, except in instances
which would not have a material adverse effect on CMG's Business Condition.
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2.1.9. ABSENCE OF CERTAIN CHANGES AND EVENTS.
-------------------------------------
Since the filing date of CMG's last report with the SEC pursuant to the
reporting requirements of the Exchange Act, to the knowledge of CMG, none of the
following have occurred with respect to CMG which would be required to be
reported in a filing with the SEC:
2.1.9.1. any damage, destruction or loss, whether or not
covered by insurance, materially and adversely
affecting the assets, properties, financial
condition, operating results, prospects or
business of CMG (as presently conducted and as
presently proposed to be conducted);
2.1.9.2. any waiver by CMG of a valuable right or of a
material debt owed to it;
2.1.9.3. any satisfaction or discharge of any lien, claim
or encumbrance or payment of any obligation by
CMG, except such a satisfaction, discharge or
payment made in the ordinary course of business
that is not material to the assets, properties,
financial condition, operating results or business
of CMG;
2.1.9.4. any material change or amendment to a material
contract or arrangement by which CMG or any of its
assets or properties is bound or subject, except
for changes or amendments which are expressly
provided for or disclosed in this Agreement;
2.1.9.5. any declaration of a dividend or other
distribution with respect to the capital stock of
CMG;
2.1.9.6. any material change in any compensation
arrangement or agreement with any present or
prospective employee, contractor or director not
approved by CMG's board of directors and disclosed
to Microsoft; or
2.1.9.7. any other event or condition of any character
which would materially and adversely affect the
assets, properties, financial condition, operating
results or business of CMG.
2.1.10. BROKERS AND FINDERS.
-------------------
CMG has not retained any broker, finder, or investment banker in connection
with this Agreement or any of the transactions contemplated by this Agreement,
nor does or will CMG
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owe any fee or other amount to any broker, finder, or investment banker in
connection with this Agreement or the transactions contemplated by this
Agreement.
2.1.11. DISCLOSURE.
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Neither any representation or warranty made by CMG in this Agreement, nor
any document, written information, statement, financial statement, certificate
or exhibit prepared and furnished or to be prepared and furnished by CMG, or any
of its representatives pursuant hereto or in connection with the transactions
contemplated hereby, when taken together, contains any untrue statement of a
material fact, or omits to state a material fact necessary to make the
statements or facts contained herein or therein not misleading in light of the
circumstances under which they were furnished.
2.1.12. RELIANCE.
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The foregoing representations and warranties are made by CMG with the
knowledge and expectation that Microsoft is placing reliance thereon.
2.2. REPRESENTATIONS AND WARRANTIES OF MICROSOFT.
-------------------------------------------
Microsoft hereby represents and warrants to CMG that, except as set forth
in the Microsoft disclosure schedule ("MICROSOFT DISCLOSURE SCHEDULE") attached
to this Agreement as Schedule 2.2 (which Microsoft Disclosure Schedule will be
deemed to be representations and warranties to CMG by Microsoft under this
Section 2.2), the statements in the following paragraphs of this Section 2.2 are
all true, complete and correct:
2.2.1. ORGANIZATION, STANDING AND POWER.
--------------------------------
Microsoft is a corporation duly organized and validly existing under the
laws of Washington, has all requisite corporate power and authority to own,
lease and operate its properties and assets and to carry on its business as now
being conducted and as presently proposed to be conducted, and is duly qualified
and in good standing to do business in each jurisdiction where failure to so
qualify would not have a material adverse effect on the Business Condition of
Microsoft.
2.2.2. AUTHORITY.
---------
Microsoft has duly and validly executed and delivered this Agreement, and
this Agreement constitutes a valid, binding, and enforceable obligation of
Microsoft in accordance with the terms of such agreements, except that such
enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to creditors' rights generally, and is
subject to general principles of equity.
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2.2.3. COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS.
------------------------------------------
Neither the execution and delivery of this Agreement by Microsoft nor the
performance by Microsoft of its obligations under this Agreement will violate
any provision of applicable law or conflict with, result in the breach of any of
the material terms and conditions of, constitute a default under, permit any
party to accelerate any material right under, renegotiate or terminate, require
consent, approval, or waiver by any party under, or result in the creation of
any lien, charge, or encumbrance upon any of the properties, assets, or shares
of capital stock of Microsoft pursuant to, any charter document of Microsoft or
any agreement (including listing agreements or quote agreements with securities
exchanges or automated quotation systems), indenture, mortgage, franchise,
license, permit, lease, or other instrument of any kind to which Microsoft is a
party or by which Microsoft or any of its assets are bound. No Consent by any
Governmental Entity or by any other party is required by or with respect to
Microsoft in connection with the execution and delivery of this Agreement by
Microsoft or the consummation by Microsoft of the transactions contemplated
hereby or thereby which, if not obtained or made, would not have a material
adverse effect on Microsoft's Business Condition.
2.2.4. INVESTMENT CONSIDERATIONS.
-------------------------
2.2.4.1. Microsoft is knowledgeable, sophisticated and
experienced in making, and is qualified to make,
decisions with respect to investments in shares
presenting an investment decision like that
involved in the purchase of the Purchased Shares,
including investments in securities issued by
companies comparable to CMG, and has requested,
received, reviewed and considered all information
it deems relevant in making an informed decision
to purchase the Purchased Shares.
2.2.4.2. Microsoft is acquiring the number of Purchased
Shares set forth in Section 1.1 in the ordinary
course of its business and for its own account for
investment only and with no present intention of
distributing any of such Purchased Shares or any
arrangement or understanding with any other
persons regarding the distribution of such
Purchased Shares.
2.2.4.3. Microsoft understands that the Purchased Shares
are "restricted securities" under the federal
securities laws inasmuch as they are being
acquired from CMG in a transaction not involving a
public offering and that under such laws and
applicable regulations such securities may be
resold without registration under the Securities
Act of 1933, as amended (the "Securities Act"),
only in certain limited circumstances. In this
connection Microsoft represents it is familiar
with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby
and by
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the Securities Act.
2.2.4.4. Microsoft will not, directly or indirectly,
offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge
of) any of the Purchased Shares except in
compliance with the Securities Act, and the
rules and regulations promulgated thereunder.
2.2.4.5. Microsoft qualifies as an "accredited investor"
within the meaning of Rule 501 of Regulation D
promulgated under the Securities Act.
2.2.4.6. It is understood that the certificates
evidencing the Purchased Shares will bear the
legend set forth below:
THE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF
1933 MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN
EFECT WITH RESPECT TO THE SECURITIES
UNDER THE ACT OR, IF REQUESTED BY CMG,
AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO CMG AND ITS COUNSEL,
THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER SUCH ACT.
The legend set forth above will be removed by CMG from any certificate
evidencing Purchased Shares upon delivery to CMG written verification that a
registration statement under the 1933 Act is at that time in effect with respect
to the legended security, an opinion by counsel, reasonably satisfactory to CMG
that such security can be freely transferred in a public sale without such a
registration statement being in effect, or verification, reasonably satisfactory
to CMG, that the Purchased Shares are being transferred in a transaction
permitted pursuant to Rule 144 or are exempt from Rule 144 pursuant to Rule
144(k).
3. INVESTOR RIGHTS
3.1. TWELVE-MONTH HOLDING PERIOD.
---------------------------
In consideration of the covenants herein, Microsoft agrees to not sell,
pledge, hypothecate or otherwise transfer any of the Purchased Shares prior to
the twelve- (12-) month anniversary of
12
<PAGE>
the closing of the Stock Purchase Agreement. Microsoft further agrees that the
certificates evidencing the Purchased Shares will bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANFER SET FORTH IN A STOCK PUCHASE AGREEMENT DATED DECEMBER 10, 1996 AND
MAY NOT BE TRANSFERRED PRIOR TO ___________.
3.2. REGISTRATION RIGHTS.
-------------------
3.2.1. DEFINITIONS.
-----------
For purposes of this Section 3.2:
3.2.1.1. REGISTRATION.
------------
The terms "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement.
3.2.1.2. FORM S-3.
--------
The term "FORM S-3" means such form under the Securities Act as is in
effect on the date hereof or any successor registration form under the
Securities Act subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other documents filed
by CMG with the SEC.
3.2.1.3. SEC.
---
The term "SEC" or "COMMISSION" means the U.S. Securities and Exchange
Commission.
3.2.2. DEMAND REGISTRATION.
-------------------
3.2.2.1. REQUEST BY HOLDERS.
------------------
If CMG will receive at any time after the twelve- (12-) month anniversary
of the Closing Date, a written request from Microsoft that CMG file a
registration statement on Form S-3 for the registration of Purchased Shares
pursuant to this Section 3.2.2 specifying the number of Purchased Shares
proposed to be sold, then CMG will effect, as soon as practicable, the
registration under the Securities Act of all Purchased Shares which Microsoft
requests to be registered and included in such registration by written notice
given by Microsoft to CMG within twenty (20) calendar days after receipt of the
Request Notice, provided that the Purchased Shares requested by Microsoft to be
registered pursuant to such request must be at least fifty percent (50%) of the
Common Stock then owned by Microsoft and that CMG will not be obligated to
effect more than one such registration in any six- (6-) month period.
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<PAGE>
3.2.2.2. MAXIMUM NUMBER OF DEMAND REGISTRATIONS.
--------------------------------------
CMG is obligated to effect only two (2) such registrations pursuant to this
Section 3.2.2.
3.2.2.3. DEFERRAL.
--------
If at the time of any request to register Shares pursuant to Section 3.2.2,
CMG is engaged or has fixed plans to engage within sixty (60) days of the date
of receipt of the request in a registered public offering, or is engaged in any
other activity which, in the good faith determination of CMG's Board of
Directors, would be adversely affected by the demand registration, then CMG may
at its option direct that such request be delayed for a period not in excess of
ninety (90) days from the closing of such offering or the date of CMG's Board of
Directors' determination, as the case may be.
3.2.3. PIGGYBACK REGISTRATIONS.
-----------------------
3.2.3.1. NOTIFICATION.
------------
CMG will notify Microsoft in writing at least thirty (30) days prior to
filing any registration statement under the Securities Act for purposes of
effecting a public offering of securities of CMG (including, but not limited to,
registration statements relating to secondary offerings of securities of CMG,
but excluding registration statements relating to any registration under Section
3.2.2 or to any employee benefit plan or a corporate reorganization on Form S-8
or Form S-4, or their successors) and will afford Microsoft an opportunity to
include in such registration statement all or any part of the Purchased Shares
then held by Microsoft. Should Microsoft desire to include in any such
registration statement all or any part of the Purchased Shares held by
Microsoft, Microsoft will, within twenty (20) days after receipt of the above-
described notice from CMG, so notify CMG in writing, and in such notice will
inform CMG of the number of Purchased Shares Microsoft wishes to include in such
registration statement. If Microsoft decides not to include all of its Purchased
Shares in any registration statement thereafter filed by CMG, Microsoft will
nevertheless continue to have the right to include any Purchased Shares in any
subsequent registration statement or registration statements as may be filed by
CMG with respect to offerings of its securities, all upon the terms and
conditions set forth herein.
3.2.3.2. DEFERRAL.
--------
In connection with any offering under this Section 3.2.3 involving an
underwriting, if CMG will furnish to Microsoft, a certificate signed by the
President or Chief Executive Officer of CMG stating that in the good faith
judgment of the Board of Directors of CMG and in the opinion of the
underwriters, it would be seriously detrimental to CMG and its shareholders for
such registration statement to be filed and it is therefore essential to defer
the filing of such registration statement, then CMG will have the right to defer
such filing for a period of not more than 90 days
14
<PAGE>
after receipt of the request of Microsoft; provided, however, that CMG may not
exercise this right more than once in any twelve- (12-) month period.
3.2.3.3. UNDERWRITING.
------------
If a registration statement under which CMG gives notice under this Section
3.2.3 is for an underwritten offering, then CMG will so advise Microsoft. In
such event, the right of Microsoft to be included in a registration pursuant to
this Section 3.2.3 will be conditioned upon Microsoft's participation in such
underwriting and the inclusion of the Purchased Shares in the underwriting to
the extent provided herein. Should Microsoft propose to distribute its Purchased
Shares through such underwriting, it will enter into an underwriting agreement
in customary form with the managing underwriter or underwriter(s) selected for
such underwriting. Notwithstanding any other provision of this Agreement, if the
managing underwriter determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares (including Purchased Shares) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting will be allocated, first, to CMG, and
second, to Microsoft if Microsoft is requesting inclusion of its Purchased
Shares in such registration statement, provided however, that the right of the
underwriters to exclude shares (including Purchased Shares) from the
registration and underwriting as described above will be restricted so that the
number of Purchased Shares included in any such registration by Microsoft is not
reduced below fifteen (15%) of the shares included in the registration. If
Microsoft disapproves of the terms of any such underwriting, it may elect to
withdraw therefrom by written notice to CMG and the underwriter, delivered at
least ten (10) business days prior to the effective date of the registration
statement. Any Purchased Shares excluded or withdrawn from such underwriting
will be excluded and withdrawn from the registration.
3.2.3.4. NO OTHER SECURITIES.
-------------------
No other securities requested to be included in a registration pursuant to
this Section 3.2.3 for the account of anyone other than CMG or Microsoft will be
included in a registration unless either (i) all Purchased Shares requested by
Microsoft to be included in such registration are so included; or (ii) Microsoft
otherwise consents in writing.
3.2.3.5. NOT DEMAND REGISTRATION.
-----------------------
Registrations pursuant to this Section 3.2.3 will not be deemed to be
demand registrations as described in Section 3.2.2 above.
3.2.4. OBLIGATIONS OF CMG.
------------------
3.2.4.1. EXPENSES.
--------
All expenses incurred in connection with a registration pursuant to Section
3.2.2, or Section 3.2.2.3, including without limitation all registration and
qualification fees, printers' and
15
<PAGE>
accounting fees, fees and disbursements of counsel for CMG, the underwriters and
Microsoft, (but excluding underwriters' and brokers' discounts and commissions),
will be borne by CMG. Microsoft, in a registration pursuant to Section 3.2.2 or
Section 3.2.3 will bear Microsoft's share of all discounts, commissions or other
amounts payable to underwriters or brokers in connection with such offering.
Notwithstanding the foregoing, CMG will not be required to pay for any expenses
of any registration proceeding begun pursuant to Section 3.2.2 if the
registration request is subsequently withdrawn at the request of Microsoft,
unless Microsoft agrees to forfeit their right to one (1) demand registration
pursuant to Section 3.2.2; provided, further, however, that if at the time of
such withdrawal, Microsoft has learned of a material adverse change in the
condition, business, or prospects of CMG not known to Microsoft at the time of
its request for such registration and have withdrawn their request for
registration with reasonable promptness after learning of such material adverse
change, then Microsoft will not be required to pay any of such expenses and will
retain its rights pursuant to Section 3.2.2.
3.2.4.2. REGISTRATION.
------------
Whenever required to effect the registration of any Purchased Shares under
Section 3.2.2, CMG will, as expeditiously as reasonably possible:
3.2.4.2.1. Prepare and file with the SEC a
registration statement with respect to such
Purchased Shares and use its best efforts to
cause such registration statement to become
effective, and, upon the request of Microsoft,
keep such registration statement effective for
up to ninety (90) calendar days.
3.2.4.2.2. Prepare and file with the SEC such
amendments and supplements to such registration
statement and the prospectus used in connection
with such registration statement as may be
necessary to comply with the provisions of the
Securities Act with respect to the disposition
of all securities covered by such registration
statement, which period will not be in excess of
nine (9) months from the effective date of such
registration statement.
3.2.4.2.3. Furnish to Microsoft such number of copies
of a prospectus, including a preliminary
prospectus, in conformity with the requirements
of the Securities Act, and such other documents
as they may reasonably request in order to
facilitate the disposition of the Purchased
Shares owned by them that are included in such
registration.
3.2.4.2.4. Register and qualify the securities covered
by such registration statement under such other
securities or Blue
16
<PAGE>
Sky laws of such jurisdictions as specified in
writing by Microsoft, provided that CMG will not
be required in connection therewith or as a
condition thereto to qualify to do business or
to file a general consent to service of process
in any such states or jurisdictions.
3.2.4.2.5. In the event of any underwritten public
offering, enter into and perform its obligations
under an underwriting agreement, in usual and
customary form, with the managing underwriter(s)
of such offering.
3.2.4.2.6. Notify Microsoft at any time when a
prospectus relating thereto is required to be
delivered under the Securities Act of the
happening of any event as a result of which the
prospectus included in such registration
statement, as then in effect, includes an untrue
statement of a material fact or omits to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading in the light of the circumstances
then existing.
3.2.4.2.7. Furnish, at Microsoft's request, on the
date that Purchased Shares are delivered to the
underwriters for sale, if such securities are
being sold through underwriters, or, if such
securities are not being sold through
underwriters, on the date that the registration
statement with respect to such securities
becomes effective an opinion, dated as of such
date, of the counsel representing CMG for the
purposes of such registration, in form and
substance as is customarily given to
underwriters in an underwritten public offering
and reasonably satisfactory to Microsoft,
addressed to the underwriters, if any, and to
Microsoft.
3.2.4.2.8. Use its best efforts to secure a "COMFORT"
letter dated as of such date, from the
independent certified public accountants of CMG,
in form and substance as is customarily given by
independent certified public accountants to
underwriters in an underwritten public offering
and reasonably satisfactory to Microsoft,
addressed to the underwriters, if any, and to
Microsoft.
3.2.5. FURNISH INFORMATION.
-------------------
It will be a condition precedent to the obligations of CMG to take any
action pursuant to Section 3.2.2 or Section 3.2.2.3 that Microsoft will furnish
to CMG such information regarding
17
<PAGE>
itself, its Purchased Shares held, and the intended method of disposition of
such securities as will be required to timely effect the registration of its
Purchased Shares.
3.2.6. INDEMNIFICATION.
---------------
In the event any Purchased Shares are included in a registration statement
under Section 3.2.2 or Section 3.2.3:
3.2.6.1. BY CMG.
------
To the extent permitted by law, CMG will indemnify and hold harmless,
Microsoft, the officers and directors of Microsoft, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "VIOLATION"):
3.2.6.1.1. any untrue statement or alleged untrue
statement of a material fact contained in such
registration statement, including any
preliminary prospectus or final prospectus
contained therein or any amendments or
supplements thereto;
3.2.6.1.2. the omission or alleged omission to state
therein a material fact required to be stated
therein, or necessary to make the statements
therein not misleading, or
3.2.6.1.3. any violation or alleged violation by CMG
of the Securities Act, the 1934 Act, any federal
or state securities law or any role or
regulation promulgated under the Securities Act,
the 1934 Act or any federal or state securities
law in connection with the offering covered by
such registration statement;
and CMG will reimburse Microsoft, its officers or directors, for any legal or
other expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided however, that the indemnity agreement contained in this subsection
3.2.6.1 will not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of CMG (which consent will not be unreasonably withheld), nor will CMG be liable
in any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by Microsoft, its officers, or
directors.
18
<PAGE>
3.2.6.2. BY MICROSOFT.
------------
To the extent permitted by law, Microsoft will indemnify and hold harmless
CMG, each of its directors, each of its officers who have signed the
registration statement, each person, if any, who controls CMG within the meaning
of the Securities Act, any underwriter and any other shareholder selling
securities under such registration statement or any of such other shareholder's
partners, directors or officers or any person who controls such shareholder
within the meaning of the Securities Act or the 1934 Act, against any losses,
claims, damages or liabilities (joint or several) to which CMG or any such
director, officer, controlling person, underwriter or other such shareholder,
partner or director, officer or controlling person of such other shareholder may
become subject under the Securities Act, the 1934 Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by Microsoft expressly for
use in connection with such registration; and Microsoft will reimburse any legal
or other expenses reasonably incurred by CMG or any such director, officer,
controlling person, underwriter or other shareholder, partner, officer, director
or controlling person of such other shareholder in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this subsection 3.2.6.2 will
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
Microsoft, which consent will not be unreasonably withheld; and provided
further, that the total amounts payable in indemnity by Microsoft under this
subsection 3.2.6.2 in respect of any Violation will not exceed the proceeds (net
of underwriters' and brokers' discounts and commissions) received by Microsoft
in the registered offering out of which such Violation arises.
3.2.6.3. NOTICE.
------
Promptly after receipt by an indemnified party under this Section 3.2.6.3
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 3.2.6, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
will have the right to participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly noticed, to
assume the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party will have the right to retain its
own counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential conflict of
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, will relieve such
indemnifying party of any liability to the indemnified party under this Section
3.2.6, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 3.2.6. It is understood, however, that CMG
will, in connection with any one such action, suit or proceeding
19
<PAGE>
or separate but substantially similar or related actions, suits, or proceedings
in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such indemnified parties not having actual or potential differing interests
with CMG or among themselves.
3.2.6.4 CONTRIBUTION.
------------
In order to provide for just and equitable contribution to joint liability
under the Securities Act in any case in which either: (i) any shareholder,
including Microsoft (collectively "HOLDER") exercising rights under this
Agreement or another agreement providing similar rights, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to this
Section 3.2.6 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such indemnification may
not be enforced in such case notwithstanding the fact that this Section 3.2.6
provides for indemnification in such case, or (ii) contribution under the
Securities Act may be required on the part of any such selling Holder or any
such controlling person in circumstances for which indemnification is provided
under this Section 3.2.6; then, and in each such case, CMG and such Holder will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such proportion so that such
Holder is responsible for the portion represented by the percentage that the
public offering price of its Purchased Shares offered by and sold under the
registration statement bears to the public offering price of all securities
offered by and sold under such registration statement, and CMG and other selling
Holders are responsible for the remaining portion; provided, however, that, in
any such case, (A) no such Holder will be required to contribute any amount in
excess of the public offering price of all such Purchased Shares offered and
sold by such Holder pursuant to such registration statement; and (B) no person
or entity guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation. CMG agrees to
require any other Holder participating as a selling shareholder to enter into an
agreement including provisions similar to this Section and will be solely
responsible for its failure to do so.
3.2.6.5. SURVIVAL.
--------
The obligations of CMG and Microsoft under this Section 3.2.6 will survive
the completion of any offering of Purchased Shares in a registration statement,
and otherwise.
3.2.7. TERMINATION OF CMG'S OBLIGATIONS.
--------------------------------
CMG will have no obligations pursuant to Section 3.2.2 or Section 3.2.3
with respect to: (i) any request or requests for registration made by Microsoft
on a date more than three (3) years after the Closing Date; or (ii) any
Purchased Shares proposed to be sold by Microsoft in a registration pursuant to
Section 3.2.2 or Section 3.2.3 if, in the opinion of counsel to CMG, all such
Purchased Shares proposed to be sold by Microsoft may be sold in a three- (3-)
month period without registration under the Securities Act pursuant to Rule 144
under the Securities Act
20
<PAGE>
without, in the judgment of Microsoft which will be concurred in writing by a
reputable investment banking firm selected by Microsoft, adversely affecting the
price at which the Purchased Shares may be sold.
3.3. SELL-BACK RIGHT.
---------------
The parties acknowledge and agree that Microsoft may wish to maintain its
ownership interest in CMG at a level lower than five percent (5%) of the total
equity of CMG and therefore agree as follows:
3.3.1. If for any reason, other than as a direct result of
purchases or other voluntary acquisitions of Purchased
Shares by Microsoft and its Subsidiaries, Microsoft and its
Subsidiaries owns or will own five percent (5%) or more of
the outstanding shares of the Common Stock,
3.3.1.1. Microsoft will have the right to sell back and
CMG will be obligated to purchase that number of
shares of Common Stock at Current Market Value
(as defined below) as is necessary to reduce, or
in anticipation of a proposed action by CMG that
would result in increasing Microsoft's ownership
of Common Stock above five percent (5%) to
maintain Microsoft's beneficial ownership
interest below five percent (5%);
3.3.1.2. In the event CMG does not have sufficient funds
to permit Microsoft to fully exercise its rights
under 3.3.1.1, or is restricted under applicable
corporate law from purchasing sufficient shares
of Common Stock (i) Microsoft will have the
right to sell, and CMG will be obligated to
purchase, the maximum number of shares of Common
Stock that CMG has funds to purchase and/or is
legally permitted to purchase; (ii) CMG will
make reasonable efforts to raise sufficient
funds or remove any legal obstacles so as to
enable it to fulfill its obligation pursuant to
Section 3.3.1.1 and (iii) in the event CMG is
unable to repurchase sufficient shares of Common
Stock to satisfy its obligation pursuant to
Section 3.3.1.1, Microsoft will receive an
additional demand registration right which will
accelerate and become effective immediately and
CMG will fully reimburse Microsoft for all costs
and expenses in reducing its ownership below
five percent (5%) and for any difference between
the price per share payable pursuant to Section
3.3.1.1. assuming that the maximum number of
shares of CMG Common were purchased at the
Current Market Value as of the date on which
Microsoft gave notice of its
21
<PAGE>
intend to sell shares of Common Stock pursuant
to Section 3.3.1.1 and the net proceeds
eventually received by Microsoft through sale of
shares of Common Stock pursuant to the
additional demand registration right.
3.3.2. "Current Market Value" will mean the average closing price
as publicly reported for the Nasdaq Stock Market as of 4:15
p.m. Eastern Time of the Common Stock over the last twenty
(20) trading days ending two (2) trading days prior to the
Closing Date. The following example is inserted solely for
purposes of clarification of the preceding sentence: assume
the date on which Microsoft exercises its right is Tuesday,
December 31, 1996, then the specified twenty-(20-) trading
day period will end on and include Friday, December 27,
1996.
3.3.3. CMG will not enter into an restrictive agreements or take
any other actions that would impose any restrictions on or
otherwise adversely affect Microsoft's right to maintain, at
its option, an ownership level below five percent (5%) of
the total equity of CMG.
4. STANDSTILL COVENANTS
4.1. CERTAIN DEFINITIONS.
-------------------
Unless the context otherwise requires, the following terms, for all
purposes of this Section 4, will have the meanings specified in this Section
4.1:
4.1.1. "AFFILIATE" will mean any entity which controls, is
controlled by or is under common control with Microsoft.
4.1.2. "MAXIMUM PERCENTAGE" will mean ten percent (10%).
4.1.3. "OUTSTANDING VOTING STOCK" of CMG, or another entity as the
context requires, will mean (i) the Common Stock or other
securities of CMG (or such other entity) then outstanding
and (ii) any other securities convertible into Common Stock
of CMG (or such other entity) then outstanding, having the
power to vote on any matter brought before shareholders at a
meeting or by written consent, other than securities having
such power only upon the happening of a contingency which
has not yet occurred.
4.1.4. "VOTING POWER" will mean the number of votes entitled to
then be cast by the Outstanding Voting Stock of CMG at any
election of directors of CMG.
22
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4.1.5. "VOTING STOCK" will mean the Common Stock outstanding,
assuming the exercise or conversion of all outstanding
securities convertible into or exercisable or exchangeable
for Common Stock and any other securities issued by CMG
having the power to vote in the election of directors of CMG
other than securities having such power only upon the
happening of a contingency which has not yet occurred.
4.2. STANDSTILL AGREEMENT.
--------------------
Microsoft agrees that, unless it has obtained the prior written consent of
CMG, it will not:
4.2.1. directly or indirectly (a) acquire beneficial ownership of
any Voting Stock, any securities convertible into or
exchangeable for Voting Stock, or any other right to acquire
Voting Stock (except, in any case, by way of stock dividends
or other distributions or offerings made available to
holders of any Voting Stock generally), (b) authorize or
make a tender, exchange or other offer which would result in
such an acquisition, or (c) engage in any solicitation of
proxies (within the meaning of the federal securities laws)
for the purpose of obtaining shareholder approval for any
transaction that would result in such an acquisition,
without (in any such case) the written consent of a majority
of CMG's Board of Directors (excluding directors, if any,
who are affiliated with Microsoft), if the effect of
such acquisition would be to increase the Voting Power of
all Voting Stock then beneficially owned by Microsoft, or
which Microsoft has a right to acquire, to an aggregate
number of shares exceeding the Maximum Percentage of the
total Voting Power of CMG at the time in effect; provided
that Microsoft will not be obligated to dispose of any
Voting Stock if the aggregate percentage of the total Voting
Power of CMG represented by Voting Stock beneficially owned
by Microsoft or which Microsoft has a right to acquire is
increased as a result of a recapitalization of CMG or after
the date of this Agreement or any other action taken by CMG
or its affiliates. In the event that Microsoft owns in the
aggregate more than the Maximum Percentage of the total
Voting Power of CMG due to a repurchase by CMG of any of its
Common Stock, CMG will, at Microsoft's option, repurchase
that number of shares of its Common Stock from Microsoft
necessary to reduce Microsoft's ownership of CMG's Common
Stock below the Maximum Percentage, at the current market
price (provided, however, that the foregoing will not be
deemed to limit CMG's remedies in the event that the excess
Voting Stock were acquired in violation of this Section);
4.2.2. "SOLICIT" proxies with respect to Voting Stock under any
circumstances or become a "PARTICIPANT" in any "ELECTION
CONTEST" relating to the election of directors of CMG, as
such terms are defined in Regulation 14A under the Exchange
Act, deposit any Voting Stock in a voting trust or subject
23
<PAGE>
them to a voting agreement or other agreement of similar
effect;
4.2.3. initiate, propose or otherwise solicit stockholders for the
approval of one or more stockholder proposals at any time,
or induce or attempt to induce any other person to initiate
any stockholder proposal; or
4.2.4. take any action individually or jointly with any
partnership, limited partnership, syndicate, or other group
or assist any other person, corporation, entity or group in
taking any action it could not take individually under the
terms of this Agreement.
4.3. MERGERS, TENDER OFFERS OR SIMILAR TRANSACTIONS.
----------------------------------------------
Microsoft agrees that it will not:
4.3.1. directly or indirectly, without the prior approval of CMG's
Board of Directors, solicit or encourage any person to
propose a business combination or similar transaction with,
or a change of control of, CMG or to make a tender offer for
shares of CMG's Common Stock or other Voting Stock; or
4.3.2. directly or indirectly, without the prior approval of CMG's
Board of Directors, publicly (or in a manner requiring CMG
to disclose publicly) (i) propose any business combination
or similar transaction with, or a change of control of, CMG;
(ii) make or propose a tender offer for shares of Common
Stock or other Voting Stock of CMG; (iii) otherwise act to
seek control of or influence CMG's Board of Directors or the
management, policies or affairs of CMG; or (iv) propose any
amendment to or waiver under this Section which would permit
Microsoft to acquire additional Common Stock or other Voting
Stock other than those presently permitted under this
Section.
4.4. NOTICE OF PURCHASES.
-------------------
Without limiting the restrictions in Section 4.2 herein, Microsoft will
notify CMG as to Microsoft's acquisition of additional shares of Voting Stock,
or rights thereto within two (2) days after such acquisitions, regardless of
whether such transaction is otherwise required to be reported under law. Such
notice will be made by telecopy and U.S. mail in accordance with Section 8.3
herein.
4.5. NO VOTING ARRANGEMENTS.
----------------------
Without CMG's prior written consent, Microsoft will not deposit any shares
of Voting Stock in a voting trust or subject any Voting Stock to any arrangement
or agreement with respect to the voting of such Voting Stock other than pursuant
to the provisions of this Agreement.
24
<PAGE>
4.6. NO PARTNERSHIP.
--------------
Microsoft will not join a partnership, limited partnership, syndicate or
other group, or otherwise act in concert with any third person for the purpose
of acquiring, holding or disposing of Voting Stock except as contemplated by the
provisions of the Voting Agreement.
4.7. RESTRICTIONS ON TRANSFERS.
-------------------------
Prior to (excluding for such purposes any directors who are affiliated with
Microsoft) selling or otherwise transferring to any third party (other than an
Affiliate) any shares of CMG's capital stock that would represent at the time of
such transfer (and together with all prior such purchases) more than two percent
(2%) of the then issued and outstanding Voting Power of CMG's capital stock,
except for sales made in the public market in accordance with Rule 144 or sales
made pursuant to a registration statement filed by CMG under the Securities Act
of 1933, Microsoft agrees to first offer to sell such shares to CMG on the same
terms and conditions offered by such third party. If CMG does not complete the
purchase of such shares within ten (10) business days, then Microsoft may sell
such shares on the same terms and conditions for a period of thirty (30)
calendar days after the expiration of such ten-(10-) day period.
4.8. PROHIBITED TRANSFER.
-------------------
Any purchase which causes Microsoft to be in violation of the terms of
Section 4.2 above ("PROHIBITED TRANSFER") will not be affected by CMG and will
be voidable at the option of CMG by its giving written notice to the transferor,
the transferee and Microsoft. In the event of a Prohibited Transfer and without
limitation of the foregoing, CMG will (in addition to all other rights hereunder
and under law) have the option (but not the obligation) to purchase from
Microsoft up to that number of shares of Common Stock equal to the total number
of shares subject to the Prohibited Transfer upon the following conditions:
4.8.1. The price per share at which the shares are to be sold to
CMG will be equal to the price per share paid by Microsoft;
and
4.8.2. Such option will be exercisable by CMG for a period of sixty
(60) days after CMG has received notice or otherwise become
aware of the Prohibited Transfer by delivery by CMG to
Microsoft the full purchase price therefor, by certified
check or bank draft made payable to Microsoft. Upon such
delivery, CMG will cancel the number of shares of stock
purchased from Microsoft.
4.9. SUBSIDIARIES OF MICROSOFT.
-------------------------
Microsoft represents to CMG that there is no Subsidiary of Microsoft which,
as of the date of this Agreement, owns of record or beneficially any: (a) Common
Stock or other Voting Stock of CMG; or any other securities convertible or
exchangeable (with or without the payment of additional consideration) into
Voting Stock of CMG. Microsoft covenants to CMG that, if at
25
<PAGE>
any time while this Section 4 is still in effect, any Subsidiary of Microsoft
becomes or intends to become the beneficial owner, as defined in regulations
promulgated by the Commission, of any Common Stock or Voting Stock of CMG, or
any securities convertible or exchangeable into Voting Stock, Microsoft will,
whether prior to such ownership if possible, or, if not possible, as soon as
practicable after such ownership, cause such Subsidiary to agree to be bound by
Section 4 of this Agreement.
4.10. EQUITABLE REMEDIES.
------------------
Microsoft agrees that irreparable damage would occur if any provision of
this Section 4 were not performed in accordance with its specific terms or were
otherwise breached. It is accordingly agreed that CMG will be entitled to an
injunction or injunctions to prevent breaches of this Section 4 and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state thereof having jurisdiction, in addition to any other remedy to
which it may be entitled at law or equity. Microsoft agrees to waive and hereby
waives any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief.
4.11. LEGEND ON CERTIFICATES.
----------------------
Each certificate representing shares held by Microsoft, and any assignees
or transferees thereof, will bear the following legends:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
STANDSTILL AND PROXY PROVISIONS OF A STOCK PURCHASE AGREEMENT DATED
DECEMBER 10, 1996, WHICH HAS BEEN DEPOSITED WITH THE COMPANY AT ITS
PRINCIPAL OFFICE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON
WRITTEN REQUEST FROM THE SECRETARY OF THE COMPANY.
4.12. TERM.
----
The provisions of this Section 4 will terminate and be of no further force
and effect upon the date three (3) years after the Closing Date.
5. ADDITIONAL AGREEMENTS
5.1. EXPENSES.
--------
Whether or not the purchase and sale of the Purchased Shares is
consummated, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby will be paid by the party incurring
such expense.
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<PAGE>
5.2. ADDITIONAL BUSINESS OPPORTUNITIES.
---------------------------------
Microsoft agrees to consider in good faith additional business
opportunities between Microsoft, CMG and CMG's affiliates. These opportunities
may include minority investments and licensing and marketing relationships. CMG
acknowledges that Microsoft is in no way obligated to enter into any such
relationships.
5.3. PUBLIC ANNOUNCEMENTS.
--------------------
No information concerning this Agreement and the transactions contemplated
herein will be disclosed by CMG without the prior written consent of Microsoft.
Nothing contained herein will prevent any party at any time from furnishing any
information to any governmental agency or from issuing any release when it
believes in good faith and after consultation with the other party that it is
legally required to do so.
6. CONDITIONS PRECEDENT
6.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO CLOSE.
----------------------------------------------
The respective obligation of each party to close the purchase contemplated
by this Agreement will be subject to the satisfaction prior to the Closing Date
of the following conditions.
6.1.1. CONSENTS.
--------
All Consents legally required for the consummation of the transactions
contemplated by this Agreement will have been filed, occurred, or been obtained,
other than such Consents, for which the failure to obtain would have no material
adverse effect on the consummation of the transaction or the other transactions
contemplated hereby or on the Business Condition of Microsoft or CMG.
6.1.2. NO RESTRAINTS.
-------------
No statute, rule, regulation, executive order, decree or injunction will
have been enacted, entered, promulgated or enforced by any United States court
or Governmental Entity of competent jurisdiction which enjoins or prohibits the
consummation of the transaction will be in effect.
6.1.3. SECURITIES EXEMPTION.
--------------------
The offer and sale of the Purchased Shares to Microsoft pursuant to this
Agreement will be exempt from the registration requirements of the Securities
Act of 1933, as amended, and the registration and/or qualification requirements
of all other applicable state securities laws.
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<PAGE>
6.1.4. NO ISSUANCE OF ADDITIONAL STOCK.
-------------------------------
CMG will not have issued any stock between or on the second trading day
before the Closing Date and the Closing Date.
6.1.5. CLOSING OF APR.
--------------
All of the conditions of closing in the APR will have occurred and the
Effective Time of the merger of Sub into NetCarta pursuant to the APR will have
occurred.
6.2. CONDITIONS TO MICROSOFT'S OBLIGATION AT CLOSING.
-----------------------------------------------
The obligations of Microsoft to purchase the Purchased Shares are subject
to the satisfaction of the following conditions unless waived by Microsoft:
6.2.1. REPRESENTATIONS AND WARRANTIES OF CMG.
-------------------------------------
The representations and warranties of CMG set forth in this Agreement will
be true and correct in all material respects as of the date of this Agreement
and as of the Closing Date as though made on and as of the Closing Date, except
as otherwise contemplated by this Agreement. Microsoft will have received a
certificate signed by David Wetherell, Chairman and Chief Executive Officer, and
Andrew J. Hajducky III, Chief Financial Officer of CMG to such effect on the
Closing Date.
6.2.2. PERFORMANCE OF OBLIGATIONS OF CMG.
---------------------------------
CMG will have performed in all material respects all agreements and
covenants required to be performed by it under this Agreement prior to the
Closing Date, and Microsoft will have received a certificate signed by David
Wetherell, Chairman and Chief Executive Officer, and Andrew J. Hajducky III,
Chief Financial Officer of CMG to such effect on the Closing Date.
6.2.3. PROCEEDINGS AND DOCUMENTS.
-------------------------
All corporate and other proceedings in connection with the transactions
contemplated at the Closing and all documents incident thereto will be
reasonably satisfactory in form and substance to Microsoft and to Microsoft's
counsel, and it will have received all such counterpart originals and certified
or other copies of such documents as they may reasonably request. Such documents
will include (but not be limited to) a copy of the resolutions of the Board of
Directors and, if required, the shareholders of CMG evidencing the approval of
this Agreement, the issuance of the Purchased Shares and the other matters
contemplated hereby.
28
<PAGE>
6.2.4. LEGAL ACTION.
------------
There will not be overtly threatened or pending any action, proceeding or
other application before any court or Government Entity brought by any person or
Governmental Entity (i) challenging or seeking to restrain or prohibit the
consummation of the transactions contemplated by this Agreement, or seeking to
obtain any material damages, or (ii) seeking to prohibit or impose any material
limitations on Microsoft's ownership or the Purchased Shares, or to compel CMG
or Microsoft to dispose of or hold separate all or any material portion of CMG's
business or assets as a result of the transactions contemplated by the
Agreement, which in any event, in the reasonable judgment of Microsoft, will
probably have a material adverse effect on the Business Condition of CMG.
Further, there will not be threatened or pending any action, proceeding or other
application before any court or Governmental Entity brought by any Governmental
Entity or person which, in any event, in the reasonable judgment of Microsoft
will probably have a material adverse effect on the Business Condition of CMG.
6.3. CONDITIONS TO CMG'S OBLIGATION AT CLOSING.
-----------------------------------------
The obligation of CMG to effect the sale of the Purchased Shares is subject
to the satisfaction of the following conditions unless waived by CMG:
6.3.1. REPRESENTATIONS AND WARRANTIES OF MICROSOFT.
-------------------------------------------
The representations and warranties of Microsoft set forth in this Agreement
will be true and correct in all material respects as of the date of this
Agreement and as of the Closing Date as though made on and as of the Closing
Date, except as otherwise contemplated by this Agreement, and CMG will have
received a certificate signed by an officer of Microsoft to such effect.
6.3.2. PERFORMANCE OF OBLIGATIONS OF MICROSOFT.
---------------------------------------
Microsoft will have performed in all material respects all agreements and
covenants required to be performed by them under this Agreement prior to the
Closing Date, and CMG will have received a certificate signed by an officer of
Microsoft to such effect.
7. TERMINATION
7.1. MUTUAL AGREEMENT.
----------------
This Agreement may be terminated at any time prior to the Closing by the
written consent of CMG and Microsoft.
7.2. TERMINATION BY MICROSOFT.
------------------------
This Agreement may be terminated by Microsoft alone, by means of written
notice to CMG if there has been a material breach by CMG of any representation,
warranty, covenant or agreement set forth in this Agreement or other ancillary
agreements between CMG and Microsoft
29
<PAGE>
(the "ANCILLARY AGREEMENTS"), and such breach has not been cured within ten (10)
days following receipt by CMG of written notice of such breach.
7.3. TERMINATION BY CMG.
------------------
This Agreement may be terminated by CMG alone, by means of written notice
to Microsoft, if there has been a material breach by Microsoft of any
representation, warranty, covenant or agreement set forth in this Agreement or
the Ancillary Agreements, and such breach has not been cured within ten (10)
days following receipt by Microsoft of written notice of such breach.
7.4. OUTSIDE DATE.
------------
This Agreement may be terminated CMG alone or by Microsoft alone by means
of written notice if the Closing does not occur on or prior to February 28,
1997.
7.5. EFFECT OF TERMINATION.
---------------------
In the event of termination of this Agreement as provided in this Article,
and notwithstanding that CMG may have taken certain actions in contemplation of
the Closing, this Agreement will forthwith become void and have no effect, and
there will be no liability or obligation on the part of Microsoft or CMG or
their respective officers or directors, except that: (i) the provisions of this
section and Section 5.1, Section 5.3, Section 8.2, Section 8.3, Section 8.4,
Section 8.11, Section 8.12, and Section 8.13 will survive any such termination
and abandonment; and (ii) no party will be released or relieved from any
liability arising from the willful breach by such party of any of its
representations, warranties, covenants or agreements as set forth in this
Agreement.
8. MISCELLANEOUS
8.1. ENTIRE AGREEMENT.
----------------
This Agreement, including the exhibits and schedules delivered pursuant to
this Agreement contain all of the terms and conditions agreed upon by the
parties relating to the subject matter of this Agreement and supersedes all
prior agreements, negotiations, correspondence, undertakings, and communications
of the parties, whether oral or written, respecting that subject matter.
8.2. GOVERNING LAW.
-------------
This Agreement will be governed by, and construed in accordance with, the
laws of the State of Delaware as applied to agreements entered into and entirely
to be performed within that state.
30
<PAGE>
8.3. NOTICES.
-------
All notices, requests, demands or other communications which are required
or may be given pursuant to the terms of this Agreement will be in writing and
will be deemed to have been duly given: (i) on the date of delivery if
personally delivered by hand, (ii) upon the third day after such notice is (a)
deposited in the United States mail, if mailed by registered or certified mail,
postage prepaid, return receipt requested, or (b) sent by a nationally
recognized overnight express courier, or (iii) by facsimile upon written
confirmation (other than the automatic confirmation that is received from the
recipient's facsimile machine) of receipt by the recipient of such notice:
To Microsoft: One Microsoft Way
Redmond, Washington 98052-6399
Attn: Robert A. Eshelman
Telephone No.: 206-882-8080
Facsimile No.: 206-869-1327
With a copy to: Preston Gates & Ellis
5000 Columbia Center
701 Fifth Avenue
Seattle, WA 98104-7078
Attention: Richard B. Dodd
Telephone No.: 206-623-7580
Facsimile No.: 206-623-7022
To CMG: CMG Information Services, Inc.
100 Brickstone Square
First Floor
Andover, MA 01810
Attention: David Wetherell
Telephone No.: 508-684-3600
Facsimile No.: 508-684-3658
With a copy to: Palmer & Dodge LLP
One Beacon Street
Boston, MA 02108
Attention: William Williams II
Telephone No.: 617-573-0100
Facsimile No.: 617-227-4420
Such addresses may be changed, from time to time, by means of a notice
given in the manner provided in this Section 8.3. Notice will not be effective
unless: (i) copies are provided as required above; or (ii) if the party sending
such notice receives reasonable proof of actual receipt of such notice.
31
<PAGE>
8.4. SEVERABILITY.
------------
If any provision of this Agreement is held to be unenforceable for any
reason, such provision and all other related provisions will be modified rather
than voided, if possible, in order to achieve the intent of the parties to this
Agreement to the extent possible. In any event, all other unrelated provisions
of this Agreement will be deemed valid and enforceable to the full extent.
8.5. SURVIVAL OF WARRANTIES.
----------------------
All representations and warranties contained in this Agreement, including
the exhibits and schedules delivered pursuant to this Agreement, will not
survive the Closing, provided, however, that the representations and warranties
in Section 2.1.6 and Section 2.1.11 will survive until twenty (20) calendar days
after CMG has filed with the SEC its Form 10K Annual Report for the year ended
July 31, 1997.
8.6. ASSIGNMENT.
----------
No party to this Agreement may assign, by operation of law or otherwise,
all or any portion of its rights, obligations, or liabilities under this
Agreement without the prior written consent of the other party to this
Agreement, which consent may be withheld in the absolute discretion of the party
asked to grant such consent. Any attempted assignment in violation of this
Section 8.6 will be voidable and will entitle the other party to this Agreement
to terminate this Agreement at its option.
8.7. COUNTERPARTS.
------------
This Agreement may be executed in any number of counterparts and by
facsimile signatures, each of which will be deemed to be an original and all of
which together will be deemed to be one and the same instrument, it being
understood that all parties need not sign the same counterpart. All such
counterparts together will constitute but one agreement.
8.8. AMENDMENT.
---------
This Agreement may not be amended except by an instrument in writing signed
on behalf of each of the parties hereto.
8.9. EXTENSION, WAIVER.
-----------------
At any time prior to the Closing, any party hereto may, to the extent
legally allowed, (i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto, and (iii) waive compliance
with any of the agreements, covenants or conditions for the benefit of such
party contained herein. Any agreement on the part of a party hereto to any such
extension or waiver will be valid only if set forth in an instrument in writing
signed on behalf of such party.
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<PAGE>
8.10. INTERPRETATION.
--------------
When a reference is made in this Agreement to Sections, Exhibits, or
Schedules, such reference will be to a Section, Exhibit, or Schedule to this
Agreement unless otherwise indicated. The words "include," "includes," and
"including" when used therein will be deemed in each case to be
followed by the words "without limitation." The table of contents, index
of defined terms, and headings contained in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation of
this Agreement.
8.11. ARBITRATION.
-----------
The parties will endeavor to resolve all disputes by agreement and to that
end will each provide the other with sufficient descriptions and information
regarding its position to permit informed assessments and decisions. Any
disagreement, claim, demand, controversy, or dispute which arises after the
Closing (collectively "DISPUTE") in any way relating to this Agreement and the
performance or alleged breach by the parties, whether involving questions of law
or fact or both and regardless of the nature thereof or the remedy therefor,
which is not settled by agreement of the parties will be resolved pursuant to
the arbitration provisions in this Section. Any dispute between CMG and
Microsoft arising out of this Agreement, or any of the other agreements, to be
executed as a condition of the Closing, will be settled by final and binding
arbitration by three arbitrators, one selected by CMG, a second selected by
Microsoft, and a third arbitrator selected by the two other arbitrators. The
arbitration will take place in Seattle, Washington. The arbitration shall be
conducted in accordance with the rules and procedures established by the
American Arbitration Association. If any action or proceeding shall be commenced
to enforce this Agreement or any right arising in connection with this
Agreement, the prevailing party in such action or proceeding will be entitled to
recover from the other party, the reasonable attorneys' and arbitration fees,
costs and expenses incurred by such prevailing party in connection with such
action or proceeding, or negotiation. In addition, the prevailing party will be
entitled in such action or proceeding to recover from the other party reasonable
interest on any amounts awarded by the arbitral tribunal from the first day any
such amounts become payable to the prevailing party under this Agreement.
8.12. CONFIDENTIALITY.
---------------
CMG and Microsoft agree to keep confidential and not to disclose any of the
terms and conditions of this Agreement, except to the extent such terms and
conditions otherwise become public through no fault of CMG or Microsoft, as
applicable, and to advise and require adherence by all of each of its officers,
directors, stockholders, employees, counsel, agents and representatives of this
obligation.
8.13. ATTORNEYS' FEES.
---------------
If any action at law or in equity is necessary to enforce or interpret the
terms of this Agreement, the prevailing party will be entitled to recover its
reasonable attorneys' fees, experts'
33
<PAGE>
fees and costs, including those for pretrial, trial, on appeal, in arbitration
and in bankruptcy and all other costs and necessary disbursements associated
with any such actions, in addition to any other relief to which such party may
be entitled.
8.14. THIRD PARTIES.
-------------
Nothing in this Agreement, express or implied, is intended to confer upon
any person, other than the parties hereto and their successors and assigns, any
rights or remedies under or by reason of this Agreement.
8.15. FURTHER ASSURANCES.
------------------
From and after the date of this Agreement, upon the request of Microsoft or
CMG, CMG and Microsoft will execute and deliver such instruments, documents or
other writings as may be reasonably necessary or desirable to confirm and carry
out and to effectuate fully the intent and purposes of this Agreement.
[Remainder of Page Intentionally Omitted]
34
<PAGE>
SIGNATURE PAGE - CMG STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CMG INFORMATION SERVICES, INC.
By /s/ David S. Wetherell
-------------------------------------
Its President and C.E.O.
-------------------------------------
MICROSOFT CORPORATION
By /s/ Gregory B. Maffei
-------------------------------------
Its Vice President, Corporate
Development and Treasurer
-------------------------------------
35