-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CBBd25BWRON7tJ7UBXysO9WGVEnKDPlvQOPgDVhaxRzfPABgsn659MxhHPJVYfDz gvw0Ly1ns6t7G/OCSX8EHg== 0000950117-02-001664.txt : 20020722 0000950117-02-001664.hdr.sgml : 20020722 20020722170227 ACCESSION NUMBER: 0000950117-02-001664 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020722 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MAXWORLDWIDE INC CENTRAL INDEX KEY: 0001176983 STANDARD INDUSTRIAL CLASSIFICATION: BLANK CHECKS [6770] IRS NUMBER: 460487484 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-78384 FILM NUMBER: 02707956 MAIL ADDRESS: STREET 1: 4499 GLANCOE AVE CITY: MARINA DEL REY STATE: CA ZIP: 90292 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DOUBLECLICK INC CENTRAL INDEX KEY: 0001049480 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING [7310] IRS NUMBER: 133870996 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 450 W 33RD ST STREET 2: 16TH FL CITY: NEW YORK STATE: NY ZIP: 10001 BUSINESS PHONE: 2126830001 MAIL ADDRESS: STREET 1: 450 W 33RD ST STREET 2: 16TH FL CITY: NEW YORK STATE: NY ZIP: 10001 SC 13D 1 a33026.txt DOUBLECLICK, INC. UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 MaxWorldwide, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.001 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 539441105 - -------------------------------------------------------------------------------- (CUSIP Number) Elizabeth Wang Scott Kaufman DoubleClick Inc. Brobeck, Phleger & Harrison LLP 450 West 33rd Street 1633 Broadway, 47th Floor New York, NY 10001 New York, NY 10019 (212) 683-0001 (212) 581-1600 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 10, 2002 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of 'SS''SS'240.13d-1(e), 240.13d-1(f) or 249.13d-1(g), check the following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See 'SS'240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Page 2 of 8 CUSIP NO. 539441105 13D - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) DoubleClick Inc. 13-3870996 - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC Use only - -------------------------------------------------------------------------------- 4. Source of funds (See Instructions) 00 - -------------------------------------------------------------------------------- 5. Check if disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization Delaware - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power 0 Shares ---------------------------------------------------------------- Beneficially 8. Shared Voting Power 4,800,000 Owned by Each ---------------------------------------------------------------- Reporting 9. Sole Dispositive Power 4,800,000 Person With ---------------------------------------------------------------- 10. Shared Dispositive Power 0 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,800,000 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X] (See Instructions) - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 19.2% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) CO Page 3 of 8 Item 1. Security and Issuer. This statement on Schedule 13D (this "Statement") relates to the common stock, par value $0.001 per share (the "Issuer Common Stock"), of MaxWorldwide, Inc., a Delaware corporation (the "Issuer"). The principal executive offices of the Issuer are located at 4499 Glencoe Avenue, Marina Del Rey, California 90292. Item 2. Identity and Background. (a) The name of the person filing this statement is DoubleClick Inc., a Delaware corporation ("DoubleClick"). (b) The address of the principal office and principal business of DoubleClick is 450 West 33rd Street, 16th Floor, New York, New York 10001. (c) DoubleClick is a leading provider of tools for advertisers, direct marketers and web publishers to plan, execute and analyze their marketing programs. DoubleClick's online advertising, email marketing and database marketing solutions help clients yield the highest return on their marketing dollar. In addition, DoubleClick's marketing and analytic tools help clients measure performance within and across channels. Set forth in Schedule A is the name and present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted, of each of DoubleClick's directors and executive officers, as of the date hereof. (d) During the past five years, neither DoubleClick nor, to DoubleClick's knowledge, any person named in Schedule A to this Statement, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the past five years, neither DoubleClick nor, to DoubleClick's knowledge, any person named in Schedule A to this Statement, was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activity subject to, Federal or State securities laws or finding any violation with respect to such laws. (f) Each of the individuals named on Schedule A is a U.S. citizen. Item 3. Source and Amount of Funds or Other Consideration. Pursuant to an Agreement and Plan of Merger, dated as of June 29, 2002 (the "Merger Agreement"), by and among the Issuer, DoubleClick, L90, a Delaware corporation ("L90"), DoubleClick Media, Inc., a Delaware corporation wholly owned by DoubleClick ("DoubleClick Media"), Picasso Media Acquisition, Inc., a Delaware corporation, and Lion Merger Sub, Inc., a Delaware corporation, DoubleClick Media and L90, through the transactions provided for in the Merger Agreement, each became a wholly-owned subsidiary of the Issuer. DoubleClick effected the disposition of Page 4 of 8 its North American media business through this transaction. In exchange for contributing the capital stock of DoubleClick Media to the Issuer through the merger of DoubleClick Media with a wholly owned subsidiary of the Issuer, DoubleClick received 4.8 million shares of Issuer Common Stock and $5 million in cash. The cash may be subject to a post-closing adjustment. DoubleClick also has a right to receive an additional $6 million in cash in the future, contingent upon certain performance conditions being met by the Issuer. In connection with the merger, Mr. Kevin O'Connor, DoubleClick's Chairman will join the Board of Directors of the Issuer and members of DoubleClick Media's management team joined the Issuer's executive team. The foregoing summary of the Merger Agreement is qualified in its entirety by reference to the copy of the Merger Agreement included as Exhibit 1 to this Statement, which is incorporated herein in its entirety by reference. Item 4. Purpose of Transaction. (a) - (j) As described in Item 3 above, DoubleClick acquired its shares of Issuer Common Stock in connection with the disposition of its North American media business pursuant to the Merger Agreement. In connection with the merger, Mr. Kevin O'Connor, DoubleClick's Chairman will join the Board of Directors of the Issuer and senior members of DoubleClick Media's management team joined the Issuer's executive team. DoubleClick entered into a Stockholders Agreement, dated July 10, 2002 (the "Stockholders Agreement"), by and between William Apfelbaum and DoubleClick. Pursuant to this Stockholders Agreement, DoubleClick and William Apfelbaum have agreed to vote all of the Issuer stock held by them as of the date of the Stockholders Agreement or acquired by them in the future in favor of the slate of directors proposed by the Issuer at any annual or special meeting. This slate will consist of not more than nine designees and will include one designee of DoubleClick. This Stockholders Agreement will terminate if DoubleClick owns less than 5% of the total voting stock of the Issuer. The foregoing summary of the Stockholders Agreement is qualified in its entirety by reference to the copy of the Stockholders Agreement included as Exhibit 2 to this Statement, which is incorporated herein in its entirety by reference. As a result of the limited matters under the Stockholders Agreement, DoubleClick and William Apfelbaum may be deemed to be a "group" within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The filing of this Statement shall not be construed as an admission that DoubleClick is, for purposes of 13(d) or 13(g) of the Exchange Act, the beneficial owner of the securities covered by this Statement other than the securities stated herein to be beneficially owned by DoubleClick. DoubleClick expressly disclaims beneficial ownership of any shares of Issuer Common Stock beneficially owned by William Apfelbaum. Depending on prevailing market, economic and other conditions, DoubleClick may from time to time acquire additional shares of the Issuer or engage in discussions with the Issuer concerning further acquisitions of shares of the Issuer or further investments by it in the Issuer. DoubleClick intends to review its investment in the Issuer on an ongoing basis and, depending upon the price and availability of shares of Common Stock, subsequent developments affecting the Issuer, the Issuer's business and prospects, other investment and business opportunities available to DoubleClick, general stock market and economic conditions, tax considerations and other factors considered relevant, may decide at any time to increase or decrease the size of its investment in the Issuer. Except as otherwise disclosed in this Statement, neither DoubleClick, nor to the knowledge of DoubleClick, any person named in Schedule A, has any plans or proposals which relate to or would result in: (a) The acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) A sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) Any change in the present Board of Directors or management of the Issuer, including any plans or proposals to change the number or term of Directors or to fill any existing vacancies on the Board of Directors; (e) Any material change in the present capitalization or dividend policy of the Issuer; (f) Any other material change in the Issuer's business or corporate structure; (g) Changes in the Issuer's charter, bylaws or instruments corresponding thereto or any actions which may impede the acquisition or control of the Issuer by any person; Page 5 of 8 (h) Causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) A class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (j) Any action similar to any of those enumerated above. Item 5. Interest in Securities of the Issuer. (a) - (b) DoubleClick is the beneficial owner of 4.8 million shares of the Issuer Common Stock. This represents 19.2% of the issued and outstanding shares of the Issuer Common Stock. DoubleClick has shared power to vote or to direct the vote on the limited matters provided for in the Stockholders Agreement, but otherwise DoubleClick has sole power to vote or direct the vote and sole power to dispose or direct the disposition of its shares of Issuer Common Stock. Based on information contained in the L90 Form 10-K for the year ended December 31, 2001, William Apfelbaum was the beneficial owner of 2,379,681 shares of L90 common stock as of May 9, 2002. Shares of L90 common stock converted into Issuer Common Stock pursuant to the Merger Agreement on a one for one basis. As a result of the limited matters under the Stockholders Agreement, DoubleClick and William Apfelbaum may be deemed to be a "group" within the meaning of Section 13(d) of the Securities Exchange Act. The filing of this Statement shall not be construed as an admission that DoubleClick is, for purposes of 13(d) or 13(g) of the Exchange Act, the beneficial owner of the securities covered by this Statement other than the securities stated herein to be beneficially owned by DoubleClick. DoubleClick expressly disclaims beneficial ownership of any shares of Issuer Common Stock beneficially owned by William Apfelbaum. To the knowledge of DoubleClick, none of the persons named in Schedule A beneficially owns any shares of Issuer Common Stock. (c) Except for the acquisition by DoubleClick of the shares of Issuer Common Stock pursuant to the Merger Agreement, neither DoubleClick nor, to the knowledge of DoubleClick, any person named in Schedule A, has effected any transaction in the Issuer Common Stock during the past 60 days. (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. DoubleClick entered into a Registration Rights Agreement, dated as of July 10, 2002 (the "Registration Rights Agreement"), by and between the Issuer and DoubleClick granting certain registration rights under the Securities Act of 1933, as amended, with respect to the shares of Issuer Common Stock issued to DoubleClick pursuant to the Merger Agreement, including demand and piggyback registration rights. Except in certain circumstances, these registration rights are exercisable on or after May 20, 2003. The foregoing summary of the Registration Rights Agreement is qualified in its entirety by reference to the copy of the Registration Rights Agreement included as Exhibit 3 to this Statement, which is incorporated herein in its entirety by reference. Other than the Merger Agreement, Stockholders Agreement and Registration Rights Agreement, to the knowledge of DoubleClick, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the person named in Item 2 and between such persons and any person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangement, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. Item 7. Materials to be Filed as Exhibits. The following documents are filed as exhibits: 1. Agreement and Plan of Merger, dated as of June 29, 2002, by and among MaxWorldwide, Inc., L90, Inc., DoubleClick Inc., DoubleClick Media Inc., Picasso Media Acquisition Inc. and Lion Merger Sub, Inc. (Incorporated by reference to Exhibit 99.2 to DoubleClick's Current Report on Form 8-K, filed on July 11, 2002.) 2. Stockholders Agreement, dated as of July 10, 2002, by and between DoubleClick Inc. and William Apfelbaum. 3. Registration Rights Agreement, dated as of July 10, 2002, by and between MaxWorldwide, Inc. and DoubleClick Inc. Page 6 of 8 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that that information set forth in this statement is true, complete and correct. Date: July 22, 2002 DOUBLECLICK INC. /s/ Bruce Dalziel -------------------------------------- Bruce Dalziel Chief Financial Officer Page 7 of 8 Schedule A
- ------------------------------------------------------------------------------------------------------------------ Name Present Principal Occupation Including Address of Employer Name of Employer (if other than DoubleClick Inc.) - ------------------------------------------------------------------------------------------------------------------ Inside Directors and Executive Officers of DoubleClick Inc. - ------------------------------------------------------------------------------------------------------------------ Kevin J. O'Connor Chairman of the Board of Directors 450 West 33rd Street, 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ Kevin P. Ryan Chief Executive Officer and Director 450 West 33rd Street, 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ Dwight A. Merriman Chief Technical Officer and Director 450 West 33rd Street, 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ Bruce Dalziel Chief Financial Officer 450 West 33rd Street, 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ Thomas Boyle Corporate Controller 450 West 33rd Street, 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ David Rosenblatt President 450 West 33rd Street, 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ Brian Rainey Senior Vice-President & General 450 West 33rd Street, Manager-Abacus 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ Christopher Saridakis Senior Vice-President of Global Sales 450 West 33rd Street, and Client Services 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ Courtland Cunningham Senior Vice-President-TechSolutions 450 West 33rd Street, 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ Mok Choe Chief Information Officer 450 West 33rd Street, 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ Jeffrey Silverman Senior Vice-President 450 West 33rd Street, 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ Jonathan Shapiro Chief Strategy Officer 450 West 33rd Street, 16th Floor New York, New York 10001 - ------------------------------------------------------------------------------------------------------------------ Outside Directors - ------------------------------------------------------------------------------------------------------------------ David N. Strohm General Partner of several venture 2929 Campus Drive capital funds affiliated San Mateo, California 94403 - ------------------------------------------------------------------------------------------------------------------
Page 8 of 8 - ------------------------------------------------------------------------------------------------------------------ with Greylock Management Corporation - ------------------------------------------------------------------------------------------------------------------ Mark E. Nunnelly Managing Director of Bain Capital, Inc. 111 Huntington Avenue a venture capital group Boston, Massachusetts 02199 - ------------------------------------------------------------------------------------------------------------------ W. Grant Gregory Chairman of Gregory & Hoenemeyer, Inc., 666 Steamboat Road a merchant banking firm Greenwich, Connecticut 06830 - ------------------------------------------------------------------------------------------------------------------ Donald Peppers Partner of Peppers and Rogers Group, a Merritt on the River management consulting firm 20 Glover Avenue Norwalk, Connecticut 06850 - ------------------------------------------------------------------------------------------------------------------ Thomas S. Murphy Retired Chairman and Chief Executive 77 West 66th Street Officer, Capital Cities ABC, Inc. New York, New York 10023 - ------------------------------------------------------------------------------------------------------------------
STATEMENT OF DIFFERENCES ------------------------ The section symbol shall be expressed as..................................'SS' EX-99 3 ex99-2.txt EXHIBIT 2 EXHIBIT 2 MAXWORLDWIDE, INC. STOCKHOLDERS AGREEMENT STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of July 10, 2002, by and among the stockholders of MaxWorldwide, Inc., a Delaware corporation (the "Company"), identified on the signature pages hereto (collectively, the "Stockholders"). WHEREAS, as part of the transactions contemplated by the Agreement and Plan of Merger, dated as of June 29, 2002 (the "Merger Agreement"), by and among the Company, DoubleClick Inc., a Delaware corporation ("DoubleClick"), and certain other parties, the Company is issuing to DoubleClick the Securities (as such term is defined in the Merger Agreement); WHEREAS, the Stockholders desire to enter into this Agreement for the purpose of governing certain aspects of the Stockholders' relationships with each other; and WHEREAS, it is in the best interests of the Stockholders that such aspects of their relationships be so governed. NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein and intending to be legally bound the parties hereto hereby agree as follows: Section 1. Definitions. As used in this Agreement, the following terms shall have the meanings ascribed to them below: (a) "Affiliate" of any Person means any other Person which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") as used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. (b) "Common Stock" means the common stock, par value $0.001 per share, of the Company. (c) "DoubleClick Designee" has the meaning set forth in Section 2. (d) "own," "hold" or "held" (and words of similar import), with respect to any shares of Voting Stock, means either held of record or beneficially owned within the meaning of Rule 13d-3 under the Exchange Act of 1934, as amended. (e) "Person" means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, incorporated organization, association, corporation, institution, public benefit corporation, government (whether federal, state, county, city, municipal or otherwise, including, without limitation, any instrumentality, division, agency, body or department thereof) or other entity. (f) "Stockholder" means each Stockholder and, as the context requires, their respective transferees to the extent that they are required to be bound by the terms and provisions hereof and/or to the extent that they have succeeded to the transferor's rights hereunder pursuant to the terms and provisions hereof. (g) "Voting Stock" shall mean shares of Common Stock and any other class of securities of the Company having the power to elect directors to the Company's Board of Directors and any other general voting power (and shall include any shares of Voting Stock issuable upon exercise, exchange or conversion of securities exercisable or exchangeable for or convertible into shares of Voting Stock). (h) "Voting Stock Equivalents" means any right, warrant, option or security of the Company which is exercisable or exchangeable for or convertible into, or represents the right to otherwise acquire, directly or indirectly, Voting Stock, whether at the time of issuance or upon the passage of time or the occurrence of some future event. Each Voting Stock Equivalent shall count as a number of shares of Voting Stock equal to the number of shares of Common Stock into which such Voting Stock Equivalent is then convertible, exchangeable or exercisable. Section 2. Election of Directors. During the term of this Agreement, the Stockholders hereby agree to vote all of the Voting Stock held by them as of the date hereof or acquired by them in the future in favor of the slate of directors proposed by the Company at any annual or special meeting of the stockholders of the Company (or in any action by written consent), which slate of directors shall (x) consist of not more than nine (9) designees and (y) include one designee of DoubleClick (the "DoubleClick Designee") (and, upon the resignation, removal or death of such designee, such other individual as is designated by DoubleClick as the director which DoubleClick is entitled to designate pursuant to the terms hereof). All of the persons so selected shall serve as members of the Board of Directors until the next election of the members of the Board of Directors. Section 3. Effectiveness of Agreement; Termination. Without affecting any other provision or parties to this Agreement, this Agreement shall terminate and the rights and obligations of the parties hereto shall have no force or effect upon such time as the Voting Stock held by DoubleClick represents less than 5% of the total Voting Stock. Section 4. Amendments. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given without the prior written consent of each of the parties hereto. This Agreement cannot be changed, modified, discharged or terminated by oral agreement. Section 5. No Inconsistent Agreement. No Stockholder shall enter into any agreement with respect to the Voting Stock or Voting Stock Equivalents beneficially owned or held of record by it which is inconsistent with this Agreement or otherwise conflicts with the provisions hereof. Section 6. Notices. All notices, requests, consents and other communications required or permitted hereunder shall be in writing and shall be hand delivered, sent by nationally-recognized overnight courier, mailed postage prepaid by registered or certified mail or transmitted by facsimile transmission (with immediate telephonic confirmation thereafter), (a) If to DoubleClick: DoubleClick Inc. 450 West 33rd Street New York, NY 10001 Attention: Elizabeth Wang Facsimile No.: (212) 287-7765 with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036-6522 Attention: Thomas H. Kennedy, Esq. Facsimile No.: (212) 735-2000 or (b) if to any other Stockholder, to the address(es) set forth on the counterpart signature pages of this Agreement signed by such Stockholders; or at such other address as a Stockholder each may specify by written notice to the others, and each such notice, request, consent and other communication shall for all purposes of the Agreement be treated as being effective or having been given when delivered if delivered personally, on the next Business Day (as defined in the Merger Agreement) if dispatched by overnight courier, upon receipt of facsimile confirmation if transmitted by facsimile, or, if sent by mail, at the earlier of its receipt or seventy-two (72) hours after the same has been deposited in a regularly maintained receptacle for the deposit of United States mail, addressed and postage prepaid as aforesaid. Section 7. Successors and Assigns. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective parties hereto, the successors and permitted assigns of each party hereto, whether so expressed or not; provided, however that this Agreement shall not be binding upon non-Affiliate transferees of Voting Stock in bona-fide sale transactions. Section 8. Counterparts. This Agreement may be executed in any number of counterparts (including by facsimile) and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. This Agreement shall become effective when each party hereto shall have received counterparts signed by all of the other parties hereto. Section 9. Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. Section 10. Governing Law. The internal laws, and not the laws of conflicts, of New York shall govern the enforceability and validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties. Section 11. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible. Section 12. Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. Section 13. Specific Performance. Each party hereto, in addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, will be entitled to seek specific performance of its rights under this Agreement. Each party hereto hereby agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. Section 14. Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby may be brought in any federal or state court located in the County and State of New York, and each of the parties hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 6 shall be deemed effective service of process on such party. Section 15. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Section 16. Aggregation of Stock. All Voting Stock or Voting Stock Equivalents held by or acquired by any Affiliates will be aggregated together for the purpose of determining the availability of any rights under this Agreement. [Execution Page Follows] IN WITNESS WHEREOF, this Agreement has been duly executed by each of the parties hereto as of the date first written above. DOUBLECLICK INC. By: /s/ William Apfelbaum By: /s/ William Mills ------------------------- ------------------------ Name: William Apfelbaum Name: William Mills c/o L90, Inc. Title: Vice-President 4499 Glencoe Way Corporate Development Marina Del Rey, California 90262 EX-99 4 ex99-3.txt EXHIBIT 3 EXHIBIT 3 ================================================================================ REGISTRATION RIGHTS AGREEMENT by and between MAXWORLDWIDE, INC. and DOUBLECLICK INC. ------------------- Dated as of July 10, 2002 ================================================================================ TABLE OF CONTENTS 1. Certain Definitions...............................................................................1 2. Demand Registrations..............................................................................2 (a) Right to Request Registration..............................................................2 (b) Number of Demand Registrations.............................................................3 (c) Priority on Demand Registrations...........................................................3 (d) Restrictions on Demand Registrations.......................................................3 (e) Selection of Underwriters..................................................................4 (f) Other Registration Rights..................................................................4 (g) Effective Period of Demand Registrations...................................................4 3. Piggyback Registrations...........................................................................5 (a) Right to Piggyback.........................................................................5 (b) Priority on Primary Registrations..........................................................5 (c) Priority on Secondary Registrations........................................................5 (d) Selection of Underwriters..................................................................6 (e) Other Registrations........................................................................6 4. S-3 Registrations.................................................................................6 5. Holdback Agreement................................................................................7 6. Registration Procedures...........................................................................7 7. Registration Expenses............................................................................10 8. Indemnification..................................................................................11 9. Participation in Underwritten Registrations......................................................13 10. Rule 144.........................................................................................13 11. Miscellaneous....................................................................................14 (a) Notices...................................................................................14 (b) No Waivers................................................................................15 (c) Successors and Assigns....................................................................15 (d) Governing Law.............................................................................15 (e) Jurisdiction..............................................................................15 (f) Waiver of Jury Trial......................................................................16
i (g) Counterparts; Effectiveness...............................................................16 (h) Entire Agreement..........................................................................16 (i) Captions..................................................................................16 (j) Severability..............................................................................16 (k) Amendments................................................................................16 (l) Aggregation of Stock......................................................................16 (m) Equitable Relief..........................................................................17
ii REGISTRATION RIGHTS AGREEMENT dated as of July 10, 2002, by and between MaxWorldwide, Inc., a Delaware corporation (the "Company"), and DoubleClick Inc., a Delaware corporation (the "Stockholder"). In consideration of the mutual covenants and agreements herein contained and other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows: 1. Certain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings: "Affiliate" of any Person means any other Person which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") as used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. "Agreement" means this Registration Rights Agreement, including all amendments, modifications and supplements and any exhibits or schedules to any of the foregoing, and shall refer to this Registration Rights Agreement as the same may be in effect at the time such reference becomes operative. "Business Day" means any day on which commercial banks are open for business in New York, New York. "Common Stock" means common stock, par value $0.001 per share, of the Company. "Demand Registration" has the meaning set forth in Section 2(a) hereof. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Holder" means any holder of record of Registrable Common Stock (as defined below) and any transferees of such Registrable Common Stock from such Holders. For purposes of this Agreement, the Company may deem and treat the registered holder of Registrable Common Stock as the Holder and absolute owner thereof, and the Company shall not be affected by any notice to the contrary. "Initiating Holder" has the meaning set forth in Section 2(a) hereof. "Nasdaq" means the Nasdaq quotation system, or any successor reporting system. "Person" means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, incorporated organization, association, corporation, institution, public benefit corporation, government (whether federal, state, county, city, municipal or otherwise, including, without limitation, any instrumentality, division, agency, body or department thereof) or any other entity. "Piggyback Registration" has the meaning set forth in Section 3(a) hereof. "Prospectus" means the prospectus or prospectuses included in any Registration Statement, as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Common Stock covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments and all material incorporated by reference in such prospectus or prospectuses. "Registrable Common Stock" means any of (x) the Securities (as defined therein) issued to the Stockholder pursuant to that certain Agreement and Plan of Merger by and among the Company, L90, Inc., a Delaware corporation, the Stockholder and certain other parties, dated as of June 29, 2002, or (y) any securities issued or issuable with respect to the Securities described in (x) by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise; provided, however, Registrable Common Stock shall not include (i) any securities sold by a Person to the public either pursuant to a Registration Statement or Rule 144, (ii) any securities which may be sold without restriction or limitation pursuant to Rule 144(k), or (iii) securities which, in the written opinion of counsel to the Company, reasonably acceptable to the Holder, may be sold during any single twelve-month period under Rule 144. "Registration Statement" means any registration statement of the Company which covers any of the Registrable Common Stock pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference in such Registration Statement. "SEC" means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933, as amended. "Suspension Notice" has the meaning set forth in Section 6(l) hereof. "underwritten registration or underwritten offering" means a registration in which securities of the Company are sold to underwriters for reoffering to the public. "Withdrawn Demand Registration" has the meaning set forth in Section 2(g) hereof. 2. Demand Registrations. (a) Right to Request Registration. Any time on or after May 20, 2003, any Holder or Holders who together hold a majority of the then outstanding Registrable 2 Common Stock ("Initiating Holders") may request registration under the Securities Act of all or part of the Registrable Common Stock ("Demand Registration"). Within ten (10) days after receipt of any such request for Demand Registration, the Company shall give written notice of such request to all other Holders of Registrable Common Stock and shall, subject to the provisions of Section 2(d) hereof, include in such registration all such Registrable Common Stock with respect to which the Company has received written requests for inclusion therein within fifteen (15) days after the receipt of the Company's notice. (b) Number of Demand Registrations. Subject to the provisions of Section 2(a), the Initiating Holders of Registrable Common Stock shall be entitled to request an aggregate of two (2) Demand Registrations. A registration shall not count as one of the permitted Demand Registrations (i) until it has become effective or (ii) if the Initiating Holders requesting such registration are not able to register and sell at least fifty percent (50%) of the Registrable Common Stock initially requested by such Initiating Holders to be included in such underwritten Demand Registration. (c) Priority on Demand Registrations. Except as provided in Section 2(g), the Company shall not include in any Demand Registration any securities which are not Registrable Common Stock without the written consent of the Holders of a majority of the shares of Registrable Common Stock to be included in such registration, or, if such Demand Registration is an underwritten offering, without the written consent of the managing underwriters. If the managing underwriters of the requested Demand Registration advise the Company in writing that in their opinion the number of shares of Registrable Common Stock proposed to be included in any such registration exceeds the number of securities which can be sold in such offering and/or that the number of shares of Registrable Common Stock proposed to be included in any such registration would adversely affect the price per share of the Company's equity securities to be sold in such offering, the Company shall include in such registration only the number of shares of Registrable Common Stock which in the opinion of such managing underwriters can be sold. If the number of shares which can be sold is less than the number of shares of Registrable Common Stock proposed to be registered, the amount of Registrable Common Stock to be so sold shall be allocated pro rata among the Holders of Registrable Common Stock desiring to participate in such registration on the basis of the amount of such Registrable Common Stock initially proposed to be registered by such other Holders. If the number of shares which can be sold exceeds the number of shares of Registrable Common Stock proposed to be sold, such excess shall be allocated pro rata among the holders of other securities requested to be registered (the "Existing Holders") pursuant to that certain Registration Agreement, dated as of July 24, 2000, among the Company and the Investors named therein and the other holders of securities, if any, desiring to participate in such registration based on the amount of such securities initially requested to be registered by such holders or as such holders may otherwise agree. (d) Restrictions on Demand Registrations. The Company shall not be obligated to effect any Demand Registration within ninety (90) days after the effective date of a previous Demand Registration, a previous S-3 Registration (as hereinafter 3 defined) or a previous registration under which the Initiating Holders had piggyback rights pursuant to Section 3 hereof wherein the Initiating Holders were permitted to register, and actually sold, at least fifty percent (50%) of the shares of Registrable Common Stock requested to be included therein. The Company may (i) postpone for up to one hundred twenty (120) days the filing or the effectiveness of a Registration Statement for a Demand Registration if, based on the good faith judgment of the Company's board of directors, such postponement or withdrawal is necessary in order to avoid premature disclosure of a matter the board has determined would not be in the best interest of the Company to be disclosed at such time or (ii) postpone the filing of a Demand Registration in the event the Company shall be required to prepare audited financial statements as of a date other than its fiscal year end (unless the stockholders requesting such registration agree to pay the expenses of such an audit); provided, however, that in no event shall the Company withdraw a Registration Statement under clause (i) after such Registration Statement has been declared effective; and provided, further, however, that in any of the events described in clause (i) or (ii) above, the Initiating Holders requesting such Demand Registration shall be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations. The Company shall provide written notice to the Initiating Holders requesting such Demand Registration of (x) any postponement or withdrawal of the filing or effectiveness of a Registration Statement pursuant to this Section 2(d), (y) the Company's decision to file or seek effectiveness of such Registration Statement following such withdrawal or postponement and (z) the effectiveness of such Registration Statement. The Company may defer the filing of a particular Registration Statement pursuant to this Section 2(d) only once during any twelve-month period. (e) Selection of Underwriters. If any of the Registrable Common Stock covered by a Demand Registration or an S-3 Registration pursuant to Section 4 hereof is to be sold in an underwritten offering, the Initiating Holders shall have the right to select the managing underwriter(s) to administer the offering subject to the approval of the Company, which will not be unreasonably withheld. (f) Other Registration Rights. The Company shall not grant to any Person the right, other than as set forth herein and except to employees of the Company with respect to registrations on Form S-8 (or any successor forms thereto), to request the Company to register any securities of the Company except such rights as are not more favorable than or inconsistent with the rights granted to the Holders herein. In the event the Company grants rights which are more favorable, the Company will make such provisions available to the Holders and will enter into any amendments necessary to confer such rights on the Holders. The foregoing prohibition shall not affect any existing registration rights granted by the Company to the Existing Holders as of the date hereof. (g) Effective Period of Demand Registrations. After any Demand Registration filed pursuant to this Agreement has become effective, the Company shall use its best efforts to keep such Demand Registration effective for a period equal to one hundred eighty (180) days from the date on which the SEC declares such Demand Registration effective (or if such Demand Registration is not effective during any period within such 180 days, such 180-day period shall be extended by the number of days during such 4 period when such Demand Registration is not effective), or such shorter period which shall terminate when all of the Registrable Common Stock covered by such Demand Registration has been sold pursuant to such Demand Registration. If the Company shall withdraw any Demand Registration pursuant to subsection (d) of this Section 2 (a "Withdrawn Demand Registration"), the Initiating Holders of the Registrable Common Stock remaining unsold and originally covered by such Withdrawn Demand Registration shall be entitled to a replacement Demand Registration which (subject to the provisions of this Section 2) the Company shall use its best efforts to keep effective for a period commencing on the effective date of such Demand Registration and ending on the earlier to occur of the date (i) which is 180 days from the effective date of such Demand Registration and (ii) on which all of the Registrable Common Stock covered by such Demand Registration has been sold. Such additional Demand Registration otherwise shall be subject to all of the provisions of this Agreement. 3. Piggyback Registrations. (a) Right to Piggyback. At any time on or after May 20, 2003, whenever the Company proposes to register any of its common equity securities under the Securities Act (other than a registration statement on Form S-8 or on Form S-4 or any similar successor forms thereto), whether for its own account or for the account of one or more stockholders of the Company, and the registration form to be used may be used for any registration of Registrable Common Stock (a "Piggyback Registration"), the Company shall give prompt written notice (in any event within ten (10) business days after its receipt of notice of any exercise of other demand registration rights) to all Holders of its intention to effect such a registration and, subject to Sections 3(b) and 3(c), shall include in such registration all Registrable Common Stock with respect to which the Company has received written requests for inclusion therein within fifteen (15) days after the receipt of the Company's notice. The Company may postpone or withdraw the filing or the effectiveness of a Piggyback Registration at any time in its sole discretion. (b) Priority on Primary Registrations. If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering and/or that the number of shares of Registrable Common Stock proposed to be included in any such registration would adversely affect the price per share of the Company's equity securities to be sold in such offering, the Company shall include in such registration (i) first, the securities the Company proposes to sell, (ii) second, other securities requested to be included in such registration pro rata among the holders of such securities, including, without limitation, Holders of Registrable Common Stock and the Existing Holders, on the basis of the number of shares requested to be registered by such holders or as such holders may otherwise agree. (c) Priority on Secondary Registrations. If a Piggyback Registration is an underwritten secondary registration on behalf of a holder of the Company's securities other than Registrable Common Stock, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be 5 included in such registration exceeds the number which can be sold in such offering and/or that the number of shares of Registrable Common Stock proposed to be included in any such registration would adversely affect the price per share of the Company's equity securities to be sold in such offering, the Company shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, other securities requested to be included in such registration pro rata among the holders of such securities, including, without limitation, Holders of Registrable Common Stock and the Existing Holders, on the basis of the number of shares requested to be registered by such holders or as such holders may otherwise agree. (d) Selection of Underwriters. If any Piggyback Registration is an underwritten primary offering, the Company shall have the right to select the managing underwriter or underwriters to administer any such offering. (e) Other Registrations. If the Company has previously filed a Registration Statement with respect to Registrable Common Stock pursuant to Sections 2 or 4 hereof or pursuant to this Section 3, and if such previous registration has not been withdrawn or abandoned, the Company shall not be obligated to cause to become effective any other registration of any of its securities under the Securities Act, whether on its own behalf or at the request of any holder or holders of such securities, until a period of at least three (3) months has elapsed from the effective date of such previous registration. 4. S-3 Registrations. If at any time that the Company is eligible to use Form S-3 or any successor thereto, any Holder or Holders requests that the Company file a Registration Statement on Form S-3 or any successor thereto for a public offering of all or any portion of the Registrable Common Stock held by such Holders, then the Company shall use its best efforts to register under the Securities Act on Form S-3 or any successor thereto (an "S-3 Registration"), for public sale in accordance with the method of disposition specified in such notice, the number of shares of Registrable Common Stock specified in such notice; provided, however, that the Company shall have no obligation to register such shares of Registrable Common Stock pursuant to this Section if (based on the current market prices) the number of shares of Registrable Common Stock specified in such notice would not yield gross proceeds to the selling stockholders of at least $1,500,000. Whenever the Company is required by this Section 4 to use its best efforts to effect the registration of Registrable Common Stock, each of the procedures and requirements of Section 2 (including but not limited to the requirement that the Company notify all Holders from whom notice has not been received and provide them with the opportunity to participate in the offering) shall apply to such registration. There is no limitation on the number of registrations pursuant to this Section 4 that the Company is obligated to effect. 6 5. Holdback Agreement. (a) The Company agrees not to effect any sale or distribution of any of its equity securities during the ten (10) days prior to and during the one hundred eighty (180) days beginning on the effective date of any underwritten Demand Registration or any underwritten Piggyback Registration or any underwritten S-3 Registration (except as part of such underwritten registration or pursuant to registrations on Form S-8 or S-4 or any successor forms thereto) unless the underwriters managing the offering otherwise agree to a shorter period. (b) In connection with any Demand Registration or Piggyback Registration which includes shares of Registrable Common Stock for the account of a Holder, each Holder agrees not to sell or otherwise transfer or dispose of any shares of Registrable Common Stock of the Company held by it for a period equal to the lesser of one hundred eighty (180) days following the effective date of a registration statement of the Company filed under the Securities Act or such shorter period as the managing underwriter shall agree to, provided that all other stockholders who own more than five percent (5%) of the outstanding Common Stock of the Company and all officers and directors of the Company enter into similar agreements. The foregoing shall not apply to (i) transactions relating to shares of Common Stock acquired in open market transactions, or (ii) transfers to Affiliates where the transferee agrees to be bound by the terms hereof. 6. Registration Procedures. Whenever the Holders request that any Registrable Common Stock be registered pursuant to this Agreement, the Company shall use its best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with the intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible: (c) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto, furnish to the Holders of Registrable Common Stock covered by such Registration Statement and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by such Holders, the exhibits incorporated by reference, and such Holders shall have the opportunity to object to any information pertaining to such Holders that is contained therein and the Company will make the corrections reasonably requested by such Holders with respect to such information prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto; (d) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 180 days, in the case of a Demand Registration or an S-3 Registration, or such shorter period 7 as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement; (e) furnish to each seller of Registrable Common Stock such number of copies of such Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Common Stock owned by such seller; (f) use its best efforts to register or qualify such Registrable Common Stock under such other securities, blue sky or any similar applicable foreign, state or local laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock owned by such seller (provided, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction); (g) notify each seller of such Registrable Common Stock, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Common Stock, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading; (h) in the case of an underwritten offering, enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Holders of a majority of number of shares of the Registrable Common Stock being sold or the underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock and cause to be delivered to the underwriters and the sellers, if any, opinions of counsel to the Company in customary form, covering such matters as are customarily covered by opinions for an underwritten public offering as the underwriters may request and addressed to the underwriters and the sellers; (i) make available, for inspection by any seller of Registrable Common Stock, any underwriter participating in any disposition pursuant to such Registration Statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company as reasonably requested by any of such attorneys, accountants or agents, 8 and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement; (j) use its best efforts to cause all such Registrable Common Stock to be listed on each securities exchange or on Nasdaq to the extent that securities of the same class issued by the Company are then listed; (k) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement; (l) if requested (in the case of an underwritten offering, at the time of delivery of any Registrable Common Stock sold pursuant thereto), cause to be delivered, immediately prior to the effectiveness of the Registration Statement, letters from the Company's independent certified public accountants addressed to each selling Holder (unless such selling Holder does not provide to such accountants the appropriate representation letter required by rules governing the accounting profession) and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with primary or secondary underwritten public offerings, as the case may be; (m) make generally available to its stockholders a consolidated earnings statement (which need not be audited) for the twelve (12) months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; (n) promptly notify each seller of Registrable Common Stock and the underwriter or underwriters, if any: (i) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any written request by the SEC for amendments or supplements to the Registration Statement or Prospectus; (iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common 9 Stock for sale under the applicable securities, "blue sky" or any similar foreign, state or local laws of any jurisdiction. At all times after the Company has filed a registration statement with the SEC pursuant to the requirements of either the Securities Act or the Exchange Act, the Company shall file all reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, and take such further action as any Holders may reasonably request, all to the extent required to enable such Holders to be eligible to sell Registrable Common Stock pursuant to Rule 144 (or any similar rule then in effect). The Company may require each seller of Registrable Common Stock as to which any registration is being effected to furnish to the Company any other information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing. Each seller of Registrable Common Stock agrees by having its stock treated as Registrable Common Stock hereunder that, upon notice of the happening of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a "Suspension Notice"), such seller will forthwith discontinue disposition of Registrable Common Stock until such seller is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 6(e) hereof, and, if so directed by the Company, such seller will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such seller's possession, of the Prospectus covering such Registrable Common Stock current at the time of receipt of such notice; provided, however, that such postponement of sales of Registrable Common Stock by the Holders shall not exceed ninety (90) days in the aggregate in any one (1) year. If the Company shall give any notice to suspend the disposition of Registrable Common Stock pursuant to a Prospectus, the Company shall extend the period of time during which the Company is required to maintain the Registration Statement effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date such seller either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 6(e). In any event, the Company shall not be entitled to deliver more than two (2) Suspension Notices in any one (1) year. 7. Registration Expenses. (o) All expenses incident to the Company's performance of or compliance with this Agreement, including, without limitation, all registration and filing fees, fees and expenses of compliance with securities, "blue sky" or any similar foreign, state or local laws, listing application fees, printing expenses, transfer agent's and registrar's fees, cost of distributing Prospectuses in preliminary and final form as well as any supplements thereto, and fees and disbursements of counsel for the Company and all independent 10 certified public accountants and other Persons retained by the Company (all such expenses being herein called "Registration Expenses") (but not including any underwriting discounts or commissions attributable to the sale of Registrable Common Stock or fees and expenses of more than one (1) counsel representing the Holders of Registrable Common Stock), shall be borne by the Company. In addition, the Company shall pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which they are to be listed. (p) In connection with each registration initiated hereunder (whether a Demand Registration, S-3 Registration or a Piggyback Registration), the Company shall reimburse the Holders covered by such registration or sale for the reasonable fees and disbursements of one (1) law firm chosen by the Holders of a majority of the number of shares of Registrable Common Stock included in such registration or sale. (q) The obligation of the Company to bear the expenses described in Section 7(a) and to reimburse the Holders for the expenses described in Section 7(b) shall apply irrespective of whether a registration, once properly demanded, if applicable, becomes effective, is withdrawn or suspended, or is converted to another form of registration and irrespective of when any of the foregoing shall occur; provided, however, that Registration Expenses for any Registration Statement withdrawn solely at the request of a Holder of Registrable Common Stock (unless withdrawn following postponement of filing by the Company in accordance with Section 2(d)(i) or (ii)) or any supplements or amendments to a Registration Statement or Prospectus resulting from a misstatement furnished to the Company by a Holder shall be borne by such Holder. 8. Indemnification. (r) The Company shall indemnify, to the fullest extent permitted by law, each Holder, its officers, directors and Affiliates and each Person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or any violation or alleged violation by the Company of the Securities Act, the Exchange Act or other applicable securities, "blue sky" or similar foreign, state or local laws, except insofar as the same are made in reliance and in conformity with information relating to such Holder furnished in writing to the Company by such Holder expressly for use therein or caused by such Holder's failure to deliver to such Holder's immediate purchaser a copy of the Registration Statement or Prospectus or any amendments or supplements thereto (if the same was required by applicable law to be so delivered) after the Company has furnished such Holder with a sufficient number of copies of the same. In connection with an underwritten offering, the Company shall indemnify such underwriters, their officers and directors and each Person who controls 11 such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the Holders. (s) In connection with any Registration Statement in which a Holder of Registrable Common Stock is participating, each such Holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and, shall indemnify, to the fullest extent permitted by law, the Company, its officers, directors Affiliates, and each Person who controls the Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or alleged untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that the same are made in reliance and in conformity with information relating to such Holder furnished in writing to the Company by such Holder expressly for use therein or caused by such Holder's failure to deliver to such Holder's immediate purchaser a copy of the Registration Statement or Prospectus or any amendments or supplements thereto (if the same was required by applicable law to be so delivered) after the Company has furnished such Holder with a sufficient number of copies of the same; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders (together with their respective Affiliates) and the liability of each such Holder (together with its Affiliates) shall be in proportion to and limited to the net amount received by such Holder (together with its Affiliates) from the sale of Registrable Common Stock pursuant to such Registration Statement. (t) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one (1) counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party there may be one or more legal or equitable defenses available to such indemnified party which may conflict with those available to another indemnified party with respect to such claim. Failure to give prompt written notice shall not release the indemnifying party from its obligations hereunder except to the extent that the indemnifying party is materially prejudiced by such failure. (u) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the 12 indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of securities. (v) If the indemnification provided for in or pursuant to this Section 8 is due in accordance with the terms hereof, but is held by a court to be unavailable or unenforceable in respect of any losses, claims, damages, liabilities or expenses referred to herein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified Person as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions which result in such losses, claims, damages, liabilities or expenses as well as any other relevant equitable considerations. The relative fault of the indemnifying party on the one hand and of the indemnified Person on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, and by such party's relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. In no event shall the liability of any selling Holder be greater in amount than the amount of net proceeds received by such Holder upon such sale or the amount for which such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided for under Section 8(a) or 8(b) hereof had been available under the circumstances. 9. Participation in Underwritten Registrations. No Person may participate in any registration hereunder which is underwritten unless such Person (a) agrees to sell such Person's securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. 10. Rule 144. The Company covenants that it will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, and it will take such further action as any Holder may reasonably request to make available adequate current public information with respect to the Company meeting the current public information requirements of Rule 144(c) under the Securities Act, to the extent required to enable such Holder to sell Registrable Common Stock without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Holder, the Company will deliver to such Holder a written statement as to whether it has complied with such information and requirements. 13 11. Miscellaneous. (a) Notices. All notices, requests, consents and other communications required or permitted hereunder shall be in writing and shall be hand delivered, sent by nationally-recognized overnight courier, mailed postage prepaid by registered or certified mail or transmitted by facsimile transmission (with immediate telephonic confirmation thereafter), If to the Company: MaxWorldwide, Inc. 4499 Glencoe Way Marina del Rey, CA 90292 Attention: General Counsel Facsimile No.: (310) 578-9942 with a copy to (which shall not constitute notice): Paul, Hastings, Janofsky & Walker LLP 555 South Flower Street, 23rd Floor Los Angeles, CA 90071-2371 Attention: Robert A. Miller, Jr., Esq. Facsimile No.: (213) 627-0705 If to the Stockholder: DoubleClick Inc. 450 West 33rd Street New York, New York 10001 Attention: General Counsel Facsimile No.: (212) 287-9704 If to a transferee Holder, to the address of such Holder set forth in the transfer documentation provided to the Company; with a copy to (which shall not constitute notice): Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036-6522 Attention: Thomas H. Kennedy, Esq. Facsimile No.: (212) 735-2000 or such other address or facsimile number as such party (or transferee) may hereafter specify for the purpose by notice to the other parties and each such notice, request, consent and other communication shall for all purposes of the Agreement be treated as being effective or having been given when delivered if delivered personally, on the next 14 Business Day if dispatched by overnight courier upon receipt of facsimile confirmation if transmitted by facsimile, or, if sent by mail, at the earlier of its receipt or seventy-two (72) hours after the same has been deposited in a regularly maintained receptacle for the deposit of United States mail, addressed and postage prepaid as aforesaid. (b) No Waivers. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. (c) Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and the rights, remedies and entitlements of the Holders under this Agreement may be assigned in full or in part at any time after the date of this Agreement together with at least 100,000 shares of Registrable Common Stock (as appropriately adjusted for any stock split, combination, reorganization, recapitalization, reclassification, stock dividend, stock distribution or similar event), it being understood that subsequent Holders of such number of shares of the Registrable Common Stock are intended third party beneficiaries hereof. No such assignment shall be effective unless (i) the transferee shall be required, as a condition to such transfer, to agree in writing that he or it will receive and hold the shares of Registrable Common Stock subject to the applicable provisions of this Agreement, (ii) the Company is given written notice at the time of the assignment stating the name and address of said transferee and identifying the shares of Registrable Common Stock that are being assigned, (iii) such transfer is exempt from the registration requirements of applicable securities laws, rules and regulations and (iv) such transfer is made in accordance with any other agreements between the Holder and the Company in effect at the time of such transfer. (d) Governing Law. This Agreement shall be construed in accordance with and governed by the law of the State of New York, without regard to principles of conflicts of law. (e) Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby may be brought in any federal or state court located in the County and State of New York, and each of the parties hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 11(a) shall be deemed effective service of process on such party. 15 (f) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. (g) Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. (h) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the transactions contemplated herein. No provision of this Agreement or any other agreement contemplated hereby is intended to confer on any Person other than the parties hereto any rights or remedies. (i) Captions. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. (j) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible. (k) Amendments. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given without the prior written consent of the holders of a majority of the Registrable Common Stock (as constituted on the date hereof); provided, however, that without a Holder's written consent no such amendment, modification, supplement or waiver shall affect adversely such Holder's rights hereunder in a discriminatory manner inconsistent with its adverse effects on rights of other Holders hereunder (other than as reflected by the different number of shares held by such Holder); provided, further, that the consent or agreement of the Company shall be required with regard to any termination, amendment, modification or supplement of, or waivers or consents to departures from, the terms hereof, which affect the Company's obligations hereunder. This Agreement cannot be changed, modified, discharged or terminated by oral agreement. (l) Aggregation of Stock. All Registrable Common Stock held by or acquired by any Affiliates will be aggregated together for the purpose of determining the availability of any rights and obligations under this Agreement. 16 (m) Equitable Relief. The parties hereto agree that legal remedies may be inadequate to enforce the provisions of this Agreement and that equitable relief, including specific performance and injunctive relief, may be used to enforce the provisions of this Agreement. [Execution Page Follows] 17 IN WITNESS WHEREOF, this Registration Rights Agreement has been duly executed by each of the parties hereto as of the date first written above. DOUBLECLICK INC. By: /s/ William Mills -------------------------------- Name: William Mills Title: Vice-President Corporate Development MAXWORLDWIDE, INC. By: /s/ Mitchell Cannold -------------------------------- Name: Mitchell Cannold Title: Chief Executive Officer 18 -----END PRIVACY-ENHANCED MESSAGE-----