{"id":43111,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-seat-pagine-gialle-spa-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-seat-pagine-gialle-spa-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-seat-pagine-gialle-spa-and.html","title":{"rendered":"Agreement and Plan of Merger &#8211; Seat Pagine Gialle SpA and NetCreations Inc."},"content":{"rendered":"<pre>                                                                  EXECUTION COPY\n================================================================================\n\n\n\n\n\n\n                          AGREEMENT AND PLAN OF MERGER\n\n                                      among\n\n                           SEAT PAGINE GIALLE S.P.A.,\n\n                            SOGERIM, SOCIETE ANONYME,\n\n                            NICKEL ACQUISITION CORP.\n\n                                       and\n\n                               NETCREATIONS, INC.\n\n\n\n                          Dated as of December 22, 2000\n\n\n\n\n\n================================================================================\n                                TABLE OF CONTENTS\n\n\n\n                                    ARTICLE I\n\n                                   DEFINITIONS\n\nSECTION 1.01      Certain Defined Terms......................................  2\n\n                                   ARTICLE II\n\n                                   THE MERGER\n\nSECTION 2.01      The Merger.................................................  8\nSECTION 2.02      Closing....................................................  8\nSECTION 2.03      Effective Time.............................................  9\nSECTION 2.04      Effect of the Merger.......................................  9\nSECTION 2.05      Certificate of Incorporation; Bylaws;\n                  Directors and Officers of Surviving\n                  Corporation................................................  9\n\n                                   ARTICLE III\n\n                      EFFECT OF MERGER ON CAPITAL STOCK OF\n               CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES\n\nSECTION 3.01      Effect on Capital Stock.................................... 10\nSECTION 3.02      Exchange of Shares Other than\n                  Treasury Shares............................................ 11\nSECTION 3.03      Stock Transfer Books....................................... 15\nSECTION 3.04      Options to Purchase Company Common Stock................... 15\nSECTION 3.05      Employee Stock Purchase Plan............................... 16\n\n                                   ARTICLE IV\n\n                    REPRESENTATIONS AND WARRANTIES OF COMPANY\n\nSECTION 4.01      Organization and Qualification;\n                  Subsidiaries............................................... 17\nSECTION 4.02      Certificate of Incorporation and Bylaws.................... 17\nSECTION 4.03      Capitalization............................................. 18\nSECTION 4.04      Authority Relative to This Agreement....................... 19\nSECTION 4.05      No Conflict; Required Filings and\n                  Consents................................................... 20\nSECTION 4.06      Permits; Compliance with Laws.............................. 20\nSECTION 4.07      SEC Filings; Financial Statements.......................... 21\nSECTION 4.08      Absence of Certain Changes or Events....................... 22\nSECTION 4.09      Employee Benefit Plans; Labor Matters...................... 24\nSECTION 4.10      [Intentionally Omitted].................................... 28\n\n\n                                       ii\n\n\nSECTION 4.11      Contracts.................................................. 28\nSECTION 4.12      Litigation................................................. 30\nSECTION 4.13      Environmental Matters...................................... 30\nSECTION 4.14      Intellectual Property...................................... 31\nSECTION 4.15      Taxes...................................................... 36\nSECTION 4.16      Insurance.................................................. 39\nSECTION 4.17      Properties................................................. 39\nSECTION 4.18      [Intentionally Omitted].................................... 40\nSECTION 4.19      Opinion of Financial Advisor............................... 40\nSECTION 4.20      Brokers.................................................... 40\nSECTION 4.21      Certain Business Practices................................. 40\nSECTION 4.22      Section 912 of New York Law Not\n                  Applicable................................................. 41\nSECTION 4.23      Business Activity Restriction.............................. 41\nSECTION 4.24      Privacy.................................................... 42\n\n                                    ARTICLE V\n\n                    REPRESENTATIONS AND WARRANTIES OF PARENT\n\nSECTION 5.01      Organization and Qualification;\n                  Subsidiaries............................................... 42\nSECTION 5.02      Authority Relative to this Agreement....................... 43\nSECTION 5.03      No Conflict; Required Filings and\n                  Consents................................................... 44\nSECTION 5.04      Financing.................................................. 44\n\n                                   ARTICLE VI\n\n                                    COVENANTS\n\nSECTION 6.01      Conduct of Business by Company Pending\n                  the Closing................................................ 45\nSECTION 6.02      Notices of Certain Events.................................. 48\nSECTION 6.03      Access to Information; Confidentiality..................... 49\nSECTION 6.04      No Solicitation of Transactions............................ 49\nSECTION 6.05      [Intentionally Omitted].................................... 52\nSECTION 6.06      Control of Operations...................................... 52\nSECTION 6.07      Further Action; Consents; Filings.......................... 52\nSECTION 6.08      Additional Reports......................................... 53\nSECTION 6.09      Tax Information............................................ 54\n\n                                   ARTICLE VII\n\n                              ADDITIONAL AGREEMENTS\n\nSECTION 7.01      Proxy Statement............................................ 54\n\n                                      iii\n\n\nSECTION 7.02      Company Shareholders' Meeting.............................. 56\nSECTION 7.03      Directors' and Officers' Indemnification\n                  and Insurance.............................................. 57\nSECTION 7.04      Public Announcements....................................... 59\nSECTION 7.05      Employee Benefit Matters................................... 59\nSECTION 7.06      Shareholder Agreement Legend............................... 60\nSECTION 7.07      Guaranty of Performance.................................... 60\n\n                                  ARTICLE VIII\n\n                            CONDITIONS TO THE MERGER\n\nSECTION 8.01      Conditions to the Obligations of Each\n                  Party to Consummate the Merger............................. 60\nSECTION 8.02      Conditions to the Obligations of Company................... 61\nSECTION 8.03      Conditions to the Obligations of Parent\n                  and Lux Sub................................................ 62\n\n                                   ARTICLE IX\n\n                        TERMINATION, AMENDMENT AND WAIVER\n\nSECTION 9.01      Termination................................................ 63\nSECTION 9.02      Effect of Termination...................................... 67\nSECTION 9.03      Amendment.................................................. 67\nSECTION 9.04      Waiver..................................................... 67\nSECTION 9.05      Termination Fee; Expenses.................................. 68\n\n                                    ARTICLE X\n\n                               GENERAL PROVISIONS\n\nSECTION 10.01     Non-Survival of Representations and\n                  Warranties................................................. 69\nSECTION 10.02     Notices.................................................... 70\nSECTION 10.03     Severability............................................... 71\nSECTION 10.04     Assignment; Binding Effect; Benefit........................ 71\nSECTION 10.05     Incorporation of Exhibits.................................. 72\nSECTION 10.06     Governing Law.............................................. 72\nSECTION 10.07     Waiver of Jury Trial....................................... 72\nSECTION 10.08     Headings; Interpretation................................... 72\nSECTION 10.09     Counterparts............................................... 73\nSECTION 10.10     Entire Agreement........................................... 73\nSECTION 10.11     Enforcement................................................ 73\n\n                                     ANNEXES\n\nANNEX A       Form of Shareholders' Agreement\n\n\n                                       iv\n\n\n\n                          AGREEMENT AND PLAN OF MERGER\n\n                  AGREEMENT AND PLAN OF MERGER, dated as of December 22, 2000\n(as amended, supplemented or otherwise modified from time to time, this\n\"Agreement\"), among SEAT PAGINE GIALLE S.P.A. (\"Parent\"), a limited company\norganized under the laws of the Republic of Italy and a majority owned\nsubsidiary of Telecom Italia S.p.A., a limited company organized under the laws\nof the Republic of Italy, SOGERIM, SOCIETE ANONYME (\"Lux Sub\"), a Luxembourg\ncorporation and a wholly owned subsidiary of Telecom Italia S.p.A., NICKEL\nACQUISITION CORP., a New York corporation and a direct wholly owned subsidiary\nof Lux Sub (\"Merger Sub\"), and NETCREATIONS, INC., a New York corporation\n(\"Company\"):\n\n                              W I T N E S S E T H:\n\n\n                  WHEREAS, the respective boards of directors of Parent, Lux Sub\nand Company have each determined that it is advisable and in the best interests\nof their respective companies and shareholders to enter into a business\ncombination by means of the merger of Merger Sub with and into Company (the\n\"Merger\") and have approved and adopted this Agreement; and\n\n                  WHEREAS, concurrently with the execution of this Agreement and\nas an inducement to Parent to enter into this Agreement, certain shareholders of\nCompany have entered into a shareholders' agreement (the \"Shareholders'\nAgreement\") in the form attached hereto as Annex A.\n\n                  NOW, THEREFORE, in consideration of the foregoing and the\nrepresentations, warranties, covenants and agreements set forth herein, and\nother good and valuable consideration, the receipt and adequacy of which are\nhereby acknowledged, and intending to be legally bound hereby, the parties\nhereto hereby agree as follows:\n\n                                    ARTICLE I\n\n                                   DEFINITIONS\n\n                  SECTION 1.01 Certain Defined Terms\n\n                  Unless the context otherwise requires, the following terms,\nwhen used in this Agreement, shall have the respective meanings specified below\n(such meanings to be equally applicable to the singular and plural forms of the\nterms defined):\n\n                  \"Affiliate\" shall mean, with respect to any person, any other\nperson that controls, is controlled by or is under common control with the first\nperson.\n\n\n\n                  \"Business Day\" shall mean any day on which the principal\noffices of the SEC in Washington, D.C. are open to accept filings, or, in the\ncase of determining a date when any payment is due, any day on which banks are\nnot required or authorized by Law or executive order to close in New York.\n\n                  \"Code\" shall mean the Internal Revenue Code of 1986, as\namended, together with the rules and regulations promulgated thereunder.\n\n                  \"Company Disclosure Schedule\" shall mean the disclosure\nschedule delivered by Company to Parent prior to the execution of this Agreement\nand forming a part hereof.\n\n                  \"Company Material Adverse Effect\" shall mean any change in or\neffect on the business of Company that, individually or in the aggregate (taking\ninto account all other such changes or effects), is, or is reasonably likely to\nbe, materially adverse to the business, assets, liabilities, financial condition\nor results of operations of Company, taken as a whole, except to the extent any\nsuch change or effect results from or is attributable to (i) changes in general\neconomic conditions or changes affecting the industry generally in which Company\noperates (provided that such changes do not affect Company in a materially\ndisproportionate manner) or (ii)(A) any litigation or loss of current or\nprospective customers, employees or revenues as to which Company furnishes\nreasonable evidence that it occurred primarily from the announcement of Company\nentering into this Agreement or (B) any claim or litigation as a result of the\ndetermination by the Company's board of directors that the proposal for the\nMerger is a \"Superior Proposal\" within the meaning of the Company's prior merger\nagreement with DoubleClick, Inc. (\"DoubleClick\"), dated as of October 2, 2000\n(the \"DoubleClick Merger Agreement\") or alleging breach of the DoubleClick\nMerger Agreement or arising as a result of the termination of the DoubleClick\nMerger Agreement or the entry by the Company into this Merger Agreement or (C)\nthe payment by the Company of any termination fees or expenses pursuant to the\nDoubleClick Merger Agreement; provided, however, that in no event shall (x) a\ndecrease in the trading price of Company Common Stock or litigation relating\nthereto, (y) any matter publicly disclosed in a Company Report (as defined in\nSection 4.07) or otherwise, in any case prior to the date hereof, or (z) the\ntermination of any agreement listed on Schedule I to the Company Disclosure\nSchedule, be considered a Company Material Adverse Effect.\n\n\n                                       2\n\n\n                  \"Company Stock Plan\" shall mean Company's 1999 Employee Stock\nOption Plan, as amended.\n\n                  \"Company Stock Purchase Plan\" shall mean Company's 2000\nEmployee Stock Purchase Plan.\n\n                  \"Company Shareholders' Meeting\" shall mean the special meeting\nof Company shareholders to consider approval of this Agreement and the Merger.\n\n                  \"Competing Transaction\" shall mean any of the following\ninvolving Company (other than the Merger):\n\n                  (i) any merger, consolidation, share exchange, business\n         combination, recapitalization, liquidation, dissolution or other\n         similar transaction;\n\n                  (ii) any sale, lease, exchange, mortgage, pledge, transfer or\n         other disposition of 20% or more of the assets (including, without\n         limitation, any equity securities of subsidiaries) of Company and its\n         subsidiaries, taken as a whole, in a single transaction or series of\n         related transactions (excluding for this purpose the providing of\n         opt-in e-mail addresses to direct marketers and brokers by Company in\n         the ordinary course of business);\n\n                  (iii) any tender offer or exchange offer for 20% or more of\n         the outstanding voting securities of Company or the filing of a\n         registration statement under the Securities Act in connection\n         therewith;\n\n                  (iv) any person having acquired beneficial ownership or the\n         right to acquire beneficial ownership of, or any \"group\" (as such terms\n         are defined under Section 13(d) of the Exchange Act) having been formed\n\n                                       3\n\n\n         that beneficially owns or has the right to acquire beneficial ownership\n         of, 20% or more of the outstanding voting securities of Company; and\n\n                  (v) any public announcement of a proposal, plan or intention\n         to do any of the foregoing or any agreement to engage in any of the\n         foregoing.\n\n                  \"Confidentiality Agreement\" shall mean the confidentiality\nagreement, dated as of December 20, 2000, between Parent and Company.\n\n                  \"$\" shall mean United States Dollars.\n\n                  \"Environmental Law\" shall mean any Law and any enforceable\njudicial or administrative interpretation thereof, including any judicial or\nadministrative order, consent decree or judgment, relating to pollution or\nprotection of the environment or natural resources, including, without\nlimitation, those relating to the use, handling, transportation, treatment,\nstorage, disposal, release or discharge of Hazardous Material, as in effect as\nof the date hereof.\n\n                  \"Environmental Permit\" shall mean any permit, approval,\nidentification number, license or other authorization required under or issued\npursuant to any applicable Environmental Law.\n\n                  \"ERISA\" shall mean the Employee Retirement Income Security Act\nof 1974, as amended.\n\n                  \"Exchange Act\" shall mean the Securities Exchange Act of 1934,\nas amended, together with the rules and regulations promulgated thereunder.\n\n                  \"Expenses\" shall mean, with respect to any party hereto, all\nout-of-pocket expenses (including, without limitation, all fees and expenses of\ncounsel, accountants, investment bankers, experts and consultants to a party\nhereto and its Affiliates) incurred by such party or on its behalf in connection\nwith or related to the authorization, preparation, negotiation, execution and\nperformance of its obligations pursuant to this Agreement and the consummation\nof the Merger, the preparation, printing, filing and mailing of the Proxy\nStatement, the solicitation of shareholder approvals, the filing of HSR Act\nnotice, if any, and all other matters related to the transactions contemplated\nhereby and the closing of the Merger.\n\ns\n                                       4\n\n\n                  \"Governmental Entity\" shall mean any United States Federal,\nstate or local or any foreign governmental, regulatory or administrative\nauthority, agency or commission or any court, tribunal or arbitral body.\n\n                  \"Governmental Order\" shall mean any order, writ, judgment,\ninjunction, decree, stipulation, determination or award entered by or with any\nGovernmental Entity.\n\n                  \"Hazardous Material\" shall mean (i) any petroleum, petroleum\nproducts, by-products or breakdown products, radioactive materials,\nasbestos-containing materials or polychlorinated biphenyls or (ii) any chemical,\nmaterial or substance defined or regulated as toxic or hazardous or as a\npollutant or contaminant or waste under any applicable Environmental Law.\n\n                  \"HSR Act\" shall mean Hart-Scott-Rodino Antitrust Improvements\nAct of 1976, as amended, together with the rules and regulations promulgated\nthereunder.\n\n                  \"IRS\" shall mean the United States Internal Revenue Service.\n\n                  \"Knowledge of Company\" shall mean that any officer of Company\nis actually aware of a fact or other matter, or should have been aware of a fact\nor other matter based upon due inquiry and investigation.\n\n                  \"Knowledge of Parent\" shall mean that any executive officer of\nParent is actually aware of a fact or other matter, or should have been aware of\na fact or other matter based upon due inquiry and investigation.\n\n                  \"Law\" shall mean any Federal, state, foreign or local statute,\nlaw, ordinance, regulation, rule, code, order, judgment, decree or other\nrequirement or rule of law of the United States or any other jurisdiction, and\nany similar act or law.\n\n                  \"NNM\" shall mean The Nasdaq National Market.\n\n                  \"New York Law\" shall mean the New York Business Corporation\nLaw.\n\n\n                                       5\n\n\n                  \"Parent Material Adverse Effect\" shall mean any change in or\neffect on the business of Parent or Lux Sub and their respective subsidiaries\nthat would prevent, or is reasonably likely to prevent, Parent or Lux Sub from\nperforming their respective obligations under this Agreement or the consummation\nof the transactions contemplated hereby.\n\n                  \"person\" shall mean an individual, corporation, partnership,\nlimited partnership, limited liability company, limited liability partnership,\nsyndicate, person (including, without limitation, a \"person\" as defined in\nSection 13(d)(3) of the Exchange Act), trust, association, entity or government\nor political subdivision, agency or instrumentality of a government.\n\n                  \"SEC\" shall mean the United States Securities and Exchange\nCommission.\n\n                  \"Securities Act\" shall mean the Securities Act of 1933, as\namended, together with the rules and regulations promulgated thereunder.\n\n                  \"subsidiary\" shall mean, with respect to any person, and\ncorporation, partnership, limited partnership, limited liability company,\nlimited liability partnership, joint venture or other legal entity of which such\nperson (either alone or through or together with any other subsidiary of such\nperson), owns, directly or indirectly, a majority of the stock or other equity\ninterests, the holders of which are generally entitled to vote for the election\nof the board of directors or other governing body of such corporation or other\nlegal entity.\n\n                  \"Tax\" shall mean (i) any and all taxes, fees, levies, duties,\ntariffs, imposts and other charges of any kind (together with any and all\ninterest, penalties, additions to tax and additional amounts imposed with\nrespect thereto) imposed by any Governmental Entity or taxing authority,\nincluding, without limitation, taxes or other charges on or with respect to\nincome, franchises, windfall or other profits, gross receipts, property, sales,\nuse, capital stock, payroll, employment, social security, workers' compensation,\nunemployment compensation or net worth; taxes or other charges in the nature of\nexcise, withholding, ad valorem, stamp, transfer, value-added or gains taxes;\nlicense, registration and documentation fees; and customers' duties, tariffs and\nsimilar charges; (ii) any liability for the payment of any amounts of the type\n\n\n                                       6\n\n\ndescribed in (i) as a result of being a member of an affiliated, combined,\nconsolidated or unitary group for any Taxable period; and (iii) any liability\nfor the payment of amounts of the type described in (i) or (ii) as a result of\nbeing a transferee of, or a successor in interest to, any person or as a result\nof an express or implied obligation to indemnify any person.\n\n                  \"Tax Authority\" shall mean any domestic, foreign, Federal,\nnational, state, county or municipal or other local government body (including\nany subdivision, agency or commission thereof), or any quasi-governmental body,\nin each case, exercising regulatory authority in respect of Taxes.\n\n                  \"Tax Return\" shall mean any return, statement or form\n(including, without limitation, any estimated tax reports or return, withholding\ntax reports or return and information report or return) required to be filed\nwith respect to any Taxes.\n\n                  \"U.S. GAAP\" shall mean generally accepted accounting\nprinciples as applied in the United States.\n\n                                   ARTICLE II\n\n                                   THE MERGER\n\n                  SECTION 2.01    The Merger\n\n                  Upon the terms and subject to the conditions set forth in this\nAgreement, and in accordance with New York Law, at the Effective Time (as\ndefined in Section 2.03), Merger Sub shall be merged with and into Company. As a\nresult of the Merger, the separate corporate existence of Merger Sub shall cease\nand Company shall continue as the surviving corporation in the Merger as a\nwholly owned subsidiary of Lux Sub (the \"Surviving Corporation\").\n\n                  SECTION 2.02    Closing\n\n                  Unless this Agreement shall have been terminated and the\nMerger herein contemplated shall have been abandoned pursuant to Section 9.01\nand subject to the satisfaction or waiver of the conditions set forth in Article\nVIII, the consummation of the Merger shall take place as promptly as practicable\n(and in any event within three Business Days) after satisfaction or waiver of\n\n\n                                       7\n\n\nthe conditions set forth in Article VIII, at a closing (the \"Closing\") to be\nheld at the offices of Cravath, Swaine &amp; Moore, 825 Eighth Avenue, New York, New\nYork 10019, unless another date, time or place is agreed to by Parent and\nCompany.\n\n                  SECTION 2.03    Effective Time\n\n                  Immediately upon the closing, the parties shall cause the\nMerger to be consummated by filing a certificate of merger (the \"Certificate of\nMerger\") with the Secretary of State of the State of New York in such form as\nrequired by, and executed in accordance with the relevant provisions of, New\nYork Law (the date and time of such filing, or such later date and time as may\nbe set forth therein, being the \"Effective Time\").\n\n                  SECTION 2.04    Effect of the Merger\n\n                  At the Effective Time, the effect of the Merger shall be as\nprovided in the applicable provisions of New York Law. Without limiting the\ngenerality of the foregoing, and subject thereto, at the Effective Time, except\nas otherwise provided herein, all the property, rights, privileges, powers and\nfranchises of Company and Merger Sub shall vest in Company as the Surviving\nCorporation, and all debts, liabilities and duties of Company and Merger Sub\nshall become the debts, liabilities and duties of Company as the Surviving\nCorporation.\n\n                  SECTION 2.05    Certificate of Incorporation; Bylaws;\nDirectors and Officers of Surviving Corporation\n\n                  Unless otherwise agreed by Parent and Company before the\nEffective Time, at the Effective Time:\n\n                  (a) the certificate of incorporation of Merger Sub as of the\n         Effective Time shall constitute the certificate of incorporation of the\n         Surviving Corporation until thereafter amended;\n\n                  (b) subject to the requirements of Section 7.03(a) hereof, the\n         bylaws of Merger Sub, as in effect immediately prior to the Effective\n         Time, shall be adopted as the bylaws of the Surviving Corporation until\n         thereafter amended;\n\n\n                                       8\n\n\n                  (c) the officers of Merger Sub immediately prior to the\n         Effective Time shall serve in their respective offices of the Surviving\n         Corporation from and after the Effective Time, in each case until their\n         successors are elected or appointed and qualified or until their\n         resignation or removal; and\n\n                  (d) the directors of Merger Sub immediately prior to the\n         Effective Time shall serve as the directors of the Surviving\n         Corporation from and after the Effective Time, in each case until their\n         successors are elected or appointed and qualified or until their\n         resignation or removal.\n\n                                   ARTICLE III\n\n                EFFECT OF MERGER ON CAPITAL STOCK OF CONSTITUENT\n                     CORPORATIONS; EXCHANGE OF CERTIFICATES\n\n                  SECTION 3.01     Effect on Capital Stock\n\n                  At the Effective time, by virtue of the Merger, and without\nany action on the part of Parent, Lux Sub, Merger Sub, Company or the holders of\nany of the following securities:\n\n                  (a) each share of common stock, $.01 par value per share, of\nCompany (\"Company Common Stock\") issued and outstanding immediately before the\nEffective Time (excluding those held in the treasury of Company and those owned\nby any wholly owned subsidiary of Company) and all rights in respect thereof,\nshall, forthwith cease to exist and be converted into the right to receive $7.00\nin cash (the \"Merger Consideration\"); and all such shares of Company Common\nStock shall no longer be outstanding and shall automatically be canceled and\nretired and shall cease to exist, and each holder of a certificate representing\nany such shares of Company Common Stock shall cease to have any rights with\nrespect thereto, except the right to receive the Merger Consideration, without\ninterest;\n\n                  (b) each share of Company Common Stock held in the treasury of\nCompany immediately prior to the Effective Time shall be canceled and retired\nand shall cease to exist, and no consideration shall be delivered in exchange\ntherefor, and each share of Company Common Stock owned by any subsidiary of\n\n\n                                       9\n\n\neither Company or Parent (other than Merger Sub) shall be converted into and\nbecome one fully paid and nonassessable share of common stock of the Surviving\nCorporation;\n\n                  (c) each issued and outstanding share of capital stock of\nMerger Sub shall be converted into and become one fully paid and nonassessable\nshare of common stock of the Surviving Corporation; and\n\n                  (d) from and after the Effective Time, each outstanding\ncertificate theretofore representing shares of Merger Sub common stock shall be\ndeemed for all purposes to evidence ownership of and to represent the number of\nshares of Surviving Corporation common stock into which such shares of Merger\nSub common stock shall have been converted.\n\n                  SECTION 3.02    Exchange of Shares Other than Treasury Shares\n\n                  (a) Paying Agent. Prior to the Effective Time, Lux Sub shall\nselect a bank or trust company reasonably satisfactory to Company to act as\npaying agent (the \"Paying Agent\") for the payment of the Merger Consideration\nupon surrender of Company Certificates (as defined in Section 3.02(c)).\n\n                  (b) Lux Sub to Provide Cash. Lux Sub shall take all steps\nnecessary to provide to the Paying Agent immediately following the Effective\nTime all the cash necessary to pay for the shares of Company Common Stock\nconverted into the right to receive the Merger Consideration pursuant to Section\n3.01(a) (such cash, including any interest earned thereon, being hereinafter\nreferred to as the \"Exchange Fund\").\n\n                  (c) Exchange Procedures. The Paying Agent shall mail to each\nholder of record of a certificate or certificates that immediately prior to the\nEffective Time represented outstanding shares of Company Common Stock (\"Company\nCertificates\"), whose shares were converted into the right to receive the Merger\nConsideration pursuant to Section 3.01(a), promptly after the Effective Time\n(and in any event no later than three Business Days after the later to occur of\nthe Effective Time and receipt by Parent and Lux Sub of a complete list from\nCompany of the names and addresses of its holders of record): (i) a letter of\n\n\n                                       10\n\n\ntransmittal (which shall specify that delivery shall be effected, and risk of\nloss and title to the Company Certificates shall pass, only upon receipt of the\nCompany Certificates by the Paying Agent, and shall be in such form and have\nsuch other provisions as Parent or Lux Sub may reasonably specify); and (ii)\ninstructions for use in effecting the surrender of the Company Certificates in\nexchange for the Merger Consideration. Upon surrender of a Company Certificate\nfor cancellation to the Paying Agent or to such other agent or agents as may be\nappointed by Lux Sub, together with such letter of transmittal, duly completed\nand validly executed, and such other documents as may be reasonably required by\nthe Paying Agent, the holder of such Company Certificate shall be entitled to\nreceive in exchange therefor the amount of cash into which the shares of Company\nCommon Stock theretofore represented by such Company Certificate shall have been\nconverted pursuant to Section 3.01(a), and the Company Certificate so\nsurrendered shall forthwith be canceled. Until surrendered as contemplated by\nthis Section 3.02(c), each Company Certificate shall be deemed at any time after\nthe Effective Time to represent only the right to receive upon such surrender\nthe amount of cash, without interest, into which the shares of Company Common\nStock theretofore represented by such Company Certificate shall have been\nconverted pursuant to Section 3.01(a). No interest will be paid or will accrue\non the cash payable upon the surrender of any Company Certificate.\n\n                  (d) No Further Ownership Rights in Company Common Stock. The\nMerger Consideration paid upon surrender of Company Certificates in accordance\nwith the terms of this Article III shall be deemed to have been paid in full\nsatisfaction of all rights pertaining to the shares of Company Common Stock\ntheretofore represented by such Company Certificates. If, after the Effective\nTime, any Company Certificate is presented to the Surviving Corporation or the\nPaying Agent for any reason, it shall be canceled and exchanged as provided in\nthis Article III (subject, in the case of any Company Certificate presented to\nthe Paying Agent, to the provisions of Section 3.02(f)).\n\n                  (e) Transfer of Ownership. In the event of a transfer of\nownership of Company Common Stock that is not registered in the transfer records\nof Company, payment of the Merger Consideration may be made to a person other\nthan the person in whose name the Company Certificate surrendered in accordance\n\n\n                                       11\n\n\nwith this Article III is registered, if such Company Certificate shall be\nproperly endorsed or otherwise be in proper form for transfer and the person\nrequesting such payment shall pay any transfer or other taxes required by reason\nof the payment to a person other than the registered holder of the Company\nCertificate so surrendered, or establish to the satisfaction of Lux Sub or any\nagent designated by it that such tax has been paid or is not applicable.\n\n                  (f) Termination of Exchange Fund. Any portion of the Exchange\nFund that remains undistributed to holders of Company Certificates pursuant to\nthis Article III for six months after the Effective Time shall promptly be paid\nto Parent, and thereafter holders of Company Certificates who have not\ntheretofore complied with the exchange procedures outlined in and contemplated\nby this Section 3.02 shall thereafter look only to Parent (subject to abandoned\nproperty, escheat and similar laws) only as general creditors thereof with\nrespect to any Merger Consideration that may be payable upon due surrender of\nthe Company Certificates held by them.\n\n                  (g) No Liability. Notwithstanding anything to the contrary in\nthis Section 3.02, none of the Paying Agent, the Surviving Corporation or any\nparty hereto shall be liable to any person in respect of any cash from the\nExchange Fund delivered to a public official pursuant to any applicable\nabandoned property, escheat or similar Law. If any Company Certificate shall not\nhave been surrendered prior to the thirty-first day of December in the fifth\ncalendar year after the Effective Time (or immediately prior to such earlier\ndate on which the Merger Consideration in respect of such Company Certificate\nwould otherwise escheat to or become the property of any Governmental Entity),\nthe payment in respect of such Company Certificate shall, to the extent\npermitted by applicable law, become the property of the Surviving Corporation,\nfree and clear of all claims or interest of any person previously entitled\nthereto.\n\n                  (h) Lost, Stolen or Destroyed Company Certificates. In the\nevent any Company Certificates shall have been lost, stolen or destroyed, the\nPaying Agent shall deliver in exchange for such lost, stolen or destroyed\nCompany Certificates, upon the making of an affidavit of that fact by the holder\nthereof, the Merger Consideration payable in respect thereto pursuant to this\n\n\n                                       12\n\n\nArticle III; provided, however, that Parent may, in its discretion and as a\ncondition precedent to the delivery thereof, require the owner of such lost,\nstolen or destroyed Company Certificates to indemnify Parent and Lux Sub against\nany claim that may be made against Parent, Lux Sub, the Surviving Corporation or\nthe Paying Agent with respect to the Company Certificates alleged to have been\nlost, stolen or destroyed.\n\n                  (i) Investment of Exchange Fund. The Paying Agent shall invest\nany cash included in the Exchange Fund, as directed by Lux Sub, on a daily\nbasis. If for any reason (including investment losses), the Exchange Fund is\ninadequate to pay the amounts to which holders of Company Certificates shall be\nentitled under this Section 3.02, Parent, Lux Sub and the Surviving Corporation\nshall nevertheless be liable for the payment thereof. The Exchange Fund shall\nnot be used except as provided in this Agreement. Any interest and other income\nresulting from such investments shall be the property of, and shall be paid to,\nLux Sub.\n\n                  (j) Withholding Rights. Lux Sub, Parent and the Paying Agent\nshall be entitled to deduct and withhold from the Merger Consideration otherwise\npayable to any holder of Company Common Stock pursuant to this Agreement such\namounts as may be required to be deducted and withheld with respect to the\nmaking of such payment under the Code or under any provision of state, local or\nforeign tax law. In the event Lux Sub, Parent or the Paying Agent shall be\nrequired to deduct or withhold any taxes under the federal or local laws of\nItaly or Luxembourg (\"Foreign Taxes\") from the Merger Consideration otherwise\npayable to any holder of Company Common Stock, the relevant amount of Merger\nConsideration payable to such holder shall be increased by the amount necessary\nto make the actual amount received by such holder after such Foreign Taxes are\nwithheld equal to the amount that would have been received had no such\nwithholding for Foreign Taxes been required.\n\n                  SECTION 3.03     Stock Transfer Books\n\n                  At the Effective Time, the stock transfer books of Company\nshall each be closed, and there shall be no further registration of transfers of\nshares of Company Common Stock thereafter on the records of any such stock\ntransfer books. In the event of a transfer of ownership of shares of Company\nCommon Stock that is not registered in the stock transfer records of Company at\n\n\n                                       13\n\n\nthe Effective Time, the Merger Consideration into which such shares of Company\nCommon Stock shall have been converted shall be paid to the transferee if the\ncertificate or certificates representing such shares of Company Common Stock is\nor are surrendered as provided in Section 3.02(c) hereof, accompanied by all\ndocuments required to evidence and effect such transfer and by evidence of\npayment of any applicable stock transfer tax.\n\n                  SECTION 3.04     Options to Purchase Company Common Stock\n\n                  (a) At the Effective Time (and without any action by the Board\nof Directors of the Company or any committee administering the Company Stock\nPlan), the Company Stock Plan and each option granted by Company to purchase\nshares of Company Common Stock pursuant to the Company Stock Plan (\"Company\nStock Options\") which is outstanding and unexercised immediately prior to the\nEffective Time, shall be canceled with the holder thereof becoming entitled to\nreceive a cash payment from the Surviving Corporation at the Effective Time of\nan amount equal to (i) the excess, if any, of (x) the Merger Consideration over\n(y) the exercise price per share of Company Common Stock subject to such Company\nStock Option, multiplied by (ii) the number of shares of Company Common Stock\nfor which such Company Stock Option shall not theretofore have been exercised\n(the \"Option Consideration\") (irrespective of whether and to the extent to which\nany or all such Company Stock Options are exercisable or will be exercisable at\nthe Effective Time).\n\n                  (b) All amounts payable pursuant to this Section 3.04 shall be\nsubject to any required withholding of Taxes and shall be paid without interest.\nCompany shall obtain all consents of the holders of Company Stock Options as\nshall be necessary to effectuate the actions contemplated by this Section 3.04.\nNotwithstanding anything to the contrary contained in this Agreement, payment of\nthe Option Consideration in respect of any Company Stock Option shall, at\nParent's request, be withheld until all necessary consents with respect to such\nCompany Stock Option have been obtained.\n\n                  (c) The Company Stock Plan shall terminate as of the Effective\nTime, and the provisions in any other Company Benefit Plan (as defined in\nSection 4.09(a)) providing for the issuance, transfer or grant of any capital\n\n\n                                       14\n\n\nstock of Company or any interest in respect of any capital stock of Company\nshall be deleted effective as of the Effective Time, and the Company shall\nensure that following the Effective Time no holder of a Company Stock Option or\nany participant in the Company Stock Plan or any other Company Benefit Plan\nshall have any right thereunder to acquire any capital stock of the Surviving\nCorporation.\n\n                  SECTION 3.05     Employee Stock Purchase Plan\n\n                  At the Effective Time, the Company Stock Purchase Plan and\neach outstanding purchase right under the Company Stock Purchase Plan shall\nterminate, and all accumulated funds shall be distributed to participants as\nthough such participants had elected to withdraw therefrom.\n\n                                   ARTICLE IV\n\n                    REPRESENTATIONS AND WARRANTIES OF COMPANY\n\n                  Company hereby represents and warrants to Parent, Lux Sub and\nMerger Sub, subject to the exceptions specifically disclosed in writing in the\nCompany Disclosure Schedule, all such exceptions to be referenced to a specific\nrepresentation set forth in this Article IV or to otherwise be reasonably\napparent to relate to representations hereof not specifically referenced, that:\n\n                  SECTION 4.01     Organization and Qualification; Subsidiaries\n\n                  (a) Company has been duly organized and is validly existing\nand in good standing (to the extent applicable) under the laws of the State of\nNew York and has the requisite corporate power and authority to own, lease and\noperate its properties and to carry on its business as it is now being\nconducted. Company is duly qualified or licensed to do business, and is in good\nstanding (to the extent applicable), in each jurisdiction where the character of\nthe properties owned, leased or operated by it or the nature of its business\nmakes such qualification or licensing necessary, except for such failures to be\nso qualified or licensed and in good standing that could not reasonably be\nexpected to have, individually or in the aggregate, a Company Material Adverse\nEffect. The name of Company under which it was formed was NetCreations Inc.\n\n\n                                       15\n\n\n                  (b) Company does not own an equity interest in any\ncorporation, partnership, joint venture arrangement or other business entity and\nhas no subsidiaries.\n\n                  SECTION 4.02     Certificate of Incorporation and Bylaws\n\n                  The copies of Company's certificate of incorporation and\nbylaws previously provided to Parent by Company are true, complete and correct\ncopies thereof. Such certificate of incorporation and bylaws are in full force\nand effect. Company is not in violation of any of the provisions of its\ncertificate of incorporation or bylaws.\n\n                  SECTION 4.03     Capitalization\n\n                  The authorized capital stock of Company consists of 50,000,000\nshares of Company Common Stock and 5,000,000 shares of preferred stock, no par\nvalue (\"Company Preferred Stock\"). As of the date hereof, (i) 15,534,000 shares\nof Company Common Stock are issued and outstanding, all of which are validly\nissued, fully paid and nonassessable, (ii) no shares of Company Common Stock are\nheld in the treasury of Company, (iii) 2,961,000 shares of Company Common Stock\nare reserved for future issuance pursuant to Company Stock Options, (iv)\n1,000,000 shares of Company Common Stock are reserved for issuance under the\nCompany Stock Purchase Plan and (v) no shares of Company Preferred Stock are\noutstanding. The name of each holder of a Company Stock Option as of the date\nhereof, the grant date of each Company Stock Option, the number of shares of\nCompany Common Stock for which each Company Stock Option is exercisable, the\nexercise price of each Company Stock Option and the vesting schedule of each\nCompany Stock Option are set forth in Section 4.03 of the Company Disclosure\nSchedule. Except for shares of Company Common Stock issuable pursuant to the\nCompany Stock Plan or the Company Stock Purchase Plan as set forth in the second\nsentence above, there are not issued, reserved for issuance or outstanding (A)\nany shares of capital stock or other voting securities of Company or (B) any\noptions, warrants, convertible or exchangeable securities or other rights,\nagreements, arrangements or commitments of any character to which Company is a\nparty or by which Company is bound relating to the issued or unissued capital\nstock of Company or obligating Company to issue or sell any shares of capital\nstock of, or other equity or voting interests in, Company. All shares of Company\nCommon\n\n\n                                       16\n\n\nStock subject to issuance as aforesaid, upon issuance prior to the Effective\nTime on the terms and conditions specified in the instruments pursuant to which\nthey are issuable, will be duly authorized, validly issued, fully paid and\nnonassessable. There are no outstanding contractual obligations of Company to\nrepurchase, redeem or otherwise acquire any shares of Company Common Stock.\nThere are no material outstanding contractual obligations of Company to provide\nfunds to, or make any investment (in the form of a loan, capital contribution or\notherwise) in, any entity or person.\n\n                  SECTION 4.04     Authority Relative to This Agreement\n\n                  Company has all necessary corporate power and authority to\nexecute and deliver this Agreement, to perform its obligations hereunder and to\nconsummate the transactions contemplated hereby. The execution and delivery of\nthis Agreement by Company and the consummation by Company of the transactions\ncontemplated hereby have been duly and validly authorized by all necessary\ncorporate action, and no other corporate proceedings on the part of Company are\nnecessary to authorize this Agreement or to consummate the transactions\ncontemplated hereby (other than, with respect to the Merger, the approval of\nthis Agreement by the holders of two-thirds (2\/3) of the outstanding shares of\nCompany Common Stock entitled to vote with respect thereto at the Company\nShareholders' Meeting (the \"Company Shareholder Approval\"), and the filing and\nrecordation of the Certificate of Merger as required by New York Law). This\nAgreement has been duly executed and delivered by Company and, assuming the due\nauthorization, execution and delivery by the other parties hereto, constitutes\nlegal, valid and binding obligations of Company, enforceable against Company in\naccordance with its terms, subject to the effect of any applicable bankruptcy,\nmoratorium, insolvency, reorganization or other similar law affecting the\nenforceability of creditors' rights generally and to the effect of general\nprinciples of equity which may limit the availability of remedies (whether in a\nproceeding at law or in equity).\n\n\n                                       17\n\n\n                  SECTION 4.05     No Conflict; Required Filings and Consents\n\n                  (a) The execution and delivery of this Agreement by Company do\nnot, and the performance by Company of its obligations hereunder and the\nconsummation of the Merger will not, (i) conflict with or violate any provision\nof the certificate of incorporation or bylaws of Company, (ii) assuming that all\nfilings and notifications described in Section 4.05(b) have been made, conflict\nwith or violate any Law applicable to Company or by which any material property\nor asset of Company is bound or affected or (iii) result in any material breach\nof or constitute a material default (or an event which with the giving of notice\nor lapse of time or both could reasonably be expected to become a default)\nunder, or give to others any right of termination, amendment, acceleration or\ncancellation of, or result in the creation of a lien or other encumbrance on any\nmaterial property or asset of Company pursuant to, any material note, bond,\nmortgage, indenture, contract, agreement, lease, license, permit, franchise or\nother instrument or obligation.\n\n                  (b) The execution and delivery of this Agreement by Company do\nnot, and the performance by Company of its obligations hereunder and the\nconsummation of the Merger will not, require any consent, approval,\nauthorization or permit of, or filing by Company with or notification by Company\nto, any Governmental Entity, except pursuant to applicable requirements of the\nExchange Act, the rules and regulations of the NNM, state takeover laws, the\npremerger notification requirements of the HSR Act, and the filing and\nrecordation of the Certificate of Merger as required by New York Law.\n\n                  SECTION 4.06     Permits; Compliance with Laws\n\n                  Company is in possession of all material franchises, grants,\nauthorizations, licenses, establishment registrations, product listings,\npermits, easements, variances, exceptions, consents, certificates,\nidentification and registration numbers, approvals and orders of any\nGovernmental Entity necessary for Company to own, lease and operate its\nproperties or to produce, store, distribute and market its products or otherwise\nto carry on its business as it is now being conducted (collectively, the\n\"Company Permits\"), and, as of the date of this Agreement, none of the Company\n\n\n                                       18\n\n\nPermits has been suspended or cancelled nor is any such suspension or\ncancellation pending or, to the Knowledge of Company, threatened. Company is not\nin conflict in any material respect with, or in material default or violation\nof, (i) any Law applicable to Company or by which any property or asset of\nCompany is bound or affected or (ii) any Company Permits. Section 4.06 of the\nCompany Disclosure Schedule sets forth, as of the date of this Agreement, all\nactions, proceedings, investigations or surveys pending or, to the Knowledge of\nCompany, threatened against Company that could reasonably be expected to result\nin the suspension or cancellation of any other Company Permit. Since January 17,\n1996, Company has not received from any Governmental Entity any written\nnotification with respect to possible conflicts, defaults or violations of Laws.\n\n                  SECTION 4.07     SEC Filings; Financial Statements\n\n                  (a) Company has timely filed all forms, reports, statements\nand documents required to be filed by it (A) with the SEC and the NNM since\nNovember 12, 1999 (collectively, together with any such forms, reports,\nstatements and documents Company may file subsequent to the date hereof until\nthe Closing, the \"Company Reports\") and (B) with any other Governmental\nEntities. Each Company Report (i) was prepared in all material respects in\naccordance with the requirements of the Securities Act, the Exchange Act or the\nrules and regulations of the NNM, as the case may be, and (ii) did not at the\ntime it was filed (or, in the case of registration statements filed under the\nSecurities Act, at the time of effectiveness) contain any untrue statement of a\nmaterial fact or omit to state a material fact required to be stated therein or\nnecessary in order to make the statements made therein, in the light of the\ncircumstances under which they were made, not misleading. Each material form,\nreport, statement and document referred to in clause (B) of this paragraph was\nprepared in all material respects in accordance with the requirements of\napplicable Law.\n\n                  (b) Each of the financial statements (including, in each case,\nany notes thereto) contained in the Company Reports was prepared in accordance\nwith U.S. GAAP (except as may be permitted by Form 10-Q under the Exchange Act)\napplied on a consistent basis throughout the periods indicated (except as may be\nindicated in the notes thereto) and each presented fairly, in\n\n\n                                       19\n\n\nall material respects, the financial position of Company as at the respective\ndates thereof and its results of operations, shareholders' equity and cash flows\nfor the respective periods indicated therein, except as otherwise noted therein\n(subject, in the case of unaudited statements, to normal and recurring\nimmaterial year-end adjustments).\n\n                  (c) Except as and to the extent set forth or reserved against\non the balance sheet of Company as reported in the Company Reports, including\nthe notes thereto, Company has no liabilities or obligations of any nature\n(whether accrued, absolute, contingent or otherwise) that would be required to\nbe reflected on a balance sheet or in notes thereto prepared in accordance with\nU.S. GAAP, except for immaterial liabilities or obligations incurred in the\nordinary course of business consistent with past practice since December 31,\n1999.\n\n                  SECTION 4.08     Absence of Certain Changes or Events\n\n                  Since December 31, 1999, Company has conducted its business in\nall material respects only in the ordinary course consistent with past practice\nand, since such date, there has not been (i) any Company Material Adverse\nEffect, (ii) any event that could reasonably be expected to prevent or\nmaterially delay the performance of Company's obligations pursuant to this\nAgreement and the consummation of the Merger by Company, (iii) any material\nchange by Company in its accounting methods, principles or practices, (iv) any\ndeclaration, setting aside or payment of any dividend or distribution in respect\nof the shares of Company Common Stock or any redemption, purchase or other\nacquisition of any of Company's securities, (v) except for changes in the\nordinary course of business consistent with past practice that only affect\nnon-officer employees of the Company, any increase in the compensation or\nbenefits or establishment of any bonus, insurance, severance, deferred\ncompensation, pension, retirement, profit sharing, stock option (including,\nwithout limitation, the granting of stock options, stock appreciation rights,\nperformance awards or restricted stock awards), stock purchase or other employee\nbenefit plan, or any other increase in the compensation payable or to become\npayable to any employees, officers, consultants or directors of Company, (vi)\nany issuance or sale of any stock, notes, bonds or other securities other than\n\n\n                                       20\n\n\npursuant to offerings registered under the Securities Act or pursuant to the\nexercise of outstanding securities, or entering into any agreement with respect\nthereto, (vii) any amendment to the Company's certificate of incorporation or\nbylaws, (viii) other than in the ordinary course of business consistent with\npast practice, any (x) purchase, sale, assignment or transfer of any material\nassets, (y) mortgage, pledge or creation of any lien, encumbrance or charge on\nany material assets or properties, tangible or intangible, except for liens for\nTaxes not yet delinquent and such other liens, encumbrances or charges which,\nindividually or in the aggregate, have not had, and cannot reasonably be\nexpected to lead to, a Company Material Adverse Effect, or (z) waiver of any\nrights of material value or cancellation or any material debts or claims, (ix)\nany incurrence of any material liability (absolute or contingent), except for\ncurrent liabilities and obligations incurred in the ordinary course of business\nconsistent with past practice, (x) any incurrence of any damage, destruction or\nsimilar loss, whether or not covered by insurance, materially affecting the\nbusiness or properties of Company, or (xi) any entering into any transaction of\na material nature other than in the ordinary course of business, consistent with\npast practice.\n\n                  SECTION 4.09     Employee Benefit Plans; Labor Matters\n\n                  (a) The Company Disclosure Schedule lists each employee\nbenefit fund, plan, program, arrangement and contract (including, without\nlimitation, any \"pension\" plan, fund or program, as defined in Section 3(2) of\nERISA, and any \"employee benefit plan,\" as defined in Section 3(3) of ERISA and\nany plan, program, arrangement or contract providing for severance; medical,\ndental or vision benefits; life insurance or death benefits; disability\nbenefits, sick pay or other wage replacement; vacation, holiday or sabbatical;\npension or profit-sharing benefits; stock options or other equity compensation;\nbonus or incentive pay or other material fringe benefits), whether written or\nnot (\"Benefit Plans\"), maintained, sponsored or contributed to or required to be\ncontributed to by Company (the \"Company Benefit Plans\"). With respect to each\nCompany Benefit Plan, Company has delivered or made available to Parent a true,\ncomplete and correct copy of (i) such Company Benefit Plan (or, if not written,\na written summary of its material terms) and the most recent summary plan\n\n\n                                       21\n\n\ndescription, if any, related to such Company Benefit Plan, (ii) each trust\nagreement or other funding arrangement, if any, relating to such Company Benefit\nPlan, (iii) the most recent annual report (Form 5500), if any, filed with the\nIRS with respect to such Company Benefit Plan (and, if the most recent annual\nreport is a Form 5500R, the most recent Form 5500C filed with respect to such\nCompany Benefit Plan), (iv) the most recent actuarial report or financial\nstatement, if any, relating to such Company Benefit Plan and (v) the most recent\ndetermination, notification, advisory or opinion letter, issued by the IRS with\nrespect to such Company Benefit Plan and any pending request for such a\ndetermination letter. Neither Company nor, to the Knowledge of Company, any\nother person or entity, has any express or implied commitment, whether legally\nenforceable or not, to modify, change or terminate any Company Benefit Plan,\nother than with respect to a modification, change or termination required by\nERISA or the Code.\n\n                  (b) Each Company Benefit Plan has been administered in all\nmaterial respects in accordance with its terms and all applicable Laws,\nincluding ERISA and the Code, and all contributions required to be made under\nthe terms of any of the Company Benefit Plans as of the date of this Agreement\nhave been timely made or, if not yet due, have been properly reflected on the\nmost recent balance sheet filed or incorporated by reference in the Company\nReports prior to the date of this Agreement. With respect to the Company Benefit\nPlans, no event has occurred and, to the Knowledge of Company, there exists no\ncondition or set of circumstances in connection with which Company could be\nsubject to any material liability (other than for routine benefit liabilities)\nunder the terms of, or with respect to, such Company Benefit Plans, under ERISA,\nthe Code or any other applicable Law.\n\n                  (c) Company on behalf of itself and each Company ERISA\nAffiliate (as defined below) hereby represents that: (i) each Company Benefit\nPlan which is intended to qualify under Section 401(a), Section 401(k), Section\n401(m) or Section 4975(e)(5) of the Code has received a favorable determination,\nnotification, advisory or opinion letter from the IRS as to its qualified\nstatus, and each trust established in connection with any Company Benefit Plan\nwhich is intended to be exempt from Federal income taxation under Section 501(a)\nof the Code has received a determination letter from the IRS that it is so\nexempt, and to the Knowledge of Company no fact or event has occurred that could\n\n\n                                       22\n\n\nadversely affect the qualified status of any such Company Benefit Plan or the\nexempt status of any such trust; (ii) to the Knowledge of Company there has been\nno prohibited transaction (within the meaning of Section 406 of ERISA or Section\n4975 of the Code and other than a transaction that is exempt under a statutory\nor administrative exemption) with respect to any Company Plan that could result\nin liability to Company and (iii) each Company Benefit Plan can be amended,\nterminated or otherwise discontinued after the Effective Time in accordance with\nits terms, without material liability (other than (A) liability for ordinary\nadministrative expenses typically incurred in a termination event or (B)\nliability for the accrued benefits as of the date of such termination to the\nextent that either there are sufficient assets set aside in a trust or insurance\ncontract to satisfy such liability or such liability is reflected on the most\nrecent consolidated balance sheet filed or incorporated by reference in the\nCompany Reports prior to the date of this Agreement). No suit, administrative\nproceeding, action or other litigation has been brought, or to the Knowledge of\nCompany is threatened, against or with respect to any such Company Benefit Plan,\nincluding any audit or inquiry by the IRS or United States Department of Labor\n(other than routine benefits claims).\n\n                  (d) No Company Benefit Plan is a multiemployer pension plan\n(as defined in Section 3(37) of ERISA) or other pension plan subject to Title IV\nof Part 3 of Title I of ERISA or Section 412 of the Code and neither Company nor\nany other trade or business (whether or not incorporated) that is under \"common\ncontrol\" with Company (within the meaning of ERISA Section 4001) or with respect\nto which Company could otherwise incur liability under Title IV of ERISA (a\n\"Company ERISA Affiliate\") has sponsored or contributed to or been required to\ncontribute to a multiemployer pension plan or other pension plan subject to\nTitle IV of ERISA. No material liability under Title IV of ERISA has been\nincurred by Company or any Company ERISA Affiliate that has not been satisfied\nin full, and no condition exists that presents a material risk to Company of\nincurring or being subject (whether primarily, jointly or secondarily) to a\nmaterial liability thereunder. None of the assets of Company is, or may\nreasonably be expected to become, the subject of any lien arising under ERISA or\nSection 412(n) of the Code.\n\n\n                                       23\n\n\n                  (e) Company has delivered to Parent true, complete and correct\ncopies of (i) all employment agreements with officers and all consulting\nagreements of Company providing for annual compensation in excess of $100,000\n(ii) all severance plans, agreements, programs and policies of Company with or\nrelating to its employees, directors or consultants, and (iii) all plans,\nprograms, agreements and other arrangements of Company with or relating to its\nemployees, directors or consultants which contain \"change of control\"\nprovisions. No payment or benefit which may be required to be made by Company or\nwhich otherwise may be required to be made under the terms of any Company\nBenefit Plan or other arrangement will constitute a parachute payment under Code\nSection 280(G)(1), and the consummation of the transactions contemplated by this\nAgreement will not, alone or in conjunction with any other possible event\n(including termination of employment), (i) entitle any current or former\nemployee or other service provider of Company to severance benefits or any other\npayment, compensation or benefit (including forgiveness of indebtedness), except\nas expressly provided by this Agreement, or (ii) accelerate the time of payment\nor vesting, or increase the amount of compensation or benefit due any such\nemployee or service provider.\n\n                  (f) Company is not a party to, and has no obligations under or\nwith respect to, any collective bargaining or other labor union contract\napplicable to persons employed by Company and no collective bargaining agreement\nis being negotiated by Company or any person or entity that may obligate the\nCompany thereunder. As of the date of this Agreement, there is no labor dispute,\nstrike or work stoppage against Company pending or, to the Knowledge of Company,\nthreatened which may interfere with the business activities of Company. As of\nthe date of this Agreement, to the Knowledge of Company, none of Company or any\nof its representatives or employees has committed any unfair labor practice in\nconnection with the operation of the business of Company, and there is no charge\nor complaint against Company by the National Labor Relations Board or any\ncomparable Governmental Entity pending or threatened in writing.\n\n                  (g) Except as required by Law, no Company Benefit Plan\nprovides any of the following retiree or post- employment benefits to any\nperson: medical, disability or life insurance benefits. To the Knowledge of\nCompany, Company and the Company ERISA Affiliates are in compliance in all\n\n\n                                       24\n\n\nmaterial respects with (i) the requirements of the applicable health care\ncontinuation and notice provisions of the Consolidated Omnibus Budget\nReconciliation Act of 1985, as amended (\"COBRA\") and the regulations (including\nproposed regulations) thereunder and (ii) the applicable requirements of the\nHealth Insurance Portability and Accountability Act of 1996, as amended, and the\nregulations (including the proposed regulations) thereunder.\n\n                  SECTION 4.10     [Intentionally Omitted]\n\n                  SECTION 4.11     Contracts\n\n                  Except for the contracts and agreements described in Section\n4.11 of the Company Disclosure Schedule (collectively, the \"Listed Contracts\"),\nCompany is not a party to any of the following:\n\n                  (a) any list owners agreement, purchase agreement or bill of\nsale relating to the purchase of e-mail user lists, customer marketing agreement\n(or similar agreement with brokers) or agreement with non-standard payment\nterms, in each case, which ranks in Company's 25 largest customer or supplier\nrelationships, as measured by dollar value, for each of these categories of\nagreements;\n\n                  (b) any continuing contract for the purchase of materials,\nsupplies, equipment or services involving in the case of any such contact more\nthan $100,000 over the life of the contract;\n\n                  (c) any contract that expires more than one year after the\ndate of this Agreement or any contract that may be renewed at the option of any\nperson other than the Company so as to expire more than one year after the date\nof this Agreement;\n\n                  (d) any trust indenture, mortgage, promissory note, loan\nagreement or other contract for the borrowing of money, any currency exchange,\ncommodities or other hedging arrangement or any leasing transaction of the type\nrequired to be capitalized in accordance with U.S. GAAP in excess of $100,000;\n\n                  (e) any contract for capital expenditures in excess of\n$100,000 in the aggregate;\n\n\n                                       25\n\n\n                  (f) any contract limiting the freedom of Company to engage in\nany line of business or to compete with any other corporation, partnership,\nlimited liability company, trust, individual or other entity, or any\nconfidentiality, secrecy or non-disclosure contract or any contract that may be\nterminable as a result of Parent's status as a competitor of any party to such\ncontract;\n\n                  (g) any contract pursuant to which Company is a lessor of any\nmachinery, equipment, motor vehicles, office furniture, fixtures or other\npersonal property, pursuant to which payments in excess of $100,000 remain\noutstanding;\n\n                  (h) any contract with an Affiliate;\n\n                  (i) any agreement of guarantee, support, indemnification,\nassumption or endorsement of, or any similar commitment with respect to, the\nobligations, liabilities (whether accrued, absolute, contingent or otherwise) or\nindebtedness of any other person other than customary customer agreements made\nin the ordinary course of business; or\n\n                  (j) any employment contract, arrangement or policy (including\nwithout limitation any collective bargaining contract or union agreement) which\nmay not be immediately terminated without penalty (or any augmentation or\nacceleration of benefits).\n\n                  Company has performed all of the obligations required to be\nperformed by it and is entitled to all benefits under, and is not alleged to be\nin default in respect of any Listed Contract. Each of the Listed Contracts is\nvalid and binding and in full force and effect, and there exists no default or\nevent of default or event, occurrence, condition or act, with respect to\nCompany, or to the Knowledge of Company, with respect to any other contracting\nparty, which, with the giving of notice, the lapse of the time or the happening\nof any other event or conditions, would become a default or event of default\nunder any Listed Contract. True, correct and complete copies of all Listed\nContracts have been delivered to Parent.\n\n\n                                       26\n\n\n                  SECTION 4.12     Litigation\n\n                  There is no suit, claim, action, proceeding or investigation\npending or, to the Knowledge of Company, threatened against Company that could\nreasonably be expected to have, individually or in the aggregate, a Company\nMaterial Adverse Effect or materially interfere with Company's ability to\nconsummate the transactions contemplated hereby, and, to the Knowledge of\nCompany, there are no existing facts or circumstances that could reasonably be\nexpected to result in such a suit, claim, action, proceeding or investigation.\nCompany is not aware of any facts or circumstances which could reasonably be\nexpected to result in the denial of insurance coverage under policies issued to\nCompany in respect of such suits, claims, actions, proceedings and\ninvestigations, except in any case as could not reasonably be expected to have,\nindividually or in the aggregate, a Company Material Adverse Effect. Company is\nnot subject to any outstanding order, writ, injunction or decree which could\nreasonably be expected to have, individually or in the aggregate, a Company\nMaterial Adverse Effect or materially interfere with Company's ability to\nconsummate the transactions contemplated hereby.\n\n                  SECTION 4.13     Environmental Matters\n\n                  Except as could not reasonably be expected to have,\nindividually or in the aggregate, a Company Material Adverse Effect, (i) Company\nis in compliance with all applicable Environmental Laws and all Company Permits\nrequired by Environmental Laws; (ii) all past noncompliance of Company with\nEnvironmental Laws or Environmental Permits has been resolved without any\npending, ongoing or future obligation, cost or liability; and (iii) Company has\nnot released a Hazardous Material at, or transported a Hazardous Material to or\nfrom, any real property currently or formerly owned, leased or occupied by\nCompany in violation of any Environmental Law.\n\n                                       27\n\n\n                  SECTION 4.14     Intellectual Property\n\n                  (a) All patents (including, without limitation, all U.S. and\nforeign patents, patent applications, patent disclosures, and all divisions,\ncontinuations, continuations-in-part, reissues, re-examinations and extensions\nthereof), design rights, trademarks, trade names and service marks (whether or\nnot registered), trade dress, Internet domain names, copyrights (whether or not\nregistered) and any renewal rights therefor, technology, supplier lists, trade\nsecrets, know-how, computer software programs or applications in both source and\nobject code form, technical documentation of such software programs, statistical\nmodels, supplier lists, e-mail lists, inventions, sui generis database rights,\ndatabases, data (\"Technical Documentation\"), registrations and applications for\nany of the foregoing and all other tangible or intangible proprietary\ninformation or materials that are or have been used (including without\nlimitation in the development of) Company's business and\/or in any product,\ntechnology or process (i) currently being or formerly manufactured, published,\nmarketed or used by Company or (ii) previously or currently under development\nfor possible future manufacturing, publication, marketing or other use by\nCompany are hereinafter referred to as the \"Company Intellectual Property.\"\n\n                  (b) Section 4.14(b) of the Company Disclosure Schedule\ncontains a true and complete list of Company's patents, patent applications,\nregistered trademarks, trademark applications, common law trademarks, trade\nnames, registered service marks, service mark applications, common law service\nmarks, material Internet domain names, Internet domain name applications,\ncopyright registrations and applications and other filings and formal actions\nmade or taken pursuant to Federal, state, local and foreign laws by Company to\nprotect its interests in Company Intellectual Property, and includes details of\nall due dates for further filings, maintenance, payments or other actions\nfalling due in respect of Company Intellectual Property within twelve (12)\nmonths of the Closing Date. All of Company's patents, patent applications,\nregistered trademarks, trademark applications, registered service marks and\nservice mark registrations, and registered copyrights remain in good standing\nwith all fees and filings due as of the Closing Date having been duly made and\n\n\n                                       28\n\n\nthe due dates specified in the Company Disclosure Schedule are accurate and\ncomplete in all material respects.\n\n                  (c) Section 4.14(c) of the Company Disclosure Schedule\ncontains a true and complete list of the registrations that Company has obtained\nanywhere in the world in relation to the processing of data. Company has made\nall such registrations which it is required to have made and is in good standing\nwith respect to such registrations with all fees due as of the Effective Time\nhaving been duly made. Company has received Valid Consents (as defined below)\nfrom all persons who have provided personal information which are sufficient to\ngive Company (i) the right to use such personal information for the purposes of\nconducting Company's current activities, and Company's future activities to the\nextent such future activities are already planned, and (ii) the right to assign\nthe personal information and the applicable consents to Parent or its\nAffiliates. For the purposes of this Section 4.14(c), \"Valid Consents\" shall\nmean consents obtained (i) for persons aged 13 and over, using Company's double\nopt-in method by which the persons providing personal information to Company\nhave both (a) indicated their consent by checking a box which signifies his or\nher desire to have his or her personal information registered with the site and\nused by Company, and (b) thereafter responded to a confirmatory e-mail message\nto signify his or her desire to have his or her personal information registered\nwith the site and used by Company and (ii) for persons under the age of 13, in\naccordance with the Children's Online Privacy Protection Act of 1998. Company\nhas not used any personal information without or beyond the scope of a Valid\nConsent. Company has placed all personal information relating to persons who\nhave signified that they do not grant or later revoke a Valid Consent in an\nunsubscribed archive file where such data is stored but not used by Company.\nCompany has not collected and maintains no personal information about persons\noutside the United States in violation of any local, state or Federal law.\n\n                  (d) Company Intellectual Property consists solely of items and\nrights which are: (i) owned by Company; (ii) in the public domain; or (iii)\nrightfully used by Company pursuant to a valid license (the \"Company Licensed\nIntellectual Property\"), the parties and date of each such license agreement\n(each, a \"License Agreement\") being set forth on Section 4.14(c) of the Company\nDisclosure Schedule. Company has all rights in Company Intellectual Property\n\n\n                                       29\n\n\nnecessary to carry out Company's current activities (and had all rights\nnecessary to carry out its former activities at the time such activities were\nbeing conducted), including without limitation, to the extent required to carry\nout such activities, rights to make, use, reproduce, modify, adopt, create\nderivative works based on, translate, distribute (directly and indirectly),\ntransmit, display and perform publicly, license, rent and lease and, other than\nwith respect to the Company Licensed Intellectual Property, assign and sell, the\nCompany Intellectual Property.\n\n                  (e) The reproduction, manufacturing, distribution, licensing,\nsublicensing, sale, use or any other exercise of rights in any Company\nIntellectual Property, product, service, work, technology or process as now used\nor offered or proposed for use, licensing or sale by Company does not infringe\non any copyright, trade secret, trademark, service mark, trade name, trade\ndress, firm name, Internet domain name, logo, mask work or other proprietary or\npersonal right of any person or, to the actual knowledge of Company, the patent\nof any person anywhere in the world. No claims (i) challenging the validity,\neffectiveness or, other than with respect to the Company Licensed Intellectual\nProperty, ownership by Company of any of the Company Intellectual Property, or\n(ii) to the effect that the use, distribution, licensing, sublicensing, sale or\nany other exercise of rights in any product, service, work, technology or\nprocess as now used or offered or proposed for use, licensing, sublicensing, use\nor sale by Company infringes or will infringe on any intellectual property or\nother proprietary or personal right of any person have been asserted or, to the\nKnowledge of Company, are threatened by any person, nor are there, to the\nKnowledge of Company, any valid grounds for any bona fide claim of any such\nkind. All registered, granted or issued patents, trademarks, Internet domain\nnames and copyrights held by Company are subsisting and, to the Knowledge of\nCompany, enforceable. To the Knowledge of Company, there is no unauthorized use,\ninfringement or misappropriation of any of the Company Intellectual Property by\nany third party, employee or former employee.\n\n                  (f) All personnel, including employees, agents, consultants\nand contractors, who have contributed to or participated in the conception and\ndevelopment of the Company Intellectual Property on behalf of Company, have\n\n\n                                       30\n\n\nexecuted nondisclosure agreements in the form set forth in Section 4.14(f) of\nthe Company Disclosure Schedule and either (i) have been a party to a\n\"work-for-hire\" arrangement or agreements with Company in accordance with\napplicable Federal and state law that has accorded Company full, effective,\nexclusive and original ownership of all tangible and intangible property thereby\narising, or (ii) have executed appropriate instruments of assignment in favor of\nCompany as assignee that have conveyed to Company effective and exclusive\nownership of all tangible and intangible property thereby arising.\n\n                  (g) Company is not, nor as a result of the execution or\ndelivery of this Agreement, or performance of Company's obligations hereunder,\nwill Company be, in violation of any license, sublicense, agreement or\ninstrument relating to Company Intellectual Property to which Company is a party\nor otherwise bound, nor will execution or delivery of this Agreement, or\nperformance of Company's obligations hereunder, cause the diminution,\ntermination or forfeiture of any Company Intellectual Property.\n\n                  (h) Section 4.14(h) of the Company Disclosure Schedule\ncontains a true and complete list of all of Company's software programs (the\n\"Company Software Programs\"). Except with respect to software or technology\nlicensed by Company (to which Company holds appropriate and valid licenses),\nCompany owns full and unencumbered right and good, valid and marketable title to\nsuch Company Software Programs free and clear of all mortgages, pledges, liens,\nsecurity interests, conditional sales agreements, encumbrances or charges of any\nkind.\n\n                  (i) The source code and system documentation relating to the\nCompany Software Programs (i) have at all times been maintained in strict\nconfidence, (ii) have been disclosed by Company only to employees who have a\n\"need to know\" the contents thereof in connection with the performance of their\nduties to Company and who have executed the nondisclosure agreements referred to\nin Section 4.14(f), and (iii) have not been disclosed to any third party, except\nthose third parties set forth in Section 4.14(i) of the Company Disclosure\nSchedule who have executed nondisclosure agreements with Company.\n\n\n                                       31\n\n\n                  (j) Company has taken all reasonable steps, in accordance with\nnormal industry practice, to preserve and maintain complete notes and records\nrelating to Company Intellectual Property necessary or appropriate to cause the\nsame to be readily understood, identified and available.\n\n                  (k) The Company Software Programs (i) have been designed to\nensure year 2000 compatibility, which includes, but is not limited to, date data\ncentury recognition, and calculations that accommodate same century and\nmulti-century formulas and date values; (ii) operate and will operate in\naccordance with their specifications prior to, during and after the calendar\nyear 2000 AD; and (iii) shall not end abnormally or provide invalid or incorrect\nresults as a result of date data, specifically including date data which\nrepresents or references different centuries or more than one century.\n\n                  (l) The Company Intellectual Property is free and clear of any\nand all mortgages, pledges, liens, security interests, conditional sale\nagreements, charges or encumbrances of any kind.\n\n                  (m) Company does not owe any royalties or other payments to\nthird parties in respect of Company Intellectual Property. All royalties or\nother payments set forth in Section 4.14(m) of the Company Disclosure Schedule\nthat have accrued or will accrue prior to the Effective Time have been or will\nbe paid.\n\n                  (n) Company uses commercially reasonable efforts to regularly\nscan the Company Software Programs and, to, the extent applicable, the other\nCompany Intellectual Property, with \"best-in-class\" virus detection software. To\nthe Knowledge of Company, the Company Software Programs and other Company\nIntellectual Property contain no \"viruses.\" For the purposes of this Agreement,\n\"virus\" means any computer code intentionally designed to disrupt, disable or\nharm in any manner the operation of any software or hardware. To the Knowledge\nof Company, none of the foregoing contains any worm, bomb, backdoor, clock,\ntimer, or other disabling device code, design or routine which causes the\nsoftware to be erased, inoperable, or otherwise incapable of being used, either\nautomatically or upon command by any party.\n\n\n                                       32\n\n\n                  (o) Company has implemented all reasonable steps which are\nknown in the information systems industry in the physical and electronic\nprotection of its information assets from unauthorized disclosure, use or\nmodification. Section 4.14(o) of the Company Disclosure Schedule sets forth (i)\neach breach of security of which Company is aware, (ii) its known or anticipated\nconsequences, and (iii) the steps Company has taken to remedy such breach.\n\n                  SECTION 4.15     Taxes\n\n                  (a) Company and any consolidated, combined, unitary or\naggregate group for Tax purposes of which Company is or has been a member, have\nproperly completed and timely filed all Tax Returns required to be filed by them\nand have paid all Taxes due with respect to the taxable periods covered by such\nTax Returns and all other material Taxes. Such Tax Returns are complete and\ncorrect. Company has provided adequate accruals in accordance with U.S. GAAP in\nits latest financial statements included in the Company Reports for any Taxes\npayable by Company and its subsidiaries for all taxable periods and portions\nthereof through the date of such financial statements, whether or not shown as\nbeing due on any Tax Returns. Other than Taxes incurred in the ordinary course\nof business, Company has no material liability for unpaid Taxes accruing after\nthe date of the Company's latest financial statements included in the Company\nReports.\n\n                  (b) There is (i) no material claim for Taxes that is a lien\nagainst the property of Company or is being asserted against Company other than\nliens for Taxes not yet due and payable, (ii) no audit of any Tax Return of\nCompany being conducted by a Tax Authority, (iii) no extension of the statute of\nlimitations on the assessment of any Taxes that has been granted to Company and\nis currently in effect, (iv) no deficiency, refund litigation, proposed\nadjustment or matter in controversy with respect to any Taxes due and owing by\nCompany and (v) no agreement, contract or arrangement to which Company is a\nparty that may result in the payment of any amount that would not be deductible\nby reason of Section 280G or Section 404 of the Code.\n\n                  (c) There has been no change in ownership of Company that has\ncaused the utilization of any losses of Company to be limited pursuant to\nSection 382 of the Code, and any loss carryovers reflected on the latest\nfinancial statements included in the Company Reports are properly computed and\nreflected.\n\n\n                                       33\n\n\n                  (d) Company has not been and will not be required by reason of\nthe Merger to include any material adjustment in Taxable income for any Tax\nperiod (or portion thereof) pursuant to Section 481 or 263A of the Code or any\ncomparable provision under state or foreign Tax laws as a result of\ntransactions, events or accounting methods employed prior to the Merger.\n\n                  (e) Company has not filed and will not file any consent to\nhave the provisions of paragraph 341(f)(2) of the Code (or comparable provisions\nof any state Tax laws) apply to Company.\n\n                  (f) Company is not a party to any Tax sharing or Tax\nallocation agreement nor does Company have any liability or potential liability\nto another party under any such agreement.\n\n                  (g) Company has not filed any disclosures under Section 6662\nor comparable provisions of state, local or foreign law to prevent the\nimposition of penalties with respect to any Tax reporting position taken on any\nTax Return.\n\n                  (h) Company has not ever been a member of a consolidated,\ncombined or unitary group of which Company was not the ultimate parent\ncorporation.\n\n                  (i) Company has in its possession receipts for any Taxes paid\nto foreign Tax authorities. Company has not ever been a \"personal holding\ncompany\" within the meaning of Section 542 of the Code or a \"United States real\nproperty holding corporation\" within the meaning of Section 897 of the Code.\n\n                  (j) Neither Company nor any of its subsidiaries has\nconstituted either a \"distributing corporation\" or a \"controlled corporation\"\n(within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of\nstock qualifying for tax-free treatment under Section 355 of the Code (i) in the\ntwo years prior to the date of this Agreement or (ii) in a distribution which\ncould otherwise constitute part of a \"plan\" or \"series of related transactions\"\n\n\n                                       34\n\n\n(within the meaning of Section 355(e) of the Code) in conjunction with the\nMerger.\n\n                  (k) Company and its subsidiaries have complied with all\napplicable statutes, laws, ordinances, rules and regulations relating to the\npayment and withholding of taxes and have, within the time and the manner\nprescribed by law, withheld from and paid over to the proper governmental\nauthorities all amounts required to be so withheld and paid over under\napplicable laws.\n\n                  SECTION 4.16     Insurance\n\n                  Company is presently insured, and since its inception has been\ninsured, against such risks as companies engaged in a similar business would, in\naccordance with good business practice, customarily be insured. The policies of\nfire, theft, liability and other insurance maintained with respect to the assets\nor businesses of Company, in Company's reasonable estimation, provide adequate\ncoverage against loss. Company has heretofore furnished to Parent a complete and\ncorrect list as of the date hereof of all insurance policies maintained by\nCompany, and has made available to Parent complete and correct copies of all\nsuch policies, together with all riders and amendments thereto. All such\npolicies are in full force and effect and all premiums due thereon have been\npaid to the date hereof. Company has complied in all material respects with the\nterms of such policies.\n\n                  SECTION 4.17     Properties\n\n                  Company has good and marketable title, free and clear of all\nmaterial mortgages, liens, pledges, charges or other encumbrances to all its\nmaterial tangible properties and assets, whether tangible or intangible, real,\npersonal or mixed, reflected in the Company's financial statements contained in\nthe Company's Annual Report on Form 10-K for the fiscal year ended December 31,\n1999, as being owned by Company as of the date thereof, other than (i) any\nproperties or assets that have been sold or otherwise disposed of in the\nordinary course of business since the date of such financial statements, (ii)\nliens disclosed in the notes to such financial statements, and (iii) liens\narising in the ordinary course of business after the date of such financial\nstatements. All buildings, and all fixtures, equipment and other property and\n\n\n                                       35\n\n\nassets that are material to its business on a consolidated basis, held under\nleases or sub-leases by Company are held under valid instruments enforceable in\naccordance with their respective terms, subject to applicable laws of\nbankruptcy, insolvency or similar laws relating to creditors' rights generally\nand to general principles of equity (whether applied in a proceeding in law or\nequity). Substantially all of Company's equipment in regular use which is\nmaterial to the operation of Company has been reasonably maintained and is in\nserviceable condition, reasonable wear and tear excepted.\n\n                  SECTION 4.18     [Intentionally Omitted]\n\n                  SECTION 4.19     Opinion of Financial Advisor\n\n                  BancBoston Robertson Stephens Inc. (\"Robertson Stephens\") has\ndelivered to the Board of Directors of Company its written opinion to the effect\nthat, as of the date hereof, the Merger Consideration is fair to the holders of\nshares of Company Common Stock from a financial point of view.\n\n                  SECTION 4.20     Brokers\n\n                  No broker, finder or investment banker (other than Robertson\nStephens and Friedman, Billings, Ramsey &amp; Co., Inc., the fees and expenses of\neach of which will be paid by Company) is entitled to any brokerage, finder's or\nother fee or commission in connection with the Merger based upon arrangements\nmade by or on behalf of Company. Company has heretofore made available to Parent\ntrue, complete and correct copies of all agreements between Company and\nRobertson Stephens pursuant to which such firm would be entitled to any payment\nrelating to the Merger.\n\n                  SECTION 4.21     Certain Business Practices\n\n                  Neither Company nor any directors, officers, agents or\nemployees of Company (in their capacities as such) has (i) used any funds for\nunlawful contributions, gifts, entertainment or other unlawful expenses relating\nto political activity, (ii) made any unlawful payment to foreign or domestic\ngovernment officials or employees or to foreign or domestic political parties or\ncampaigns or violated any provision of the Foreign Corrupt Practices Act of\n1977, as amended, or (iii) made any other unlawful payment.\n\n\n                                       36\n\n\n                  SECTION 4.22     Section 912 of New York Law Not Applicable\n\n                  The Board of Directors of Company, at a meeting duly called\nand held, duly adopted resolutions (i) unanimously approving the Merger, this\nAgreement and the Shareholders' Agreement, (ii) determining that the terms of\nthe Merger are fair to, and in the best interests of, Company and its\nshareholders, (iii) recommending that Company's shareholders adopt this\nAgreement and (iv) adopting this Agreement. Such resolutions and approval\nconstitutes approval of the Merger, this Agreement and the Shareholders'\nAgreement and the transactions contemplated by this Agreement and the\nShareholders' Agreement by the Board of Directors of Company under Section 912\nof New York Law and represents all the action necessary to ensure that the\nrestrictions contained in such Section 912 do not apply to any of Parent, Lux\nSub or Merger Sub in connection with the Merger, this Agreement and the\nShareholders' Agreement and the transactions contemplated by this Agreement and\nthe Shareholders' Agreement. To the Knowledge of Company, no other state\ntakeover statute or similar statute or regulation applies or purports to apply\nto the Merger, this Agreement, the Shareholders' Agreement or the transactions\ncontemplated by this Agreement and the Shareholders' Agreement.\n\n                  SECTION 4.23     Business Activity Restriction\n\n                  There is no non-competition or other similar agreement,\ncommitment, judgment, injunction, order or decree to which Company is a party or\nsubject to that has or could reasonably be expected to have the effect of\nprohibiting or impairing the conduct of business by Company in any material\nrespect. Company has not entered into any agreement under which Company is\nrestricted in any material respect from selling, licensing or otherwise\ndistributing any of its technology or products to, or providing services to,\ncustomers or potential customers or any class of customers, in any geographic\narea, during any period of time or in any segment of the market or line of\nbusiness.\n\n\n                                       37\n\n\n                  SECTION 4.24     Privacy\n\n                  Company is, and has always been, in compliance with its\nthen-current privacy policy, including those posted on Company's Web site(s).\nCompany has conducted its business and maintained its data at all times in\naccordance with (i) the standards promulgated by the Online Privacy Alliance,\n(ii) the standards promulgated by the Direct Marketing Association, and (iii)\nall applicable Federal, state and other laws, including, but not limited to,\nthose relating to the use of information collected from or about consumers.\nCompany is, and has always been, in compliance with its customers' privacy\npolicies, when required to do so by contract.\n\n                                    ARTICLE V\n\n                    REPRESENTATIONS AND WARRANTIES OF PARENT\n\n                  Parent and Lux Sub hereby represent and warrant to Company\nthat:\n\n                  SECTION 5.01     Organization and Qualification; Subsidiaries\n\n                  Parent, Lux Sub and Merger Sub have each been duly organized\nand each is validly existing and in good standing (to the extent applicable)\nunder the laws of the jurisdiction of its incorporation or organization, as the\ncase may be, and has the requisite corporate power and authority and all\nnecessary governmental approvals to own, lease and operate its properties and to\ncarry on its business as it is now being conducted. Each of Parent, Lux Sub and\nMerger Sub is duly qualified or licensed to do business, and is in good standing\n(to the extent applicable), in each jurisdiction where the character of the\nproperties owned, leased or operated by it or the nature of its business makes\nsuch qualification or licensing necessary, except for such failures to be so\nqualified or licensed and in good standing that could not reasonably be expected\nto have, individually or in the aggregate, a Parent Material Adverse Effect. The\nname of Merger Sub under which it was formed was Nickel Acquisition Corp.\n\n\n                                       38\n\n\n                  SECTION 5.02     Authority Relative to this Agreement\n\n                  Each of Parent, Lux Sub and Merger Sub has all necessary\ncorporate power and authority to execute and deliver this Agreement, to perform\nits obligations hereunder and to consummate the transactions contemplated\nhereby. The execution and delivery of this Agreement by each of Parent, Lux Sub\nand Merger Sub and the consummation by Parent, Lux Sub and Merger Sub of the\ntransactions contemplated hereby have been duly and validly authorized by all\nnecessary corporate action, and no other corporate proceedings on the part of\nParent, Lux Sub or Merger Sub are necessary to authorize this Agreement or to\nconsummate such transactions (other than the consent of Lux Sub as sole\nshareholder of Merger Sub and the filing and recordation of the Certificate of\nMerger as required by New York Law). This Agreement has been duly executed and\ndelivered by each of Parent, Lux Sub and Merger Sub and, assuming the due\nauthorization, execution and delivery by Company, constitutes a legal, valid and\nbinding obligation of each of Parent, Lux Sub and Merger Sub enforceable against\nParent and Merger Sub in accordance with its terms, subject to the effect of any\napplicable bankruptcy, moratorium, insolvency, reorganization or other similar\nlaw affecting the enforceability of creditors' rights generally and to the\neffect of general principles of equity which may limit the availability of\nremedies (whether in a proceeding at law or in equity).\n\n                  SECTION 5.03     No Conflict; Required Filings and Consents\n\n                  (a) The execution and delivery of this Agreement by Parent,\nLux Sub and Merger Sub does not, and the performance by Parent and Merger Sub of\ntheir obligations hereunder and the consummation of the Merger will not, (i)\nconflict with or violate any provision of the certificate of incorporation or\nbylaws (or any equivalent organizational document) of Parent, Lux Sub or Merger\nSub, (ii) assuming that all consents, approvals, authorizations and permits\ndescribed in Section 5.05(b) have been obtained and all filings and\nnotifications described in Section 5.05(b) have been made, conflict with or\nviolate any Law applicable to Parent, Lux Sub or Merger Sub or by which any\nproperty or asset of Parent, Lux Sub or Merger Sub is bound or affected or (iii)\n\n\n                                       39\n\n\nresult in any material breach of or constitute a material default (or an event\nwhich with the giving of notice or lapse of time or both could reasonably be\nexpected to become a default) under, or give to others any right of termination,\namendment, acceleration or cancellation of, or result in the creation of a lien\nor other encumbrance on any material property or asset of Parent, Lux Sub or\nMerger Sub pursuant to, any note, bond, mortgage, indenture, contract,\nagreement, lease, license, permit, franchise or other instrument or obligation.\n\n                  (b) The execution and delivery of this Agreement by Parent,\nLux Sub and Merger Sub does not, and the performance by Parent, Lux Sub and\nMerger Sub of their respective obligations hereunder and the consummation of the\nMerger will not, require any consent, approval, authorization or permit of, or\nfiling by Parent, Lux Sub or Merger Sub with or notification by Parent, Lux Sub\nor Merger Sub to, any Governmental Entity, except pursuant to the premerger\nnotification requirements of the HSR Act, if any, and the filing and recordation\nof the Certificate of Merger as required by New York Law.\n\n                  SECTION 5.04     Financing\n\n         At the Effective Time, Lux Sub will have available sufficient cash in\nimmediately available funds necessary for the acquisition of all shares of\nCompany Common Stock pursuant to the Merger.\n\n                                   ARTICLE VI\n\n                                    COVENANTS\n\n                  SECTION 6.01     Conduct of Business by Company Pending the\nClosing\n\n                  Company agrees that, between the date of this Agreement and\nthe Effective Time, except as contemplated by this Agreement, unless Parent\nshall otherwise agree in writing, (x) the business of Company shall be conducted\nonly in, and Company shall not take any action except in, the ordinary course of\nbusiness consistent with past practice and (y) Company shall use its best\nefforts to keep available the services of such of the current officers,\nsignificant employees and consultants of Company and to preserve the current\nrelationships of Company with such of the corporate partners, customers,\n\n\n                                       40\n\n\nsuppliers and other persons with which Company has significant business\nrelations in order to preserve substantially intact its business organization.\nBy way of amplification and not limitation, Company shall not, between the date\nof this Agreement and the Effective Time, except as contemplated by this\nAgreement, directly or indirectly, do, or agree to do, any of the following\nwithout the prior written consent of Parent:\n\n                  (a) amend or otherwise change its certificate of incorporation\nor bylaws or equivalent organizational documents;\n\n                  (b) issue, sell, pledge, dispose of, grant, transfer, lease,\nlicense, guarantee or encumber, or authorize the issuance, sale, pledge,\ndisposition, grant, transfer, lease, license or encumbrance of, (i) any shares\nof capital stock of Company of any class, or securities convertible into or\nexchangeable or exercisable for any shares of such capital stock, or any\noptions, warrants or other rights of any kind to acquire any shares of such\ncapital stock, or any other ownership interest (including, without limitation,\nany phantom interest), of Company, other than the issuance of shares of Company\nCommon Stock pursuant to the exercise of stock options therefor outstanding as\nof the date of this Agreement or pursuant to the Company Stock Purchase Plan or\n(ii) any material property or assets of Company except sales of inventory in the\nordinary course of business consistent with past practice and the providing of\nopt-in e-mail addresses to direct marketers and brokers by Company in the\nordinary course of business;\n\n                  (c) (i) acquire (including, without limitation, by merger,\nconsolidation, or acquisition of stock or assets) any interest in any\ncorporation, partnership, other business organization or person or any division\nthereof; (ii) incur any indebtedness for borrowed money (other than in de\nminimis amounts) or issue any debt securities or assume, guarantee or endorse,\nor otherwise as an accommodation become responsible for, the obligations of any\nperson for borrowed money or make any loans or advances material to the\nbusiness, assets, liabilities, financial condition or results of operations of\nCompany; (iii) terminate, cancel or request any material change in, or agree to\nany material change in, any Company Listed Contract or License Agreement; (iv)\nmake or authorize any capital expenditure, other than capital expenditures in\nthe ordinary course of business consistent with past practice that have been\n\n\n                                       41\n\n\ndescribed in the Company Disclosure Schedule and that are not, in the aggregate,\nin excess of $250,000 for Company; or (v) enter into or amend any contract,\nagreement, commitment or arrangement that, if fully performed, would not be\npermitted under this Section 6.01(c);\n\n                  (d) declare, set aside, make or pay any dividend or other\ndistribution, payable in cash, stock, property or otherwise, with respect to any\nof its capital stock;\n\n                  (e) reclassify, combine, split, subdivide or redeem, purchase\nor otherwise acquire, directly or indirectly, any of its capital stock except\nrepurchases of unvested shares at cost in connection with the termination of the\nemployment relationship with any employee pursuant to stock option or purchase\nagreements in effect on the date hereof;\n\n                  (f) amend or change the period (or permit any acceleration,\namendment or change) of exercisability of options granted under the Company\nStock Plan or authorize cash payments in exchange for any Company Stock Options\ngranted under the Company Stock Plan;\n\n                  (g) amend the terms of, repurchase, redeem or otherwise\nacquire any of its securities or propose to do any of the foregoing;\n\n                  (h) increase the compensation payable or to become payable to\nits directors, officers, consultants or employees, grant any rights to severance\nor termination pay to, or enter into any employment or severance agreement which\nprovides benefits upon a change in control of Company that would be triggered by\nthe Merger with, any director, officer, consultant or other employee of Company\nwho is not currently entitled to such benefits from the Merger, establish,\nadopt, enter into or amend any collective bargaining, bonus, profit sharing,\nthrift, compensation, stock option, restricted stock, pension, retirement,\ndeferred compensation, employment, termination, severance or other plan,\nagreement, trust, fund, policy or arrangement for the benefit of any director,\nofficer, consultant or employee of Company, except to the extent required by\napplicable Law or the terms of a collective bargaining agreement, or enter into\n\n\n                                       42\n\n\nor amend any contract, agreement, commitment or arrangement between Company and\nany of Company's directors, officers, consultants or employees;\n\n                  (i) pay, discharge or satisfy any claims, liabilities or\nobligations (absolute, accrued, asserted or unasserted, contingent or\notherwise), other than the payment, discharge or satisfaction in the ordinary\ncourse of business and consistent with past practice of liabilities reflected or\nreserved against on the balance sheet of Company dated as of June 30, 2000\nincluded in Company's quarterly report on Form 10-Q for the period then ended;\n\n                  (j) except as required by any Governmental Entity, make any\nchange with respect to Company's accounting policies, principles, methods or\nprocedures, including, without limitation, revenue recognition policies, other\nthan as required by U.S. GAAP;\n\n                  (k) make any Tax election or settle or compromise any Tax\nliability; or\n\n                  (l) authorize or enter into any formal or informal agreement\nor otherwise make any commitment to do any of the foregoing or to take any\naction which would make any of the representations or warranties of Company\ncontained in this Agreement untrue or incorrect or prevent Company from\nperforming or cause Company not to perform its covenants hereunder in any\nmaternal respect or result in any of the conditions to the Merger set forth\nherein not being satisfied or prevent Company from performing or cause Company\nnot to perform its covenants hereunder.\n\n                  SECTION 6.02     Notices of Certain Events\n\n                  (a) Each of Parent and Company shall give prompt notice to the\nother of (i) any notice or other communication from any person alleging that the\nconsent of such person is or may be required in connection with the Merger; (ii)\nany notice or other communication from any Governmental Entity in connection\nwith the Merger; and (iii) any change that could reasonably be expected to delay\nor impede the ability of either Parent or Lux Sub, on the one hand, or Company,\non the other, to perform their respective obligations pursuant to this Agreement\nand to effect the consummation of the Merger.\n\n\n                                       43\n\n\n                  (b) In addition, Company shall give Parent prompt notice of\n(i) any actions, suits, claims, investigations or proceedings commenced or, to\nthe Knowledge of Company, threatened against, relating to or involving or\notherwise affecting Company, or that relate to the consummation of the Merger;\n(ii) the occurrence of a default or event that, with the giving of notice or\nlapse of time or both, will become a default under any Listed Contract; and\n(iii) any change that could reasonably be expected to have a Company Material\nAdverse Effect.\n\n                  (c) In addition, Parent shall give Company prompt notice of\nany actions, suits, claims, investigations or proceedings commenced or, to the\nKnowledge of Parent, threatened, in each case that relate to the consummation of\nthe Merger.\n\n                  SECTION 6.03     Access to Information; Confidentiality\n\n                  (a) From the date of this Agreement to the Effective Time,\nCompany shall (i) provide to Parent (and its officers, directors, employees,\naccountants, financial advisors, consultants, legal counsel, agents and other\nrepresentatives (collectively, \"Representatives\")) access at reasonable times\nupon prior notice to Company's officers, employees, agents, properties, offices\nand other facilities and to the books and records thereof, and (ii) furnish\npromptly such information concerning its business, properties, contracts,\nassets, liabilities and personnel as Parent or its Representatives may\nreasonably request. No investigation conducted pursuant to this Section 6.03\nshall affect or be deemed to modify any representation or warranty made in this\nAgreement.\n\n                  (b) Parent shall comply with, and shall cause its\nRepresentatives to comply with, all of its obligations under the Confidentiality\nAgreement with respect to any nonpublic information disclosed pursuant to this\nSection 6.03 or otherwise.\n\n                  SECTION 6.04     No Solicitation of Transactions\n\n                  (a) Until this Agreement has been terminated as provided\nherein, Company shall not, directly or indirectly, and shall cause its\nRepresentatives not to, directly or indirectly, solicit, initiate or knowingly\n\n\n                                       44\n\n\nencourage (including by way of furnishing nonpublic information), any inquiries\nor the making of any proposal or offer (including, without limitation, any\nproposal or offer to its shareholders) that constitutes, or may reasonably be\nexpected to lead to, any Competing Transaction, or enter into or maintain or\ncontinue discussions or negotiate with any person in furtherance of such\ninquiries or to obtain a Competing Transaction, or agree to or endorse any\nCompeting Transaction, or authorize or permit any of Company's Representatives\nor subsidiaries, or any Representative retained by Company's subsidiaries, to\ntake any such action; provided, however, that nothing contained in this\nAgreement, including this Section 6.04, shall prohibit Company or the Board of\nDirectors of Company (i) from complying with Rule 14d-9 or 14e-2(a) promulgated\nunder the Exchange Act with regard to a tender or exchange offer not made in\nviolation of this Section 6.04, (ii) referring any third party to this Section\n6.04 or making a copy of this Section 6.04 available to any third party solely\nin response to an unsolicited inquiry; (iii) prior to receipt of the Company\nShareholder Approval, from providing information (subject to a confidentiality\nagreement at least as restrictive as the Confidentiality Agreement) in\nconnection with, and negotiating, another unsolicited, bona fide proposal\nregarding a Competing Transaction that (i) Company's Board of Directors shall\nhave concluded in good faith, based upon the advice of independent outside\ncounsel of nationally recognized reputation (who may be the Company's regularly\nengaged independent legal counsel), that such action is necessary to prevent\nCompany's Board of Directors from violating its fiduciary duties to the Company\nor its shareholders under applicable law, (ii) with respect to which Company's\nBoard of Directors shall have determined, based upon the advice of Company's\nindependent financial advisors of nationally recognized reputation (who may be\nthe Company's regularly engaged independent financial advisors), in the proper\nexercise of its fiduciary duties to the Company and its shareholders that the\nacquiring party is reasonably capable of consummating such Competing Transaction\non the terms proposed, and (iii) Company's Board of Directors reasonably\nbelieves in good faith, based on the advice of the Company's independent\nfinancial advisors of nationally recognized reputation (who may be the Company's\nregularly engaged independent financial advisors), that such Competing\nTransaction is more favorable to the shareholders of Company from a financial\n\n\n                                       45\n\n\npoint of view than the Merger and that such Competing Transaction is more\nfavorable to the shareholders of Company than the Merger taking into account all\nthe respective terms and conditions of the Competing Transaction and the Merger\n(any such Competing Transaction being referred to herein as a \"Superior\nProposal\"). Any violation of the restrictions set forth in this Section 6.04 by\nany Representative of Company, whether or not such person is purporting to act\non behalf of Company or otherwise, shall be deemed to be a breach of this\nSection 6.04 by Company. Company shall notify Parent promptly if any proposal or\noffer, or any inquiry or contact with any person with respect thereto, regarding\na Competing Transaction is made, such notice to include the identity of the\nperson making such proposal, offer, inquiry or contact, and the terms of such\nCompeting Transaction, and shall keep Parent apprised, as promptly as reasonably\npracticable, of any modifications to the terms thereof. Company shall not submit\nany Competing Transaction to the vote of its shareholders. Prior to accepting a\nSuperior Proposal, Company shall provide Parent with 24 hours' written notice of\nsuch intention. Notwithstanding the foregoing, nothing contained in this Section\n6.04 shall prevent the Board of Directors of Company from withdrawing or\nmodifying its recommendation of this Agreement, provided that the Company has\ncomplied with this Section 6.04, following the receipt of a proposal that\nconstitutes, or may reasonably be expected to lead to, a Superior Proposal if\nthe Board of Directors of the Company, after consultation with independent\noutside counsel of nationally recognized reputation (who may be the Company's\nregularly engaged independent legal counsel) determines in good faith that such\naction is necessary for the directors of Company to comply with their fiduciary\nduties to the Company or its shareholders under applicable law.\n\n                  (b) Company immediately shall cease and cause to be terminated\nall existing discussions or negotiations with any parties conducted heretofore\nwith respect to a Competing Transaction. Company shall not release any third\nparty from, or waive any provision of, any confidentiality or standstill\nagreement to which it is a party.\n\n                  SECTION 6.05     [Intentionally Omitted]\n\n\n                                       46\n\n\n                  SECTION 6.06     Control of Operations\n\n                  Nothing contained in this Agreement shall give Parent or Lux\nSub, directly or indirectly, the right to control or direct the operations of\nCompany prior to the Effective Time. Prior to the Effective Time, Company shall\nexercise, consistent with the terms and conditions of this Agreement, complete\ncontrol and supervision over its operations.\n\n                  SECTION 6.07     Further Action; Consents; Filings\n\n                  (a) Upon the terms and subject to the conditions hereof, each\nof the parties hereto shall use all reasonable efforts to (i) take, or cause to\nbe taken, all appropriate action, and do, or cause to be done, all things\nnecessary, proper or advisable under applicable Law or otherwise to consummate\nand make effective the Merger, (ii) obtain from Governmental Entities any\nconsents, licenses, permits, waivers, approvals, authorizations or orders\nrequired to be obtained or made by Parent, Lux Sub or Company in connection with\nthe authorization, execution and delivery of this Agreement and the consummation\nof the Merger and (iii) make all necessary filings, and thereafter make any\nother required or appropriate submissions, with respect to this Agreement and\nthe Merger required under (A) the rules and regulations of the NNM, (B) the\nExchange Act and any other applicable Federal or state securities laws, (C) the\nHSR Act, if any, and (D) any other applicable Law. The parties hereto shall\ncooperate and consult with each other in connection with the making of all such\nfilings, including by providing copies of all such documents to the nonfiling\nparties and their advisors prior to filing, and none of the parties shall file\nany such document if any of the other parties shall have reasonably objected to\nthe filing of such document. No party shall consent to any voluntary extension\nof any statutory deadline or waiting period or to any voluntary delay of the\nconsummation of the Merger at the behest of any Governmental Entity without the\nconsent and agreement of the other parties hereto, which consent shall not be\nunreasonably withheld or delayed.\n\n                  (b) Each of Company, Parent and Lux Sub will give any notices\nto third persons, and use, and cause their respective subsidiaries to use,\nreasonable efforts to obtain any consents from third persons necessary, proper\nor advisable (as determined in good faith by Parent with respect to such notices\n\n\n                                       47\n\n\nor consents to be delivered or obtained by Company) to consummate the\ntransactions contemplated by this Agreement.\n\n                  SECTION 6.08     Additional Reports\n\n                  Company shall each furnish to Parent copies of any reports of\nthe type referred to in Section 4.07, which it files with the SEC on or after\nthe date hereof, and Company covenants and warrants that as of the respective\ndates thereof, such reports will not contain any untrue statement of a material\nfact or omit to state a material fact required to be stated therein or necessary\nto make the statements therein, in light of the circumstances under which they\nwere made, not misleading. Any unaudited consolidated interim financial\nstatements included in such reports (including any related notes and schedules)\nwill fairly present in all material respects the financial position of Company\nand its consolidated subsidiaries as of the dates thereof and the results of\noperations and changes in financial position or other information included\ntherein for the periods or as of the date then ended (subject, where\nappropriate, to normal year-end adjustments), in each case in accordance with\npast practice and U.S. GAAP consistently applied during the periods involved\n(except as otherwise disclosed in the notes thereto).\n\n                  SECTION 6.09     Tax Information\n\n                  Company shall provide the following information to Parent not\nlater than two weeks after the date of this Agreement: (i) a complete list of\nthe types of Tax Returns being filed by Company in each taxing jurisdiction,\n(ii) a list of all closed years with respect to each such type of Tax Return\nfiled in each jurisdiction, (iii) a list of any deferred intercompany gain with\nrespect to transactions to which Company has been a party and (iv) a list of the\nacquisition date, original cost, accumulated depreciation, adjusted tax basis\nand methods of depreciation for all depreciable and amortizable assets of the\nCompany. Company shall provide Parent and its accountants, counsel and other\nRepresentatives reasonable access, during normal business hours during the\nperiod prior to the Effective Time, to all of Company's Tax Returns and other\nrecords and workpapers relating to Taxes.\n\n\n                                       48\n\n\n                                   ARTICLE VII\n\n                              ADDITIONAL AGREEMENTS\n\n                  SECTION 7.01     Proxy Statement\n\n                  (a) As promptly as practicable after the execution of this\nAgreement, Parent and Company shall jointly prepare and Company shall file with\nthe SEC a proxy statement with respect to the Merger relating to the special\nmeeting of Company's shareholders to be held to consider approval and adoption\nof this Agreement and the Merger (the \"Company Shareholders' Meeting\") (together\nwith any amendments thereto, the \"Proxy Statement\"). No filing of, or amendment\nor supplement to, the Proxy Statement will be made by Company without providing\nParent with the opportunity to review and comment thereon. Company shall use its\nbest efforts to respond as promptly as practicable to any comments of the SEC\nwith respect to the Proxy Statement. Copies of the Proxy Statement shall be\nprovided to the NNM in accordance with its rules. Parent, Lux Sub or Company, as\nthe case may be, shall furnish all information concerning Parent, Lux Sub or\nCompany as any other party may reasonably request in connection with the\npreparation of the Proxy Statement. Company shall notify Parent promptly of the\nreceipt of any comments from the SEC on the Proxy Statement and of any requests\nby the SEC for any amendments or supplements thereto or for additional\ninformation and shall promptly provide Parent copies of all correspondence\nbetween Company or any of its representatives or advisors and the SEC with\nrespect to the Proxy Statement. Company shall use its best efforts to cause the\nProxy Statement to be mailed to Company's shareholders as promptly as\npracticable after filing thereof with the SEC. Each of the parties hereto shall\ncause the Proxy Statement to comply as to form and substance as to matters\nrelating to, and supplied for inclusion therein by, such party in all material\nrespects with the applicable requirements of (i) the Exchange Act and (ii) the\nrules and regulations of the NNM.\n\n                  (b) The Proxy Statement shall include (i) information with\nrespect to Company and its shareholders, the approval and adoption of the Merger\nand the recommendation of the Board of Directors of Company to Company's\nshareholders that they vote in favor of approval of this Agreement and the\nMerger, subject to the right of the Board of Directors of Company to withdraw\n\n\n                                       49\n\n\nits recommendation in compliance with Section 6.04 of this Agreement, and (ii)\nthe opinion of Robertson Stephens referred to in Section 4.19.\n\n                  (c) None of the information supplied by Company for inclusion\nor incorporation by reference in the Proxy Statement will, at the time it is\nfiled with the SEC or any other regulatory agency, at the date it is or any\namendments or supplements thereto are mailed to shareholders of Company or at\nthe time of the Company Shareholders' Meeting, contain any untrue statement of a\nmaterial fact or omit to state any material fact required to be stated therein\nor necessary in order to make the statements therein, in light of the\ncircumstances under which they are made, not misleading. If at any time prior to\nreceipt of the Company Shareholder Approval, any event or circumstance relating\nto Company, or its officers, directors or shareholders, should occur or be\ndiscovered by Company that should be set forth in an amendment or a supplement\nto the Proxy Statement, Company shall promptly prepare and mail to its\nshareholders such an amendment or supplement. Company shall not mail any Proxy\nStatement, or any amendment or supplement thereto, to which Parent reasonably\nobjects. All documents that Company is responsible for filing with the SEC in\nconnection with the Merger will comply as to form in all material respects with\nthe applicable requirements of the rules and regulations of the Exchange Act.\n\n                  (d) None of the information supplied by Parent or Lux Sub for\ninclusion in the Proxy Statement will, at the time it is filed with the SEC or\nany other regulatory agency, at the date it is or any amendments or supplements\nthereto are mailed to shareholders of Company or at the time of Company\nShareholders' Meeting, contain any untrue statement of a material fact or omit\nto state any material fact required to be stated therein or necessary in order\nto make the statements therein, in light of the circumstances under which they\nare made, not misleading. If, at any time prior to receipt of the Company\nShareholder Approval, any event or circumstance relating to Parent, Lux Sub or\nMerger Sub, or their respective officers or directors, should occur or be\ndiscovered by Parent or Lux Sub that should be set forth in an amendment or a\nsupplement to the Proxy Statement, Parent or Lux Sub, as the case may be, shall\npromptly inform Company.\n\n\n                                       50\n\n\n                  SECTION 7.02     Company Shareholders' Meeting\n\n                  Subject to the provisions of Section 9.01 herein, Company\nshall call and hold the Company Shareholders' Meeting as promptly as practicable\nafter the date hereof for the purpose of voting upon the approval of this\nAgreement and the Merger pursuant to the Proxy Statement, and Company shall use\nall reasonable efforts to hold the Company Shareholders' Meeting as soon as\npracticable after the date on which the Proxy Statement is mailed to Company's\nshareholders. Unless Company's Board of Directors has withdrawn its\nrecommendation of this Agreement and the Merger in compliance with Section 6.04,\nCompany shall use all reasonable efforts to solicit from its shareholders\nproxies in favor of the approval and adoption of this Agreement and the Merger\npursuant to the Proxy Statement and shall take all other action necessary or\nadvisable to secure the Company Shareholder Approval. Company shall take all\nother action necessary or, in the reasonable opinion of Parent, advisable to\npromptly and expeditiously secure any vote or consent of shareholders required\nby applicable Law and Company's certificate of incorporation and bylaws to\neffect the Merger. Subject to the right of Company to terminate this Agreement\nset forth in Section 9.01 hereof, Company shall call and hold the Company\nShareholders' Meeting for the purpose of voting upon the approval and adoption\nof this Agreement and the Merger whether or not Company's Board of Directors at\nany time subsequent to the date hereof determines that this Agreement is no\nlonger advisable or recommends that Company's shareholders reject it.\n\n                  SECTION 7.03     Directors' and Officers' Indemnification and\nInsurance\n\n                  (a) Parent, Lux Sub and Merger Sub agree that all rights to\nindemnification, advancement of expenses, exculpation, limitation of liability\nand any and all similar rights now existing in favor of each present and former\ndirector, officer, employee and agent of Company (collectively, the \"Indemnified\nParties\") as provided in Company's present certificate of incorporation, by-laws\nor contractual arrangement in effect on the date hereof, shall survive the\nMerger and shall continue in full force and effect for a period of six years\nfrom the Effective Time, which provisions shall not be amended, repealed or\notherwise modified for a period of six years from the Effective Time in any\n\n\n                                       51\n\n\nmanner that would affect adversely the rights thereunder of individuals who at\nany time prior to the Effective Time were directors, officers, employees or\nagents of the Company, unless such modification shall be required by Law, and\nParent and Lux Sub agree to cause the Surviving Corporation to comply with its\nobligations thereunder and hereby guarantee the indemnification obligations\nreferred to in this Section 7.03.\n\n                  (b) In the event the Company or the Surviving Corporation or\nany of their respective successors or assigns (i) consolidates with or merges\ninto any other person and shall not be the continuing or surviving corporation\nor entity of such consolidation or merger or (ii) transfers a material amount of\nits properties and assets to any person in a single transaction or a series of\ntransactions, then, and in each such case, Parent will either guaranty the\nindemnification obligations referred to in this Section 7.03 or will make or\ncause to be made proper provision so that the successors and assigns of the\nCompany or the Surviving Corporation, as the case may be, assume the\nindemnification obligations described herein for the benefit of the Indemnified\nParties and have substantially equal financial ability as the Company\n(immediately prior to the Effective Time) to satisfy the obligations of the\nparties pursuant to this Section 7.03 as a condition to such merger,\nconsolidation or transfer becoming effective.\n\n                  (c) The provisions of this Section 7.03 are (i) intended to be\nfor the benefit of, and will be enforceable by, each of the Indemnified Parties\nand (ii) in addition to, and not in substitution for, any other rights to\nindemnification or contribution that any such person may have by contract or\notherwise.\n\n                  (d) For a period of three years after the Effective Time,\nParent and Lux Sub shall use their respective best efforts to maintain in effect\nthe directors' and officers' liability insurance policies maintained by Company;\nprovided, however, that in no event shall Parent or Lux Sub be required to\nexpend in any one year in excess of 150% of the annual premium currently paid by\nCompany for such coverage and provided further, that if the premium for such\ncoverage exceeds such amount, Parent or Lux Sub shall purchase a policy with the\ngreatest coverage available for such 150% of the annual premium.\n\n\n                                       52\n\n\n                  SECTION 7.04     Public Announcements\n\n                  The initial press release concerning the Merger shall be a\njoint press release and, thereafter, Parent and Company shall consult with each\nother before issuing any press release or otherwise making any public statements\nwith respect to this Agreement or the Merger and shall not issue any such press\nrelease or make any such public statement without the prior written approval of\nthe other, except to the extent required by applicable Law or the requirements\nof the rules and regulations of the NNM, in which case the issuing party shall\nuse all reasonable efforts to consult with the other party before issuing any\nsuch release or making any such public statement.\n\n                  SECTION 7.05     Employee Benefit Matters\n\n                  (a) For all purposes (including, without limitation,\neligibility, vesting, and benefit accrual) under the employee benefit plans of\nParent and its subsidiaries or Affiliates providing benefits to former Company\nemployees after the Effective Time, each such employee shall be credited with\nhis or her years of service with Company before the Effective Time, to the same\nextent as such employee was entitled, before the Effective Time, to credit for\nsuch service under any similar Company Benefit Plan, except for purposes of\nbenefit accrual under defined benefit pension plans, if any. Following the\nEffective Time, Parent shall, or shall cause its subsidiaries or Affiliates to,\nwaive any pre-existing condition limitation under any welfare benefit plan\nmaintained by Parent or any of its subsidiaries or Affiliates in which such\nemployees and their eligible dependents participate (except to the extent that\nsuch pre-existing condition limitation would have been applicable under the\ncomparable Company welfare benefit plans immediately prior to the Effective\nTime).\n\n                  (b) Parent and Lux Sub shall consider in their sole discretion\ninstituting a Company profit sharing plan, annual bonus plan or other incentive\nprogram for Company employees.\n\n                  SECTION 7.06     Shareholder Agreement Legend\n\n                  As soon as practicable after the date of this Agreement,\nCompany shall inscribe upon any certificate representing Shares (as such term is\ndefined in the Shareholders' Agreement) the following legend: \"THE SHARES OF\n\n\n                                       53\n\n\nCOMMON STOCK, PAR VALUE $.01 PER SHARE, OF NETCREATIONS, INC. REPRESENTED BY\nTHIS CERTIFICATE ARE SUBJECT TO A SHAREHOLDERS' AGREEMENT AND AN IRREVOCABLE\nPROXY CREATED THEREBY DATED AS OF DECEMBER 22, 2000, AND THE TRANSFER AND VOTING\nTHEREOF ARE SUBJECT TO THE TERMS THEREOF. COPIES OF SUCH AGREEMENT MAY BE\nOBTAINED AT THE PRINCIPAL EXECUTIVE OFFICES OF NETCREATIONS, INC. FROM THE\nSECRETARY OF NETCREATIONS, INC.\"; and Company will return such each such\ncertificate containing such inscription to the shareholders of Company who are\nparties to the Shareholders' Agreement within three Business Days following\nCompany's receipt thereof.\n\n                  SECTION 7.07     Guaranty of Performance\n\n                  Parent shall take all necessary steps to ensure that Lux Sub\nand Merger Sub take any and all actions required to be taken by them pursuant to\nthis Agreement.\n\n                                  ARTICLE VIII\n\n                            CONDITIONS TO THE MERGER\n\n                  SECTION 8.01   Conditions to the Obligations of Each Party to\nConsummate the Merger\n\n                  The respective obligations of the parties hereto to consummate\nthe Merger are subject to the satisfaction or, if permitted by applicable Law,\nwaiver of the following conditions by joint action of the parties hereto:\n\n                           (a) this Agreement and the Merger shall have been\n                  duly approved by the requisite vote of shareholders of Company\n                  in accordance with New York Law;\n\n                           (b) no court of competent jurisdiction shall have\n                  issued or entered any order, writ, injunction or decree, and\n                  no other Governmental Entity shall have issued any order,\n                  which is then in effect and has the effect of making the\n                  Merger illegal or otherwise prohibiting its consummation;\n\n                           (c) any waiting period (and any extension thereof)\n                  applicable to the consummation of the Merger under the HSR Act\n\n\n                                       54\n\n\n                  or any other applicable competition, merger control or similar\n                  Law shall have expired or been terminated; and\n\n                           (d) all consents, approvals and authorizations\n                  legally required to be obtained to consummate the Merger shall\n                  have been obtained from all Governmental Entities, except\n                  where the failure to obtain any such consent, approval or\n                  authorization could not reasonably be expected to result in a\n                  Parent Material Adverse Effect or a Company Material Adverse\n                  Effect.\n\n                  SECTION 8.02     Conditions to the Obligations of Company\n\n                  The obligation of Company to consummate the Merger is subject\nto the satisfaction or, if permitted by applicable Law, waiver of the following\nfurther conditions:\n\n                           (a) each of the representations and warranties of\n                  Parent and Lux Sub contained in this Agreement shall be true,\n                  complete and correct both (i) when made and (ii) on and as of\n                  the Effective Time as if made at and as of the Effective Time\n                  (except for representations and warranties which address\n                  matters only as of a certain date which shall have been true,\n                  complete and correct as of such certain date), except in the\n                  case of each of clauses (i) and (ii) for such failures to be\n                  true, complete and correct (without giving effect to any\n                  qualification or standard relating to materiality or a Parent\n                  Material Adverse Effect contained in any such representations\n                  and warranties) which, individually or in the aggregate, would\n                  not have a Parent Material Adverse Effect, and Company shall\n                  have received a certificate of the Chief Executive Officer and\n                  Chief Financial Officer of each of Parent and Lux Sub to such\n                  effect; and\n\n                           (b) Each of Parent and Lux Sub shall have performed\n                  or complied in all material respects with all covenants\n                  required by this Agreement to be performed or complied with by\n                  it an or prior to the Effective Time and Company shall have\n                  received a certificate of the Chief Executive Officer and\n\n\n                                       55\n\n\n                  Chief Financial Officer of Parent and Lux Sub to that effect.\n\n                  SECTION 8.03  Conditions to the Obligations of Parent and Lux\nSub\n\n                  The respective obligations of Parent and Lux Sub to\nconsummate the Merger is subject to the satisfaction or waiver of the following\nfurther conditions:\n\n                           (a) each of the representations and warranties of\n                  Company contained in this Agreement shall be true, complete\n                  and correct both (i) when made and (ii) on and as of the\n                  Effective Time as if made at and as of the Effective Time\n                  (except for representations and warranties which address\n                  matters only as of a certain date which shall have been true,\n                  complete and correct as of such certain date), except in the\n                  case of each of clauses (i) and (ii) for such failures to be\n                  true, complete and correct (without giving effect to any\n                  qualification or standard relating to materiality or a Company\n                  Material Adverse Effect contained in any such representations\n                  and warranties) which, individually or in the aggregate, would\n                  not have a Company Material Adverse Effect, and Parent shall\n                  have received a certificate of the Chief Executive Officer and\n                  Chief Financial Officer of Company to such effect;\n\n                           (b) Company shall have performed or complied in all\n                  material respects with all covenants required by this\n                  Agreement to be performed or complied with by it on or prior\n                  to the Effective Time and Parent shall have received a\n                  certificate of the Chief Executive Officer and Chief Financial\n                  Officer of Company to that effect;\n\n                           (c) There shall have been no Company Material Adverse\n                  Effect since the date of this Agreement;\n\n                           (d) Company shall have received from each of the\n                  parties set forth on Section 8.03(d) of the Company Disclosure\n                  Schedule (each such party, an \"Assigning Party\"), a valid and\n                  effective assignment, in form reasonably acceptable to Parent,\n\n\n                                       56\n\n\n                  of all intellectual property rights in all work created by\n                  such Assigning Party on behalf of Company; and\n\n                           (e) Each of the employees listed on Schedule 8.03(e)\n                  of the Company Disclosure Schedule hereto shall have\n                  terminated their respective employment agreements with Company\n                  and shall have agreed to the terms of employment set forth in\n                  their respective offer letters from Parent, and no employee\n                  listed an Schedule I shall have terminated, or given notice of\n                  termination of, such employee's employment with Company.\n\n                                   ARTICLE IX\n\n                        TERMINATION, AMENDMENT AND WAIVER\n\n                   SECTION 9.01     Termination\n\n                  This Agreement may be terminated and the Merger may be\nabandoned at any time prior to the Effective Time, notwithstanding any requisite\nadoption and approval of this Agreement, as follows:\n\n                           (a) by mutual written consent duly authorized by the\n                  boards of directors of each of Parent and Company;\n\n                           (b) by either Parent or Company, if the Effective\n                  Time shall not have occurred on or before April 30, 2001;\n                  provided, however, that the right to terminate this Agreement\n                  under this Section 9.01(b) shall not be available to any party\n                  whose material breach of this Agreement shall have caused, or\n                  resulted in, the failure of the Effective Time to occur on or\n                  before such date;\n\n                           (c) by either Parent or Company, if any Governmental\n                  Order preventing the consummation of the Merger shall have\n                  been entered by any court of competent jurisdiction and shall\n                  have become final and nonappealable;\n\n\n                                       57\n\n\n                           (d) by Parent, if (i) the Board of Directors of\n                  Company withdraws, modifies or changes its recommendation of\n                  this Agreement or the Merger in a manner adverse to Parent or\n                  its stockholders, (ii) the Board of Directors of Company shall\n                  have recommended to the shareholders of Company a Competing\n                  Transaction, (iii) the Company fails to comply in all material\n                  respects with Section 6.04 or Section 7.02, (iv) a Competing\n                  Transaction shall have been announced or otherwise publicly\n                  known and the Board of Directors of Company shall have (A)\n                  failed to recommend against acceptance of such by its\n                  shareholders (including by taking no position, or indicating\n                  its inability to take a position, with respect to the\n                  acceptance by its shareholders of a Competing Transaction\n                  involving a tender offer or exchange offer) within 5 Business\n                  Days of delivery of a written request from Parent for such\n                  action or (B) failed to reconfirm its approval and\n                  recommendation of this Agreement and the transactions\n                  contemplated hereby within 5 Business Days of delivery of a\n                  written request from Parent for such action, (v) the Board of\n                  Directors of Company shall have determined that a Competing\n                  Transaction was a Superior Proposal and to take any of the\n                  actions allowed by clause (iii) of Section 6.04 (and shall not\n                  have, prior to Parent's termination of this Agreement pursuant\n                  to this Section 9.01(d)(v), (x) reconfirmed its approval and\n                  recommendation of this Agreement and the Merger and (y)\n                  recommended against acceptance of such Superior Proposal by\n                  its shareholders), or (vi) the Board of Directors of Company\n                  resolves to take any of the actions described above;\n\n                           (e) by Parent or Company, if the Company Shareholder\n                  Approval shall not have been obtained at the Company\n                  Shareholders' Meeting duly convened therefor or at any\n                  adjournment or postponement thereof;\n\n                           (f) by Parent, if Company shall have breached or\n                  failed to perform in any material respect any of its\n                  representations, warranties, covenants or other agreements\n                  contained in this Agreement, which breach or failure to\n\n\n                                       58\n\n\n                  perform (i) would give rise to the failure of a condition set\n                  forth in Section 8.03(a) or (b) and (ii) is incapable of being\n                  or has not been cured by Company within 30 calendar days after\n                  Parent has given written notice to Company of such breach or\n                  failure to perform;\n\n                           (g) by Company, if Parent or Lux Sub shall have\n                  breached or failed to perform in any material respect any of\n                  its representations, warranties, covenants or other agreements\n                  contained in this Agreement, which breach or failure to\n                  perform (i) would give rise to the failure of a condition set\n                  forth in Section 8.02(a) or (b) and (ii) is incapable of being\n                  or has not been cured by Parent within 30 calendar days after\n                  Company has given written notice to Parent of such breach or\n                  failure to perform; or\n\n                           (h) by Company, if (i) the Board of Directors of\n                  Company authorizes Company, subject to complying with the\n                  terms of this Agreement, to enter into a binding written\n                  agreement concerning a transaction that constitutes a Superior\n                  Proposal and Company notifies Parent in writing that it\n                  intends to enter into such an agreement, attaching the most\n                  current version of such agreement (or description of all\n                  material terms and conditions thereof) to such notice, (ii)\n                  Parent does not make, within three Business days of receipt of\n                  Company's written notification of its intention to enter into\n                  a binding agreement for a Superior Proposal, an offer that the\n                  Board of Directors of Company determines, in good faith after\n                  consultation with its financial advisors, is at least as\n                  favorable to the shareholders of Company as the Superior\n                  Proposal, it being understood that Company shall not enter\n                  into any such binding agreement during such three-day period\n                  and (iii) Company prior to such termination pursuant to this\n                  clause (h) pays to Parent in immediately available funds the\n                  fees required to be paid pursuant to Section 9.05(b),\n                  provided, that Company shall not be permitted to terminate\n                  this Agreement pursuant to this Section 9.01(h) if such\n                  Superior Proposal is attributable to a violation by Company of\n                  its obligations under Section 6.04 or if such Superior\n\n\n                                       59\n\n\n                  Proposal otherwise resulted from a breach of any of Company's\n                  obligations under this Agreement.\n\n                   The right of any party hereto to terminate this Agreement\npursuant to this Section 9.01 will remain operative and in full force and effect\nregardless of any investigation made by or on behalf of any party hereto, any\nperson controlling any such party or any of their respective officers,\ndirectors, representatives or agents, whether prior to or after the execution of\nthis Agreement.\n\n                   SECTION 9.02     Effect of Termination\n\n                   In the event of termination of this Agreement pursuant to\nSection 9.01, this Agreement shall forthwith become void and have no effect,\nwithout any liability or obligation under this Agreement on the part of any\nparty hereto or any of its Affiliates or any of its or their officers or\ndirectors, other than the provisions of Section 4.20, Section 6.03(b), this\nSection 9.02, Section 9.05 and Article X, which provisions shall survive such\ntermination; provided, however, that nothing herein shall relieve any party\nhereto from liability for the willful or intentional breach of any of its\nrepresentations and warranties or the willful or intentional breach of any of\nits covenants or agreements set forth in this Agreement. No termination of this\nAgreement shall affect the obligation of the parties contained in the\nConfidentiality Agreement, which shall survive termination of this Agreement and\nremain in full force and effect in accordance with their terms.\n\n                   SECTION 9.03     Amendment\n\n                   This Agreement may be amended by the parties hereto by action\ntaken try or on behalf of their respective boards of directors at any time prior\nto the Effective Time; provided, however, that, after the approval of this\nAgreement by the shareholders of Company, no amendment may be made that changes\nthe amount or type of consideration into which Company Common Stock will be\nconverted pursuant to this Agreement. This Agreement may not be amended except\nby an instrument in writing signed by the parties hereto.\n\n\n                                       60\n\n\n                   SECTION 9.04     Waiver\n\n                   At any time prior to the Effective Time, any party hereto may\n(a) extend the time for or waive compliance with the performance of any\nobligation or other act of any other party hereto, (b) waive any inaccuracy in\nthe representations and warranties contained herein or in any document delivered\npursuant hereto and (c) waive compliance by any other party with any of the\nagreements or conditions contained herein. Any such extension or waiver shall be\nvalid only if set forth in an instrument in writing signed by the party or\nparties to be bound thereby.\n\n                   SECTION 9.05     Termination Fee; Expenses\n\n                   (a) Except as set forth in this Section 9.05, all Expenses\nincurred in connection with this Agreement and the Merger shall be paid by the\nparty incurring such Expenses, whether or not the Merger is consummated, except\nthat Parent and Company each shall pay one-half of all Expenses (other than\nattorneys' and accountants' fees and expenses) incurred solely for printing,\nfiling and mailing the Proxy Statement and all SEC and other regulatory filing\nfees incurred in connection with the Proxy Statement and any fees required to be\npaid under the HSR Act.\n\n                   (b) In the event that (i) Parent shall terminate this\nAgreement pursuant to Section 9.01(d), (ii) Parent shall terminate this\nAgreement pursuant to Section 9.01(f), (iii) Company shall terminate this\nAgreement pursuant to Section 9.01(h) or (iv) this Agreement shall be terminated\npursuant to Section 9.01(b) or pursuant to Section 9.01(e) as a result of the\nfailure to obtain the Company Shareholder Approval and, in the case of this\nclause (iv), (A) at or prior to such termination, there shall exist or have been\npublicly proposed a Competing Transaction with respect to Company and (B) within\n12 months after such termination, Company shall enter into a definitive\nagreement with respect to any Competing Transaction or any Competing Transaction\ninvolving Company shall be consummated, then, in the case of (x) clauses (i) or\n(ii), promptly after such termination, (y) in the case of clause (iii) prior to\nsuch termination or (z) in the case of clause (iv), immediately before the\nexecution and delivery of such agreement or such consummation, as applicable,\nCompany shall pay to Parent (the \"Termination Fee\") a sum equal to all of\nParent's Expenses (payable promptly upon receipt of a written statement thereof\n\n\n                                       61\n\n\nfrom Parent) and an additional amount equal to $6,500,000. In the event of\ntermination of this Agreement by Company pursuant to Section 9.01(g), Parent\nshall pay to Company an amount equal to all of Company's Expenses (payable\npromptly upon receipt of a written statement thereof from Company).\n\n                   (c) Parent and Company agree that the agreements contained in\nSection 9.05(b) above are an integral part of the transactions contemplated by\nthis Agreement, and that, without these agreements, Parent would not enter into\nthis Agreement or the Shareholders Agreements. Accordingly, if Company fails to\npay to Parent any amounts due under Section 9.05(b), Company shall pay the fees\nand expenses (including legal fees and expenses) in connection with any action,\nincluding the filing of any lawsuit of other legal action, taken to collect\npayment, together with interest on such amounts at the prime rate of Citibank,\nN.A. in effect on the date such payment was required to be made.\n\n                   (d) In the event that the Company properly terminates this\nAgreement pursuant to 9.01(g), in addition to any other claims for damages or\nexpenses the Company may commence against Parent or one of its Affiliates,\nParent shall be specifically obligated to reimburse Company for the termination\nfee due from Company to DoubleClick, not to exceed $8.6 million, if such\ntermination fee has not already been paid by Parent or one of its Affiliates.\n\n                                    ARTICLE X\n\n                               GENERAL PROVISIONS\n\n                   SECTION 10.01  Non-Survival of Representations and Warranties\n\n                   The representations and warranties in this Agreement shall\nterminate at the Effective Time or upon the termination of this Agreement\npursuant to Section 9.01, as the case may be. This Section 10.01 shall not limit\nany covenant or agreement of the parties which by its terms contemplates\nperformance after the Effective Time.\n\n\n                                       62\n\n\n                   SECTION 10.02     Notices\n\n                   All notices, requests, claims, demands and other\ncommunications hereunder shall be in writing and shall be given (and shall be\ndeemed to have been duly given upon receipt) by delivery in person, by telecopy\nor facsimile, by registered or certified mail postage prepaid, return receipt\nrequested) or by a nationally recognized courier service to the respective\nparties at the following addresses (or at such other address for a party as\nshall be specified in a notice given in accordance with this Section 10.02):\n\n                           (a)      if to Company:\n\n                                    NetCreations, Inc.\n                                    379 West Broadway, Suite 202\n                                    New York, New York 10012\n                                    Attention:  Brian Burlant, Esq.\n                                    Telecopier: 212 274 9266\n\n                                    with a copy to:\n\n                                    Piper, Marbury, Rudnick &amp; Wolfe LLP\n                                    1251 Avenue of the Americas\n                                    New York, New York 10020\n                                    Attention:  Andrew J. Cosentino\n                                    Telecopier: 212 835 6001\n\n                           (b)      if to Parent, Lux Sub or Merger Sub:\n\n                                    SEAT Pagine Gialle S.p.A.\n                                    Via Aurelio Saffi 18\n                                    10138 Turin, Italy\n                                    Attention:  Mr. Paolo Gonano\n                                    Telecopier: 011 39 011 435 2882\n\n                                    with a copy to:\n\n                                    Cravath, Swaine &amp; Moore\n                                    825 Eighth Avenue\n                                    New York, New York 10019\n                                    Attention:  Faiza J. Saeed\n                                    Telecopier: 212 474 3700\n\n                   SECTION 10.03     Severability\n\n                   If any term or other provision of this Agreement is invalid,\nillegal or incapable of being enforced by any rule of Law or public policy, all\nother conditions and provisions of this Agreement shall nevertheless remain in\n\n\n                                       63\n\n\nfull force and effect so long as the economic or legal substance of the Merger\nis not affected in any manner materially adverse to any party. Upon such\ndetermination that any term or other provision is invalid, illegal or incapable\nof being enforced, the parties hereto shall negotiate in good faith to modify\nthis Agreement so as to effect the original intent of the parties as closely as\npossible in a mutually acceptable manner to the fullest extent permitted by\napplicable Law in order that the Merger may be consummated as originally\ncontemplated to the fullest extent possible.\n\n                   SECTION 10.04     Assignment; Binding Effect; Benefit\n\n                  Neither this Agreement nor any of the rights, interests or\nobligations hereunder shall be assigned by any of the parties hereto (whether by\noperation of Law or otherwise) without the prior written consent of the other\nparties hereto. Subject to the preceding sentence, this Agreement shall be\nbinding upon and shall inure to the benefit of the parties hereto and their\nrespective successors and permitted assigns. Notwithstanding anything contained\nin this Agreement to the contrary, other than Section 7.03, nothing in this\nAgreement, expressed or implied, is intended to confer on any person other than\nthe parties hereto or their respective successors and permitted assigns any\nrights or remedies under or by reason of this Agreement.\n\n                  SECTION 10.05     Incorporation of Exhibits\n\n                  The Company Disclosure Schedule and all Annexes attached\nhereto and referred to herein are hereby incorporated herein and made a part of\nthis Agreement for all purposes as if fully set forth herein.\n\n                  SECTION 10.06     Governing Law\n\n                  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND\nENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK OTHER THAN\nCONFLICT OF LAWS PRINCIPLES THEREOF DIRECTING THE APPLICATION OF ANY LAW OTHER\nTHAN THAT OF NEW YORK.\n\n                  SECTION 10.07     Waiver of Jury Trial\n\n\n                                       64\n\n\n                  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL\nBY JURY IN ANY PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING\nOUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION OR AGREEMENT\nCONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION,\nADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.\n\n                  SECTION 10.08     Headings; Interpretation\n\n                  The descriptive headings contained in this Agreement are\nincluded for convenience of reference only and shall not affect in any way the\nmeaning or interpretation of this Agreement. The parties have participated\njointly in the negotiation and drafting of this Agreement. In the event an\nambiguity or question of intent or interpretation arises, this Agreement shall\nbe construed as if drafted jointly by the parties, and no presumption or burden\nof proof shall arise favoring or disfavoring any party by virtue of the\nauthorship of any provisions of this Agreement.\n\n                   SECTION 10.09     Counterparts\n\n                   This Agreement may be executed and delivered (including by\nfacsimile transmission) in one or more counterparts, and by the different\nparties hereto in separate counterparts, each of which when executed and\ndelivered shall be deemed to be an original but all of which taken together\nshall constitute one and the same agreement.\n\n                   SECTION 10.10     Entire Agreement\n\n                  This Agreement (including the Annexes, the Schedules and the\nCompany Disclosure Schedule) and the Confidentiality Agreement constitute the\nentire agreement among the parties with respect to the subject matter hereof and\nsupersede all prior agreements and understandings among the parties with respect\nthereto. No addition to or modification of any provision of this Agreement shall\nbe binding upon any party hereto unless made in writing and signed by all\nparties hereto.\n\n                  SECTION 10.11     Enforcement\n\n                  Each of the parties hereto agrees that irreparable damage\nwould occur and that the parties would not have any adequate remedy at law in\n\n\n                                       65\n\n\nthe event that any of the provisions of this Agreement were not performed in\naccordance with their specific terms or were otherwise breached. It is\naccordingly agreed that the parties shall be entitled to an injunction or\ninjunctions to prevent breaches of this Agreement and to enforce specifically\nthe terms and provisions of this Agreement in any Federal court located in the\nState of New York or in any New York state court, this being in addition to any\nother remedy to which they are entitled at law or in equity. In addition, each\nof the parties hereto (i) consents to submit itself to the personal jurisdiction\nof any Federal court located in the State of New York or any New York state\ncourt in the event any dispute arises out of this Agreement or any of the\ntransactions contemplated by this Agreement, (ii) agrees that it will not\nattempt to deny or defeat such personal jurisdiction by motion or other request\nfor leave from any such court and (iii) agrees that it will not bring any action\nrelating to this Agreement or any of the transactions contemplated by this\nAgreement in any court other than a Federal court sitting in the State of New\nYork or a New York state court.\n\n\n                                       66\n\n\n                  IN WITNESS WHEREOF, the parties hereto have caused this\nAgreement and Plan of Merger to be executed as of the date first written above\nby their respective officers thereunto duly authorized.\n\n                                            SEAT PAGINE GIALLE S.P.A.\n\n                                                by  \/s\/ Lorenzo Pelliccioli\n                                                    ----------------------------\n                                                    Name:  Lorenzo Pelliccioli\n                                                    Title: CEO\n\n\n                                            SOGERIM, SOCIETE ANONYME\n\n                                                by  \/s\/ Jacques Loesch\n                                                    ----------------------------\n                                                    Name:  Jacques Loesch\n                                                    Title: Administrateur\n\n\n                                                by  \/s\/ Fabio Morvilli\n                                                    ----------------------------\n                                                    Name:  Fabio Morvilli\n                                                    Title: President\n\n\n                                            NICKEL ACQUISITION CORP.\n\n                                                by  \/s\/ Filippo Zamparelli\n                                                    ----------------------------\n                                                    Name:  Filippo Zamparelli\n                                                    Title: President\n\n\n                                            NETCREATIONS, INC.\n\n                                                by  \/s\/ Rosalind Resnick\n                                                    ----------------------------\n                                                    Name:  Rosalind Resnick\n                                                    Title: CEO\n\n\n\n\n\n\n                                                                         ANNEX A\n\n                         FORM OF SHAREHOLDERS' AGREEMENT\n\n                  SHAREHOLDERS' AGREEMENT, dated as of December 22, 2000 (as\namended, supplemented or otherwise modified from time to time, this\n\"Agreement\"), among SEAT PAGINE GIALLE S.P.A. (\"Parent\"), a limited company\norganized under the laws of the Republic of Italy and a majority owned\nsubsidiary of Telecom Italia S.p.A., a limited company organized under the laws\nof the Republic of Italy, SOGERIM, SOCIETE ANONYME (\"Lux Sub\"), a Luxembourg\ncorporation and a wholly owned subsidiary of Telecom Italia S.p.A., NICKEL\nACQUISITION CORP., a New York corporation and a direct wholly owned subsidiary\nof Lux Sub (\"Merger Sub\"), and the undersigned SHAREHOLDERS (each, a\n\"Shareholder\" and, collectively, the \"Shareholders\") of NetCreations, Inc., a\nNew York corporation (\"Company\").\n\n                  Capitalized and other terms used and not otherwise defined\nherein shall have the respective meanings set forth in the Merger Agreement\ndescribed below.\n\n                              W I T N E S S E T H:\n\n                  WHEREAS, pursuant to an Agreement and Plan of Merger, dated as\nof the date hereof, among Parent, Lux Sub, Merger Sub and Company (as amended,\nsupplemented or otherwise modified from time to time, the \"Merger Agreement\"),\nParent has agreed to acquire, through Lux Sub and Merger Sub, all the\noutstanding securities of Company pursuant to a statutory merger of Merger Sub\nwith and into Company in which each outstanding share of common stock, $.01 par\nvalue per share, of Company (the \"Company Common Stock\") will be converted into\nthe right to receive $7.00 in cash as set forth in the Merger Agreement (the\n\"Merger\");\n\n                  WHEREAS, in order to induce Parent, Lux Sub and Merger Sub to\nenter into the Merger Agreement and consummate the Merger, the Shareholders\ndesire to execute and deliver to Parent, Lux Sub and Merger Sub a shareholders'\nagreement upon the terms set forth herein; and\n\n\n                                                                               2\n\n\n                  WHEREAS, each Shareholder is the registered and beneficial\nowner of such number of shares of the outstanding capital stock of Company as is\nindicated on the signature page of this Agreement under the heading \"Total\nNumber of Shares of Company Capital Stock Owned on the Date Hereof\", and such\nShareholder desires to make the number of shares indicated on the signature page\nof this Agreement under the heading \"Total Number of Shares of Company Capital\nStock Subject to this Agreement\" (such shares, together with any other shares of\ncapital stock of Company acquired by such Shareholder after the date hereof and\nduring the term of this Agreement (including through the exercise of any stock\noptions, warrants or similar instruments), being collectively referred to herein\nas the \"Shares\") subject to the terms of this Agreement.\n\n                  NOW, THEREFORE, in consideration of the foregoing and the\nrepresentations, warranties, covenants and agreements set forth herein, and\nother good and valuable consideration, the receipt and adequacy of which are\nhereby acknowledged, and intending to be legally bound hereby, the parties\nhereto hereby agree as follows:\n\n                  1. Ownership of Shares; Transfer. (a) Each Shareholder\nrepresents and warrants to Parent, Lux Sub and Merger Sub (collectively, the\n\"Acquirors\") that such Shareholder is the record and beneficial owner of, and\nhas good and marketable title to, the Shares. The Shares constitute a portion of\nsuch Shareholder's interest in the outstanding capital stock and voting\nsecurities of Company. The Shares are free and clear of any liens, claims,\noptions, charges or other encumbrances. Shareholder has the sole right to vote\nthe Shares and, except as contemplated by this Agreement, none of the Shares is\nsubject to any voting trust or other agreement, arrangement or restriction with\nrespect to the voting of such Shares. Such Shareholder's principal residence or\nplace of business is accurately set forth on the signature page hereto. As used\nherein, the term \"Expiration Date\" shall mean the earlier to occur of (i) the\nEffective Time or (ii) termination of the Merger Agreement in accordance with\nthe terms thereof.\n\n\n                                                                               3\n\n\n                  (b) Other than pursuant to this Agreement, Shareholder shall\nnot (i) sell, transfer, pledge, assign or otherwise dispose of (including by\ngift) (collectively, \"Transfer\"), or enter into any contract, agreement, option\nor other arrangement (including any profit sharing arrangement) with respect to\nthe Transfer of, any Shares to any person (other than pursuant to the Merger) or\n(ii) enter into any voting arrangement, whether by proxy, voting agreement or\notherwise, with respect to any Shares and shall not commit or agree to take any\nof the foregoing actions. Shareholder shall not, nor shall Shareholder permit\nany entity under such Shareholder's control to, deposit any Shares in a voting\ntrust.\n\n                  2. Agreement to Vote Shares. (a) Prior to the Expiration Date,\nat every meeting of the shareholders of Company at which any of the following is\nconsidered or voted upon, and at every adjournment or postponement thereof, and\non every action or approval by written consent of the shareholders of Company\nwith respect to any of the following, each Shareholder shall vote (or cause to\nbe voted) the Shares in favor of adoption of the Merger Agreement and approval\nof the Merger and any other transactions contemplated by the Merger Agreement.\n\n                  (b) Prior to the Expiration Date, at every meeting of the\nshareholders of Company at which any of the following is considered or voted\nupon, and at every adjournment or postponement thereof, and on every action or\napproval by written consent of the shareholders of Company with respect to any\nof the following, each Shareholder shall vote (or cause to be voted) the Shares\nagainst (i) any merger agreement or merger (other than the Merger Agreement and\nthe Merger), consolidation, combination, share exchange, sale of substantial\nassets, reorganization, recapitalization, dissolution, liquidation or winding up\nof or by or involving Company, (ii) any Competing Transaction and (iii) any\namendment of Company's certificate of incorporation or by-laws or other proposal\nor transaction involving Company or any of its subsidiaries, which amendment or\nother proposal or transaction would in any manner impede, frustrate, prevent or\n\n\n                                       4\n\n\nnullify any provision of the Merger Agreement, the Merger or any other\ntransaction contemplated by the Merger Agreement or change in any manner the\nvoting rights of any class of capital stock of Company (each a \"Frustrating\nTransaction\"). No Shareholder shall commit or agree to take any action\ninconsistent with the foregoing.\n\n                  (c) Notwithstanding the foregoing, nothing in this Agreement\nshall limit or restrict any Shareholder from (i) acting in his or her capacity\nas a director or officer of Company, to the extent applicable, it being\nunderstood that this Agreement shall apply to each Shareholder solely in his or\nher capacity as a shareholder of Company or (ii) voting in his or her sole\ndiscretion on any matter other than those matters referred to in Section 2(a) or\n2(b).\n\n                  3. IRREVOCABLE PROXY. Each Shareholder hereby irrevocably\ngrants to, and appoints, Parent, Lux Sub and Merger Sub, or any of them, and any\nindividual designated in writing by any of them, and each of them individually,\nas the Shareholder's proxy and attorney-in-fact (with full power of\nsubstitution), for and in the name, place and stead of such Shareholder, to vote\nthe Shares of such Shareholder, or grant a consent or approval in respect of the\nShares of such Shareholder in a manner consistent with Sections 2(a) and 2(b).\nEach Shareholder understands and acknowledges that each of the Acquirors is\nentering into the Merger Agreement in reliance upon such Shareholder's execution\nand delivery of this Agreement. Each Shareholder hereby affirms that the\nirrevocable proxy set forth in this Section 3 is given in connection with the\nagreement of Merger Sub to purchase the Shares of the Shareholder pursuant to\nthe Merger Agreement. Each Shareholder hereby further affirms that the\nirrevocable proxy is coupled with an interest and may under no circumstances be\nrevoked. Each Shareholder hereby ratifies and confirms all that such irrevocable\nproxy may lawfully do or cause to be done by virtue hereof. Such irrevocable\nproxy is executed and intended to be irrevocable in accordance with the\nprovisions of Section 609 of the New York Business Corporation Law. The\nirrevocable proxy granted hereunder shall automatically terminate upon the\n\n\n                                                                               5\n\n\ntermination of Sections 2(a) and 2(b) in accordance with Section 8. Upon the\nexecution of this Agreement by each Shareholder, such Shareholder hereby revokes\nany and all prior proxies or powers of attorney given by such Shareholder with\nrespect to the Shares and agrees not to grant any subsequent proxies or powers\nof attorney with respect to the Shares until after the Expiration Date.\n\n                  4. Representations, Warranties and Covenants of Shareholder.\nEach Shareholder hereby represents, warrants and covenants to each Acquiror as\nfollows:\n\n                  (a) Each Shareholder has full power, authority and legal\ncapacity to execute and deliver this Agreement, to perform its obligations\nhereunder and to consummate the transactions contemplated hereby. This Agreement\nhas been duly and validly executed and delivered by such Shareholder and\nconstitutes the valid and binding obligation of such Shareholder, enforceable\nagainst such Shareholder in accordance with its terms, except as may be limited\nby (i) the effect of bankruptcy, insolvency, conservatorship, arrangement,\nmoratorium or other laws affecting or relating to the rights of creditors\ngenerally, or (ii) the rules governing the availability of specific performance,\ninjunctive relief or other equitable remedies and general principles of equity,\nregardless of whether considered in a proceeding in equity or at law. The\nexecution and delivery of this Agreement by such Shareholder does not, and the\nperformance of such Shareholder's obligations hereunder will not, result in any\nbreach of or constitute a default (or an event that with notice or lapse of time\nor both would become a default) under, or give to others any right to terminate,\namend, accelerate or cancel any right or obligation under, or result in the\ncreation of any lien or encumbrance on any Shares pursuant to, any note, bond,\nmortgage, indenture, contract, agreement, lease, license, permit, franchise or\nother instrument or obligation to which such Shareholder is a party or by which\nsuch Shareholder or the Shares are or will be bound or affected. If Shareholder\n\n\n                                                                               6\n\n\nis married and the Shares constitute community property or if there otherwise is\na need for spousal or other approval of this Agreement for it to be legal, valid\nand binding, this Agreement has been duly authorized, executed and delivered by,\nand constitutes a valid and binding agreement of, Shareholder's spouse,\nenforceable against such spouse in accordance with its terms.\n\n                  (b) Except to the extent otherwise permitted under Section\n6.04 of the Merger Agreement, until the Expiration Date, each Shareholder, in\nthe Shareholder's capacity as a shareholder of Company, will not (and will use\nsuch Shareholder's reasonable best efforts to cause its affiliates, officers,\ndirectors and employees and any investment banker, attorney, accountant or other\nagent retained by such Shareholder, not to): (i) initiate or solicit, directly\nor indirectly, any proposal, plan or offer to acquire all or any material part\nof the business or properties or capital stock of Company, whether by merger,\npurchase of assets, tender offer or otherwise, or to liquidate Company or\notherwise distribute to the shareholders of Company all or any substantial part\nof the business, properties or capital stock of Company (each, an \"Acquisition\nProposal\"); (ii) initiate, directly or indirectly, any contact with any person\nin an effort to or with a view towards soliciting any Acquisition Proposal;\n(iii) furnish information concerning Company's business, properties or assets to\nany corporation, partnership, person or other entity or group (other than\nParent, or any affiliate, associate, agent or representative of Parent) under\nany circumstances that could reasonably be expected to relate to an actual or\npotential Acquisition Proposal; (iv) negotiate or enter into discussions or an\nagreement, directly or indirectly, with any entity or group with respect to any\npotential Acquisition Proposal or (v) either alone or together with any other\nshareholder of Company, request that a special meeting of the shareholders of\nCompany be held to consider and vote on any Competing Transaction or Frustrating\nTransaction. In the event any Shareholder, in such Shareholder's capacity as a\nshareholder of Company, shall receive or become aware of any Acquisition\nProposal subsequent to the date hereof, such Shareholder shall promptly inform\nParent as to any such matter and the details thereof to the extent possible\n\n\n                                       7\n\n\nwithout breaching any other agreement to which such Shareholder is a party or\nviolating its fiduciary duties.\n\n                  (c) Each Shareholder understands and agrees that if any\nShareholder attempts to vote or provide any other person with the authority to\nvote any of the Shares held by such Shareholder as of the record date for any\nmeeting at which such Shares are to be voted other than in compliance with this\nAgreement, Company shall not, and such Shareholder hereby unconditionally and\nirrevocably instructs Company to not, record such vote unless and until such\nShareholder shall have complied with the terms of this Agreement.\n\n                  5. No Limitation on Discretion as Director. If any Shareholder\nis a natural person and is a member of the board of directors of Company, then\nthis Agreement will apply to the exercise by such Shareholder in his or her\nindividual capacity of rights attaching to ownership of the Shares, and nothing\nherein shall be deemed to apply to, or to limit in any manner the discretion of\nsuch Shareholder with respect to, any action which may be taken or omitted by\nhim or her acting in his or her fiduciary capacity as a member of the board of\ndirectors of Company.\n\n                  6. Additional Documents. Each Shareholder hereby covenants and\nagrees to execute and deliver any additional documents necessary or desirable,\nin the reasonable opinion of Parent, to carry out the purpose and intent of this\nAgreement.\n\n                  7. Consent and Waiver. Each Shareholder hereby consents to and\napproves the actions taken by the board of directors of Company in approving the\nMerger and adopting the Merger Agreement and gives any consents or waivers that\nare reasonably required for the consummation of the Merger under the terms of\nany agreement to which such Shareholder is a party; provided, however, that such\nShareholder shall not be required by this Section 7 to give any consent or\nwaiver in his or her capacity as a director or officer of Company.\n\n\n                                                                               8\n\n\n                  8. Termination. This Agreement and the proxy granted in\nconnection herewith shall terminate and shall have no further force or effect as\nof the Expiration Date.\n\n                  9. Confidentiality. Each Shareholder agrees (i) to hold any\ninformation regarding this Agreement and the Merger in strict confidence and\n(ii) not to divulge any such information to any third person, except to the\nextent any of the same is hereafter publicly disclosed by Parent.\n\n                  10. Obligations Attach to Shares; Survival; Acquisition of\nAdditional Shares of Capital Stock of Company. Each Shareholder agrees that this\nAgreement and the obligations hereunder shall attach to such Shareholder's\nShares and shall be binding upon any person to which or whom legal or beneficial\nownership of such Shares shall pass, whether by operation of law or otherwise,\nincluding such Shareholder's heirs, guardians, administrators or successors, and\nthat each certificate representing such Shares will be inscribed with a legend\nto such effect. All authority herein conferred by a Shareholder shall survive\nthe death or incapacity of such Shareholder and any obligation of a Shareholder\nhereunder shall be binding upon the heirs, guardians, administrators, personal\nrepresentatives, successors and assigns of a Shareholder. In the event of any\nstock split, stock dividend, merger, reorganization, recapitalization or other\nchange in the capital structure of Company affecting the Shares, or the\nacquisition of additional shares of capital stock of Company by any Shareholder,\nthe number of shares of capital stock of Company listed under the heading \"Total\nNumber of Shares of Company Capital Stock Subject to this Agreement\" shall be\nadjusted appropriately and this Agreement and the obligations hereunder shall\nattach to any additional shares of capital stock of Company issued to or\nacquired by such Shareholder.\n\n                  11. Miscellaneous.\n\n                      11.1 Severability. If any term, provision, covenant or\nrestriction of this Agreement is held by a court of competent jurisdiction to be\n\n\n                                                                               9\n\n\ninvalid, void or unenforceable, then the remainder of the terms, provisions,\ncovenants and restrictions of this Agreement shall remain in full force and\neffect and shall in no way be affected, impaired or invalidated.\n\n                      11.2 Binding Effect and Assignment. This Agreement and all\nof the provisions hereof shall be binding upon and inure to the benefit of the\nparties hereto and their respective successors and permitted assigns, but,\nexcept as otherwise specifically provided herein, neither this Agreement nor any\nof the rights, interests or obligations of the parties hereto may be assigned by\neither of the parties without the prior written consent of the other. This\nAgreement is intended to bind each Shareholder solely as a securityholder of\nCompany only with respect to the specific matters set forth herein.\n\n                      11.3 Amendment and Modification. This Agreement may not be\nmodified, amended, altered or supplemented except by the execution and delivery\nof a written agreement executed by the parties hereto.\n\n                      11.4 Enforcement. The parties hereto acknowledge and agree\nthat irreparable damage would occur and that the parties would not have any\nadequate remedy at law in the event that any of the provisions of this Agreement\nwere not performed in accordance with their specific terms or were otherwise\nbreached. It is accordingly agreed that the parties will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce\nspecifically the terms and provisions of this Agreement in any Federal court\nlocated in the State of New York or in any New York state court, the foregoing\nbeing in addition to any other remedy to which they are entitled at law or in\nequity. In addition, each of the parties hereto (i) consents to submit itself to\nthe personal jurisdiction of any Federal court located in the State of New York\nor any New York state court in the event any dispute arises out of this\nAgreement or any of the transactions contemplated by this Agreement, (ii) agrees\nthat it will not attempt to deny or defeat such personal jurisdiction by motion\n\n\n                                       10\n\n\nor other request for leave from any such court, (iii) agrees that it will not\nbring any action relating to this Agreement or any of the transactions\ncontemplated by this Agreement in any court other than a Federal court sitting\nin the State of New York or any New York state court and (iv) waives any right\nto trial by jury with respect to any claim or proceeding related to or arising\nout of this Agreement or any transaction contemplated by this Agreement.\n\n                      11.5 Notices. All notices, requests, demands or other\ncommunications that are required or may be given pursuant to the terms of this\nAgreement shall be in writing and shall be deemed to have been duly given (a)\nwhen delivered, if delivered by hand, (b) one business day after transmitted, if\ntransmitted by a nationally recognized overnight courier service, (c) when\ntelecopied, if telecopied (which is confirmed), or (d) three business days after\nmailing, if mailed by registered or certified mail (return receipt requested),\nto the parties at the following addresses:\n\n                      (i) If to any Shareholder, at the address set forth below\n           such Shareholder's signature at the end hereof.\n\n                      (ii) if to Parent, Lux Sub or Merger Sub, to:\n\n                                    SEAT Pagine Gialle S.p.A.\n                                    Via Aurelio Saffi 18\n                                    10138 Turin, Italy\n                                    Attention:  Mr. Paolo Gonano\n                                    Telecopier: 011 39 011 435 2882\n\n                                    with a copy to:\n\n                                    Cravath, Swaine &amp; Moore\n                                    825 Eighth Avenue\n                                    New York, NY 10019\n                                    Attention:  Faiza J. Saeed\n                                    Telecopier: (212) 474-3700\n\n\n                                                                              11\n\n\nor to such other address as any party hereto may designate for itself by notice\ngiven as herein provided.\n\n                      11.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,\nCONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW\nYORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.\n\n                      11.7 Entire Agreement. This Agreement contains the entire\nunderstanding of the parties in respect of the subject matter hereof and\nsupersedes all prior negotiations and understandings between the parties with\nrespect to such subject matter.\n\n                      11.8 Counterparts. This Agreement may be executed in\nseveral counterparts, each of which shall be an original, but all of which\ntogether shall constitute one and the same agreement.\n\n                      11.9 Effect of Headings. The section headings herein are\nfor convenience only and shall not affect the construction or interpretation of\nthis Agreement.\n\n                  [Remainder of page intentionally left blank.]\n\n\n\n\n                      IN WITNESS WHEREOF, the parties have caused this Agreement\n\n\n\nto be executed as of the date first above written.\n\n\nSEAT PAGINE GIALLE S.P.A.                  SHAREHOLDER\n\nBy:\n   --------------------                    -------------------------------\nName:                                      (Signature)\n     ------------------\nTitle:\n      -----------------                    -------------------------------\n                                           (Print Name of Shareholder)\n\nSOGERIM, SOCIETE ANONYME\n                                           -------------------------------\n                                           (Print Street Address)\n\nBy:                                        -------------------------------\n   --------------------                    (Print City, State and Zip)\nName:\n     ------------------                    -------------------------------\nTitle:                                     (Print Telephone Number)\n      -----------------\n                                           -------------------------------\n                                           (Print Facsimile Number)\n\n\nNICKEL ACQUISITION CORP.                   -------------------------------\n                                           (Social Security or Tax\n                                           I.D. Number)\n\nBy:\n   --------------------\nName:\n     ------------------\nTitle:\n      -----------------\n\n\nTotal Number of Shares of Company Capital Stock Owned on the\nDate Hereof:\n\nCompany Common Stock:\n                     ------------------------------\n\nState of Residence:\n                    -------------------------------\n\n\nTotal Number of Shares of Company Capital Stock Subject to\nthis Agreement:\n\nCompany Common Stock:\n                     ------------------------------\n\n                    SIGNATURE PAGE TO SHAREHOLDERS' AGREEMENT\n\n\n\n                      IN WITNESS WHEREOF, the parties have caused this Agreement\n\n\n\nto be executed as of the date first above written.\n\n\nSEAT PAGINE GIALLE S.P.A.                  SHAREHOLDER\n\nBy:\n   --------------------                    -------------------------------\nName:                                      (Signature)\n     ------------------\nTitle:                                     ROSALIND RESNICK\n      -----------------                    -------------------------------\n                                           (Print Name of Shareholder)\n\nSOGERIM, SOCIETE ANONYME\n                                           -------------------------------\n                                           (Print Street Address)\n\nBy:                                        -------------------------------\n   --------------------                    (Print City, State and Zip)\nName:\n     ------------------                    -------------------------------\nTitle:                                     (Print Telephone Number)\n      -----------------\n                                           -------------------------------\n                                           (Print Facsimile Number)\n\n\nNICKEL ACQUISITION CORP.                   -------------------------------\n                                           (Social Security or Tax\n                                           I.D. Number)\n\nBy:\n   --------------------\nName:\n     ------------------\nTitle:\n      -----------------\n\n\nTotal Number of Shares of Company Capital Stock Owned on the\nDate Hereof:\n\nCompany Common Stock:\n                     ------------------------------\n\nState of Residence:\n                    -------------------------------\n\n\nTotal Number of Shares of Company Capital Stock Subject to\nthis Agreement:\n\nCompany Common Stock:\n                     ------------------------------\n\n                    SIGNATURE PAGE TO SHAREHOLDERS' AGREEMENT\n\n\n                      IN WITNESS WHEREOF, the parties have caused this Agreement\n\n\n\nto be executed as of the date first above written.\n\n\nSEAT PAGINE GIALLE S.P.A.                  SHAREHOLDER\n\nBy:\n   --------------------                    -------------------------------\nName:                                      (Signature)\n     ------------------\nTitle:                                     RYAN SCOTT DRUCKENMILLER\n      -----------------                    -------------------------------\n                                           (Print Name of Shareholder)\n\nSOGERIM, SOCIETE ANONYME\n                                           -------------------------------\n                                           (Print Street Address)\n\nBy:                                        -------------------------------\n   --------------------                    (Print City, State and Zip)\nName:\n     ------------------                    -------------------------------\nTitle:                                     (Print Telephone Number)\n      -----------------\n                                           -------------------------------\n                                           (Print Facsimile Number)\n\n\nNICKEL ACQUISITION CORP.                   -------------------------------\n                                           (Social Security or Tax\n                                           I.D. Number)\n\nBy:\n   --------------------\nName:\n     ------------------\nTitle:\n      -----------------\n\n\nTotal Number of Shares of Company Capital Stock Owned on the\nDate Hereof:\n\nCompany Common Stock:\n                     ------------------------------\n\nState of Residence:\n                    -------------------------------\n\n\nTotal Number of Shares of Company Capital Stock Subject to\nthis Agreement:\n\nCompany Common Stock:\n                     ------------------------------\n\n                    SIGNATURE PAGE TO SHAREHOLDERS' AGREEMENT\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8322],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9622,9626],"class_list":["post-43111","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-netcreations-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43111","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43111"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43111"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43111"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43111"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}