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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT OF REGISTRATION RIGHTS ("Agreement") is made as of
August 9, 1999 between MESSAGEMEDIA, INC., a Delaware corporation ("Parent"),
Xxxxx Xxxxxxx, Xxxxx Xxxxxxx as the Securityholders' Agent (as defined below)
for the benefit of Holders (as defined below) of Revnet Systems, Inc., an
Alabama corporation (the "Company"), acquiring shares of Parent Common Stock
pursuant to that Agreement and Plan of Merger and Reorganization, dated as of
July 22, 1999 (the "Reorganization Agreement"), among Parent, the Company and
MM1 Acquisition Corp., an Alabama corporation and wholly-owned subsidiary of
Parent ("Merger Sub"), and in consideration of such Holders approving the
Reorganization Agreement and the transactions contemplated thereby.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and in the Reorganization Agreement, the parties mutually agree as
follows:
SECTION 1
REGISTRATION
1.1 "HOLDER" means: (i) a Holder of the Company to whom shares of
Common Stock of Parent are issued pursuant to the Reorganization Agreement, (ii)
the Escrow Agent (as defined in the Reorganization Agreement), or (iii) a
transferee to whom registration rights granted under this Agreement are assigned
pursuant to Section 6.3 of this Agreement.
1.2 "REGISTRABLE SECURITIES" means for each Holder the number of shares
of Parent Common Stock issued to such Holder pursuant to the Reorganization
Agreement, and any shares of Parent Common Stock issued in respect thereof as a
result of any stock split, stock dividend, share exchange, merger, consolidation
or similar recapitalization (including shares of Parent Common Stock issued to
the Escrow Agent pursuant to Sections 1.8 of the Reorganization Agreement), in
each case rounded to the nearest integral amount, and for all Holders the sum of
the Registrable Securities held by them; provided, however, that Registrable
Securities shall cease to be Registrable Securities when (i) a registration
statement covering such Registrable Securities shall have become effective under
the Securities Act of 1933, as amended (the "1933 Act"), and such Registrable
Securities shall have been disposed of in accordance with such registration
statement, or (ii) with respect to a Holder, at such time as all of the
Registrable Securities held by such Holder can be sold by such Holder in a
three-month period in accordance with Rule 144 under the 1933 Act, as such rule
may be amended from time to time, or any successor rule or regulation ("Rule
144"). The Holders desiring to sell shares pursuant to Rule 144 shall provide
such Rule 144 representation letters in usual and customary form as may
reasonably be requested by Parent's counsel to provide such opinion.
1.3 REGISTRATION. Parent shall use its commercially reasonable efforts
to prepare and file with the Securities and Exchange Commission ("SEC") a
registration statement on Form S-3 (the "Registration Statement") covering the
resale of the Registrable Securities within thirty (30)
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days following the Effective Time; provided, however, that each Holder shall
provide all such information and materials and take all such action as may be
required in order to permit Parent to comply with all applicable requirements of
the Securities Act, the Exchange Act, and of the SEC, and to obtain any desired
acceleration of the effective date of such registration statement, such
provision of information and materials to be a condition precedent to the
obligations of Parent pursuant to this Agreement. Parent shall not be required
to effect more than one (1) registration pursuant to this Section 1.3. The
offerings made pursuant to such registration shall not be underwritten. Parent
shall use its reasonable efforts to have such Registration Statement declared
effective as soon as practicable following the Effective Time. The Holders shall
furnish such information as Parent may reasonably request in connection with the
preparation of the Registration Statement. Upon registration of the Registrable
Securities with the SEC in accordance with this Agreement, the Registrable
Securities may be sold in accordance with the Registration Statement under the
1933 Act. Parent shall use its reasonable efforts to cause such Registration
Statement to remain effective until the earlier of (i) the date on which all
Registrable Securities covered by the Registration Statement have been sold to
the public pursuant to the Registration Statement, (ii) such time as which all
Registrable Securities covered by the Registration Statement may be sold
pursuant to Rule 144 within a three-month period, or (iii) two (2) years after
the Closing Date.
OTHER SHARES. Parent may include in any registration statement under
this Section 1 any other shares of Parent Common Stock (including issued and
outstanding shares of Parent Common Stock as to which the holders thereof have
contracted with Parent for "piggyback" registration rights).
SECURITYHOLDERS' AGENT. Securityholders' Agent shall be that certain
person appointed by the shareholders of the Company pursuant to Section 10.1 of
the Reorganization Agreement.
SECTION 2
PARENT'S OBLIGATIONS
In connection with the Registration Statement referred to in Section
1.3, Parent shall:
2.1 REGISTRATION STATEMENT. Prepare and file with the SEC a
registration statement with respect to the Registrable Securities and thereafter
use its commercially reasonable efforts to cause such Registration Statement to
become and remain effective for the period set forth in Section 1.3.
2.2 AMENDMENTS AND SUPPLEMENTS. Prepare and file with the SEC such
amendments and supplements to such Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such Registration
Statement effective for the period set forth in Section 1.3 and to comply with
the provisions of the 1933 Act with respect to the sale or other disposition of
the shares of Parent Common Stock covered by such Registration Statement.
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2.3 COPIES OF OFFERING DOCUMENTS. Furnish to the Holders such numbers
of copies of such registration statements, prospectuses, and any amendments and
supplements thereto, in conformity with the requirements of the 1933 Act, such
documents incorporated by reference in such Registration Statement and such
other documents as the Holders reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities, but only while
Parent shall be required under the provisions hereof to cause the registration
statement to remain effective.
2.4 MISLEADING PROSPECTUS. Promptly notify each Holder, at any time
when a prospectus relating thereto covered by such registration statement is
required to be delivered under the 1933 Act, upon Parent becoming aware that the
prospectus included in such Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and as soon as
practicable thereafter use commercially reasonable efforts to prepare and file
with the SEC and furnish to such Holder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they are made.
2.5 RULE 144. Use its commercially reasonable efforts to file in a
timely manner any reports required to be filed by it under the 1933 Act and the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and take such
further action as the Holders may reasonably request, all from time to time to
enable each such Holder to sell the Registrable Securities owned by it without
registration under the 1933 Act pursuant to the exemption provided by Rule 144.
2.6 PIGGYBACK REGISTRATIONS.
(a) NOTICE AND PARTICIPATION. Parent shall notify Xxxxx Xxxxxxx in
writing at least ten (10) days prior to the filing of its first underwritten
registration statement under the Securities Act for purposes of a public
offering of securities of Parent (including, but not limited to, registration
statements relating to secondary offerings of securities of Parent, but
excluding registration statements relating to employee benefit plans or with
respect to corporate reorganizations or other transactions under Rule 145 of the
Securities Act) and will afford Xxxxx Xxxxxxx an opportunity to include in such
registration statement all or part of such Registrable Securities held by Xxxxx
Xxxxxxx. If Xxxxx Xxxxxxx desires to include in any such registration statement
all or any part of the Registrable Securities held by him, he shall, within ten
(10) days after the above-described notice from Parent, so notify Parent in
writing. Such notice shall state the intended method of disposition of the
Registrable Securities by him.
(b) UNDERWRITING. The right of Xxxxx Xxxxxxx to be included in a
registration pursuant to this Section 2.6 shall be conditioned upon Xxxxx
Xxxxxxx'x participation in such underwriting and the inclusion of Xxxxx
Xxxxxxx'x Registrable Securities in the underwriting to the extent provided
herein. If Xxxxx Xxxxxxx proposes to distribute his Registrable Securities
through such underwriting, he shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by Parent. Notwithstanding any
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other provision of the Agreement, if the underwriter determines in good faith
that marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting
shall be allocated, first, to Parent; second, to all holders of Parent Common
Stock that have registration rights on a pro rata basis based on the total
number of Registrable Securities held by such holders, including Xxxxx Xxxxxxx;
and third, to any shareholder of Parent (other than a holder with registration
rights) on a pro rata basis. No such reduction shall (i) reduce the securities
being offered by Parent for its own account to be included in the registration
and underwriting. If Xxxxx Xxxxxxx disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to Parent and
the underwriter, delivered at least twenty (20) business days prior to the
effective date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration.
(c) RIGHT TO TERMINATE REGISTRATION. Parent shall have the right
to terminate or withdraw any registration initiated by it under this Section 2.6
prior to the effectiveness of such registration whether or not Xxxxx Xxxxxxx has
elected to include securities in such registration. The Registration Expenses of
such withdrawn registration shall be borne by Parent in accordance with Section
5 hereof.
2.7 BLUE SKY FILINGS. Parent shall use its reasonable efforts to
register and qualify the securities covered by the Registration Statement under
the Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that Parent shall not be required in connection therewith or
as a condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
SECTION 3
THE HOLDER'S OBLIGATIONS
In connection with the Registration Statement referred to in Section
1.3 or Section 2.6, the Holders shall each:
3.1 OTHER DOCUMENTS AND INFORMATION. Complete, execute, acknowledge
and/or deliver such questionnaires, indemnification agreements, custody
agreements, underwriting agreements (if the registration is underwritten) and
other documents, certificates and instruments as are reasonably required by
Parent or any underwriter(s) or are otherwise necessary in connection with the
registration and offering. Each Holder shall promptly provide to Parent such
information concerning such Holder, such Holder's ownership of Parent's
securities, the intended method of distribution and such other information as
may be required by applicable law or regulation or as may be reasonably
requested by Parent.
3.2 CESSATION OF OFFERING. Upon receipt of any notice from Parent of
the happening of any event of the kind described in Section 2.4, immediately
discontinue disposition of the Registrable Securities pursuant to the
Registration Statement covering such shares until the Holders' receipt of the
copies of the supplemented or amended prospectus contemplated by Section 2.4,
and, if so directed by Parent, deliver to Parent all copies of the prospectus
covering such Registrable Securities in such Holder's possession at the time of
receipt of such notice.
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3.3 NO PRELIMINARY PROSPECTUS. No Holder and no person or entity acting
on his or her behalf (other than an underwriter selected by Parent or approved
by Parent) shall offer any Registrable Securities by means of any preliminary
prospectus.
3.4 SUSPENSION OF PROSPECTUS. Each Holder will be required to notify
Parent in writing at least two (2) business days prior to a disposition of
Registrable Securities pursuant to the Registration Statement of his or her
intent to dispose of such Registrable Securities. At any time within such two
(2) business day period, Parent may restrict disposition of such Registrable
Securities, in which event such Holder will not be able to dispose of such
Registrable Securities, provided that: (i) Parent shall have delivered a notice
in writing to such Holder stating that a delay in the disposition of such
Registrable Securities is necessary because Parent, in its reasonable judgment,
has determined that such sales would require public disclosure by Parent of
material nonpublic information that Parent deems it advisable not to disclose;
provided, however, that no such delay shall be imposed unless Parent shall
equally prohibit during the period of such delay any sale of Parent's securities
by all executive officers and directors of Parent; (ii) in the event of the
delivery of the notice described in (i) above by Parent, Parent shall use its
commercially reasonable efforts to amend the registration statement and/or amend
or supplement the related prospectus if necessary and to take all other actions
necessary to allow the proposed sale to take place as promptly as possible after
the conditions referred to in the notice have ceased to exist or have been
disclosed; and (iii) Parent shall not restrict dispositions under (i) above for
a period exceeding forty-five (45) days during any calendar quarter.
SECTION 4
LIMITATIONS
4.1 OTHER TRANSACTIONS. Parent shall not be obligated to effect a
registration pursuant to Section 1, or to file any amendment or supplement
thereto, and may suspend the Holders' rights to make sales pursuant to an
effective registration pursuant to Section 1, at any time when Parent, in the
good faith judgment of its Board of Directors, reasonably believes that the
filing thereof at the time requested, or the offering of securities pursuant
thereto, would (i) materially and adversely affect a pending or proposed
acquisition, merger, recapitalization, consolidation, reorganization or similar
transaction, or negotiations, discussions or pending proposals related thereto,
or (ii) be seriously detrimental to Parent and its stockholders, in which event
(under clause (i) or (ii) above) Parent's sole relief from its registration
obligations is the right to defer filing of a registration statement (or to
suspend the Holders' rights to make sales pursuant to an effective registration
pursuant to Section 1) for a period of not more than forty-five (45) days;
provided, however, that Parent shall not use the right described in this Section
4.1 more than once in any calendar quarter.
SECTION 5
EXPENSES AND INDEMNIFICATION
5.1 EXPENSES. Parent shall pay all of the out-of-pocket expenses
incurred, other than underwriting discounts and commissions and counsel to the
selling shareholders, in connection with any registration of Registrable
Securities pursuant to this Agreement, including, without
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limitation, all SEC and blue sky registration and filing fees, printing
expenses, transfer agents' and registrars' fees, and the reasonable fees and
disbursements of Parent's outside counsel and independent accountants.
5.2 OTHER EXPENSES. Parent shall pay all registration and filing fees
attributable to the Registrable Securities and the listing fee payable to the
Nasdaq National Market.
5.3 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Section 1:
(a) INDEMNIFICATION BY PARENT. To the extent permitted by law,
Parent will indemnify and hold harmless each Holder, his heirs, successors and
assigns, any underwriter (as defined in the 0000 Xxx) for such Holder, any agent
of a Holder or underwriter, and each person, if any, who controls such Holder or
underwriter within the meaning of the 1933 Act or the 1934 Act, against any
losses, claims, damages, liabilities or actions to which they may become subject
under the 1933 Act, the 1934 Act or other federal or state law, arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus (not prohibited by Section 3.3) or final prospectus contained therein
or any amendments or supplements thereto, or arising out of or based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the context in
which made, not misleading; and Parent will reimburse each such Holder, his
heirs, successors and assigns, underwriter, agent or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnification and other rights provided for in
this Section 5.3(a) shall not apply (i) to any such loss, claim, damage,
liability, or action insofar as it arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, preliminary prospectus or final prospectus or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any Holder or (ii) if the person asserting any such loss, claim, damage,
liability or action who purchased the Registrable Securities which are the
subject thereof did not receive a copy of an amended preliminary prospectus or
the final prospectus (or the final prospectus as amended or supplemented) at or
prior to the written confirmation of the sale of such Registrable Securities to
such person because of the failure of such Holder, agent or underwriter to so
provide such amended preliminary or final prospectus and the untrue statement or
alleged untrue statement or omission or alleged omission of a material fact made
in such preliminary prospectus was corrected in the amended preliminary
prospectus or the final prospectus (or the final prospectus as amended and
supplemented). Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such Holder, agent, underwriter or
controlling person and shall survive the transfer of the Registrable Securities
by such Holder.
(b) INDEMNIFICATION BY HOLDERS. To the extent permitted by law,
the Holders will severally (but not jointly and pro rata) indemnify and hold
harmless Parent, its successors and assigns, its officers and directors, any
underwriter (as defined in the 0000 Xxx) requested by the Holders, and each
person, if any, who controls Parent or any such underwriter requested by the
Holders within the meaning of the 1933 Act or the 1934 Act, against any losses,
claims,
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damages, liabilities or actions (joint or several) to which they may become
subject under the 1933 Act, the 1934 Act or other federal or state law, arising
out of or based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, or arising out of or based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the context in which made, not
misleading; provided that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished by the Holders expressly for use in such
registration by such Holder, or (ii) the failure of any Holder or any
underwriter requested by the Holders at or prior to the written confirmation of
the sale of the Registrable Securities to send or arrange delivery of a copy of
an amended preliminary prospectus or the final prospectus (or the final
prospectus as amended or supplemented) to the person asserting any such loss,
claim, damage, liability or action who purchased the Registrable Securities
which is the subject thereof and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact made in such
preliminary prospectus was corrected in the amended preliminary prospectus or
the final prospectus (or the final prospectus as amended and supplemented). The
Holders will reimburse Parent and each such officer or director or controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, or
action. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of Parent or any such officer, director,
underwriter requested by the Holders or controlling person and shall survive the
transfer of the Registrable Securities by such Holder.
(c) INDEMNIFICATION PROCEDURES. Promptly after receipt by a person
who may be entitled to indemnification under this Section 5.3 (an "indemnified
party") of notice of the commencement of any action (including any governmental
action) for which indemnification may be available under this Section 5.3, such
indemnified party will, if a claim in respect thereof is to be made against any
person who must provide indemnification under this Section 5.3 (an "indemnifying
party"), deliver to the indemnifying party a written notice of the commencement
thereof, and the indemnifying party shall have the right to participate in and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly notified, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel (and the
reasonable fees of such counsel shall be paid by the indemnifying party) and
assume its own defense if (i) the retention of such counsel has been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party has failed to promptly assume the defense and employ
experienced counsel reasonably acceptable to the indemnified party after the
indemnifying party has received the notice of the indemnification matter from
the indemnified party, or (iii) the named parties to any such action include
both the indemnified party and the indemnifying party, and the representation of
both parties by the same counsel would be inappropriate due to a conflict of
interest between them. It is understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys for all
indemnified parties unless the indemnified parties in good faith conclude and
are advised by their counsel that there is an actual or potential conflict of
interest among the indemnified parties. No indemnification provided for in
Section 5.3(a) or Section 5.3(b) shall be
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available to any party who shall fail to give notice as provided in this Section
5.3(c) to the extent that the party to whom notice was not given was unaware of
the proceeding to which such notice would have related and was materially
prejudiced by the failure to give such notice.
SECTION 6
OTHER PROVISIONS
6.1 NOTICES. All notices, requests and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed to have been duly given when delivered personally or one business day
after being sent by a nationally recognized overnight delivery service to the
Holders at their respective addresses of record with Parent's transfer agent,
and to Parent at its address stated in the Reorganization Agreement. Notices may
also be given by facsimile and shall be effective on the date transmitted if
confirmed within 48 hours thereafter by a signed original sent in the manner
provided in the preceding sentence.
6.2 AMENDMENT OF REGISTRATION RIGHTS. The Securityholders' Agent or
Holders of a majority of the Registrable Securities from time to time
outstanding may, with the written consent of Parent, amend the registration
rights granted hereunder.
6.3 PARTIES IN INTEREST. No Holder may assign his rights under this
Agreement without the express prior written consent of Parent, provided,
however, that (i) upon the death of a Holder, his rights under this Agreement
shall be transferred to the person(s) who receive his Parent Common Stock under
the laws of descent and distribution, and (ii) a Holder may assign his rights
under this Agreement to any organization qualified under Section 501(c)(3) of
the Internal Revenue Code to which the Holder transfers Registrable Securities
or in connection with an estate planning transaction. Nothing in this Agreement
is intended to confer, or shall be deemed to confer, any rights or remedies upon
any person or entity other than the parties hereto and their permitted
successors and assigns.
6.4 WAIVERS. Except as otherwise expressly provided herein, no waiver
with respect to this Agreement shall be enforceable unless in writing and signed
by the party against whom enforcement is sought. Except as otherwise expressly
provided herein, no failure to exercise, delay in exercising, or single or
partial exercise of any right, power or remedy by any party, and no course of
dealing between or among any of the parties, shall constitute a waiver of, or
shall preclude any other or further exercise of, any right, power or remedy.
6.5 SEVERABILITY. If any provision of this Agreement is construed to be
invalid, illegal or unenforceable, then the remaining provisions hereof shall
not be affected thereby and shall be enforceable without regard thereto.
6.6 SECTION HEADINGS. Section headings in this Agreement are for
convenience of reference only, do not constitute a part of this Agreement, and
shall not affect its interpretation.
6.7 REFERENCES. All words used in this Agreement shall be construed to
be of such number and gender as the context requires. The terms "it" and "its"
as used herein include entities as well as masculine and feminine persons.
Unless a particular context clearly requires otherwise, the words "hereof" and
"hereunder" and similar references refer to this Agreement in its entirety and
not to any specific section or subsection of this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
MESSAGEMEDIA, INC.
/s/ Xxxxx Xxxxx
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By: Xxxxx Xxxxx
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Title: President and Chief Executive
Officer
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SECURITYHOLDERS' AGENT:
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
