Exhibit 10.2
EXECUTION COPY
INVESTORS' RIGHTS AGREEMENT
This Investors' Rights Agreement (the "AGREEMENT") is entered into as
of September 19, 2002 (the "EFFECTIVE DATE") by and among 24/7 Real Media, Inc.,
a Delaware corporation (the "COMPANY"), and the persons and entities listed on
EXHIBIT A attached hereto (the "PURCHASERS").
RECITALS
A. The Purchasers have agreed to purchase from the Company, and the
Company has agreed to sell to the Purchasers, shares of the Company's Series B
Convertible Preferred Stock, par value $0.01 per share (the "SERIES B STOCK") on
the terms and conditions set forth in that certain Series B Preferred Stock
Purchase Agreement, dated as of September 19, 2002, by and among the Company and
the Purchasers, as such agreement may be amended from time to time (the
"PURCHASE AGREEMENT").
B. The Purchase Agreement provides that the Purchasers shall be granted
certain registration rights, as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. REGISTRATION RIGHTS.
1.1 DEFINITIONS. For purposes of this Section 1:
(a) REGISTRATION. The terms "REGISTER,"
"REGISTRATION" and "REGISTERED" refer to a registration effected by preparing
and filing a registration statement in compliance with the U.S. Securities Act
of 1933, as amended (the "SECURITIES ACT"), and the declaration or ordering of
effectiveness of the S-3 Registration Statement.
(b) REGISTRABLE SECURITIES. The term "REGISTRABLE
SECURITIES" means:
(1) all the shares of the Company's Common
Stock, par value $0.01 per share (the "COMMON STOCK") of the Company issued or
issuable upon the conversion of any shares of Series B Stock issued under the
Purchase Agreement, that are now owned or may hereafter be acquired by any
Purchaser or any Purchaser's permitted successors and assigns;
(2) all the shares of Common Stock issued
under that certain Asset Purchase Agreement, dated as of September 19, 2002, by
and among the Company, Elbit Vflash Inc. and Elbit Vflash Ltd.; and
(3) any shares of Common Stock of the
Company issued (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued) as a dividend or other distribution
with respect to, or in exchange for or in replacement of, all such shares of
Common Stock described in clauses (1) and (2) of this subsection 1.1(b);
EXCLUDING in all cases, however, any Registrable Securities sold by a person in
a transaction in which rights under this Section 1 are not assigned in
accordance with this Agreement or any Registrable Securities sold to the public
or sold pursuant to Rule 144 promulgated under the Securities Act.
(c) REGISTRABLE SECURITIES THEN OUTSTANDING. The
number of shares of "REGISTRABLE SECURITIES THEN OUTSTANDING" shall mean the
number of shares of Common Stock which are Registrable Securities that are then
(1) issued and outstanding or (2) issuable pursuant to the exercise or
conversion of then outstanding and then exercisable or convertible and
qualifying options, warrants or convertible securities.
(d) HOLDER. The term "HOLDER" means any person owning
of record Registrable Securities or any assignee of record of such Registrable
Securities to whom rights set forth herein have been duly assigned in accordance
with this Agreement; PROVIDED, HOWEVER, that for purposes of this Agreement, a
record holder of shares of Series B Stock convertible into such Registrable
Securities, shall be deemed to be the Holder of such Registrable Securities; and
PROVIDED FURTHER, that the Company shall in no event be obligated to register
shares of Series B Stock, and that Holders of Registrable Securities will not be
required to convert or exercise their shares of Series B Stock into Common
Stock, in order to exercise the registration rights granted hereunder, until
immediately before the closing of the offering to which the registration
relates.
(e) EXISTING HOLDER. The term "EXISTING HOLDER" means
the holders of registration rights pursuant to that certain Investors' Rights
Agreement, dated as of July 1, 2002, by and among the Company, Merchant Partners
LLC and the persons and entities listed on EXHIBIT A thereto (the "EXISTING
INVESTORS' RIGHTS AGREEMENT").
(f) FORM S-3. The term "FORM S-3" means such form
under the Securities Act as is in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by the SEC that
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
(g) SEC. The term "SEC" means the U.S. Securities and
Exchange Commission.
1.2 MANDATORY FORM S-3 REGISTRATION.
(a) SHELF REGISTRATION. On or before the thirtieth
(30th) day after the Effective Date, the Company shall file with the SEC a
registration statement on Form S-3, and any related qualification or compliance,
with respect to the sale or distribution by the Holders on a delayed or
continuous basis of all of the Registrable Securities (the "SHELF
REGISTRATION"); PROVIDED, HOWEVER, that the Company shall not be obligated to
effect such registration, qualification or compliance pursuant to this Section
1.2 in any particular jurisdiction in which the Company would be required to
qualify to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance. The Company shall
include all of the Registrable Securities hereunder on the first registration
statement which the Company shall file with respect any of the securities of the
Company held by Sunra Capital Holdings Limited. The Company shall use
commercially reasonable efforts to have the Shelf Registration
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declared effective by the SEC as promptly as practicable; PROVIDED, that in the
event the Company receives notice from the SEC that the Shelf Registration will
not be subject to SEC review, the Company shall have the S-3 Registration
Statement declared effective as soon as possible following receipt of such
notice from the SEC; PROVIDED, FURTHER, that in the event the Shelf Registration
is reviewed by the SEC, the Company shall work diligently to resolve any SEC
comments in favor of the Company as soon as possible and, following receipt of
notice from the SEC that all such comments are resolved, will have the Shelf
Registration declared effective as soon as possible thereafter; and PROVIDED,
FURTHER, that in no event shall the Shelf Registration be declared effective
later than the date that any other registration statement filed by the Company
after the Effective Date is declared effective (other than any registration
statement relating to any Company employee benefit plan or any registration
statement filed by the Company on Form S-4 that is not reviewed by the SEC) (the
date the Shelf Registration Statement is declared effective by the SEC is
hereinafter referred to as the "SEC Effective Date"). The Company shall leave
the Shelf Registration in effect until the earlier of: (A) the date on which all
Registrable Securities shall either (i) have been registered under the
Securities Act and been disposed of, or (ii) be, in the reasonable opinion of
counsel to the Company that has been delivered to the applicable Holders,
saleable in a three (3) month period by the current Holders thereof without
registration under the Securities Act pursuant to Rule 144 under the Securities
Act; or (B) the date three (3) years from the date on which the Shelf
Registration is declared effective by the SEC (the "SHELF TERMINATION DATE").
(b) EFFECT OF FAILURE TO FILE REGISTRATION STATEMENT
AND DELAY IN OR FAILURE TO MAINTAIN EFFECTIVENESS OF REGISTRATION STATEMENT. If
(i) the Company fails to file the Shelf Registration with the SEC covering the
resale of all Registrable Securities on or before the thirtieth (30th) day after
the Effective Date, (ii) the Shelf Registration is not declared effective by the
SEC on or before the date that is 270 days after the Effective Date, or (iii) on
any day prior to the Shelf Termination Date and after the Shelf Registration has
been declared effective by the SEC, sales of the Registrable Securities required
to be included on such Shelf Registration cannot be made (other than during a
Permitted Suspension, as defined below) pursuant to the Shelf Registration
(including, without limitation, because of a failure to keep the Shelf
Registration effective, to disclose such information as is necessary for sales
to be made pursuant to the Shelf Registration or to register sufficient shares
of Common Stock for resale under the Registration Statement); THEN, as partial
relief for the harm to any Holder by reason of any such delay in or reduction of
its ability to sell the underlying shares of Common Stock (which remedy shall
not be exclusive of any other remedies available at law or in equity), the
Company shall pay to the Holders on a pro rata basis relative to the number of
Registrable Securities held by each Holder (on an as-converted and as-exercised
into Common Stock basis without regard to current exercisability or
convertability) an aggregate amount in cash equal to three thousand nine hundred
dollars ($3,900) per month for each month in which the Shelf Registration is not
filed, effective or available for sale, as the case may be, payable on the last
business day of each such month, provided that such amount shall be increased to
seven thousand eight hundred dollars ($7,800) upon the fourth full succeeding
month, and for each full succeeding month thereafter, in which the Shelf
Registration is not filed, effective or available for sale, as the case may be.
(c) EXPENSES. The Company shall pay all expenses
incurred in connection with the S-3 Registration Statement required pursuant to
this Section 1.2, including without limitation all filing, registration and
qualification, printers' and accounting fees and
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counsel for the Company (other than commissions or other amounts payable to
brokers in connection with the sale of Registrable Securities by Holders
pursuant to the Shelf Registration and the fees and disbursements of any one or
more legal counsels to the Holders).
1.3 PIGGYBACK REGISTRATIONS.
(a) NOTICE OF COMPANY REGISTRATION. The Company shall
notify all Holders of Registrable Securities in writing at least thirty (30)
days prior to filing any registration statement under the Securities Act for
purposes of effecting a public offering of securities of the Company (including,
but not limited to, registration statements relating to secondary offerings of
securities of the Company, but EXCLUDING the Shelf Registration and any
registration statements relating to any employee benefit plan or a corporate
reorganization or other transaction covered by Rule 145 promulgated under the
Securities Act, or a registration on any registration form which does not permit
secondary sales or does not include substantially the same information as would
be required to be included in a registration statement covering the resale of
Registrable Securities) and will afford each such Holder an opportunity to
include in such registration statement all or any part of the Registrable
Securities then held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by
such Holder shall, within twenty (20) days after receipt of the above-described
notice from the Company, so notify the Company in writing, and in such notice
shall inform the Company of the number of Registrable Securities such Holder
wishes to include in such registration statement. If a Holder decides not to
include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue to have
the right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions set forth
herein. The Company shall have no obligation to include any Registrable
Securities of a Holder in a registration statement under this Section 1.3 if, in
the reasonable opinion of counsel to the Company delivered to such Holder, all
such Registrable Securities proposed to be sold by such Holder may be sold in a
three (3) month period without registration under the Securities Act pursuant to
Rule 144 under the Securities Act.
(b) UNDERWRITING. If a registration statement under
which the Company gives notice under this Section 1.3 is for an underwritten
offering, then the Company shall so advise the Holders of Registrable Securities
in such notice. In such event, the right of any such Holder's Registrable
Securities to be included in a registration pursuant to this Section 1.3 shall
be conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the managing underwriter(s) selected for such
underwriting. Notwithstanding any other provision of this Agreement, if the
managing underwriter(s) determine(s) in good faith that marketing factors
require a limitation of the number of shares to be underwritten and so notifies
the Holders requesting inclusion of their Registrable Securities in such
registration, then the managing underwriter(s) may exclude shares (including
Registrable Securities) from the registration and the underwriting, and the
number of shares that may be included in the registration and the underwriting
shall be allocated, FIRST, to the Company, SECOND to Holders and Existing
Holders
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requesting inclusion of shares of Common Stock eligible to be included in such
registration statement on a pro rata basis based on the number of shares each
such Holder and Existing Holder has validly requested to be included in the
registration, PROVIDED HOWEVER, that the right of the underwriters to exclude
shares (including Registrable Securities) from the registration and underwriting
as described above shall be restricted so that the number of shares of Common
Stock included in any such registration by Holder and Existing Holders is not
reduced below twenty percent (20%) of all shares included in the registration.
If any Holder disapproves of the terms of any such underwriting, such Holder may
elect to withdraw therefrom by written notice, given in accordance with Section
4.1 hereof, to the Company and the underwriter, delivered at least twenty (20)
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. For any Holder that is a partnership or
corporation, the partners, retired partners and shareholders of such Holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "Holder," and any pro rata reduction with respect to such "Holder" shall
be based upon the aggregate amount of shares carrying registration rights owned
by all entities and individuals included in such "Holder," as defined in this
sentence.
(c) EXPENSES. All expenses incurred in connection
with a registration pursuant to this Section 1.3, including without limitation
all registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company (but excluding underwriters' and
brokers' discounts and commissions and the fees and disbursements of legal
counsel for the selling Holders, if any), shall be borne by the Company. Each
Holder participating in a registration pursuant to this Section 1.3 shall bear
such Holder's proportionate share (based on the number of shares sold by such
Holder over the total number of shares included in such registration at the time
it goes effective) of all discounts, commissions or other amounts payable to
underwriters, brokers or legal counsel to the Holders in connection with such
offering.
1.4 OBLIGATIONS OF THE COMPANY. When required to effect the
registration of any Registrable Securities pursuant to this Agreement, the
Company shall keep each Holder participating in such registration advised in
writing as to the initiation of each registration and as to the completion
thereof, and shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use commercially
reasonable efforts to cause such registration statement to become effective
(such obligations to be in addition to any other requirements with respect to
the filing and effectiveness of the Shelf Registration under Section 1.2 above);
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) Furnish to the Holders participating in such
registration and the underwriters of the securities being registered such number
of copies of the registration statement, preliminary prospectus, final
prospectus, in conformity with the requirements of the
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Securities Act, and such other documents as such underwriters may reasonably
request in order to facilitate the public offering of such securities;
(d) Use reasonable efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company 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;
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter(s) of such offering. Each
Holder participating in such underwriting hereby agrees to also enter into and
perform its obligations under such an agreement;
(f) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing and, subject to Section 1.5, at the request of any such Holder,
prepare promptly 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 purchaser of such shares, 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 or incomplete in the light of the circumstances then existing; and
(g) Furnish, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such securities are
being sold through underwriters: (1) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, and (2) a "comfort" letter dated as of
such date, from the independent certified public accountants of the Company, in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to the
underwriters.
1.5 PERMITTED SUSPENSION. Notwithstanding any other provision
of this Agreement, from and after the time a registration statement filed under
this Section 1 covering Registrable Securities is declared effective, the
Company shall have the right to suspend the registration statement and the
related prospectus in order to prevent premature disclosure of any material
non-public information related to corporate developments by delivering notice of
such suspension to the Holders (a "PERMITTED SUSPENSION"), PROVIDED, HOWEVER,
that the Company may exercise the right to such Permitted Suspension only for an
aggregate of thirty (30) days during any consecutive ninety (90) day period and
only for an aggregate of sixty (60) days during any consecutive twelve (12)
month period. From and after the date of a notice of a Permitted Suspension
under this Section 1.5, each Holder agrees not to use the registration statement
or the related prospectus for resale of any Registrable Security until the
earlier of (1)
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notice from the Company that such suspension has been lifted, or (2) the first
day on which the length of such Permitted Suspension, when aggregated with prior
Permitted Suspensions, exceeds either or both of the time limits referred to in
the immediately preceding sentence.
1.6 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to Section 1.2 and
1.3 hereof that each of the selling Holders shall furnish to the Company such
information regarding itself, the Registrable Securities held by them, and the
intended method of disposition of such securities as shall be required to timely
effect the registration of their Registrable Securities.
1.7 DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.8 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under Sections 1.2 or 1.3:
(a) BY THE COMPANY. To the extent permitted by law,
the Company will indemnify and hold harmless each Holder, the current and former
partners, officers, directors and members of each Holder, any underwriter (as
defined in the Securities Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Securities Act or
the Exchange Act, against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively, the
"VIOLATIONS" and, individually, a "VIOLATION"):
(1) any untrue statement or alleged untrue
statement of a material fact contained such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto; or
(2) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading; or
(3) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any federal or state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any federal or state securities law in connection with the
offering covered by such registration statement.
The Company will reimburse each such Holder, partner, officer, member or
director, underwriter or controlling person for any legal or other expenses
reasonably incurred by them, within one (1) month after a request for
reimbursement has been received by the Company, in connection with investigating
or defending any such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, that the indemnity agreement contained in this subsection 1.8(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and
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in conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, member, director,
underwriter or controlling person of such Holder.
(b) BY SELLING HOLDERS. To the extent permitted by
law, each selling Holder will severally, but not jointly, indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed such registration statement, each person, if any, who controls the
Company within the meaning of the Securities Act, any underwriter and any other
Holder selling securities under such registration statement or any of such other
Holder's partners, directors, members or officers or any person who controls
such Holder within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities (joint or several) to which
the Company or any such director, officer, member, controlling person,
underwriter or other such Holder, partner or director, member, officer or
controlling person of such other Holder may become subject under the Securities
Act, the Exchange Act or other federal or state law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out of or
are based upon any violation of subsections 1.8(a)(1) and 1.8(a)(2) above, in
each case to the extent (and only to the extent) that such violation occurs in
reliance upon and in conformity with written information furnished by such
Holder with respect to the Holder (and none other) for use in connection with
such registration. Each such Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, member,
controlling person, underwriter or other Holder, partner, officer, member,
director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action
within one (1) month after a request for reimbursement has been received by the
indemnifying Holder; PROVIDED, HOWEVER, that the indemnity agreement contained
in this subsection 1.8(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; and PROVIDED FURTHER, that the total amounts payable in indemnity by a
Holder under this subsection 1.8(b) in respect of any Violation shall not exceed
the net proceeds received by such Holder in the registered offering out of which
such Violation arises.
(c) NOTICE. Promptly after receipt by an indemnified
party under this Section 1.8 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
1.8, deliver to the indemnifying party a written notice of the commencement
thereof. 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 noticed, 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, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential conflict of interests between such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.8, but the omission so to deliver written
notice to the indemnifying party
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will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.8.
(d) DEFECT ELIMINATED IN FINAL PROSPECTUS. The
foregoing indemnity agreements of the Company and Holders are subject to the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time such registration statement becomes effective or the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "FINAL
PROSPECTUS"), such indemnity agreement shall not inure to the benefit of any
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the Securities Act.
(e) CONTRIBUTION. If the indemnification provided for
in this Section 1.8 is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, liability, claim,
damage or expense referred to herein, then the indemnifying party, in lieu of
indemnifying the indemnified party, shall contribute to the amount paid or
payable by such indemnified party with respect to such loss, liability, claim,
damage or expense in the proportion that is appropriate to reflect the relative
fault of the indemnifying party and the indemnified party in connection with the
statements or omissions that resulted in such loss, liability, claim, damage or
expense, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. In any such case, (A) no such Holder will be
required to contribute any amount in excess of the public offering price of all
such Registrable Securities offered and sold by such Holder pursuant to such
registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
(f) SURVIVAL. The obligations of the Company and
Holders under this Section 1.8 shall survive the completion of any offering of
Registrable Securities in the S-3 Registration Statement, and otherwise.
1.9 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. Until the
SEC Effective Date, the Company shall not, without the prior written consent of
the Holders of a majority of the Registrable Securities then outstanding, enter
into any agreement or arrangement granting, or unilaterally grant, any holder or
prospective holder of any securities of the Company registration rights with
respect to such securities that are inconsistent with, or prior, superior or
senior in any respect to, the rights granted to the Holders herein.
2. PARTICIPATION RIGHTS.
2.1 GENERAL. Each Purchaser and any party to whom such
Purchaser's rights under this Section 2 have been duly assigned in accordance
with subsection 3.1 hereof (EACH
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such Purchaser or assignee being hereinafter referred to as a "RIGHTS HOLDER")
has the right to purchase such Rights Holder's Pro Rata Share (as defined
below), of all (or any part) of any "New Securities" (as defined in Section 2.2
hereof) that the Company may from time to time issue after the Effective Date,
PROVIDED, HOWEVER, such Rights Holder shall have no right to purchase any such
New Securities if such Rights Holder cannot demonstrate to the Company's
reasonable satisfaction that such Rights Holder is at the time of the proposed
issuance of such New Securities an "accredited investor" as such term is defined
in Regulation D under the Securities Act. A Rights Holder's "PRO RATA SHARE" for
purposes of this participation right is the ratio of (a) the number of
Registrable Securities as to which such Rights Holder is the Holder (and/or is
deemed to be the Holder under subsection 2.1(d) hereof), to (b) a number of
shares of Common Stock of the Company equal to the sum of (1) the total number
of shares of Common Stock of the Company then outstanding, plus (2) the total
number of shares of Common Stock of the Company into which all then outstanding
shares of Preferred Stock of the Company are convertible, plus (3) the total
number of shares of Common Stock of the Company subject to then outstanding
options and warrants (including options and warrants exercisable for securities
which are ultimately convertible into Common Stock); PROVIDED, HOWEVER, a Rights
Holder's Pro Rata Share with respect to any offering of New Securities shall not
exceed the Rights Holder's Pro Rata Share calculated as of the last date on
which securities were issued under the Purchase Agreement.
2.2 NEW SECURITIES. "NEW SECURITIES" shall mean any Common
Stock or Preferred Stock of the Company, whether now authorized or not, and
rights, options or warrants to purchase such Common Stock or Preferred Stock,
and securities of any type whatsoever that are, or may become, convertible or
exchangeable into such Common Stock or Preferred Stock; PROVIDED, HOWEVER, that
the term "New Securities" DOES NOT INCLUDE:
(a) shares of Common Stock issued or issuable upon
conversion of the outstanding shares of Preferred Stock;
(b) any shares of Common Stock or Preferred Stock (or
options, warrants or rights therefor) granted or issued hereafter to employees,
officers, directors, contractors, consultants or advisers to, the Company or any
subsidiary pursuant to incentive agreements, stock purchase or stock option
plans, stock bonuses or awards, warrants, contracts or other arrangements
approved by the Board;
(c) any shares of Common Stock or Preferred Stock
(and/or options or warrants therefor) issued to parties that are strategic
partners investing in connection with a commercial relationship with the Company
under arrangements that are, in each case, approved by the Board;
(d) shares of Common Stock or Preferred Stock issued
pursuant to: (i) acquisitions of other corporations or entities by the Company
by consolidation, merger, purchase of all or substantially all of the assets, or
other reorganization in which the Company acquires, in a single transaction or
series of related transactions, all or substantially all of the assets of such
other corporation or entity or fifty percent (50%) or more of the voting power
of such other corporation or entity or fifty percent (50%) or more of the equity
ownership of such other entity; provided that each such transaction or series of
transactions has been approved by the Board, or
10
(ii) purchases of less than a fifty percent (50%) equity ownership of other
corporations or entities in connection with joint ventures or other strategic
arrangements or other commercial relationships, provided such arrangements are
approved in each case by the Board;
(e) any shares of Series A Stock, Series A-1 Stock or
warrants issued under the Series A and Series A-1 Convertible Preferred Stock
and Common Stock Warrant Purchase Agreement, dated as of July 1, 2002, by and
among the Company and the parties listed on Exhibit A thereto;
(f) any shares of Series B Stock issued under the
Purchase Agreement;
(g) shares of Common Stock or Preferred Stock
issuable upon exercise of any options or warrants to purchase any securities of
the Company outstanding as of the Effective Date and any securities issuable
upon the conversion thereof;
(h) shares of the Company's Common Stock or Preferred
Stock issued in connection with any stock split or stock dividend or
recapitalization; and
(i) shares of the Company's Common Stock or Preferred
Stock issued by the Company to the public pursuant to a registration statement
filed under the Securities Act.
2.3 PROCEDURES. In the event that the Company proposes to
undertake an issuance of New Securities, it shall give to each Rights Holder a
written notice of its intention to issue New Securities (the "NOTICE"),
describing the type of New Securities and the price and the general terms upon
which the Company proposes to issue such New Securities given in accordance with
Section 4.1 hereof. Each Rights Holder shall have twenty (20) days from the date
such Notice is effective, as determined pursuant to Section 5.1 hereof based
upon the manner or method of notice, to agree in writing to purchase such Rights
Holder's Pro Rata Share of such New Securities for the price and upon the
general terms specified in the Notice by giving written notice to the Company
and stating therein the quantity of New Securities to be purchased (not to
exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to so
agree in writing within such twenty (20) day period to purchase such Rights
Holder's full Pro Rata Share of an offering of New Securities (a "NONPURCHASING
HOLDER"), then such Nonpurchasing Holder shall forfeit the right hereunder to
purchase that part of his Pro Rata Share of such New Securities that he, she or
it did not so agree to purchase and the Company shall promptly give each Rights
Holder who has timely agreed to purchase his full Pro Rata Share of such
offering of New Securities (a "PURCHASING HOLDER") written notice of the failure
of any Nonpurchasing Holder to purchase such Nonpurchasing Holder's full Pro
Rata Share of such offering of New Securities (the "OVERALLOTMENT NOTICE"). Each
Purchasing Holder shall have a right of overallotment such that such Purchasing
Holder may agree to purchase a portion of the Nonpurchasing Holders' unpurchased
Pro Rata Shares of such offering on a pro rata basis according to the relative
Pro Rata Shares of the Purchasing Holders, at any time within five (5) days
after receiving the Overallotment Notice.
2.4 FAILURE TO EXERCISE. In the event that any Rights Holder
fails to exercise in full the participation right within such twenty (20) plus
five (5) day period, then the Company shall have ninety (90) days thereafter to
sell the New Securities with respect to which such
11
Rights Holder's rights of first refusal hereunder were not exercised, at a price
and upon general terms not materially more favorable to the purchasers thereof
than specified in the Company's Notice to the Rights Holders. In the event that
the Company has not issued and sold the New Securities within such ninety (90)
day period, then the Company shall not thereafter issue or sell any New
Securities without again first offering such New Securities to the Rights
Holders pursuant to this Section 2.
2.5 TERMINATION. The Company's obligations to provide the
Notice under Section 2.3 and the Rights Holders' right to purchase their Pro
Rata Share of New Securities under this Section 3 shall terminate upon (1) any
reorganization, consolidation, merger or similar transaction or series of
related transactions (each, a "COMBINATION TRANSACTION") in which the Company is
a constituent corporation or is a party if, as a result of such combination
transaction, the voting securities of the Company that are outstanding
immediately prior to the consummation of such combination transaction (OTHER
THAN any such securities that are held by an "Acquiring Stockholder", as defined
below) do not represent, or are not converted into, securities of the surviving
corporation of such combination transaction (or such surviving corporation's
parent corporation if the surviving corporation is owned by the parent
corporation) that, immediately after the consummation of such combination
transaction, together possess at least a majority of the total voting power of
all securities of such surviving corporation (or its parent corporation, if
applicable) that are outstanding immediately after the consummation of such
combination transaction, including securities of such surviving corporation (or
its parent corporation, if applicable) that are held by the Acquiring
Stockholder; or (2) a sale of all or substantially all of the assets of the
Company, that is followed by the distribution of the proceeds to the Company's
stockholders or (3) as to each Rights Holder, when such Rights Holder no longer
holds any Registrable Securities. For purposes of this Section 2.5, an
"ACQUIRING STOCKHOLDER" means a stockholder or stockholders of the Company that
(1) merges or combines with the Company in such combination transaction or (2)
owns or controls a majority of another corporation that merges or combines with
the Company in such combination transaction.
3. ASSIGNMENT AND AMENDMENT.
3.1 ASSIGNMENT. Notwithstanding anything herein to the
contrary:
(a) REGISTRATION RIGHTS; PARTICIPATION RIGHTS. The
registration rights of a Holder under Section 1 hereof and the participation
right of a Rights Holder under Section 2 hereof may be assigned to a transferee
or assignee in connection with any transfer or assignment of Registrable
Securities by such party; PROVIDED, HOWEVER, that such transferee or assignee
(i) is a subsidiary, affiliate or partner or limited liability company member of
such Holder or Rights Holder (including spouses and ancestors, lineal
descendants and siblings of any of the foregoing who acquire Registrable
Securities by gift, will or intestate succession) or (ii) acquires from such
party at least two hundred fifty thousand (250,000) shares of such Registrable
Securities (as adjusted for any stock dividends paid in such Registrable
Securities, and combinations, stock splits, recapitalizations and the like with
respect to such Registrable Securities).
(b) GENERAL. No transfer or assignment of
registration rights or participation rights pursuant to Section 3.1(b) shall be
permitted or effective unless: (i) the Company is provided with written notice
by the assigning or transferring party at the time of
12
such assignment or transfer stating the name and address of the assignee or
transferee and identifying the securities of the Company as to which the rights
in question are being assigned or transferred, and (ii) such assignee or
transferee agrees in writing to receive such assigned or transferred rights
subject to all the terms and conditions of this Agreement, including without
limitation the provisions of this Section 3.1.
3.2 AMENDMENT AND WAIVER OF RIGHTS. Any provision of this
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Purchasers
(and/or any of their permitted successors or assigns) holding at least a
majority of all Registrable Securities then outstanding. Any amendment or waiver
effected in accordance with this Section 3.2 shall be binding upon each
Purchaser, the Company, and their permitted successors and assigns.
4. GENERAL PROVISIONS.
4.1 NOTICES. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered or if deposited in the U.S. mail by
registered or certified mail, return receipt requested, postage prepaid, as
follows:
(a) if to the Company, at:
24/7 Real Media, Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) if to any Purchaser, to such Purchaser's address
listed on EXHIBIT A hereto.
Any party hereto (and such party's permitted successors, assigns or transferees)
may by notice so given provide and change its address for future notices
hereunder. Notice shall conclusively be deemed to have been given when
personally delivered or when deposited in the mail in the manner set forth
above.
13
4.2 ENTIRE AGREEMENT. This Agreement and the documents
referred to herein constitute the entire agreement and understanding of the
parties with respect to the subject matter of this Agreement, and supersede any
and all prior understandings and agreements, whether oral or written, between or
among the parties hereto with respect to the specific subject matter hereof.
4.3 GOVERNING LAW. This Agreement shall be governed by and
construed exclusively in accordance with the internal laws of the State of New
York as applied to contracts made and to be performed entirely within the State
of New York.
4.4 SEVERABILITY. If any provision of this Agreement is
determined by any court or arbitrator of competent jurisdiction to be invalid,
illegal or unenforceable in any respect, such provision will be enforced to the
maximum extent possible given the intent of the parties hereto. If such clause
or provision cannot be so enforced, such provision shall be stricken from this
Agreement and the remainder of this Agreement shall be enforced as if such
invalid, illegal or unenforceable clause or provision had (to the extent not
enforceable) never been contained in this Agreement. Notwithstanding the
forgoing, if the value of this Agreement based upon the substantial benefit of
the bargain for any party is materially impaired, which determination as made by
the presiding court or arbitrator of competent jurisdiction shall be binding,
then both parties agree to substitute such provision(s) through good faith
negotiations.
4.5 THIRD PARTIES. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than the parties hereto
and their successors and assigns, any rights or remedies under or by reason of
this Agreement.
4.6 SUCCESSORS AND ASSIGNS. Subject to the provisions of
Section 3.1 hereof, this Agreement, and the rights and obligations of the
parties hereunder, will be binding upon and inure to the benefit of their
respective successors, assigns, heirs, executors, administrators and legal
representatives.
4.7 TITLES AND HEADINGS. The titles, captions and headings of
this Agreement are included for ease of reference only and will be disregarded
in interpreting or construing this Agreement. Unless otherwise specifically
stated, all references herein to "Sections," "subsections" and "exhibits" will
mean "Sections," "subsections" and "exhibits" to this Agreement.
4.8 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered will be deemed an
original, and all of which together shall constitute one and the same agreement.
4.9 COSTS AND ATTORNEYS' FEES. In the event that any action,
suit or other proceeding is instituted concerning or arising out of this
Agreement or any transaction contemplated hereunder, the prevailing party shall
recover all of such party's costs and attorneys' fees incurred in each such
action, suit or other proceeding, including any and all appeals or petitions
therefrom.
4.10 ADJUSTMENTS FOR STOCK SPLITS, ETC. Wherever in this
Agreement there is a reference to a specific number of shares of Common Stock or
Series B Stock of the Company of any class or series, then, upon the occurrence
of any subdivision, combination or stock dividend
14
of such class or series of stock, the specific number of shares so referenced in
this Agreement shall automatically be proportionally adjusted to reflect the
affect on the outstanding shares of such class or series of stock by such
subdivision, combination or stock dividend.
4.11 FURTHER ASSURANCES. The parties agree to execute such
further documents and instruments and to take such further actions as may be
reasonably necessary to carry out the purposes and intent of this Agreement.
4.12 FACSIMILE SIGNATURES. This Agreement may be executed and
delivered by facsimile and upon such delivery the facsimile signature will be
deemed to have the same effect as if the original signature had been delivered
to the other party.
4.13 RIGHTS OF HOLDERS. Each party to this Agreement shall
have the absolute right to exercise or refrain from exercising any right or
rights that such party may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such party shall not incur any liability to any other
party or other Holder of any securities of the Company as a result of exercising
or refraining from exercising any such right or rights.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
15
IN WITNESS WHEREOF, the parties hereto have executed this Investors'
Rights Agreement as of the date and year first above written.
THE COMPANY:
24/7 REAL MEDIA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and CFO
THE PURCHASERS:
ELBIT VFLASH INC.
By: /s/ Xxxx Xxx-Xxxx
----------------------------
Name: Xxxx Xxx-Xxxx
Title: CEO
ELBIT VFLASH LTD.
By: /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title:
By: /s/ Xxx Xxx Xxxxxx
----------------------------
Name: Xxx Xxx Itzhak
Title:
GILBRIDGE INC.
By: /s/ Xxxxxxxx Xxxx
----------------------------
Name: Xxxxxxxx Xxxx
Title: Chairman and CEO
[SIGNATURE PAGE TO 24/7 REAL MEDIA, INC. INVESTORS' RIGHTS AGREEMENT]
EXHIBIT A
LIST OF PURCHASERS
ELBIT LTD.
c/o Elron Electronic Industries Ltd.
3 Azrieli Center
Xxx Xxxxxxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxxxxx 00000
Attention: Xxxx Xxxxxxxx
Tel: (000) 0-000-0000
Fax: (000) 0-000-0000
GILBRIDGE, INC.
ELBIT VFLASH INC.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
in each case, with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
