EXHIBIT 10.3
INVESTORS' RIGHTS AGREEMENT
This Investors' Rights Agreement (the "AGREEMENT") is entered into as of
July 1, 2002 (the "EFFECTIVE DATE") by and among 24/7 Real Media, Inc., a
Delaware corporation (the "COMPANY"), Merchant Partners LLC, a California
limited liability company ("MPLLC"), and the persons and entities listed on
EXHIBIT A attached hereto (the "PURCHASERS"). For the avoidance of doubt, MPLLC
is not a Purchaser hereunder.
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 A
Convertible Preferred Stock, par value $0.01 per share (the "SERIES A STOCK")
and Series A-1 Nonvoting Convertible Preferred Stock, par value $0.01 per share
(the "SERIES A-1 STOCK" and, collectively with the Series A Stock, the
"PREFERRED STOCK"), and accompanying warrants (the "WARRANTS") to purchase
shares of the Company's Common Stock, par value $0.01 per share (the "COMMON
STOCK") on the terms and conditions set forth in that certain Series A and
Series A-1 Preferred Stock and Common Stock Warrant Purchase Agreement, dated as
of July 1, 2002, by and among the Company and the Purchasers, as such agreement
may be amended from time to time (the "PURCHASE AGREEMENT").
B. In connection with the Purchase Agreement, the Company has agreed to
issue to MPLLC a warrant to purchase shares of Common Stock (the "MPLLC
WARRANT").
C. The Purchase Agreement provides that the Purchasers shall be granted
certain information, registration and participation rights, and MPLLC shall be
granted certain registration rights, all 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. INFORMATION RIGHTS.
1.1 SEC FILINGS. The Company covenants and agrees that, commencing on
the Effective Date, for so long as any Purchaser holds shares of Series A Stock
issued under the Purchase Agreement or issued pursuant to the conversion of
Series A-1 Stock issued under the Purchase Agreement, the Company will timely
file all reports required under the Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
1.2 BUDGET AND FINANCIAL INFORMATION. The Company covenants and
agrees that, commencing on the Effective Date, for so long as a Purchaser holds
at least twenty-five percent (25%) of all the shares of Series A Stock
originally issued to the Purchasers from time to time under the Purchase
Agreement and upon conversion of Series A-1 Stock originally issued under the
Purchase Agreement (such share number to be proportionately adjusted to reflect
any stock splits and combinations, stock dividends, recapitalizations and the
like with respect to the Series A Stock) (such Purchaser, a "MAJOR PURCHASER"),
the Company will furnish to each such Major Purchaser the financial statements
(including unaudited financial statements), operating
plans and budgets (including any amendments thereto), and other financial and
business information materials that the Company distributes to nonemployee
members of the Board of Directors of the Company (the "BOARD") or any committee
thereof, as and when such materials are distributed to such nonemployee Board or
committee members; PROVIDED that the Company shall not be required to deliver
such materials to a Major Purchaser to the extent that: (i) the distribution of
such materials to such Major Purchaser would waive the Company's attorney-client
privilege, or (ii) the Board reasonably determines that such materials are
sensitive and highly confidential and that the Company would be materially
harmed by disclosure of such materials to such Major Purchaser; PROVIDED,
FURTHER, that distribution of such materials to a Board member that is an
officer or employee of such Major Purchaser shall satisfy the requirements of
this Section 1.2 as to such Major Purchaser.
1.3 CONFIDENTIALITY; NON-PUBLIC INFORMATION. Each Major Purchaser
agrees to hold all information received pursuant to this Section 1 in
confidence, and not to use or disclose any of such information to any third
party, except to the extent such information may be made publicly available by
the Company. Each Major Purchaser agrees that it will not trade the Company's
securities if it has non-public Company information that could be material.
1.4 INSPECTION RIGHTS. The Company shall permit each Major Purchaser,
at such Major Purchaser's request and expense, to visit and inspect the
Company's properties, to examine its books of account and records and to discuss
the Company's affairs, finances and accounts with its officers, all in a
reasonable manner and at such reasonable times as may be requested by such Major
Purchaser.
2. REGISTRATION RIGHTS.
2.1 DEFINITIONS. For purposes of this Section 2:
(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 Common Stock of the Company issued or
issuable upon the conversion of any shares of Series A Stock: (A) issued or
issuable under the Purchase Agreement or (B) issued or issuable upon conversion
of the Series A-1 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 of the Company issued or
issuable upon exercise of any Warrants issued or issuable under the Purchase
Agreement, that are now owned or may hereafter be acquired by any Purchaser or
any Purchaser's permitted successors and assigns;
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(3) all the shares of Common Stock of the Company issued or
issuable upon exercise of the MPLLC Warrant, that are now owned or may hereafter
be acquired by MPLLC or MPLLC's permitted successors and assigns; and
(4) 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), (2) and (3) of this subsection 2.1(b); EXCLUDING in all cases,
however, any Registrable Securities sold by a person in a transaction in which
rights under this Section 2 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 A Stock convertible into such Registrable Securities,
a record holder of shares of Series A-1 Stock convertible into shares of Series
A Stock that are convertible into such Registrable Securities, and a record
holder of Warrants or the MPLLC Warrant exercisable into such Registrable
Securities, shall each 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 A Stock, Series X-0 Xxxxx, Xxxxxxxx, or
the MPLLC Warrant, and that Holders of Registrable Securities will not be
required to convert or exercise their shares of Series A Stock, Warrants or the
MPLLC Warrant into Common Stock (or convert their shares of Series A-1 Stock
into shares of Series A Stock), in order to exercise the registration rights
granted hereunder, until immediately before the closing of the offering to which
the registration relates.
(e) 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.
(f) SEC. The term "SEC" means the U.S. Securities and Exchange
Commission.
(g) STOCKHOLDER APPROVAL DATE. The term "STOCKHOLDER APPROVAL
DATE" means the first to occur of: (A) the first date that shares of Series A-1
Stock convert into Series A Stock; and (B) October 15, 2002.
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2.2 MANDATORY FORM S-3 REGISTRATION.
(a) SHELF REGISTRATION. On or before the thirtieth (30th) day
after the Stockholder Approval 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
2.2 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 use
commercially reasonable efforts to have the Shelf Registration 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 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
Stockholder Approval Date, (ii) the Shelf Registration is not declared effective
by the SEC on or before the date that is 270 days after the Stockholder Approval
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
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amount in cash equal to twenty-five thousand dollars ($25,000) 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 fifty thousand dollars
($50,000) 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
2.2, including without limitation all filing, registration and qualification,
printers' and accounting fees and 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).
2.3 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 2.3 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 2.3 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 2.3 shall be conditioned
upon such Holder's participation in such underwriting and the
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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 requesting
inclusion of their Registrable Securities in such registration statement on a
pro rata basis based on the number of Registrable Securities each such Holder
has 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 Registrable Securities included in any such registration is
not reduced below twenty percent (20%) of the 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 5.1 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 2.3, 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 2.3 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.
2.4 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 2.2 above);
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(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 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 2.5, 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;
(g) Make available for inspection by any Holder participating in
such registration who is a Major Purchaser, any underwriter participating in any
disposition pursuant to such registration, and any attorney or accountant
retained by any such Holder or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers and directors to supply all information reasonably requested
by any such Holder, underwriter, attorney or accountant in connection with such
registration statement; provided, however, that such Holder, underwriter,
attorney or accountant shall execute a written agreement in favor of the Company
obligating such person to hold in confidence and trust all information so
provided; and
(h) 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
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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.
2.5 PERMITTED SUSPENSION. Notwithstanding any other provision of this
Agreement, from and after the time a registration statement filed under this
Section 2 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 2.5, each Holder agrees not to use the registration statement
or the related prospectus for resale of any Registrable Security until the
earlier of (1) 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.
2.6 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2.2 and 2.3
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.
2.7 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 2.
2.8 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Sections 2.2 or 2.3:
(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"):
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(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 2.8(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 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 2.8(a)(1) and 2.8(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
2.8(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement
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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 2.8(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 2.8 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 2.8, 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 2.8, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 2.8.
(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 2.8 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
10
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 2.8 shall survive the completion of any offering of Registrable
Securities in the S-3 Registration Statement, and otherwise.
2.9 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, 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 granting any holder or prospective holder of any
securities of the Company registration rights with respect to such securities
that are inconsistent with, or prior in any respect to, the rights granted to
the Holders herein.
3. PARTICIPATION RIGHTS.
3.1 GENERAL. Each Purchaser and any party to whom such Purchaser's
rights under this Section 3 have been duly assigned in accordance with
subsection 4.1 hereof (EACH 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 3.2 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 (assuming for this purpose that shares of Series A-1 Preferred Stock
are then fully convertible into Series A Preferred Stock), 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.
3.2 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:
11
(a) shares of Common Stock issued or issuable upon conversion of
the outstanding shares of Preferred Stock, and shares of Series A Stock issued
or issuable upon conversion of the Series A-1 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 (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 Purchase Agreement;
(f) 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;
(g) shares of the Company's Common Stock or Preferred Stock
issued in connection with any stock split or stock dividend or recapitalization;
and
(h) 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.
3.3 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
5.1 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
12
(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.
3.4 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 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 3.
3.5 TERMINATION. The Company's obligations to provide the Notice
under Section 3.3 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 3.5, 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.
13
4. ASSIGNMENT AND AMENDMENT.
4.1 ASSIGNMENT. Notwithstanding anything herein to the contrary:
(a) INFORMATION RIGHTS. The rights of a Major Purchaser under
Section 1 hereof may be assigned to a transferee or assignee in connection with
any transfer or assignment of Series A Stock; 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 at least that minimum number of shares of Series A
Stock described in Section 1 hereof necessary to qualify as a Major Purchaser.
(b) REGISTRATION RIGHTS; PARTICIPATION RIGHTS. The registration
rights of a Holder under Section 2 hereof and the participation right of a
Rights Holder under Section 3 hereof may be assigned to a transferee or assignee
in connection with any transfer or assignment of Registrable Securities by such
party (including any transfer or assignment of Preferred Stock and/or Warrants
or the MPLLC Warrant ultimately convertible or exercisable into Registrable
Securities); 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).
(c) GENERAL. No transfer or assignment of information rights
pursuant to Section 4.1(a), or of registration rights or participation rights
pursuant to Section 4.1(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 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 4.1.
4.2 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; PROVIDED, that solely for the purposes of amending or waiving
the provisions of Section 2 hereof (and for no other purpose hereunder), MPLLC
(and any of its permitted successors or assigns) shall be considered to be a
Purchaser hereunder. Any amendment or waiver effected in accordance with this
Section 4.2 shall be binding upon each Purchaser, MPLLC, the Company, and their
permitted successors and assigns.
4.3 NEW PURCHASERS. Notwithstanding anything herein to the contrary,
if pursuant to Section 1.6 of the Purchase Agreement, Additional Closing
Purchasers (as defined in
14
the Purchase Agreement) purchase Additional Closing Shares (as defined in the
Purchase Agreement), then each such Additional Closing Purchaser shall become a
party to this Agreement as a "Purchaser" hereunder, without the need of
obtaining any consent, approval or signature of any Purchaser, when such
Additional Closing Purchaser has both: (a) purchased Additional Closing Shares
under the Purchase Agreement and paid the Company all consideration payable for
such Additional Closing Shares and (b) executed one or more counterpart
signature pages to this Agreement as a "Purchaser."
5. GENERAL PROVISIONS.
5.1 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 MPLLC at:
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
15
Facsimile: (000) 000-0000
(c) 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.
5.2 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.
5.3 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.
5.4 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.
5.5 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.
5.6 SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 4.1
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.
5.7 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.
5.8 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.
16
5.9 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.
5.10 ADJUSTMENTS FOR STOCK SPLITS, ETC. Wherever in this Agreement
there is a reference to a specific number of shares of Common Stock or Preferred
Stock of the Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend 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.
5.11 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.
5.12 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.
5.13 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.]
17
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:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
THE PURCHASERS:
SUNRA CAPITAL HOLDINGS LIMITED
By:
------------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------------
Title: President
----------------------------
MPLLC:
MERCHANT PARTNERS LLC
By:
------------------------------
Name: Xxxxxx Xxxx
-----------------------------
Title: Managing Partner
----------------------------
[SIGNATURE PAGE TO 24/7 REAL MEDIA, INC. INVESTORS' RIGHTS
AGREEMENT]
EXHIBIT A
LIST OF PURCHASERS
SUNRA CAPITAL HOLDINGS LIMITED
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
A copy of any notice to Sunra shall be given to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn.: Xxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
