EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of this 26th day of August,
1999, by and among 24/7 Media, Inc., a Delaware corporation (the
"Company"), and the persons set forth on the signature pages hereto (each a
"Seller" and collectively, the "Sellers").
RECITALS:
WHEREAS, the parties have entered into a Share Purchase Agreement of even
date herewith (the "Purchase Agreement"), pursuant to which the Sellers
acquired certain shares of the Company's common stock, par value $.01 per
share (the "Shares");
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is agreed
as follows:
1. Definitions. For purposes of this Agreement:
(a) "Common Stock" means the common stock, par value $.01 per share, of the
Company.
(b) "Dispose of" means to (x) offer, sell, pledge, hypothecate
or otherwise dispose of Shares or (y) establish or increase any "put
equivalent position" (as defined in Rule 16a-1(h) under the Exchange
Act) with respect to Shares.
(c) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(d) "Form S-3" means such form under the Securities Act as in effect on the
date hereof or any registration form under the Securities Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the
SEC.
(e) "Holder" means any Person owning or having the right to acquire
Registrable Securities, or any assignee thereof in accordance with Section
8.
(f) "Person" means any individual, partnership, limited liability company,
joint venture, corporation, association, trust or any other entity or
organization.
(g) "Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement or similar
document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(h) "Registrable Securities" means any unregistered shares of Common Stock
held by, issuable to, or subsequently acquired by, the Sellers or any
Holder and any shares of Common Stock issued or issuable with respect to
any such shares of Common Stock by way of stock dividend or stock split, or
in connection with a combination of shares, recapitalization, merger,
consolidation, or other reorganization, or otherwise; provided, however,
that any Registrable Securities sold by a Holder in a transaction in which
such Holder's rights under this Agreement are not assigned pursuant to
Section 8 below shall cease to be Registrable Securities from and after the
time of such sale.
(i) "SEC" means the Securities and Exchange Commission.
(j) "Securities Act" means the Securities Act of 1933, as amended.
(k) "The Sellers" means each of the persons other than 24/7
Media, Inc. whose names are set forth on the signature pages hereto.
(l) "Violation" means any of the following statements, omissions or
violations: (i) any untrue statement or alleged untrue statement of a
material fact contained in a registration statement under this Agreement,
including any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto or any documents filed under state
securities or "blue sky" laws in connection therewith, (ii) the omission or
alleged omission to state in any of the foregoing a material fact required
to be stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the Company of
the Securities Act, the Exchange Act, any other federal, state or common
law or any rule or regulation promulgated under the Securities Act, the
Exchange Act or any state securities law.
2. Registration.
(a) The Company shall prepare, and, on or prior to the date that is six
months after the date of this Agreement, file with the SEC one or more
Registration Statements on Form S-3 (or, if Form S-3 is not then available,
on such form of Registration Statement as is then available to effect a
registration of the Registrable Securities) and pursuant to Rule 415
covering the resale from time to time by the holders thereof of all
Registrable Securities issued or issuable pursuant to the Purchase
Agreement; provided, however, that if prior to the Company's filing of a
Registration Statement pursuant to this Section 2(a), the Sellers
collectively have Disposed of or the Company shall have registered more
than 75% of the Registrable Securities and such registration statement
remains in effect for one (1) year, the Company's obligations under this
Section 2(a) shall cease.
(b) Notwithstanding Section 2(a) above, if, on one (1) occasion only, the
Company shall furnish to Holders requesting a registration statement
pursuant to this Section 2, a certificate signed by the Chief Executive
Officer of the Company stating that in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental to the
Company and its shareholders for such registration statement to be filed by
reason of a material pending transaction and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer such filing for a period of not more than ninety (90) days;
provided, however, that the Company during such deferment may not file a
registration statement for securities to be issued and sold for its own
account or that of other stockholders.
(c) If (but without any obligation to do so) at any time or
from time to time the Company proposes to register (including for this
purpose a registration effected by the Company for shareholders other than
the Holders) any of its stock or other securities under the Securities Act
in connection with the public offering (whether for the account of the
Company or for selling stockholders) of such securities solely for cash
(other than a registration on Form S-8 relating solely to the sale of
securities to participants in a Company Stock Plan or to other compensatory
arrangements to the extent includible on Form S-8, or a registration on
Form S-4), the Company shall, at such time, promptly give each Holder
written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after receipt by such Holder of such
notice by the Company in accordance with Section 15, the Company shall,
subject to Section 2.d, use its best efforts to cause to be registered
under the Securities Act at least 75% of the Registrable Securities that
each such Holder has requested to be registered. The Company shall have no
obligation under this Section 2.c to make any offering of its securities,
or to complete an offering of its securities that it proposes to make, and
shall incur no liability to any Holder for its failure to do so. No
registration effected under this Section 2.c shall relieve the Company of
any of its obligators to effect registrations under Section 2(a).
(d) In connection with any offering involving an underwriting of shares being
issued by the Company, the Company shall not be required under Section 2.c to
include any Holder's securities in such underwriting unless such Holder accepts
the terms of the underwriting as agreed upon between the Company and the
underwriters selected by the Company, and then only in such quantity as will
not, in the opinion of the underwriters, jeopardize the success of the offering
by the Company; provided, however, that (i) no Holder participating in such
underwriting shall be required to make any representations, warranties or
indemnities except as they relate to such Holder's ownership of shares and
authority to enter into the underwriting agreement and such Holder's intended
method of distribution, (ii) the liability of such Holder shall be limited to an
amount equal to the net proceeds from the offering received by such Holder and
(iii) any Holder may withdraw its Registrable Securities from a registration
statement prior to entering into the underwriting agreement. If the total amount
of securities, including Registrable Securities, requested by shareholders to be
included in any offering referred to in Section 2.c exceeds the amount of
securities sold other than by the Company that the underwriters reasonably
believe compatible with the success of the offering, then the Company shall be
required to include in the offering only that number of such securities,
including Registrable Securities, which the underwriters believe will not
jeopardize the success of the offering. The securities so included shall be
apportioned pro rata among the selling shareholders subject to any priority of
"piggyback" registration rights heretofore granted to existing stockholders
under the April 9 Agreement (as hereinafter defined); The Sellers acknowledges
that existing shareholders of the Company owning a substantial number of
unregistered shares have piggyback registration rights
that are senior to those being granted hereunder.
3. Obligations of the Company. Whenever required under this Agreement to
effect the registration of any Registrable Securities, the Company shall at
its sole cost and, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use its best efforts to cause such
registration statement to become effective expeditiously, and keep such
registration statement effective for up to one year or until the Holders
have completed the distribution referred to in such registration statement,
whichever occurs first (but in any event for at least any period required
under the Securities Act); provided that before filing such registration
statement or any amendments thereto, the Company will furnish to the
Holders copies of all such documents proposed to be filed.
(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 (at no cost) to the Holders such number of copies of such
registration statement and of each amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under
Rule 424 under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents incorporated by reference in
the registration statement and such other documents as Holders may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or "blue sky" laws
of such states or U.S. jurisdictions as shall be reasonably requested by
the Holders and do any and all other acts and things which may be
reasonably necessary to enable each participating Holder to consummate the
disposition of the Registrable Securities owned by it in such jurisdiction;
provided that the Company shall not be required in connection therewith or
as a condition thereto (i) to qualify to do business in any state or
jurisdiction where it would not otherwise be required to qualify but for
the requirements of this clause (d), or (ii) to file a general consent to
service of process in any such state or jurisdiction.
(e) Use its best efforts to cause all Registrable Securities covered by
such registration statement to be, and remain during the period provided in
Section 3(a), registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the Company's
business or operations to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities.
(f) Immediately 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 if it is necessary to amend or supplement
such prospectus to comply with law, and at the request of any other Holder,
prepare and furnish, at no cost, to such Holder a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of Shares of
Common Stock, such prospectus shall not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances then existing, not misleading and so that such prospectus, as
amended or supplemented, will comply with law.
(g) Immediately notify each Holder of Registrable Securities covered by
such registration statement and confirm such advice in writing: (i) when
the registration statement has become effective, (ii) when any
post-effective amendment to the registration statement becomes effective
and (iii) of any request by the SEC for any amendment or supplement to the
registration statement or prospectus or for additional information.
(h) Notify each Holder of Registrable Securities if at any time the SEC or
any state securities commission or other regulatory authority should
institute or threaten to institute any proceedings for the purpose of
issuing, or should issue, a stop order suspending the effectiveness of the
Registration Statement. Upon the occurrence of any of the events mentioned
in the preceding sentence, the Company will use its best efforts to prevent
the issuance of any such stop order or to obtain the withdrawal thereof as
soon as possible. The Company will advise each Holder of Registrable
Securities promptly of any order or communication of any public board or
body addressed to the Company suspending or threatening to suspend the
qualification of any Registrable Securities for sale in any jurisdiction.
(i) As soon as practicable after the effective date of the registration
statement, and in any event within sixteen (16) months thereafter, have
"made generally available to its security holders" (within the meaning of
Rule 158 under the Securities Act) an earning statement (which need not be
audited) covering a period of at least twelve (12) months beginning after
the effective date of the registration statement and otherwise complying
with Section 11(a) of the Securities Act.
(j) Cause all Registrable Securities registered pursuant hereto on a
Registration Statement for resale by a Holder to be listed on each
securities exchange or included for trading in such automated quotation
system on or in which the shares of Common Stock of the Company are then
listed or included.
(k) Provide a transfer agent and registrar for all Registrable Securities
registered pursuant hereto on a Registration Statement for resale by a
Holder, and a CUSIP number for the Shares of Common Stock, in each case not
later than the effective date of such Registration Statement.
(l) Otherwise use its best efforts in its performance of its
obligations hereunder to comply with all applicable rules and regulations
of the SEC and of state securities commissions and any stock exchange or
automated quotation system.
(m) Deliver promptly, upon request, to any Holder participating in the
offering copies of all correspondence between the SEC and the Company, its
counsel or auditors and all memoranda relating to discussions with the
SEC or its staff with respect to the registration statement; permit each Holder
and counsel for each Holder, to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
SEC, and each amendment thereof or supplement thereto; and give each
Holder,
and counsel for each Holder, access to the Company's books, records and
properties and such opportunities to discuss the business of the Company with
its officers and independent public accountants as shall be necessary, in the
opinion of each Holder and their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities
Act.
(n) In the event of an underwritten offering (or a shelf offering in which
the items listed in clauses (i) and (ii) below are delivered to any other
selling stockholder), furnish (at no cost), at the request of any Holder
requesting registration of Registrable Securities pursuant to this
Agreement, to each Holder participating in the offering and to each
underwriter, (i) on the date that such Registrable Securities are delivered
to the underwriters for sale in connection with a registration pursuant to
this Agreement, an opinion, dated 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 to the Holders participating in such
offering and (ii) on the date that the registration statement with respect
to such securities becomes effective, a "comfort" letter dated 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 and to the Holders participating in such offering, and
a reaffirmation of such letter on the date that such Registrable Securities
are delivered to the underwriters for sale.
(o) Solely 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 of such offering.
4. Holder Shall Furnish Information. It shall be a condition precedent
to the obligations of the Company to take any action pursuant to this
Agreement with respect to the Registrable Securities of any selling Holder
that such Holder shall furnish to the Company such information regarding
itself, the Registrable Securities held by it, and the intended method of
disposition of such securities as shall be required to effect the
registration of such Holder's Registrable Securities.
5. Expenses of Registration. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registration of
Registrable Securities, including without limitation all registration, filing
and qualification fees, printers' and accounting fees relating or
apportionable thereto, transfer agent and registrar expenses, fees and
disbursements of counsel to the Company, and reasonable fees and expenses of
one counsel to the selling stockholders, but excluding underwriting discounts
and commissions relating to Registrable Securities.
6. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each Holder, its heirs,
personal representatives and assigns, and each of such Holder's partners,
members, stockholders, managers, agents, officers, directors, employees and
affiliates, 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 a Violation; and
the Company will pay to each such indemnified party, as incurred, any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
Section 6(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 to a particular
indemnified party 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 indemnified
party.
(b) Each selling Holder will indemnify and hold harmless the Company, each
of its directors, each of its officers who has signed the registration
statement, each Person, if any, who controls the Company within the meaning
of the Securities Act, any underwriter, any other Holder selling securities
in such registration statement and any controlling Person of any such
underwriter or other Holder, against any losses, claims, damages or
liabilities (joint or several) to which any of the foregoing Persons 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,
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 or on behalf of such Holder expressly for use in connection
with such registration; and each such Holder will pay, as incurred, any
legal or other expenses reasonably incurred by any Person intended to be
indemnified pursuant to this Section 6(b), in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this Section 6(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, in no event shall the liability of any Holder under this
Section 6(b) exceed the net proceeds from the offering received by such
Holder.
(c) Promptly after receipt by an indemnified party under this Section 6 of
written notice of the commencement of any action (including any
governmental action) involving a claim referred to in Section 6(a) or 6(b)
of this Agreement, such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 6,
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any
other indemnifying party similarly 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
differing 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 shall not relieve such indemnifying party
of any liability to the indemnified party under this Section 6 except if,
and only to the extent that, the indemnifying party is actually prejudiced
thereby; and such failure 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 6. The indemnifying party will not, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party is a party
to such claim, action, suit or proceeding), unless such settlement, compromise
or consent includes an unconditional release of such indemnified party from all
liability arising out of such claim, action suit or proceeding and such
settlement, compromise or consent involves only the payment of money and such
money is actually paid by the indemnifying party. Whether or not the defense of
any claim or action is assumed by the indemnifying party, such indemnifying
party will not be subject to any liability for any settlement made without its
consent, which consent will not be unreasonably withheld.
(d) The obligations of the Company and Holders under this Section 6 shall
survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
(e) Any indemnity agreements contained herein shall be in addition to any
other rights to indemnification or contribution which any indemnified party
may have pursuant to law or contract and shall remain operative and in full
force and effect regardless of any investigation made or omitted by or on
behalf of any indemnified party.
(f) If for any reason the foregoing indemnity is unavailable, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and
the indemnified party on the other or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law or provides a lesser
sum to the indemnified party than the amount hereinafter calculated, in
such proportion as is appropriate to reflect not only the relative benefits
received by the indemnifying party on the one hand and the indemnified
party on the other but also the relative fault of the indemnifying party
and the indemnified party as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by or on behalf of the indemnifying party
or the indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. Notwithstanding anything to the contrary in
this Section 6, no Holder shall be required, pursuant to this Section 6, to
contribute any amount in excess of the net proceeds received by such
indemnifying party from the sale of Shares of Common Stock in the offering
to which the losses, claims, damages, liabilities or expenses of the
indemnified party relate.
7. Reports Under the Exchange Act. With a view to making available to
the Holders the benefits of Rule 144 under the Securities Act and any other
rule or regulation of the SEC that may at any time permit a Holder to sell
securities of the Company to the public without registration or pursuant to a
registration on Form S-3, the Company agrees at its sole cost to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times;
(b) take such action as is necessary to enable the Holders to utilize Form
S-3 for the sale of their Registrable Securities;
(c) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company
that it has complied with the reporting requirements of Rule 144 under the
Securities Act and the Securities Act and Exchange Act or that it qualifies
as a registrant whose securities may be resold pursuant to Form S-3 (at any
time it so qualifies), (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such
form.
8. Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Agreement may be assigned
in whole or in part by a Holder to one or more of its partners, employees
or affiliates or to one or more transferees or assignees of Registrable
Securities (or securities exchangeable into Registrable Securities)
acquired by the Holder, provided that such transferee or assignee delivers
to the Company a written instrument by which such transferee or assignee
agrees to be bound by the obligations imposed on Holders under this
Agreement to the same extent as if such transferee or assignee was a party
hereto.
9. Resale Restrictions.
(a) Subject to Section 2(c), each Seller severally agrees that it will not
Dispose of through any automated quotation system any Shares, commencing on
any date specified by the Company (the "Commencement Date") following the
filing by the Company of a preliminary registration statement for a firm
commitment registered public offering of Common Stock for the account of
the Company managed by nationally recognized underwriters and ending (x) 30
days after the Commencement Date if the registration statement is not
declared effective by the SEC on or prior to such 30th day, or (y) if the
registration statement is declared effective by the SEC on, or within
thirty days after the Commencement Date, a period not to exceed 90 days
following the Effective Date of the registration statement, if required by
the underwriters of the public offering; provided, however, that this
Section 9 shall not apply unless all of the executive officers of the
Company are subject to substantially the same restrictions set forth in
this Section 9.
10 Amendment; Waiver. Any provision of this Agreement may be amended
only with the written consent of the Company and each of the Holders and the
observance of any provision of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only
with the written consent of the party to be charged, provided that the
Holders of 60% of the Registrable Securities then outstanding may act on
behalf of all such Holders of Registrable Securities.
Any amendment or waiver effected in accordance with this Section 9 shall be
binding upon each Holder of Registrable Securities at the time outstanding, each
future Holder of all such securities, and the Company.
11. Changes in Registrable Securities. If, and as often as, there are
any changes in the Registrable Securities, by way of stock split, stock
dividend, combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so that the rights and privileges granted hereby shall continue
with respect to the Registrable Securities as so changed. Without limiting
the generality of the foregoing, the Company will require any successor by
merger or consolidation to assume and agree to be bound by the terms of this
Agreement, as a condition to any such merger or consolidation.
12. Entire Agreement. This Agreement (together with the Purchase
Agreement) constitutes the full and entire understanding and agreement among
the parties with regard to the subject matter hereof. Nothing in this
Agreement, express or implied, is intended to confer upon any Person, other
than the parties hereto and their respective successors and assigns, any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided herein.
13. Governing Law. This Agreement shall be governed in all respects by
the laws of the State of New York as such laws are applied to agreements
between New York residents entered into and to be performed entirely within
New York, whether or not all parties hereto are residents of New York.
14. Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, permitted assigns (as
provided in Section 8), heirs, executors and administrators of the parties
hereto.
15. Notices. All notices and other communications provided for herein
shall be dated and in writing and shall be deemed to have been duly given (i)
on the date of delivery, if delivered personally or by telecopier, receipt
confirmed, (ii) on the third following business day, if delivered by a
recognized overnight courier service, or (iii) ten days after mailing, if
sent by registered or certified mail, return receipt requested, postage
prepaid, in each case, to the party to whom it is directed at the following
address (or at such other address as any party hereto shall hereafter specify
by notice in writing to the other parties hereto):
(i) If to the Company, to it at the following address:
24/7 Media, Inc.
0000 Xxxxxxxx, 00xx xx
Xxx Xxxx, XX 00000
Attn: General Counsel
(ii) If to a Seller, to it at the address for such Seller set forth on the
signature pages hereto.
16. Severability. Any invalidity, illegality or limitation on the
enforceability of this Agreement or any part thereof, by any party, whether
arising by reason of the law of the respective party's domicile or otherwise,
shall in no way affect or impair the validity, legality or enforceability of
this Agreement with respect to the other party. If any
provision of this Agreement shall be judicially determined to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
17. Titles and Subtitles. The titles of the Sections of this Agreement
are for convenience of reference only and are not to be considered in
construing this Agreement.
18. Delays or Omissions; Remedies Cumulative. It is agreed that no
delay or omission to exercise any right, power or remedy accruing to the
parties, upon any breach or default of the Company under this Agreement,
shall impair any such right, power or remedy, nor shall it be construed to be
a waiver of any such breach or default, or any acquiescence therein, or of
any similar breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. It is further agreed that any
waiver, permit, consent or approval of any kind or character by a party of
any breach or default under this Agreement, or any waiver by a party of any
provisions or conditions of this Agreement must be in writing and shall be
effective only to the extent specifically set forth in writing and that all
remedies, either under this Agreement, or by law or otherwise afforded to a
party, shall be cumulative and not alternative.
19. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary disbursements
in addition to any other relief to which such party may be entitled.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
21. Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
22. Remedies. In the event of a breach by any party to this Agreement
of its obligations under this Agreement, any party injured by such breach, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages and costs (including reasonable attorneys' fees), will be
entitled to specific performance of its rights under this Agreement. The
parties agree that the provisions of this Agreement shall be specifically
enforceable, it being agreed by the parties that the remedy at law, including
monetary damages, for breach of any such provision will be inadequate
compensation for any loss and that any defense in any action for specific
performance that a remedy at law would be adequate is waived.
23. Recapitalizations, Exchanges, Etc. The provisions of this Agreement
shall apply, to the full extent set forth herein, to any and all shares of
the Company capital stock or any successor or assign of the Company (whether
by merger, consolidation, sale of assets, or otherwise, including shares
issued by a parent corporation in connection with a triangular merger) which
may be issued in respect of, in exchange for, or in substitution of, shares
of Common Stock, and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, reclassifications and the like
occurring after the date hereof.
24. No Inconsistent Agreements. The Company has not previously entered
into any agreement with respect to its Common Stock granting any registration
rights to any Person, and will not on or after the date of this Agreement
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement or which otherwise conflicts with the provisions hereof. It is
acknowledged and understood that the Company has granted demand registration
rights and piggyback registration rights to holders of a substantial number
of shares of Common Stock, pursuant to a registration rights agreement dated
April 9, 1998 (the "April 9 Agreement") which has been publicly filed with
the Securities and Exchange Commission, that the Company is actively
discussing other acquisitions and that in October 1999, the Company may
register the resale of its securities by a substantial number of holders
other than the Sellers.
[END OF TEXT]
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date and year first above written.
24/7 MEDIA, INC.
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Duly Authorized
KAUPPAMAINOS OY
By: /s/ Kauppamanios
Kauppamanios
INTERAKTIIVINEN SATAMA OY
By: /s/ Maiyut Dandelin
Maiyut Dandelin
VIA MEDIA OY
By: /s/ Ato Rowntsub
Ato Rowntsub
JMK-INVEST OY
By: /s/ Juha Xxxxx Xxxxxxxx
Juha Xxxxx Xxxxxxxx
ASKO XXXXXXXX
By: /s/ Asko Xxxxxxxx
Asko Xxxxxxxx
XXXXXX XXXXXXXX
By: /s/ Heikke Leskinen
Heikke Leskinen
