EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of this 26th day of July, 1999, by
and among 24/7 Media, Inc., a Delaware corporation (the "Company"), Xxx Xxxx,
Xxxxx Xxxxxxxx, in trust for Genesis Media Inc., Xxxxx Xxxxxxx, in trust for
Genesis Media Inc., and Genesis Media Inc. (_Genesis_).
RECITALS:
WHEREAS, the parties have entered into a Share Purchase Agreement of even date
herewith (the _Purchase Agreement_), pursuant to which Genesis acquired certain
securities exchangeable for 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) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(c) "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.
(d) "Holder" means any Person owning or having the right to acquire Registrable
Securities, or any assignee thereof in accordance with Section 8.
(e) "Genesis" means Genesis Media, Inc.
(f) "Majority Holders" means the Holders of more than 2/3 of the then
outstanding Registrable Securities.
(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 shares of Common Stock held by, issuable
to, or subsequently acquired by, Genesis 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) "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 October 31, 1999, file with
the SEC a Registration Statement 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 Securities Purchase Agreement;
provided, however, that (i) no later than September 15, 1999, the Majority
Holders may request that the Company delay registration of Genesis' Registrable
Securities pursuant to this Section 2(a), from which time the Majority Holders
shall have the right to demand one registration of their Registrable Securities
under this Section 2(a) on 120 days_ notice to the Company; and (ii) if prior to
the Company's filing of a Registration Statement pursuant to this Section 2(a),
the Holders have disposed of more than 60% of then then outstanding Registrable
Securities, the Company's obligations under this Section 2(a) shall cease.
(b) Notwithstanding Section 2(a) above, if 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 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 ten
(10) days after receipt by such Holder of such notice by the Company in
accordance with Section 14, the Company shall, subject to Section 2.d, use its
best efforts to cause to be registered under the Securities Act all 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 upon request 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, and (ii) the liability of such Holder shall be limited
to an amount equal to the net proceeds from the offering received by such
Holder. 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 registration rights heretofore granted to existing stockholders
under the April 9 Agreement (as hereinafter defined); Genesis acknowledges that
existing shareholders of the Company owning a substantial number of unregistered
shares have 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:
(a) Promptly 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, upon the request
of the Holders of a majority of the Registrable Securities being registered
thereunder, 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, 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 after the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public;
(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 (at any time after the effective date of the first registration statement
filed by the Company) and the Securities Act and Exchange Act (at any time after
it has become subject to such reporting requirements) 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. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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 second following business day, if delivered by a
recognized overnight courier service, or (iii) seven 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 Genesis, to it at the following address:
Genesis Media, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxx Tower, Suite 501
Toronto, Ontario Canada
X0X 0X0
Attn: President
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
[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/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice PResident
/s/ Xxx Xxxx
-----------------------------------------
XXX XXXX
/s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX CLASSSEN, in trust for Genesis Media Inc.
/s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX, in trust for Genesis Media Inc.
GENESIS MEDIA, INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: President and CEO
