EXHIBIT 2.2
MESSAGEMEDIA, INC.
NOTE PURCHASE AGREEMENT
OCTOBER 10, 2001
TABLE OF CONTENTS
Page
1. Purchase and Sale of Notes..................................................................1
1.1. Sale and Issuance of Notes.........................................................1
1.2. Closing............................................................................2
1.3. Additional Loan....................................................................2
2. Representations and Warranties of Lender....................................................2
2.1. Purchase Entirely for Own Account..................................................2
2.2. Disclosure of Information..........................................................2
2.3. Investment Experience..............................................................2
2.4. Accredited Investor................................................................3
2.5. Restricted Securities..............................................................3
3. Conditions to Lender's Obligations on the Additional Loan Date..............................3
4. Conditions of Company's Obligations at the Initial Closing and the Additional Loan Date.....3
4.1. Representations and Warranties.....................................................3
4.2. Payment of Purchase Price..........................................................3
5. Miscellaneous...............................................................................3
5.1. Successors and Assigns.............................................................3
5.2. Governing Law......................................................................4
5.3. Counterparts.......................................................................4
5.4. Titles and Subtitles...............................................................4
5.5. Notices............................................................................4
5.6. Entire Agreement...................................................................5
5.7. Amendment and Waiver...............................................................5
5.8. Severability.......................................................................5
Exhibit A - Form of Promissory Note
Exhibit B Form of Escrow Agreement
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NOTE PURCHASE AGREEMENT
THIS
NOTE PURCHASE AGREEMENT (this "AGREEMENT") is made as of October 10,
2001, by and between MessageMedia, Inc., a Delaware corporation ("COMPANY"), and
DoubleClick Inc., a Delaware corporation ("LENDER"). Terms used but not defined
herein shall have the meaning assigned to such terms in the Merger Agreement
described below.
WHEREAS, Company and Lender have entered into an Amended and Restated
Agreement and Plan of Merger and Reorganization, dated as of the date hereof, by
and between Company and Lender (the "MERGER AGREEMENT"); and
WHEREAS, prior to the Effective Time, Company and Lender wish to have
Lender provide funding to Company, subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereby agree
as follows:
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Notes.
1.1. Sale and Issuance of Notes.
(a) On the terms and subject to the conditions of this Agreement
(including, but not limited to, the conditions set forth in Section 3 and
Section 4 below), Lender agrees to purchase, and Company agrees to sell and
issue to Lender (i) on October 29, 2001, a promissory note in the form attached
hereto as Exhibit A (a "NOTE") in the principal amount of $1,000,000 (the
"INITIAL PRINCIPAL AMOUNT"), and (ii) on the Additional Loan Date (as defined in
Section 1.3 below), a Note in the principal amount of $500,000 (the "ADDITIONAL
PRINCIPAL AMOUNT").
(b) The Notes become automatically due and payable on the earlier of
(i) the date that is six (6) months after the date hereof, or (ii) immediately
upon the occurrence of any of the events set forth in Section 9.01(d) of the
Merger Agreement or upon execution of a definitive agreement by the Company with
respect to any Company Competing Transaction after termination of the Merger
Agreement within six months after the date hereof (the earliest to occur of such
dates, the "MATURITY DATE").
(c) In the event and on each occasion that Company or any subsidiary of
Company receives proceeds equal to or in excess of $5,000,000 (whether or not
such proceeds are received in one or a series of transactions) from any equity
or debt financings (the "PREPAYMENT PROCEEDS"), Company shall, within three (3)
Business Days after such proceeds are received, prepay in full the outstanding
Notes, including interest accrued thereon. In the
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event of such prepayment Company shall prepay the Notes in the order in which
they were issued.
1.2. Closing. The closing of the purchase and sale of any Note to Lender
hereunder (a "CLOSING") shall take place at the offices of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The Closing
of the Note in the Initial Principal Amount (the "INITIAL CLOSING") shall be at
1:00 p.m. on October 29, 2001, or at such other time and place as Company and
Lender mutually agree upon orally or in writing (the "CLOSING DATE"). At the
Initial Closing, Company shall deliver to Lender a Note representing the Initial
Principal Amount and the Initial Principal Amount shall be delivered to Company
upon compliance with the terms of the Escrow Agreement (as defined below). It is
understood and agreed that, in connection with the execution and delivery of
this Agreement, Company and Lender will enter into an escrow agreement,
substantially in the form attached hereto as Exhibit B (the "ESCROW AGREEMENT"),
with First Union National Bank, as escrow agent ("ESCROW AGENT"), pursuant to
which Lender will deposit with Escrow Agent the Initial Principal Amount and the
Additional Principal Amount on the date hereof.
1.3. Additional Loan. In the event the Securities and Exchange Commission
("SEC") has not declared effective the Registration Statement on or before
November 12, 2001 and there are no outstanding comments from the SEC that relate
to Company, on November 12, 2001 (the "ADDITIONAL LOAN DATE"), Company shall
issue a Note representing the Additional Principal Amount and the Additional
Principal Amount shall be delivered to Company upon compliance with the terms of
the Escrow Agreement.
2. Representations and Warranties of Lender.
Lender hereby represents and warrants to Company that:
2.1. Purchase Entirely for Own Account. The Notes will be acquired for
investment for Lender's own account, not as a nominee or agent, and not with a
present view to the resale or distribution of any part thereof. By executing
this Agreement, Lender further represents that Lender does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations, to such person or to any third person, with
respect to any of the Notes.
2.2. Disclosure of Information. Lender represents that it has had an
opportunity to ask questions and receive answers from Company regarding the
terms and conditions of the offering of the Notes. The foregoing, however, does
not limit or modify the representations and warranties of Company in Article IV
of the Merger Agreement or the right of Lender to rely thereon.
2.3. Investment Experience. Lender acknowledges that it is able to fend for
itself, can bear the economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment
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in the Notes. Lender also represents it has not been organized for the purpose
of acquiring the Notes.
2.4. Accredited Investor. Lender is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Securities Act of 1933, as amended
(the "ACT"), as presently in effect.
2.5. Restricted Securities. Lender understands that the Notes are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from Company in a transaction not involving
a public offering and that under such laws and applicable regulations such
securities may be resold without registration under the Act only in certain
limited circumstances.
3. Conditions to Lender's Obligations on the Additional Loan Date.
Lender shall have no obligation to purchase the Note at the Initial
Loan Date or the Additional Loan Date if the Merger Agreement has been
terminated in accordance with its terms.
4. Conditions of Company's Obligations at the Initial Closing and the
Additional Loan Date.
The obligations of Company to Lender under this Agreement are subject to
the fulfillment on or before the Closing Date or on or before the Additional
Loan Date, as applicable, of each of the following conditions by Lender:
4.1. Representations and Warranties. The representations and warranties of
Lender contained in Section 2 shall be true and correct in all material respects
on and as of the Closing Date or the Additional Loan Date, as applicable, with
the same effect as though such representations and warranties had been made on
and as of such date.
4.2. Payment of Purchase Price. Escrow Agent or Lender, as the case may be,
shall have delivered, or caused to be delivered, the Initial Principal Amount,
or the Additional Amount, as applicable, required pursuant to this Agreement.
5. Miscellaneous.
5.1. Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including transferees
of any securities). Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
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5.2. Governing Law. This Agreement shall be governed by and construed under
the laws of the State of
New York other than the conflicts of law principles
thereof.
5.3. Counterparts. This Agreement may be executed in two or more
counterparts (including by facsimile), each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
5.4. Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
5.5. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in Person, by telecopy
or facsimile, by registered or certified mail (postage prepaid, return receipt
requested) or by a nationally recognized courier service to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 5.5):
(a) if to Company:
MessageMedia, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ Godward LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Lender:
DoubleClick Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ 1001
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
5.6. Entire Agreement. This Agreement, the Merger Agreement and the Notes
and the other documents delivered pursuant hereto and thereto constitute the
entire agreement among the parties and no party shall be liable or bound to any
other party in any manner by any warranties, representations, or covenants
except as specifically set forth herein or therein.
5.7. Amendment and Waiver. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), with the
written consent of Company and Lender. Any waiver or amendment effected in
accordance with this section shall be binding upon each holder of any Notes
purchased under this Agreement at the time outstanding, each future holder of
all such Notes, and Company.
5.8. Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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IN WITNESS WHEREOF, the parties have executed this
Note Purchase Agreement
as of the date first above written.
MESSAGEMEDIA, INC.
By: /s/ A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive
Officer
DOUBLECLICK INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President, Technology Data and
Research
[SIGNATURE PAGE TO
NOTE PURCHASE AGREEMENT]
EXHIBIT A
Form of Promissory Note
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN
STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER
OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER
OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
MESSAGEMEDIA, INC.
(a Delaware corporation)
Amount: U.S.$__________ ____________, 2001
PROMISSORY NOTE
For value received, MessageMedia, Inc., a Delaware corporation ("BORROWER"),
promises to pay DoubleClick Inc., a Delaware corporation, or its assigns
("LENDER") the principal sum of ____________ U.S. dollars (U.S.$_____________)
with simple interest on the outstanding principal amount at 12.50% per annum.
Interest shall commence with the date hereof and shall continue on the
outstanding principal until paid in full.
1. Outstanding principal amount and accrued interest on this Promissory
Note (this "NOTE") shall be due and payable on the Maturity Date (as defined in
the
Note Purchase Agreement, dated October 10, 2001, by and between Borrower and
Lender (the "
NOTE PURCHASE AGREEMENT")); provided, however, that the outstanding
principal amount of this Note and accrued interest thereon may be prepaid in
whole or in part at any time without penalty. Any prepayment will be applied
first to the costs of collection and fees, if any, then to payment of accrued
and unpaid interest and the balance to principal.
2. All payments of interest and principal shall be in lawful money of the
United States of America at the principal office of Lender, or at such other
place as Lender may from time to time designate in writing to Borrower, not
later than 5:00 p.m.
New York Time on the Maturity Date. All payments shall be
applied first to costs of collection and fees, if any, then to payment of
accrued and unpaid interest and the balance to principal.
3. This Note is issued pursuant to the
Note Purchase Agreement and is
subject to the provisions thereof.
4. This Note is not secured by any assets or properties of Borrower.
5. Borrower agrees that it shall not incur any additional indebtedness that
is senior to or pari passu with this Note in right of payment and that it shall
not grant any additional liens, pledges, charges, security interests or other
encumbrances in Borrower's assets or properties other than indebtedness, liens,
pledges, charges, security interests or other encumbrances existing on the date
hereof.
6. Borrower agrees that the proceeds from this Note shall only be used
solely to satisfy Borrower's operating requirements that arise in the ordinary
course of business consistent with past practice.
7. This Note may be transferred only in compliance with applicable federal
and state securities laws and only upon surrender of the original Note for
registration of transfer, duly endorsed, or accompanied by a duly executed
written instrument of transfer. Thereupon, a new promissory note for like
principal amount and interest will be issued to, and registered in the name of,
the transferee. Interest and principal are payable only to the registered holder
of this Note.
8. Any amendment hereto or waiver of any provision hereof may be made only
with the written consent of Borrower and Lender or its assigns. This Note shall
inure to the benefit of and bind the successors, assigns, heirs, executors, and
administrators of the parties hereto.
9. This Note shall become immediately due and payable upon the occurrence
of an Event of Default, whereupon this Note and all such interest shall become
and be immediately due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by
Borrower. For purposes hereof, the occurrence of any of the following shall
constitute an "Event of Default" under this Note:
(1) the failure to make any payment of principal or any other amount
payable hereunder when due under this Note or the breach of the conditions set
forth in paragraphs 5 and 6 above, and the continuation of such failure or
breach for three (3) days following written notice of such failure or breach to
Borrower from Lender; or
(2) the filing of a petition by or against Borrower or any of its
Subsidiaries (as such term is defined in the Amended and Restated Merger
Agreement, dated the date of the
Note Purchase Agreement between Borrower and
Lender) under any provision of applicable federal or state bankruptcy or similar
law; or appointment of a receiver, trustee, custodian or liquidator of or for
all or any part of the assets or property of Borrower or any of its
Subsidiaries; or the insolvency of Borrower or any of its Subsidiaries; or the
dissolution of Borrower or any of its Subsidiaries (or any vote in favor thereof
by its board of directors) or the making of a general assignment for the benefit
of creditors by Borrower or any of its Subsidiaries.
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10. This Note is made in accordance with and shall be construed under the
laws of the State of
New York, other than the conflicts of law principles
thereof.
11. Borrower covenants to Lender that upon receipt of evidence reasonably
satisfactory to Borrower of the loss, theft, destruction, or mutilation of this
Note and, in the case of any such loss, theft or destruction, upon receipt of an
indemnity reasonably satisfactory to Borrower, or in the case of any such
mutilation upon surrender and cancellation of such Note, Borrower will make and
deliver a new Note, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Note.
12. Borrower agrees to pay all reasonable costs of collection of any
amounts due hereunder arising as a result of any default hereunder, including,
without limitation, attorneys' fees and expenses. Borrower hereby expressly
waives presentment, demand for payment, dishonor, notice of dishonor, protest,
notice of protest and any other formality.
13. Borrower and all endorsers and guarantors of this Note, if any, hereby
waive presentment for payment, demand, protest, notice of protest for
non-payment and notice of dishonor of this Note and waive all other demands and
notices in connection with the delivery, acceptance and performance of this
Note.
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IN WITNESS WHEREOF, Borrower has caused this Note to be signed
in its corporate name by one or its officers thereunto duly authorized and to be
dated as of the day and year first above written.
MESSAGEMEDIA, INC.
By: -----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO THE NOTE]