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Exhibit B
MESSAGEMEDIA, INC.
COMMON STOCK PURCHASE AGREEMENT
FEBRUARY 22, 2001
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TABLE OF CONTENTS
1. AGREEMENT TO SELL AND PURCHASE.......................................................................... 1
1.1 Authorization of Shares........................................................................ 1
1.2 Sale and Purchase.............................................................................. 1
2. CLOSING, DELIVERY AND PAYMENT........................................................................... 1
2.1 Closing........................................................................................ 1
2.2 Delivery....................................................................................... 2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................................................... 2
3.1 Organization................................................................................... 2
3.2 Due Authorization.............................................................................. 2
3.3 Non-Contravention.............................................................................. 2
3.4 Capitalization................................................................................. 3
3.5 Legal Proceedings.............................................................................. 3
3.6 No Violations.................................................................................. 3
3.7 Governmental Permits, Etc...................................................................... 3
3.8 Financial Statements........................................................................... 4
3.9 No Material Adverse Change..................................................................... 4
3.10 NASDAQ Listing................................................................................. 4
3.11 Reporting Status............................................................................... 4
4. REPRESENTATIONS AND WARRANTIES OF INVESTOR.............................................................. 5
4.1 Investment Representations..................................................................... 5
4.2 Restrictions on Transfer....................................................................... 7
4.3 "Market Stand-Off" Agreement; Agreement to Furnish Information................................. 8
4.4 Standstill Agreement........................................................................... 8
5. CONDITIONS TO CLOSING................................................................................... 9
5.1 Conditions to Investor's Obligations at the Closing............................................ 9
5.2 Conditions to Obligations of the Company.......................................................10
6. REGISTRATION RIGHTS.....................................................................................11
6.1 Definitions....................................................................................11
6.2 Form S-3 Registration..........................................................................11
6.3 Expenses of Registration.......................................................................12
6.4 Obligations of the Company.....................................................................12
6.5 Termination of Registration Rights.............................................................13
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TABLE OF CONTENTS
(CONTINUED)
6.6 Delay of Registration; Furnishing Information..................................................13
6.7 Indemnification................................................................................14
6.8 Assignment of Registration Rights..............................................................16
6.9 Rule 144 Reporting.............................................................................16
7. MISCELLANEOUS...........................................................................................16
7.1 Governing Law..................................................................................16
7.2 Survival.......................................................................................16
7.3 Successors and Assigns.........................................................................17
7.4 Entire Agreement...............................................................................17
7.5 Severability...................................................................................17
7.6 Amendment and Waiver...........................................................................17
7.7 Delays or Omissions............................................................................17
7.8 Notices........................................................................................17
7.9 Expenses.......................................................................................18
7.10 Attorneys' Fees................................................................................18
7.11 Titles and Subtitles...........................................................................18
7.12 Counterparts...................................................................................18
7.13 Broker's Fees..................................................................................18
7.14 Confidentiality................................................................................19
7.15 Pronouns.......................................................................................19
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MESSAGEMEDIA, INC.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made and
entered into as of February 22, 2001, by and among MESSAGEMEDIA, INC., a
Delaware corporation (the "COMPANY"), and each of the investors listed on
EXHIBIT A hereto (collectively, the "INVESTORS," and each, an "INVESTOR").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of an
aggregate of 11,267,606 shares of its common stock, $0.001 par value per share
(the "SHARES");
WHEREAS, the Investors desire to purchase the Shares on the terms and
conditions set forth herein; and
WHEREAS, the Company desires to issue and sell the Shares to the
Investors on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises, representations, warranties and covenants hereinafter set forth
and for other good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO SELL AND PURCHASE.
1.1 AUTHORIZATION OF SHARES. On or prior to the Closing (as
defined in Section 2.1 below), the Company shall have authorized the sale and
issuance to the Investors of the Shares.
1.2 SALE AND PURCHASE. Subject to the terms and conditions
hereof, at the Closing, the Company hereby agrees to issue and sell to each
Investor, and each Investor hereby agrees, severally and not jointly for itself
and no other Investor, to purchase from the Company the number of Shares set
forth opposite such Investor's name on the Schedule of Investors attached hereto
as EXHIBIT A at a purchase price per share equal to $0.71.
2. CLOSING, DELIVERY AND PAYMENT.
2.1 CLOSING. The closing of the sale and purchase of the
Shares under this Agreement (the "CLOSING") shall take place at 5:00 p.m.
Mountain Standard Time on the date hereof, at the offices of ▇▇▇▇▇▇ Godward LLP,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other time or place as the Company and the Investors may mutually agree (such
date is hereinafter referred to as the "CLOSING DATE").
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2.2 DELIVERY. At the Closing, the Company shall deliver to
each Investor one or more stock certificates representing the Shares purchased
by such Investor, each such certificate to be registered in the name of the
Investor or, if so indicated on the signature page hereto, in the name of a
nominee designated by Investor, and each Investor shall make payment for such
Shares by wire transfer of immediately available funds to an account designated
by the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as may be set forth on a Schedule of Exceptions
delivered by the Company to the Investors at the Closing, the Company hereby
represents and warrants to each Investor as of the date of this Agreement as set
forth below.
3.1 ORGANIZATION. The Company is duly incorporated and validly
existing in good standing under the laws of the jurisdiction of its
organization. The Company has full power and authority to own, operate and
occupy its properties and to conduct its business as presently conducted, and is
registered or qualified to do business and in good standing in each jurisdiction
in which it owns or leases property or transacts business and where the failure
to be so qualified would have a material adverse effect upon the business,
financial condition, properties or operations of the Company ("MATERIAL ADVERSE
EFFECT"), and no proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such
power and authority or qualification.
3.2 DUE AUTHORIZATION. The Company has all requisite power and
authority to execute, deliver and perform its obligations under this Agreement,
and this Agreement has been duly authorized by all necessary corporate action of
the Company, its officers, directors and stockholders, and validly executed and
delivered by the Company, and constitutes a legal, valid and binding agreement
of the Company enforceable against the Company in accordance with its terms,
except as rights to indemnity and contribution may be limited by state or
federal securities laws or the public policy underlying such laws, and except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally, and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.3 NON-CONTRAVENTION. The execution and delivery of this
Agreement, the issuance and sale of the Shares, the fulfillment of the terms of
this Agreement and the consummation of the transactions contemplated hereby will
not (A) conflict with or constitute a violation of, or default under (with the
passage of time or otherwise), (i) any bond, debenture, note or other evidence
of indebtedness, or any lease, contract, indenture, mortgage, deed of trust,
loan agreement, joint venture or other agreement or instrument to which the
Company is a party or by which its properties are bound, where such conflict,
violation or default is likely to result in a Material Adverse Effect, (ii) the
charter, bylaws or other organizational documents of the Company, or (iii) any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority binding upon the Company or its
properties, where such conflict, violation or default is likely to result in a
Material Adverse Effect or an adverse effect on the ownership of the Shares by
the Investors, or (B) result in the creation or
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imposition of any lien, encumbrance, claim, security interest or restriction
whatsoever upon any of the properties or assets of the Company or an
acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
any indenture, mortgage, deed of trust or any other material agreement or
instrument to which the Company is a party or by which it is bound or to which
any of the property or assets of the Company is subject. No consent, approval,
authorization or other order of, or registration, qualification or filing with,
any regulatory body, administrative agency, or other governmental body in the
United States is required for the execution and delivery of this Agreement and
the valid issuance and sale of the Shares to be sold pursuant to this Agreement,
other than such as have been made or obtained, and except for any securities
filings required to be made under federal or state securities laws.
3.4 CAPITALIZATION. The authorized capital stock of the
Company, immediately prior to the Closing, will consist of 100,000,000 shares of
Common Stock, par value $0.001 per share, 56,708,086 shares of which were issued
and outstanding as of the date hereof, and 5,000,000 shares of Preferred Stock,
par value $0.001 per share, none of which are issued and outstanding. All issued
and outstanding shares of the Company's Common Stock and Preferred Stock (a)
have been duly authorized and validly issued and (b) are fully paid and
nonassessable. There are no outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal), proxy or
shareholder agreements or agreements of any kind for the purchase or acquisition
from the Company of any of its securities, except for options (and the Common
Stock issued upon their exercise) issued pursuant to the MessageMedia, Inc. 1995
Stock Plan, the MessageMedia, Inc. 1999 Non-Officer Stock Option Plan, the
MessageMedia, Inc. Employee Stock Purchase Plan, and stock option agreements by
and between the Company and certain individuals registered under the Securities
Act by that certain registration statement on Form S-8 filed on June 29, 2000.
3.5 LEGAL PROCEEDINGS. There is no material legal or
governmental proceeding, claim or arbitration pending or, to the knowledge of
the Company, threatened, to which the Company is a party or of which the
business or property of the Company is subject, nor, to the knowledge of the
Company, does there exist any reasonable basis therefor.
3.6 NO VIOLATIONS. The Company is not in violation of its
charter or bylaws. The Company is not in violation of any law, administrative
regulation, ordinance or order of any court or governmental agency, arbitration
panel or authority applicable to the Company, which violation, individually or
in the aggregate, would be reasonably likely to have a Material Adverse Effect.
The Company is not in default (and there exists no condition which, with the
passage of time or otherwise, would constitute a default) in the performance of
any bond, debenture, note or any other evidence of indebtedness in any
indenture, mortgage, deed of trust or any other agreement or instrument to which
the Company is a party or by which the Company is bound or by which the
properties of the Company are bound, which would be reasonably likely to have a
Material Adverse Effect.
3.7 GOVERNMENTAL PERMITS, ETC. The Company has all necessary
franchises, licenses, certificates and other authorizations from any foreign,
federal, state or local government or governmental agency, department or body
that are currently necessary for the operation of the
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business of the Company as currently conducted, except where the failure to
currently possess could not reasonably be expected to have a Material Adverse
Effect.
3.8 FINANCIAL STATEMENTS. The financial statements of the
Company and the related notes thereto contained in the Company's Annual Report
on Form 10-K for the year ended December 31, 1999 (the "10-K"), and the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
2000, present fairly, in accordance with generally accepted accounting
principles, the financial position of the Company and its subsidiaries as of the
dates indicated, and the results of its operations and cash flows for the
periods therein specified. Such financial statements (including the related
notes) have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods therein
specified; provided, however, that the unaudited financial statements contained
therein are subject to normal recurring year end audit adjustments and do not
contain all footnotes required under generally accepted accounting principles.
The Company does not have any liabilities or obligations of any nature (whether
accrued, absolute, contingent or otherwise) that would be required to be
reflected on, or reserved against in, a balance sheet of the Company or
described in the notes thereto, under generally accepted accounting principles
consistently applied, except for: (i) liabilities or obligations that were so
reserved on, or reflected in (including the notes to), the balance sheet of the
Company as of September 30, 2000; (ii) liabilities or obligations arising in the
ordinary course of business since September 30, 2000; and (iii) liabilities or
obligations which would not, individually or in the aggregate, have a Material
Adverse Effect.
3.9 NO MATERIAL ADVERSE CHANGE. Since September 30, 2000, no
event has occurred which is reasonably likely to cause any Material Adverse
Effect, and no dividend or distribution of any kind has been declared, paid or
made on the capital stock of the Company.
3.10 NASDAQ LISTING. The Company's Common Stock is registered
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), and is listed on The Nasdaq National Market ("NASDAQ").
The Company has not received any notification of delisting from Nasdaq.
3.11 REPORTING STATUS. The Company has filed in a timely
manner all documents that the Company was required to file under the Exchange
Act and the Securities Act of 1933, as amended (the "SECURITIES ACT"), during
the 12 months preceding the date of this Agreement. The Company currently meets
the conditions set forth in the General Instructions of Form S-3 in order to use
such Form S-3 for registration under the Securities Act. The following documents
complied in all material respects with the Securities and Exchange Commission's
(the "SEC") requirements as of their respective filing dates, and the
information contained therein as of the date thereof did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under where they were made not misleading:
(a) The 10-K;
(b) The Company's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2000, June 30, 2000, and September 30, 2000; and
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(c) All other documents, if any, filed by the Company
with the SEC since December 31, 1999, pursuant to the reporting requirements of
the Exchange Act.
4. REPRESENTATIONS AND WARRANTIES OF INVESTOR.
Each Investor hereby represents and warrants to the Company,
severally and not jointly, for itself and no other Investor, as follows (and
such representations and warranties do not lessen or obviate the representations
and warranties of the Company set forth in this Agreement):
4.1 INVESTMENT REPRESENTATIONS. Investor understands that the
Shares have not been registered under the Securities Act. Investor also
understands that the Shares are being offered and sold pursuant to an exemption
from registration contained in the Securities Act based in part upon Investor's
representations contained in the Agreement. Investor hereby represents and
warrants as follows:
(a) INVESTOR BEARS ECONOMIC RISK. Investor, which is
acquiring the Shares in the ordinary course of its business, has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Investor must bear the economic risk of
this investment indefinitely unless the Shares are registered pursuant to the
Securities Act, or an exemption from registration is available. Investor
understands that the Company has no present intention of registering the Shares
or any shares of its Common Stock. Investor also understands that there is no
assurance that any exemption from registration under the Securities Act will be
available and that, even if available, such exemption may not allow Investor to
transfer all or any portion of the Shares under the circumstances, in the
amounts or at the times Investor might propose.
(b) ACQUISITION FOR OWN ACCOUNT. Investor is
acquiring the Shares for Investor's own account for investment only, and not
with a view towards their distribution.
(c) INVESTOR CAN PROTECT ITS INTEREST. Investor
represents that by reason of its, or of its management's, business or financial
experience, Investor has the capacity to protect its own interests in connection
with the transactions contemplated in this Agreement. Further, Investor is aware
of no publication of any advertisement in connection with the transactions
contemplated in the Agreement.
(d) ACCREDITED INVESTOR. Investor represents that it
is an accredited investor within the meaning of Regulation D under the
Securities Act.
(e) COMPANY INFORMATION. Investor has had an
opportunity to discuss the Company's business, management and financial affairs
with directors, officers and management of the Company and has had the
opportunity to review the Company's operations and facilities. Investor also has
had the opportunity to ask questions of and receive answers from the Company and
its management regarding the terms and conditions of this investment.
(f) RULE 144. Investor acknowledges and agrees that
the Shares must be held indefinitely unless they are subsequently registered
under the Securities Act or an
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exemption from such registration is available. Investor has been advised or is
aware of the provisions of Rule 144 promulgated under the Securities Act as in
effect from time to time, which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including,
among other things: the availability of certain current public information about
the Company, the resale occurring following the required holding period under
Rule 144 and the number of shares being sold during any three-month period not
exceeding specified limitations.
(g) RESIDENCE. If the Investor is a partnership,
corporation, limited liability company or other entity, then the office or
offices of the Investor in which its investment decision was made is located at
the address or addresses of the Investor set forth in its signature block.
(h) FOREIGN INVESTORS. If Investor is not a United
States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of
1986, as amended), Investor hereby represents that it has satisfied itself as to
the full observance of the laws of its jurisdiction of organization or residence
in connection with any invitation to subscribe for the Shares or any use of this
Agreement, including (i) the legal requirements within its jurisdiction of
organization or residence for the purchase of the Shares, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any government or other
consents that may need to be obtained, and (iv) the income tax and other tax
consequences, if any, that may be relevant to the purchase, holding, redemption,
sale or transfer of the Shares. Investor's subscription and payment for and
continued beneficial ownership of the Shares will not violate any applicable
securities or other laws of Investor's jurisdiction of organization or
residence.
(i) DUE AUTHORIZATION. Investor has all requisite
power and authority to execute, deliver and perform its obligations under this
Agreement, and this Agreement has been duly authorized and validly executed and
delivered by Investor and constitutes a legal, valid and binding agreement of
Investor enforceable against Investor in accordance with its terms, except as
rights to indemnity and contribution may be limited by state or federal
securities laws or the public policy underlying such laws, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally, and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(j) NON-CONTRAVENTION. The execution and delivery of
this Agreement, the fulfillment of the terms of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with or
constitute a violation of, or default under (with the passage of time or
otherwise), (i) in any material way, the charter, bylaws or other organizational
documents of Investor, or (ii) any law, administrative regulation, ordinance or
order of any court or governmental agency, arbitration panel or authority
binding upon Investor or its respective properties. No consent, approval,
authorization or other order of, or registration, qualification or filing with,
any regulatory body, administrative agency, or other governmental body in the
United States is required for the execution and delivery of this Agreement,
other than such as have been made or obtained.
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(k) INVESTOR NOT PART OF A GROUP. Investor represents
and warrants that it has not formed or joined and is not participating in a
"group" (within the meaning of Section 13(d)(3) and Rule 13d-5 of the Exchange
Act) with any other Investor in connection with its purchase of the Shares.
4.2 RESTRICTIONS ON TRANSFER.
(a) Investor agrees not to make any disposition of
all or any portion of the Shares unless and until:
(i) There is then in effect a registration
statement under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
(ii) (A) The transferee has agreed in
writing to be bound by the terms of this Agreement, (B) Investor shall have
notified the Company of the proposed disposition and shall have furnished the
Company with a reasonably detailed statement of the circumstances surrounding
the proposed disposition, and (C) if reasonably requested by the Company,
Investor shall have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require registration
of such shares under the Securities Act. It is agreed that the Company will not
require opinions of counsel for transactions made pursuant to Rule 144 of the
Securities Act except in unusual circumstances.
(iii) Notwithstanding the provisions of
Sections 4.2(a)(i) and (ii), no such registration statement or opinion of
counsel shall be necessary for a transfer by Investor (A) if it is a
partnership, to its partners or former partners in accordance with partnership
interests, (B) if it is a corporation, to its shareholders in accordance with
their interest in the corporation, (C) if it is a limited liability company, to
its members or former members in accordance with their interest in the limited
liability company, or (D) to its affiliates (as defined in Rule 405 of the
Securities Act); provided, however, that in each case the transferee will be
subject to the terms of this Agreement to the same extent as if he, she or it
were an original investor hereunder.
(b) Each certificate representing Shares shall
(unless otherwise permitted by the provisions of this Agreement) be stamped or
otherwise imprinted with a legend substantially similar to the following (in
addition to any legend required under applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE "ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
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(c) The Company shall be obligated to reissue
promptly unlegended certificates at the request of Investor if Investor shall
have obtained an opinion of counsel (which counsel may be counsel to the
Company) reasonably acceptable to the Company to the effect that the securities
proposed to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
(d) Any legend endorsed on an instrument pursuant to
applicable state securities laws and the stop-transfer instructions with respect
to such securities shall be removed upon receipt by the Company of an order of
the appropriate blue-sky authority authorizing such removal or an opinion of
counsel (which counsel may be counsel to the Company) reasonably acceptable to
the Company to the effect that the securities proposed to be disposed of may
lawfully be so disposed without such legend or instructions.
4.3 "MARKET STAND-OFF" AGREEMENT; AGREEMENT TO FURNISH
INFORMATION. In connection with any underwritten public offering of the
Company's common stock pursuant to an effective registration under the
Securities Act, and so long as Investor owns more than 1% of the outstanding
common stock of the Company, upon written request from the Company, Investor
hereby agrees that Investor shall not sell, transfer, make any short sale of,
grant any option for the purchase of or enter into any hedging or similar
transaction with the same economic effect as a sale of any common stock of the
Company held by Investor (other than those included in such registration) for a
period specified by the representative of the underwriters of common stock of
the Company not to exceed 90 days following the effective date of such
registration statement; provided, however, that all executive officers and
directors of the Company are bound by and have entered into a similar agreement
and the restriction on transfer has not been waived in whole or in part with
respect to any such executive officer or director in a way different than any
Investor. Investor agrees to execute and deliver such other agreements as may
reasonably be requested by the Company or the underwriter which are consistent
with the foregoing or which are necessary to give further effect thereto. In
addition, if requested by the Company or the representative of the underwriters
of common stock of the Company, Investor shall provide, within 10 days of such
request, such information as may be required by the Company or such
representative in connection with the completion of any public offering of the
Company's securities pursuant to a registration statement filed under the
Securities Act. The obligations described in this section shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock subject to
the foregoing restriction until the end of said 90-day period.
4.4 STANDSTILL AGREEMENT.
(a) At any time during the Standstill Period (as
defined below), except with the prior written consent of a majority of the
Company's Board of Directors (excluding the vote of any interested directors),
each Investor, together with any persons or entities affiliated therewith within
the meaning of Rule 405 of the Securities Act (collectively, the "STANDSTILL
INVESTOR"), shall not: (a) make, effect, initiate, cause or participate in (i)
any acquisition of beneficial ownership (as defined in Rule l3d-3 of the
Exchange Act) of any securities of the
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Company entitled to vote with respect to the election of any directors of the
Company ("VOTING SECURITIES"), any security convertible into, exchangeable for
or exercisable for, or that may become Voting Securities or any other right to
acquire Voting Securities (such Voting Securities and rights to acquire Voting
Securities are collectively referred to herein as "SECURITIES"), in any such
case, with the intention to seek to control the management, Board of Directors
or policies of the Company (ii) any tender offer, exchange offer, merger,
business combination, recapitalization, restructuring, liquidation, dissolution
or extraordinary transaction involving the Company or any subsidiary of the
Company, or involving any securities or assets of the Company or any securities
or assets of any subsidiary of the Company, or (iii) any "solicitation" of
"proxies" (as those terms are used in the proxy rules of the SEC) or consents
with respect to any securities of the other party; (b) form, join or participate
in a "group" (within the meaning of Section 13(d)(3) and Rule 13d-5 of the
Exchange Act) with respect to the beneficial ownership of any Securities; (c)
act, alone or in concert with others, to seek to control the management, Board
of Directors of the Company or policies of the Company; (d) take any action that
to the knowledge of the Standstill Investor, after taking into account advice of
its counsel, could reasonably be expected to require the Standstill Investor to
make a public announcement regarding any of the types of matters set forth in
clause "(a)" of this paragraph; (e) agree or offer to take, or encourage or
propose (publicly or otherwise) the taking of, any action referred to in clause
"(a)", "(b)", "(c)" or "(d)" of this paragraph; (f) assist, induce or encourage
any other Person (as defined in subsection 4.4(b) below) to take any action of
the type referred to in clause "(a)", "(b)", "(c)", "(d)" or "(e)" of this
paragraph; or (g) enter into any discussions, negotiations, arrangement or
agreement with any other Person relating to any of the foregoing. For purposes
of this Agreement, the "STANDSTILL PERIOD" shall begin as of the date hereof and
shall continue for an uninterrupted period of one year, unless earlier
terminated pursuant to the provisions of subsection 4.4(b) below.
(b) TERMINATION. The provisions of subsection 4.4(a)
above shall terminate and be of no further force or effect upon the earlier to
occur of (i) the date of expiration of the Standstill Period, (ii) the filing
with the SEC of a Schedule 13D by any Person (as defined below) indicating that
such Person has acquired beneficial ownership (as such term is defined in
Section 13d-3 of the Exchange Act) of 5% or more of the Company's Securities,
provided, that, such Person was not the beneficial owner of 5% or more of the
Securities of the Company prior to the date hereof, (iii) the commencement of a
tender offer by any Person to acquire 50% or more of the Company's Securities;
or (iv) the solicitation of proxies by any Person which is intended to effect a
change in the majority of members of the Company's Board of Directors. For
purposes of this subsection 4.4(b), the term "PERSON" shall be broadly
interpreted to include any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union or other entity
or governmental body, provided, that the term "Person" shall expressly exclude
the Standstill Investor.
5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO INVESTOR'S OBLIGATIONS AT THE CLOSING. Each
Investor's obligations to purchase the Shares at the Closing are subject to the
satisfaction, at or prior to the Closing Date, of the following conditions:
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(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE
OF OBLIGATIONS. The representations and warranties made by the Company in
Section 3 hereof shall be true and correct in all material respects as of the
Closing Date with the same force and effect as if they had been made as of the
Closing Date, and the Company shall have performed and complied with all
agreements and conditions herein required to be performed or complied with by it
on or prior to the Closing.
(b) CONSENTS, PERMITS AND WAIVERS. The Company and
Investor shall have obtained any and all consents, permits and waivers necessary
or appropriate for consummation of the transactions contemplated by the
Agreement (including any filing required to comply with the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Antitrust Improvements Act of 1976, and except for such as may be properly
obtained subsequent to the Closing).
(c) CORPORATE DOCUMENTS. The Company shall have
delivered to Investor or its counsel, copies of all corporate documents of the
Company as Investor shall reasonably request.
(d) PROCEEDINGS AND DOCUMENTS. All corporate and
other proceedings in connection with the transactions contemplated at the
Closing hereby and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to Investor and its
counsel, and Investor and its counsel shall have received all such counterpart
originals or certified or other copies of such documents as they may reasonably
request.
5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's
obligation to issue and sell the Shares at the Closing is subject to the
satisfaction, on or prior to such Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE
OF OBLIGATIONS. The representations and warranties made by Investor in Section 4
hereof shall be true and correct in all material respects as of the Closing
Date, with the same force and effect as if they had been made as of the Closing
Date, and the Investor shall have performed and complied with all agreements and
conditions herein required to be performed or complied with by it prior to the
Closing.
(b) CONSENTS, PERMITS, AND WAIVERS. The Company and
Investor shall have obtained any and all consents, permits and waivers necessary
or appropriate for consummation of the transactions contemplated by the
Agreement (including any filing required to comply with the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Antitrust Improvements Act of 1976, and except for such as may be properly
obtained subsequent to the Closing).
(c) PROCEEDINGS AND DOCUMENTS. All corporate and
other proceedings in connection with the transactions contemplated at the
Closing hereby and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to the Company and its
counsel, and the Company and its counsel shall have received all such
counterpart originals or certified or other copies of such documents as they may
reasonably request.
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6. REGISTRATION RIGHTS.
6.1 DEFINITIONS. As used in this Section 6, the following
terms shall have the following respective meanings:
"FORM S-3" means such form under the Securities Act as in
effect on the date hereof or any successor 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.
"REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"REGISTRATION EXPENSES" shall mean all expenses incurred by
the Company in complying with Sections 6.2 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company).
"SEC" shall have the meaning set forth in Section 3.11 of this
Agreement.
"SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale.
6.2 FORM S-3 REGISTRATION. It any time after three months from
the date hereof, the Company shall receive from one or more Investors a written
request or requests that the Company effect a registration on Form S-3 (or any
successor to Form S-3) or any similar short-form registration statement and any
related qualification or compliance with respect to all or a part of the Shares,
the Company will:
(a) as soon as practicable, effect such registration
and all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of the
Shares as are specified in such request; provided, however, that the Company
shall not be obligated to effect any such registration, qualification or
compliance pursuant to this Section 6.2:
(i) if Form S-3 (or any successor or similar
form) is not available for such offering to the Investor;
(ii) if such Investor or Investors propose
to sell the Shares at an aggregate price to the public of less than $1,000,000;
(iii) if the Company shall furnish to such
Investor or Investors a certificate signed by the Chairman of the Board of
Directors of the Company stating that in the good faith judgment of the Board of
Directors, it would be seriously detrimental to the Company and its stockholders
for such Form S-3 registration to be effected at such time, in which event the
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Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than 90 days after receipt by such Investor
or Investors of such certificate; provided that such right to delay a request
shall be exercised by the Company not more than once in any 12 month period;
(iv) if the Company has, within the 12 month
period preceding the date of such request, already effected two registrations on
Form S-3 pursuant to this Section 6.2, or
(v) in any particular jurisdiction in which
the Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
(b) Subject to the foregoing, the Company shall file
a Form S-3 registration statement covering the Shares as soon as practicable
after receipt of the request or requests of such Investor or Investors, but in
no event later than 30 days after the date of such request or requests.
6.3 EXPENSES OF REGISTRATION. Except as specifically provided
herein, all Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 6.2 shall be borne by the
Company. All Selling Expenses incurred in connection with any registrations
hereunder shall be borne pro rata by the Investors participating in the
registration in proportion to the number of Shares sold.
6.4 OBLIGATIONS OF THE COMPANY. Whenever required to effect
the registration of the Shares, the Company shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to the Shares and use all reasonable efforts to cause
such registration statement to become effective, and, upon the request of an
Investor participating in such registration, keep such registration statement
effective for up to 120 days or, if earlier, until such Investors have completed
the distribution related thereto; provided, however, that at any time, upon
written notice to the participating Investors and for a period not to exceed 60
days thereafter (the "SUSPENSION PERIOD"), the Company may delay the filing or
effectiveness of any registration statement or suspend the use or effectiveness
of any registration statement (and the Investors hereby agree not to offer or
sell any Shares pursuant to such registration statement during the Suspension
Period) if the Company reasonably believes that the Company may, in the absence
of such delay or suspension hereunder, be required under state or federal
securities laws to disclose any corporate development the disclosure of which
could reasonably be expected to have an adverse effect upon the Company, its
stockholders, a potentially significant transaction or event involving the
Company, or any negotiations, discussions, or proposals directly relating
thereto. In the event that the Company shall exercise its rights hereunder, the
applicable time period during which the registration statement is to remain
effective shall be extended by a period of time equal to the duration of the
Suspension Period; provided, further, the Suspension Period must be approved by
a majority of the Company's Board of Directors. The Company may extend the
Suspension Period for an additional consecutive 60 days with the consent of the
holders of a majority of the Shares proposed to be sold by the Investors, which
consent shall not
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be unreasonably withheld; provided, however, that such Suspension Period and
extension shall only be used once per year. If so directed by the Company, the
Investors shall use their best efforts to deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Investors' possession, of the prospectus relating to such Shares current at the
time of receipt of such notice. The Company shall not be required to file, cause
to become effective or maintain the effectiveness of any registration statement
that contemplates a distribution of securities on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act.
(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 for the period set forth in
paragraph (a) above.
(c) Furnish to the Investors participating in such
registration such number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as they reasonably may request in order to facilitate the
disposition of the Shares.
(d) Use its reasonable best efforts to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Investors participating in such registration; provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
(e) Notify the Investors participating in such
registration 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.
6.5 TERMINATION OF REGISTRATION RIGHTS. All registration
rights granted under Section 6.2 shall terminate and be of no further force and
effect five years after the date hereof. In addition, an Investor's registration
rights shall expire six months after the date on which all of such Investor's
Shares may be sold under Rule 144 during any 90-day period.
6.6 DELAY OF REGISTRATION; FURNISHING INFORMATION.
(a) No Investor shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 6.
(b) It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 6.2 that
Investor shall furnish to the Company such
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PAGE 39 OF 50
information regarding itself, the Shares and the intended method of disposition
of such securities as shall be required to effect the registration of the
Shares.
6.7 INDEMNIFICATION. In the event the Shares are included in a
registration statement under Section 6.2:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Investor participating in such registration,
the partners, members, officers and directors of such Investor, and each person,
if any, who controls such Investor within the meaning of the Securities Act or
the Exchange Act against any losses, claims, damages or liabilities (joint or
several) to which they may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"VIOLATION") by the Company: (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto; (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading; or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law in connection with the offering
covered by such registration statement; and the Company will pay as incurred to
such Investor, its partners, members, officers, directors or controlling persons
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 6.7(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 or delayed, nor shall
the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Investor, its partners, members, officers, directors or controlling
persons.
(b) To the extent permitted by law, each Investor
participating in such registration will, if the Shares are included in the
securities as to which such registration, qualification or compliance is being
effected, indemnify and hold harmless the Company, each of its directors, its
officers and each person, if any, who controls the Company within the meaning of
the Securities Act, against any losses, claims, damages or liabilities (joint or
several) to which the Company or any such director, officer or controlling
person 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 such
Investor under an instrument duly executed by Investor and stated to be
specifically for use in connection with such registration; and such Investor
will pay as incurred any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially
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PAGE 40 OF 50
determined that there was such a Violation; provided, however, that the
indemnity agreement contained in this Section 6.7(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 such Investor, which consent shall
not be unreasonably withheld or delayed; provided further, that in no event
shall any indemnity payable by any Investor under this Section 6.7 exceed the
net proceeds from the offering received by such Investor.
(c) Promptly after receipt by an indemnified party
under this Section 6.7 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 6.7,
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, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 6.7, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 6.7.
(d) If the indemnification provided for in this
Section 6.7 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any losses, claims, damages or liabilities
referred to herein, the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall to the extent permitted by applicable law
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the Violation(s) that resulted
in such loss, claim, damage or liability, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by a court of law by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission; provided that in no event shall any contribution by
an Investor hereunder exceed the net proceeds from the offering received by such
Investor.
(e) The obligations of the Company and each Investor
under this Section 6.7 shall survive completion of any offering of the Shares in
a registration statement and the termination of this agreement. No indemnifying
party, in the defense of any such claim or litigation, shall, except with the
consent of each indemnified party, consent to entry of any judgment or enter
into any settlement which (i) does not include as an unconditional term thereof
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the giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation and (ii) does include
a non-monetary remedy.
6.8 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register the Shares pursuant to this Section 6 may be assigned by an
Investor to a transferee or assignee of the Shares which (a) is a subsidiary,
parent, general partner, limited partner, retired partner, member or retired
member or affiliate of such Investor, (b) is Investor's family member or trust
for the benefit of an individual Investor or (c) acquires at least one million
(1,000,000) of the Shares (as adjusted for stock splits and combinations) or all
of the Shares held by such Investor, if less; provided, however, (i) the
transferor shall, within 10 days after such transfer, furnish to the Company
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned and
(ii) such transferee shall agree to be subject to all restrictions set forth in
this Agreement.
6.9 RULE 144 REPORTING. With a view to making available to
each Investor the benefits of certain rules and regulations of the SEC which may
permit the sale of the Shares to the public without registration, the Company
agrees to:
(a) Make and keep public information available, as
those terms are understood and defined in Rule 144 promulgated under the
Securities Act or any similar or analogous rule promulgated under the Securities
Act, at all times while a class of the Company's securities is registered under
Section 12(g) of the Exchange Act;
(b) File with the SEC, in a timely manner, all
reports and other documents required of the Company under the Exchange Act; and
(c) So long as an Investor owns Shares, furnish to
such Investor forthwith upon request: a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144 of the
Securities Act and of the Exchange Act; a copy of the most recent annual or
quarterly report of the Company; and such other reports and documents as such
Investor may reasonably request in availing itself of any rule or regulation of
the SEC allowing it to sell any such securities without registration.
7. MISCELLANEOUS.
7.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Colorado as such laws are applied to
agreements between Colorado residents entered into and performed entirely in
Colorado.
7.2 SURVIVAL. Other than as set forth in Section 6 hereof, the
representations, warranties, covenants and agreements made herein shall survive
any investigation made by an Investor or the Company and the closing of the
transactions contemplated hereby for a period of 18 months after the date
hereof, provided that the covenants of the Company set forth in Section 6 shall
survive indefinitely so long as any Investor holds any Shares. All statements as
to factual matters contained in any certificate or other instrument delivered by
or on behalf of the Company or an Investor pursuant hereto in connection with
the transactions contemplated hereby shall be deemed to be representations and
warranties by the Company or an Investor, respectively, hereunder solely as of
the date of such certificate or instrument.
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7.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.
7.4 ENTIRE AGREEMENT. This Agreement, the exhibits and
schedules hereto and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with regard
to the subjects hereof and no party shall be liable or bound to any other in any
manner by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
7.5 SEVERABILITY. In case any provision of the Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
7.6 AMENDMENT AND WAIVER.
(a) This Agreement may be amended or modified only
upon the written consent of the Company and Investors holding a majority of the
Shares purchased hereunder, provided that any agreement to increase the purchase
price of the Shares shall require the consent of each Investor.
(b) The obligations of the Company and the rights of
the Investors under this Agreement may be waived only with the written consent
of Investors holding a majority of the shares purchased hereunder.
(c) To the extent that any Investor would be affected
differently and adversely than any other Investor pursuant to a proposed
amendment or waiver, the written consent of such Investor will be required for
such proposed amendment or waiver.
7.7 DELAYS OR OMISSIONS. It is agreed that no delay or
omission to exercise any right, power or remedy accruing to any party, upon any
breach, default or noncompliance by another party under this Agreement shall
impair any such right, power or remedy, nor shall it be construed to be a waiver
of any such breach, default or noncompliance, or any acquiescence therein, or of
or in any similar breach, default or noncompliance thereafter occurring. It is
further agreed that any waiver, permit, consent or approval of any kind or
character on an Investor's part of any breach, default or noncompliance under
this Agreement or any waiver on such party's part of any provisions or
conditions of the Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
7.8 NOTICES. All notices required or permitted hereunder shall
be in writing and shall be deemed effectively given: (a) upon personal delivery
to the party to be notified, (b) when sent by confirmed telex or facsimile if
sent during normal business hours of the recipient, if not, then on the next
business day, (c) five days after having been sent by registered or certified
mail, return receipt requested, postage prepaid, or (d) one day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent as
follows:
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(a) if to the Company, to:
MessageMedia, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) with a copy mailed to:
▇▇▇▇▇▇ Godward LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to an Investor, at its address on the
signature page hereto, or at such other address or addresses as may have been
furnished to the Company in writing.
7.9 EXPENSES. Each party shall pay all costs and expenses that
it incurs with respect to the negotiation, execution, delivery and performance
of the Agreement, except as otherwise provided in Section 6.3.
7.10 ATTORNEYS' FEES. In the event that any suit or action is
instituted to enforce any provision in this Agreement, the prevailing party in
such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with
respect to this Agreement, including, without limitation, such reasonable fees
and expenses of attorneys and accountants, which shall include, without
limitation, all fees, costs and expenses of appeals.
7.11 TITLES AND SUBTITLES. The titles of the sections and
subsections of the Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
7.12 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. This Agreement may be delivered by
facsimile and facsimile signatures shall be treated as original signatures for
all applicable purposes.
7.13 BROKER'S FEES. Each party hereto represents and warrants
that no agent, broker, investment banker, person or firm acting on behalf of or
under the authority of such party
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hereto is or will be entitled to any broker's or finder's fee or any other
commission directly or indirectly in connection with the transactions
contemplated herein. Each party hereto further agrees to indemnify each other
party for any claims, losses or expenses incurred by such other party as a
result of the representation in this Section 7.13 being untrue.
7.14 CONFIDENTIALITY. Each party hereto agrees that, except
with the prior written consent of the other party, it shall at all times keep
confidential and not divulge, furnish or make accessible to anyone any
confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other parties to which such party has been
or shall become privy by reason of this Agreement, discussions or negotiations
relating to this Agreement, the performance of its obligations hereunder or the
ownership of the Shares purchased hereunder. The provisions of this Section 7.14
shall be in addition to, and not in substitution for, the provisions of any
separate nondisclosure agreement executed by the parties hereto.
7.15 PRONOUNS. All pronouns contained herein, and any
variations thereof, shall be deemed to refer to the masculine, feminine or
neutral, singular or plural, as to the identity of the parties hereto may
require. The word "including" is used in an illustrative sense rather than a
limiting sense, and means including without limitation.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties hereto have executed the COMMON STOCK
PURCHASE AGREEMENT as of the date set forth in the first paragraph hereof.
COMPANY:
MESSAGEMEDIA, INC.
Signature: /s/ A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
[Common Stock Purchase Agreement Signature Page]
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INVESTORS:
SOFTBANK TECHNOLOGY VENTURES VI, L.P.
By: SBTV VI LLC, its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇, Managing Director
Address for all SOFTBANK entities:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Copy to: ▇▇▇-▇▇▇-▇▇▇▇
SOFTBANK U.S. VENTURES VI, L.P.
By: SBTV VI LLC, its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇, Managing Director
SOFTBANK TECHNOLOGY VENTURES ADVISORS FUND
VI, L.P.
By: SBTV VI LLC, its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇, Managing Director
SOFTBANK TECHNOLOGY VENTURES SIDE FUND VI,
L.P.
By: SBTV VI LLC, its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇, Managing Director
25
PAGE 47 OF 50
PEQUOT PRIVATE EQUITY FUND, L.P.
By: Pequot Capital Management, Inc.,
its investment manager
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Title: General Counsel
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PEQUOT OFFSHORE PRIVATE EQUITY FUND, INC.
By: Pequot Capital Management, Inc.,
its investment manager
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
---------------------------------------
Title: General Counsel
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26
PAGE 48 OF 50
REBAR, LLC
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
27
PAGE 49 OF 50
LIST OF EXHIBITS
Schedule of Investors Exhibit A
28
PAGE 50 OF 50
EXHIBIT A
SCHEDULE OF INVESTORS
NUMBER OF SHARES AGGREGATE
NAME BEING PURCHASED PURCHASE PRICE
---- ---------------- --------------
SOFTBANK TECHNOLOGY VENTURES VI, L.P. 3,599,015 $ 2,555,300.65
SOFTBANK U.S. VENTURES VI, L.P. 3,860,070 $ 2,740,649.70
SOFTBANK TECHNOLOGY VENTURES ADVISORS 140,211 $ 99,549.81
FUND VI, L.P.
SOFTBANK TECHNOLOGY VENTURES SIDE FUND 147,183 $ 104,499.93
VI, L.P.
PEQUOT PRIVATE EQUITY FUND, L.P. 625,083 $ 443,808.93
PEQUOT OFFSHORE PRIVATE EQUITY FUND, 79,142 $ 56,190.82
INC
REBAR, LLC 2,816,902 $ 2,000,000.42
-------------- --------------
TOTAL 11,267,606 $ 8,000,000.26