EXHIBIT 10.1
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REGISTRATION RIGHTS AGREEMENT
by and between
MAXWORLDWIDE, INC.
and
DOUBLECLICK INC.
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Dated as of July 10, 2002
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TABLE OF CONTENTS
1. Certain Definitions....................................................1
2. Demand Registrations...................................................2
(a) Right to Request Registration...................................2
(b) Number of Demand Registrations..................................3
(c) Priority on Demand Registrations................................3
(d) Restrictions on Demand Registrations............................3
(e) Selection of Underwriters.......................................4
(f) Other Registration Rights.......................................4
(g) Effective Period of Demand Registrations........................4
3. Piggyback Registrations................................................5
(a) Right to Piggyback..............................................5
(b) Priority on Primary Registrations...............................5
(c) Priority on Secondary Registrations.............................5
(d) Selection of Underwriters.......................................6
(e) Other Registrations.............................................6
4. S-3 Registrations......................................................6
5. Holdback Agreement.....................................................7
6. Registration Procedures................................................7
7. Registration Expenses.................................................10
8. Indemnification.......................................................11
9. Participation in Underwritten Registrations...........................13
10. Rule 144..............................................................13
11. Miscellaneous.........................................................14
(a) Notices........................................................14
(b) No Waivers.....................................................15
(c) Successors and Assigns.........................................15
(d) Governing Law..................................................15
(e) Jurisdiction...................................................15
(f) Waiver of Jury Trial...........................................16
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(g) Counterparts; Effectiveness....................................16
(h) Entire Agreement...............................................16
(i) Captions.......................................................16
(j) Severability...................................................16
(k) Amendments.....................................................16
(l) Aggregation of Stock...........................................16
(m) Equitable Relief...............................................17
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REGISTRATION RIGHTS AGREEMENT dated as of July 10, 2002, by and between
MaxWorldwide, Inc., a Delaware corporation (the "Company"), and DoubleClick
Inc., a Delaware corporation (the "Stockholder").
In consideration of the mutual covenants and agreements herein
contained and other good and valid consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Certain Definitions.
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the following meanings:
"Affiliate" of any Person means any other Person which directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such Person. The term "control" (including the
terms "controlled by" and "under common control with") as used with respect to
any Person means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Registration Rights Agreement as the
same may be in effect at the time such reference becomes operative.
"Business Day" means any day on which commercial banks are open for
business in New York, New York.
"Common Stock" means common stock, par value $0.001 per share, of the
Company.
"Demand Registration" has the meaning set forth in Section 2(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means any holder of record of Registrable Common Stock (as
defined below) and any transferees of such Registrable Common Stock from such
Holders. For purposes of this Agreement, the Company may deem and treat the
registered holder of Registrable Common Stock as the Holder and absolute owner
thereof, and the Company shall not be affected by any notice to the contrary.
"Initiating Holder" has the meaning set forth in Section 2(a) hereof.
"Nasdaq" means the Nasdaq quotation system, or any successor reporting
system.
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, incorporated organization,
association, corporation,
institution, public benefit corporation, government (whether federal, state,
county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof) or any other
entity.
"Piggyback Registration" has the meaning set forth in Section 3(a)
hereof.
"Prospectus" means the prospectus or prospectuses included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Common Stock covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
"Registrable Common Stock" means any of (x) the Securities (as defined
therein) issued to the Stockholder pursuant to that certain Agreement and Plan
of Merger by and among the ▇▇▇▇▇▇▇, ▇▇▇, Inc., a Delaware corporation, the
Stockholder and certain other parties, dated as of June 29, 2002, or (y) any
securities issued or issuable with respect to the Securities described in (x) 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, Registrable Common Stock shall not include (i) any
securities sold by a Person to the public either pursuant to a Registration
Statement or Rule 144, (ii) any securities which may be sold without restriction
or limitation pursuant to Rule 144(k), or (iii) securities which, in the written
opinion of counsel to the Company, reasonably acceptable to the Holder, may be
sold during any single twelve-month period under Rule 144.
"Registration Statement" means any registration statement of the
Company which covers any of the Registrable Common Stock pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all materials incorporated by reference in such Registration
Statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Suspension Notice" has the meaning set forth in Section 6(l) hereof.
"underwritten registration or underwritten offering" means a
registration in which securities of the Company are sold to underwriters for
reoffering to the public.
"Withdrawn Demand Registration" has the meaning set forth in Section
2(g) hereof.
2. Demand Registrations.
(a) Right to Request Registration. Any time on or after May 20, 2003,
any Holder or Holders who together hold a majority of the then outstanding
Registrable
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Common Stock ("Initiating Holders") may request registration under the
Securities Act of all or part of the Registrable Common Stock ("Demand
Registration").
Within ten (10) days after receipt of any such request for Demand
Registration, the Company shall give written notice of such request to all other
Holders of Registrable Common Stock and shall, subject to the provisions of
Section 2(d) hereof, include in such registration all such Registrable Common
Stock with respect to which the Company has received written requests for
inclusion therein within fifteen (15) days after the receipt of the Company's
notice.
(b) Number of Demand Registrations. Subject to the provisions of
Section 2(a), the Initiating Holders of Registrable Common Stock shall be
entitled to request an aggregate of two (2) Demand Registrations. A registration
shall not count as one of the permitted Demand Registrations (i) until it has
become effective or (ii) if the Initiating Holders requesting such registration
are not able to register and sell at least fifty percent (50%) of the
Registrable Common Stock initially requested by such Initiating Holders to be
included in such underwritten Demand Registration.
(c) Priority on Demand Registrations. Except as provided in Section
2(g), the Company shall not include in any Demand Registration any securities
which are not Registrable Common Stock without the written consent of the
Holders of a majority of the shares of Registrable Common Stock to be included
in such registration, or, if such Demand Registration is an underwritten
offering, without the written consent of the managing underwriters. If the
managing underwriters of the requested Demand Registration advise the Company in
writing that in their opinion the number of shares of Registrable Common Stock
proposed to be included in any such registration exceeds the number of
securities which can be sold in such offering and/or that the number of shares
of Registrable Common Stock proposed to be included in any such registration
would adversely affect the price per share of the Company's equity securities to
be sold in such offering, the Company shall include in such registration only
the number of shares of Registrable Common Stock which in the opinion of such
managing underwriters can be sold. If the number of shares which can be sold is
less than the number of shares of Registrable Common Stock proposed to be
registered, the amount of Registrable Common Stock to be so sold shall be
allocated pro rata among the Holders of Registrable Common Stock desiring to
participate in such registration on the basis of the amount of such Registrable
Common Stock initially proposed to be registered by such other Holders. If the
number of shares which can be sold exceeds the number of shares of Registrable
Common Stock proposed to be sold, such excess shall be allocated pro rata among
the holders of other securities requested to be registered (the "Existing
Holders") pursuant to that certain Registration Agreement, dated as of July 24,
2000, among the Company and the Investors named therein and the other holders of
securities, if any, desiring to participate in such registration based on the
amount of such securities initially requested to be registered by such holders
or as such holders may otherwise agree.
(d) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any Demand Registration within ninety (90) days after the
effective date of a previous Demand Registration, a previous S-3 Registration
(as hereinafter
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defined) or a previous registration under which the Initiating
Holders had piggyback rights pursuant to Section 3 hereof wherein the Initiating
Holders were permitted to register, and actually sold, at least fifty percent
(50%) of the shares of Registrable Common Stock requested to be included
therein. The Company may (i) postpone for up to one hundred twenty (120) days
the filing or the effectiveness of a Registration Statement for a Demand
Registration if, based on the good faith judgment of the Company's board of
directors, such postponement or withdrawal is necessary in order to avoid
premature disclosure of a matter the board has determined would not be in the
best interest of the Company to be disclosed at such time or (ii) postpone the
filing of a Demand Registration in the event the Company shall be required to
prepare audited financial statements as of a date other than its fiscal year end
(unless the stockholders requesting such registration agree to pay the expenses
of such an audit); provided, however, that in no event shall the Company
withdraw a Registration Statement under clause (i) after such Registration
Statement has been declared effective; and provided, further, however, that in
any of the events described in clause (i) or (ii) above, the Initiating Holders
requesting such Demand Registration shall be entitled to withdraw such request
and, if such request is withdrawn, such Demand Registration shall not count as
one of the permitted Demand Registrations. The Company shall provide written
notice to the Initiating Holders requesting such Demand Registration of (x) any
postponement or withdrawal of the filing or effectiveness of a Registration
Statement pursuant to this Section 2(d), (y) the Company's decision to file or
seek effectiveness of such Registration Statement following such withdrawal or
postponement and (z) the effectiveness of such Registration Statement. The
Company may defer the filing of a particular Registration Statement pursuant to
this Section 2(d) only once during any twelve-month period.
(e) Selection of Underwriters. If any of the Registrable Common Stock
covered by a Demand Registration or an S-3 Registration pursuant to Section 4
hereof is to be sold in an underwritten offering, the Initiating Holders shall
have the right to select the managing underwriter(s) to administer the offering
subject to the approval of the Company, which will not be unreasonably withheld.
(f) Other Registration Rights. The Company shall not grant to any
Person the right, other than as set forth herein and except to employees of the
Company with respect to registrations on Form S-8 (or any successor forms
thereto), to request the Company to register any securities of the Company
except such rights as are not more favorable than or inconsistent with the
rights granted to the Holders herein. In the event the Company grants rights
which are more favorable, the Company will make such provisions available to the
Holders and will enter into any amendments necessary to confer such rights on
the Holders. The foregoing prohibition shall not affect any existing
registration rights granted by the Company to the Existing Holders as of the
date hereof.
(g) Effective Period of Demand Registrations. After any Demand
Registration filed pursuant to this Agreement has become effective, the Company
shall use its best efforts to keep such Demand Registration effective for a
period equal to one hundred eighty (180) days from the date on which the SEC
declares such Demand Registration effective (or if such Demand Registration is
not effective during any period within such 180 days, such 180-day period shall
be extended by the number of days during such
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period when such Demand Registration is not effective), or such shorter period
which shall terminate when all of the Registrable Common Stock covered by such
Demand Registration has been sold pursuant to such Demand Registration. If the
Company shall withdraw any Demand Registration pursuant to subsection (d) of
this Section 2 (a "Withdrawn Demand Registration"), the Initiating Holders of
the Registrable Common Stock remaining unsold and originally covered by such
Withdrawn Demand Registration shall be entitled to a replacement Demand
Registration which (subject to the provisions of this Section 2) the Company
shall use its best efforts to keep effective for a period commencing on the
effective date of such Demand Registration and ending on the earlier to occur of
the date (i) which is 180 days from the effective date of such Demand
Registration and (ii) on which all of the Registrable Common Stock covered by
such Demand Registration has been sold. Such additional Demand Registration
otherwise shall be subject to all of the provisions of this Agreement.
3. Piggyback Registrations.
(a) Right to Piggyback. At any time on or after May 20, 2003, whenever
the Company proposes to register any of its common equity securities under the
Securities Act (other than a registration statement on Form S-8 or on Form S-4
or any similar successor forms thereto), whether for its own account or for the
account of one or more stockholders of the Company, and the registration form to
be used may be used for any registration of Registrable Common Stock (a
"Piggyback Registration"), the Company shall give prompt written notice (in any
event within ten (10) business days after its receipt of notice of any exercise
of other demand registration rights) to all Holders of its intention to effect
such a registration and, subject to Sections 3(b) and 3(c), shall include in
such registration all Registrable Common Stock with respect to which the Company
has received written requests for inclusion therein within fifteen (15) days
after the receipt of the Company's notice. The Company may postpone or withdraw
the filing or the effectiveness of a Piggyback Registration at any time in its
sole discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering and/or that the number of shares of
Registrable Common Stock proposed to be included in any such registration would
adversely affect the price per share of the Company's equity securities to be
sold in such offering, the Company shall include in such registration (i) first,
the securities the Company proposes to sell, (ii) second, other securities
requested to be included in such registration pro rata among the holders of such
securities, including, without limitation, Holders of Registrable Common Stock
and the Existing Holders, on the basis of the number of shares requested to be
registered by such holders or as such holders may otherwise agree.
(c) Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of a holder of the Company's
securities other than Registrable Common Stock, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be
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included in such registration exceeds the number which can be sold in such
offering and/or that the number of shares of Registrable Common Stock proposed
to be included in any such registration would adversely affect the price per
share of the Company's equity securities to be sold in such offering, the
Company shall include in such registration (i) first, the securities requested
to be included therein by the holders requesting such registration, (ii) second,
other securities requested to be included in such registration pro rata among
the holders of such securities, including, without limitation, Holders of
Registrable Common Stock and the Existing Holders, on the basis of the number of
shares requested to be registered by such holders or as such holders may
otherwise agree.
(d) Selection of Underwriters. If any Piggyback Registration is an
underwritten primary offering, the Company shall have the right to select the
managing underwriter or underwriters to administer any such offering.
(e) Other Registrations. If the Company has previously filed a
Registration Statement with respect to Registrable Common Stock pursuant to
Sections 2 or 4 hereof or pursuant to this Section 3, and if such previous
registration has not been withdrawn or abandoned, the Company shall not be
obligated to cause to become effective any other registration of any of its
securities under the Securities Act, whether on its own behalf or at the request
of any holder or holders of such securities, until a period of at least three
(3) months has elapsed from the effective date of such previous registration.
4. S-3 Registrations.
If at any time that the Company is eligible to use Form S-3 or any
successor thereto, any Holder or Holders requests that the Company file a
Registration Statement on Form S-3 or any successor thereto for a public
offering of all or any portion of the Registrable Common Stock held by such
Holders, then the Company shall use its best efforts to register under the
Securities Act on Form S-3 or any successor thereto (an "S-3 Registration"), for
public sale in accordance with the method of disposition specified in such
notice, the number of shares of Registrable Common Stock specified in such
notice; provided, however, that the Company shall have no obligation to register
such shares of Registrable Common Stock pursuant to this Section if (based on
the current market prices) the number of shares of Registrable Common Stock
specified in such notice would not yield gross proceeds to the selling
stockholders of at least $1,500,000. Whenever the Company is required by this
Section 4 to use its best efforts to effect the registration of Registrable
Common Stock, each of the procedures and requirements of Section 2 (including
but not limited to the requirement that the Company notify all Holders from whom
notice has not been received and provide them with the opportunity to
participate in the offering) shall apply to such registration. There is no
limitation on the number of registrations pursuant to this Section 4 that the
Company is obligated to effect.
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5. Holdback Agreement.
(a) The Company agrees not to effect any sale or distribution of any of
its equity securities during the ten (10) days prior to and during the one
hundred eighty (180) days beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration or any
underwritten S-3 Registration (except as part of such underwritten registration
or pursuant to registrations on Form S-8 or S-4 or any successor forms thereto)
unless the underwriters managing the offering otherwise agree to a shorter
period.
(b) In connection with any Demand Registration or Piggyback
Registration which includes shares of Registrable Common Stock for the account
of a Holder, each Holder agrees not to sell or otherwise transfer or dispose of
any shares of Registrable Common Stock of the Company held by it for a period
equal to the lesser of one hundred eighty (180) days following the effective
date of a registration statement of the Company filed under the Securities Act
or such shorter period as the managing underwriter shall agree to, provided that
all other stockholders who own more than five percent (5%) of the outstanding
Common Stock of the Company and all officers and directors of the Company enter
into similar agreements. The foregoing shall not apply to (i) transactions
relating to shares of Common Stock acquired in open market transactions, or (ii)
transfers to Affiliates where the transferee agrees to be bound by the terms
hereof.
6. Registration Procedures.
Whenever the Holders request that any Registrable Common Stock be
registered pursuant to this Agreement, the Company shall use its best efforts to
effect the registration and the sale of such Registrable Common Stock in
accordance with the intended methods of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(c) prepare and file with the SEC a Registration Statement with respect
to such Registrable Common Stock and use its best efforts to cause such
Registration Statement to become effective as soon as practicable thereafter;
and before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, furnish to the Holders of Registrable Common Stock covered
by such Registration Statement and the underwriter or underwriters, if any,
copies of all such documents proposed to be filed, including documents
incorporated by reference in the Prospectus and, if requested by such Holders,
the exhibits incorporated by reference, and such Holders shall have the
opportunity to object to any information pertaining to such Holders that is
contained therein and the Company will make the corrections reasonably requested
by such Holders with respect to such information prior to filing any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto;
(d) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the Prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective for a period of
not less than 180 days, in the case of a Demand Registration or an S-3
Registration, or such shorter period
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as is necessary to complete the distribution of the securities covered by such
Registration Statement and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement;
(e) furnish to each seller of Registrable Common Stock such number of
copies of such Registration Statement, each amendment and supplement thereto,
the Prospectus included in such Registration Statement (including each
preliminary Prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Common Stock
owned by such seller;
(f) use its best efforts to register or qualify such Registrable Common
Stock under such other securities, blue sky or any similar applicable foreign,
state or local laws of such jurisdictions as any seller reasonably requests and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Common Stock owned by such seller (provided,
that the Company will not be required to (i) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this subparagraph (d), (ii) subject itself to taxation in any such jurisdiction
or (iii) consent to general service of process in any such jurisdiction);
(g) notify each seller of such Registrable Common Stock, at any time
when a Prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of any event as a result of which the
Prospectus included in such Registration Statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such Prospectus so that, as thereafter
delivered to the purchasers of such Registrable Common Stock, such Prospectus
shall not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(h) in the case of an underwritten offering, enter into such customary
agreements (including underwriting agreements in customary form) and take all
such other actions as the Holders of a majority of number of shares of the
Registrable Common Stock being sold or the underwriters reasonably request in
order to expedite or facilitate the disposition of such Registrable Common Stock
and cause to be delivered to the underwriters and the sellers, if any, opinions
of counsel to the Company in customary form, covering such matters as are
customarily covered by opinions for an underwritten public offering as the
underwriters may request and addressed to the underwriters and the sellers;
(i) make available, for inspection by any seller of Registrable Common
Stock, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company as reasonably requested by any
of such attorneys, accountants or agents,
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and cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such Registration
Statement;
(j) use its best efforts to cause all such Registrable Common Stock to
be listed on each securities exchange or on Nasdaq to the extent that securities
of the same class issued by the Company are then listed;
(k) provide a transfer agent and registrar for all such Registrable
Common Stock not later than the effective date of such Registration Statement;
(l) if requested (in the case of an underwritten offering, at the time
of delivery of any Registrable Common Stock sold pursuant thereto), cause to be
delivered, immediately prior to the effectiveness of the Registration Statement,
letters from the Company's independent certified public accountants addressed to
each selling Holder (unless such selling Holder does not provide to such
accountants the appropriate representation letter required by rules governing
the accounting profession) and each underwriter, if any, stating that such
accountants are independent public accountants within the meaning of the
Securities Act and the applicable rules and regulations adopted by the SEC
thereunder, and otherwise in customary form and covering such financial and
accounting matters as are customarily covered by letters of the independent
certified public accountants delivered in connection with primary or secondary
underwritten public offerings, as the case may be;
(m) make generally available to its stockholders a consolidated
earnings statement (which need not be audited) for the twelve (12) months
beginning after the effective date of a Registration Statement as soon as
reasonably practicable after the end of such period, which earnings statement
shall satisfy the requirements of an earning statement under Section 11(a) of
the Securities Act;
(n) promptly notify each seller of Registrable Common Stock and the
underwriter or underwriters, if any:
(i) when the Registration Statement, any
pre-effective amendment, the Prospectus or any Prospectus
supplement or post-effective amendment to the Registration
Statement has been filed and, with respect to the Registration
Statement or any post-effective amendment, when the same has
become effective;
(ii) of any written request by the SEC for amendments
or supplements to the Registration Statement or Prospectus;
(iii) of the notification to the Company by the SEC
of its initiation of any proceeding with respect to the
issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement; and
(iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any Registrable Common
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Stock for sale under the applicable securities, "blue sky" or
any similar foreign, state or local laws of any jurisdiction.
At all times after the Company has filed a registration statement with
the SEC pursuant to the requirements of either the Securities Act or the
Exchange Act, the Company shall file all reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder, and take such further action as any Holders may
reasonably request, all to the extent required to enable such Holders to be
eligible to sell Registrable Common Stock pursuant to Rule 144 (or any similar
rule then in effect).
The Company may require each seller of Registrable Common Stock as to
which any registration is being effected to furnish to the Company any other
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each seller of Registrable Common Stock agrees by having its stock
treated as Registrable Common Stock hereunder that, upon notice of the happening
of any event as a result of which the Prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits any material
fact necessary to make the statements therein not misleading (a "Suspension
Notice"), such seller will forthwith discontinue disposition of Registrable
Common Stock until such seller is advised in writing by the Company that the use
of the Prospectus may be resumed and is furnished with a supplemented or amended
Prospectus as contemplated by Section 6(e) hereof, and, if so directed by the
Company, such seller will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such seller's possession, of
the Prospectus covering such Registrable Common Stock current at the time of
receipt of such notice; provided, however, that such postponement of sales of
Registrable Common Stock by the Holders shall not exceed ninety (90) days in the
aggregate in any one (1) year. If the Company shall give any notice to suspend
the disposition of Registrable Common Stock pursuant to a Prospectus, the
Company shall extend the period of time during which the Company is required to
maintain the Registration Statement effective pursuant to this Agreement by the
number of days during the period from and including the date of the giving of
such notice to and including the date such seller either is advised by the
Company that the use of the Prospectus may be resumed or receives the copies of
the supplemented or amended Prospectus contemplated by Section 6(e). In any
event, the Company shall not be entitled to deliver more than two (2) Suspension
Notices in any one (1) year.
7. Registration Expenses.
(o) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities, "blue sky" or any similar
foreign, state or local laws, listing application fees, printing expenses,
transfer agent's and registrar's fees, cost of distributing Prospectuses in
preliminary and final form as well as any supplements thereto, and fees and
disbursements of counsel for the Company and all independent
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certified public accountants and other Persons retained by the Company (all such
expenses being herein called "Registration Expenses") (but not including any
underwriting discounts or commissions attributable to the sale of Registrable
Common Stock or fees and expenses of more than one (1) counsel representing the
Holders of Registrable Common Stock), shall be borne by the Company. In
addition, the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
they are to be listed.
(p) In connection with each registration initiated hereunder (whether a
Demand Registration, S-3 Registration or a Piggyback Registration), the Company
shall reimburse the Holders covered by such registration or sale for the
reasonable fees and disbursements of one (1) law firm chosen by the Holders of a
majority of the number of shares of Registrable Common Stock included in such
registration or sale.
(q) The obligation of the Company to bear the expenses described in
Section 7(a) and to reimburse the Holders for the expenses described in Section
7(b) shall apply irrespective of whether a registration, once properly demanded,
if applicable, becomes effective, is withdrawn or suspended, or is converted to
another form of registration and irrespective of when any of the foregoing shall
occur; provided, however, that Registration Expenses for any Registration
Statement withdrawn solely at the request of a Holder of Registrable Common
Stock (unless withdrawn following postponement of filing by the Company in
accordance with Section 2(d)(i) or (ii)) or any supplements or amendments to a
Registration Statement or Prospectus resulting from a misstatement furnished to
the Company by a Holder shall be borne by such Holder.
8. Indemnification.
(r) The Company shall indemnify, to the fullest extent permitted by
law, each Holder, its officers, directors and Affiliates and each Person who
controls such Holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses arising out of or based upon
any untrue or alleged untrue statement of material fact contained in any
Registration Statement, Prospectus or preliminary Prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or any violation or alleged violation by the Company of the
Securities Act, the Exchange Act or other applicable securities, "blue sky" or
similar foreign, state or local laws, except insofar as the same are made in
reliance and in conformity with information relating to such Holder furnished in
writing to the Company by such Holder expressly for use therein or caused by
such Holder's failure to deliver to such Holder's immediate purchaser a copy of
the Registration Statement or Prospectus or any amendments or supplements
thereto (if the same was required by applicable law to be so delivered) after
the Company has furnished such Holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
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such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the Holders.
(s) In connection with any Registration Statement in which a Holder of
Registrable Common Stock is participating, each such Holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such Registration Statement or
Prospectus and, shall indemnify, to the fullest extent permitted by law, the
Company, its officers, directors Affiliates, and each Person who controls the
Company (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities and expenses arising out of or based upon any untrue or
alleged untrue statement of material fact contained in the Registration
Statement, Prospectus or preliminary Prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that the same are made in reliance and in
conformity with information relating to such Holder furnished in writing to the
Company by such Holder expressly for use therein or caused by such Holder's
failure to deliver to such Holder's immediate purchaser a copy of the
Registration Statement or Prospectus or any amendments or supplements thereto
(if the same was required by applicable law to be so delivered) after the
Company has furnished such Holder with a sufficient number of copies of the
same; provided, however, that the obligation to indemnify shall be several, not
joint and several, among such Holders (together with their respective
Affiliates) and the liability of each such Holder (together with its Affiliates)
shall be in proportion to and limited to the net amount received by such Holder
(together with its Affiliates) from the sale of Registrable Common Stock
pursuant to such Registration Statement.
(t) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party shall not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one (1) counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party there may be one or more legal or equitable defenses
available to such indemnified party which may conflict with those available to
another indemnified party with respect to such claim. Failure to give prompt
written notice shall not release the indemnifying party from its obligations
hereunder except to the extent that the indemnifying party is materially
prejudiced by such failure.
(u) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the
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indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities.
(v) If the indemnification provided for in or pursuant to this Section
8 is due in accordance with the terms hereof, but is held by a court to be
unavailable or unenforceable in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified Person as a result of such losses,
claims, damages, liabilities or expenses 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 statements or omissions
which result in such losses, claims, damages, liabilities or expenses as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified Person on the other
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 the indemnifying
party or by the indemnified party, and by such party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. In no event shall the liability of any selling Holder be
greater in amount than the amount of net proceeds received by such Holder upon
such sale or the amount for which such indemnifying party would have been
obligated to pay by way of indemnification if the indemnification provided for
under Section 8(a) or 8(b) hereof had been available under the circumstances.
9. Participation in Underwritten Registrations.
No Person may participate in any registration hereunder which is
underwritten unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
10. Rule 144.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and it will take such further action
as any Holder may reasonably request to make available adequate current public
information with respect to the Company meeting the current public information
requirements of Rule 144(c) under the Securities Act, to the extent required to
enable such Holder to sell Registrable Common Stock without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(ii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with such information and requirements.
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11. Miscellaneous.
(a) Notices. All notices, requests, consents and other communications
required or permitted hereunder shall be in writing and shall be hand delivered,
sent by nationally-recognized overnight courier, mailed postage prepaid by
registered or certified mail or transmitted by facsimile transmission (with
immediate telephonic confirmation thereafter),
If to the Company:
MaxWorldwide, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to (which shall not constitute notice):
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Stockholder:
DoubleClick Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to a transferee Holder, to the address of such
Holder set forth in the transfer documentation provided to the Company;
with a copy to (which shall not constitute notice):
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or facsimile number as such party (or transferee) may
hereafter specify for the purpose by notice to the other parties and each such
notice, request, consent and other communication shall for all purposes of the
Agreement be treated as being effective or having been given when delivered if
delivered personally, on the next
14
Business Day if dispatched by overnight courier upon receipt of facsimile
confirmation if transmitted by facsimile, or, if sent by mail, at the earlier of
its receipt or seventy-two (72) hours after the same has been deposited in a
regularly maintained receptacle for the deposit of United States mail, addressed
and postage prepaid as aforesaid.
(b) No Waivers. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(c) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns and the rights, remedies and entitlements of the Holders
under this Agreement may be assigned in full or in part at any time after the
date of this Agreement together with at least 100,000 shares of Registrable
Common Stock (as appropriately adjusted for any stock split, combination,
reorganization, recapitalization, reclassification, stock dividend, stock
distribution or similar event), it being understood that subsequent Holders of
such number of shares of the Registrable Common Stock are intended third party
beneficiaries hereof. No such assignment shall be effective unless (i) the
transferee shall be required, as a condition to such transfer, to agree in
writing that he or it will receive and hold the shares of Registrable Common
Stock subject to the applicable provisions of this Agreement, (ii) the Company
is given written notice at the time of the assignment stating the name and
address of said transferee and identifying the shares of Registrable Common
Stock that are being assigned, (iii) such transfer is exempt from the
registration requirements of applicable securities laws, rules and regulations
and (iv) such transfer is made in accordance with any other agreements between
the Holder and the Company in effect at the time of such transfer.
(d) Governing Law. This Agreement shall be construed in accordance with
and governed by the law of the State of New York, without regard to principles
of conflicts of law.
(e) Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought in any federal
or state court located in the County and State of New York, and each of the
parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 11(a) shall be deemed
effective service of process on such party.
15
(f) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to the transactions contemplated herein. No
provision of this Agreement or any other agreement contemplated hereby is
intended to confer on any Person other than the parties hereto any rights or
remedies.
(i) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
(k) Amendments. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
without the prior written consent of the holders of a majority of the
Registrable Common Stock (as constituted on the date hereof); provided, however,
that without a Holder's written consent no such amendment, modification,
supplement or waiver shall affect adversely such Holder's rights hereunder in a
discriminatory manner inconsistent with its adverse effects on rights of other
Holders hereunder (other than as reflected by the different number of shares
held by such Holder); provided, further, that the consent or agreement of the
Company shall be required with regard to any termination, amendment,
modification or supplement of, or waivers or consents to departures from, the
terms hereof, which affect the Company's obligations hereunder. This Agreement
cannot be changed, modified, discharged or terminated by oral agreement.
(l) Aggregation of Stock. All Registrable Common Stock held by or
acquired by any Affiliates will be aggregated together for the purpose of
determining the availability of any rights and obligations under this Agreement.
16
(m) Equitable Relief. The parties hereto agree that legal remedies may
be inadequate to enforce the provisions of this Agreement and that equitable
relief, including specific performance and injunctive relief, may be used to
enforce the provisions of this Agreement.
[Execution Page Follows]
17
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
DOUBLECLICK INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Corporate Development
MAXWORLDWIDE, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
18