EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of November 29, 1999, by and among CMGI, INC., a company
incorporated in Delaware, the United States of America (the "Company"), and the
party from time to time executing a signature page hereto (the "Investor").
WHEREAS, pursuant to a Share Exchange Agreement (the "Share Exchange
Agreement"), dated September 22, 1999, the Company will issue shares of its
common stock, par value US$0.01 per share;
WHEREAS, in the Share Exchange Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition
to Completion (as defined in the Share Exchange Agreement).
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the meanings
set forth below:
"Charter" means the Certificate of Incorporation of the Company, as
amended from time to time.
"Commission" means the United States Securities and Exchange
Commission or any other United States Federal agency at the time administering
the Securities Act.
"Common Stock" means the Company's common stock, par value US$0.01 per
share, or any other shares of capital stock or other securities of the Company
into which such shares of Common Stock shall be reclassified or changed,
including, by reason of a merger, consolidation, reorganization or
recapitalization. If the Common Stock has been so reclassified or changed, or
if the Company pays a dividend or makes a distribution on the Common Stock in
shares of capital stock, or subdivides (or combines) its outstanding shares of
Common Stock into a greater (or smaller) number of shares of Common Stock, a
share of Common Stock shall be deemed to be such number of shares of stock and
amount of other securities to which a holder of a share of Common Stock
outstanding immediately prior to
such change, reclassification, exchange, dividend, distribution, subdivision or
combination would be entitled.
"Delay Period" has the meaning set forth in Section 2(d) of this
Agreement.
"Demand Notice" has the meaning set forth in Section 2(a) of this
Agreement.
"Demand Registration" has the meaning set forth in Section 2(a) of
this Agreement.
"Effectiveness Period" has the meaning set forth in Section 2(d) of
this Agreement.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Holder" means a person who owns Registrable Securities and is either
(i) an Investor or a Permitted Transferee of an Investor that has agreed to be
bound by the terms of this Agreement as if such Person were an Investor, (ii)
upon the death of any Holder, the executor of the estate of such Holder or such
Holder's heirs, devisees, legatees or assigns or (iii) upon the disability of
any Holder, any guardian or conservator of such Holder.
"Interruption Period" has the meaning set forth in Section 5(o) of
this Agreement.
"Losses" has the meaning set forth in Section 7(a) of this Agreement.
"Misstatement/Omission" has the meaning set forth in Section 7(a) of
this Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
"Other Security Holders" has the meaning set forth in Section 2(b) of
this Agreement.
"Permitted Transferee" means any Person to whom the rights under this
Agreement have been assigned in accordance with the provisions of the Share
Exchange Agreement and Section 11(d) hereof.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Piggyback Registration" has the meaning set forth in Section 3(a) of
this Agreement.
"Registrable Securities" means (i) the shares of Common Stock issued
to the Investor pursuant to the Share Exchange Agreement, and (ii) any Common
Stock issued or issuable with respect to such Common Stock referred to above by
way of stock dividends or stock splits or in connection with a combination of
shares, recapitalization, merger, consolidation, or other reorganization or
otherwise. As to any particular Registrable Securities, such securities will
cease to be Registrable Securities when (i) they have been distributed to the
public pursuant to an offering registered under the Securities Act, (ii) they
have been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (iii) they are eligible for immediate sale
pursuant to Rule 144(k) under the Securities Act or (iv) they have been sold to
any Person to whom the rights under this Agreement are not assigned in
accordance with this Agreement.
"Registration Statement" means any registration statement under the
Securities Act of the Company that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related prospectus
and any information deemed to be a part of such prospectus pursuant to Rule 430A
under the Securities Act, all amendments and supplements to such registration
statement or prospectus, including pre- and post-effective amendments (including
any registration statement filed pursuant to Rule 462(b) under the Securities
Act), all exhibits thereto and all material incorporated by reference or deemed
to be incorporated by reference in such registration statement.
"Required Investors" means Holders of at least 50% of the aggregate
amount of all Registrable Securities outstanding.
"Securities Act" means the United States Securities Act of 1933, as
amended, or any similar United States Federal statute, and the rules and
regulations of the Commission promulgated thereunder.
Unless otherwise stated, other capitalized terms contained herein have
the meanings set forth in the Share Exchange Agreement.
Section 2. Demand Registrations.
(a) The Holders shall have the right, commencing on the date on which
PCCW and its direct and indirect subsidiaries shall be permitted to sell Common
Stock without the restrictions imposed by Section 6.7 of the Share Exchange
Agreement by written notice (the "Demand Notice") given to the Company, to
request the Company to register under and in accordance with the provisions of
the Securities Act all or part of the Registrable Securities designated by such
Holders (a "Demand Registration"). Upon receipt of any such Demand Notice from
any Holder, the Company will promptly notify all other Holders of the receipt of
such Demand Notice and allow them the opportunity to include Registrable
Securities held by them in the proposed registration by submitting their own
Demand Notice. Notwithstanding anything herein to the contrary, the Company
shall not be required to honor a request for a Demand Registration if the
Company has not received Demand Notices from the Required Investors. The Company
shall not be required to register any Registrable Securities under this Section
2 unless the approximate aggregate offering price of the Registrable Securities
included in such Demand Notices shall be at least US$25 million.
(b) Subject to paragraph (a) above, as soon as practicable, but in
any event within 20 days of the date on which the Company first receives a
Demand Notice pursuant to Section 2(a) hereof, the Company shall file with the
Commission a Registration Statement on the appropriate form for the registration
and sale of the total number of Registrable Securities specified in such Demand
Notice in accordance with the intended method or methods of distribution
specified by the Holders in such Demand Notice. Subject to paragraph (h) below,
the Company may include in such registration other securities for sale for its
own account or for the account of any other holders of Common Stock ("Other
Security Holders"). The Company shall use reasonable best efforts to cause such
Registration Statement to be declared effective by the Commission as soon as
reasonably practicable. Notwithstanding the foregoing, the Company shall not be
obligated to file a Registration Statement pursuant to this Section 2(b):
(1) if Form S-3 (or any successor form with substantially the
same disclosure requirements) is not available for such offering by the
Holders; or
(2) if the Company has, within the six month period preceding
the date of such request, already effected a registration under the
Securities Act, other than a registration from which Registrable Securities
of Holders have been excluded (with respect to all or any portion of the
Registrable Securities requested by included in such registration) pursuant
to the provisions of Section 3 hereof.
(c) Subject to Section 2(d), upon the occurrence of any event that
would cause the Registration Statement (A) to contain a material misstatement or
omission or (B) to be not effective and usable for resale of Registrable
Securities during the period that such Registration Statement is required to be
effective and usable, the Company shall file an amendment to the Registration
Statement as soon as reasonably practicable, in the case of clause (A),
correcting any such misstatement or omission and, in the case of either clause
(A) or (B), use reasonable best efforts to cause such amendment to be declared
effective and such Registration Statement to become usable as soon as reasonably
practicable thereafter.
(d) The Company agrees to use reasonable best efforts to keep any
Registration Statement filed pursuant to this Section 2 continuously effective
and usable for the sale of Registrable Securities until the earlier of (i) 120
days from the date on which the Commission declares such Registration Statement
effective, or (ii) the date on which all the Registrable Securities covered by
such Registration Statement have been sold pursuant to such Registration
Statement. Notwithstanding the foregoing, the Company shall have the right to
delay the filing of any Registration Statement otherwise required to be prepared
and filed by the Company pursuant to this Section 2, or to suspend the use of
any Registration Statement, for a period not in excess of 90 days (a "Delay
Period") if the Company shall furnish to the Holders whose Registrable
Securities are included in such Registration Statement, a certificate signed by
the President or Chief Executive Officer of the Company stating that, in the
good faith judgment of the Board of Directors of the Company, it would be
materially detrimental to the Company and its stockholders for such Holders to
continue to make sales thereunder, provided, that the 120 day period set forth
in clause (i) above shall be ex-
tended by an amount of time equal to any Delay Period which interrupts such 120
period. The Company may not utilize this right more than once in any twelve (12)
month period.
(e) The Company shall not enter into any agreement granting any Other
Security Holder piggyback rights to include such Other Security Holder's
securities in any registration in which the Holders have the right to include
Registrable Securities on a priority basis more favorable to such Other Security
Holder than is provided to the Holders pursuant to Section 3(b).
(f) Holders of a majority in number of the Registrable Securities to
be included in a Demand Registration pursuant to this Section 2 may, at any time
prior to the effective date of the Registration Statement in respect thereof,
revoke such request by providing a written notice to the Company to such effect.
(g) Preemption of Demand Registration. Notwithstanding anything to
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the contrary contained herein, after receiving a written request for a Demand
Registration, the Company may elect to effect an underwritten primary
registration in lieu of the Demand Registration if the Company's Board of
Directors believes that such primary registration would be in the best interests
of the Company. If the Company so elects to effect a primary registration, the
Company shall give prompt written notice (which shall be given not later than 20
days after the date of the Demand Notice) to all holders of the Registrable
Securities of its intention to effect such a registration and shall afford the
holders of the Registrable Securities the rights contained in Section 3 with
respect to Piggyback Registrations. In the event that the Company so elects to
effect a primary registration after receiving a request for a Demand
Registration, the Company shall use reasonable best efforts to have the
Registration Statement declared effective by the Commission as soon as
reasonably practicable. In addition, the request for a Demand Registration shall
be deemed to have been withdrawn and such primary registration shall not be
deemed to be a Demand Registration.
(h) Priority in Cutback. If a Demand Registration is an underwritten
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offering and includes securities for sale by the Company, and the managing
underwriter (such underwriters to be chosen by the Holders included in such
registration, subject to the Company's reasonable approval) advises the Company,
in writing, that, in its good faith judgment, the number of securities requested
to be included in such registration exceeds the number which can be sold in such
offering without materially and adversely affecting the marketability of the
offering, then the Company will include in any such registration the maximum
number of shares which the managing underwriter advises the Company can be sold
in such offering allocated as follows: first the Registrable Securities
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requested to be included in such registration by the Holders, pro rata on the
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basis of the number of Registrable Securities requested to be included by such
Holders, second the securities requested to be included in such registration by
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the Company for its own account, and third the securities requested to be
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included in such registration by the Company for the account of Other Security
Holders.
Section 3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register
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any of its equity securities under the Securities Act (other than a registration
on Form S-4 relating solely to a transaction described in Rule 145 of the
Securities Act or a registration on Form S-8 or any successor forms thereto),
whether or not for sale for its own account, the Company will give prompt
written notice of such proposed filing to all Holders at least 30 days before
the anticipated filing date. Such notice shall offer such Holders the
opportunity to register such amount of Registrable Securities as they shall
request (a "Piggyback Registration"). Subject to Sections 3(b) and 3(c) hereof,
the Company shall include in each such Piggyback Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 20 days after such notice has been given by the Holders
to the Company. If the Registration Statement relating to the Piggyback
Registration is to cover an underwritten offering, such Registrable Securities
shall be included in the underwriting on the same terms and conditions as the
securities otherwise being sold through the underwriters. Each Holder shall be
permitted to withdraw all or part of the Registrable Securities from a Piggyback
Registration at any time prior to the effective time of such Piggyback
Registration.
(b) Priority on Primary Registrations. If a Piggyback Registration
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is an underwritten primary registration on behalf of the Company, by or through
one or more underwriters of recognized standing and the managing underwriters
advise the Company in writing that in their good faith judgment the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without materially and adversely affecting
the marketability of the offering, then the Company will include in the
Registration Statement relating to such registration (i) first, the securities
the Company proposes to sell, and (ii) second, the Registrable Securities
requested to be included in such registration by the Holders and the securities
requested to be included in such registration by any Other Security Holders that
have requested inclusion of their securities, on a pro rata basis, based on the
amount of Common Stock requested to be included therein.
(c) Priority on Secondary Registrations. If a Piggyback Registration
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is an underwritten secondary registration on behalf of Other Security Holders,
by or through one or more underwriters of recognized standing and the managing
underwriter(s) advise the Company in writing that in their good faith judgment
the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering without materially and adversely
affecting the marketability of the offering, the Company will include in such
registration, the securities owned by such Other Security Holders and the
Registrable Securities requested to be included in such registration by the
Holders thereof, reduced, in each case, on a pro rata basis, based on the amount
of Common Stock requested to be included therein.
Section 4. Hold-back Agreements.
(a) The Company agrees (i) if so required by the managing underwriter
of an underwritten offering effected pursuant to a Registration under Section 2
or 3 hereof, not to effect any public or private sale or distribution of
securities of the same type (including
any underlying securities) as the Registrable Securities included in such
underwritten registration, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to the pricing of
such offering and until the earlier of (A) the end of the 180-day period
beginning on the date of pricing of such offering (except as part of such
underwritten offering and except pursuant to registrations on Form S-4 or Form
S-8 (or any successor form to such Form)), unless the managing underwriter for
such offering otherwise agrees, and (B) the abandonment of such offering, and
(ii) to use reasonable best efforts to cause each holder of securities of the
same type as the securities included in such underwritten offering, or any
securities convertible into or exchangeable or exercisable for such securities,
in each case purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public or private sale or distribution or otherwise dispose (including sales
pursuant to Rule 144 under the Securities Act) of any such securities during
such period (except as part of such underwritten registration, if otherwise
permitted), unless the managing underwriter for such offering otherwise agrees.
(b) If the Company registers securities of the Company in connection
with an underwritten public offering of Common Stock solely by the Company, the
Holders, if so requested by the managing underwriter of such underwritten
offering, agree not to effect any public sale or distribution of any of the
Registrable Securities, including any sale pursuant to Rule 144 under the
Securities Act (other than as a part of such underwritten public offering)
without the consent of the Company or such managing underwriter during the
period commencing on a date specified by the underwriter, such date not to
exceed seven days prior to the effective date of such registration statement,
and ending on the earlier of (A) 180 days after the pricing of such offering,
(B) the abandonment of such offering and (C) the first date on which the Company
or any affiliate or executive officer of the Company is permitted to sell shares
of Common Stock of the Company.
Section 5. Registration Procedures.
Whenever the Company is required to register Registrable Securities
pursuant to Section 2 or 3 hereof, the Company will use reasonable best efforts
to effect the registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities as prescribed by Section 2 or 3 on a
form available for the sale of the Registrable Securities by the holders thereof
in accordance with the intended method or methods of distribution thereof and
use reasonable best efforts to cause each such Registration Statement to become
and remain effective within the time periods and otherwise as provided herein;
(b) prepare and file with the Commission such amendments, (including
post-effective amendments) to the Registration Statement and such supplements to
the Prospectus as may be necessary to keep such Registration Statement effective
and to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement until such
time as all of such securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such Registration Statement;
(c) furnish to each selling Holder of Registrable Securities covered
by a Registration Statement and to each underwriter, if any, such number of
copies of such Registration Statement, each amendment and post-effective
amendment thereto, the Prospectus included in such Registration Statement
(including each preliminary prospectus and any supplement to such Prospectus and
any other prospectus filed under Rule 424 of the Securities Act), in each case
including all exhibits, and such other documents as such Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Holder or to be disposed of by such underwriter (the Company
hereby consenting to the use in accordance with all applicable law of each such
Registration Statement (or amendment or post-effective amendment thereto) and
each such Prospectus (or preliminary prospectus or supplement thereto) by each
such Holder and the underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by such Registration Statement or
Prospectus);
(d) use reasonable best efforts to register or qualify and, if
applicable, to cooperate with the selling Holders, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of, the Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any selling Holder or managing underwriters (if any) shall
reasonably request, to keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Securities covered by the applicable Registration Statement; 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
paragraph or (ii) consent to general service of process or taxation in any such
jurisdiction where it is not so subject;
(e) use reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which securities of the
same class as the Registrable Securities are then listed and, if not so listed,
to be listed on the NASD automated quotation system and, if listed on the NASD
automated quotation system, use reasonable best efforts to secure designation of
all such Registrable Securities covered by such Registration Statement as a
NASDAQ Security within the meaning of Rule 11Aa3-l under the Exchange Act or,
failing that, to secure NASDAQ authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD;
(f) provide a transfer agent and registrar for all such Registrable
Securities and a CUSIP number for all such Registrable Securities not later than
the effective date of such Registration Statement;
(g) comply with all applicable rules and regulations of the
Commission, and make available to its security holders an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90
days after the end of any 12-month period if such period is a fiscal year) (or
in each case within such extended period of time as may be permitted by the
Commission for filing the applicable report with the Commission) (i) commencing
at the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in an underwritten offering or (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of a Registration Statement, which earnings
statement shall cover said 12-month periods;
(h) use reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or suspending the
qualification (or exemption from qualification) of any of the Registrable
Securities included therein for sale in any jurisdiction, and, in the event of
the issuance of any stop order suspending the effectiveness of a Registration
Statement, or of any order suspending the qualification of any Registrable
Securities included in such Registration Statement for sale in any jurisdiction,
the Company will use reasonable best efforts promptly to obtain the withdrawal
of such order at the earliest possible moment;
(i) obtain "cold comfort" letters and updates thereof (which letters
and updates (in form, scope and substance) shall be reasonably satisfactory to
the managing underwriters, if any, and the Holders) from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, if any, and each selling
Holder of Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings and such other matters as the
underwriters, if any, or the Holders of a majority of the Registrable Securities
being sold may reasonably request;
(j) obtain opinions of independent counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the Holders of
a majority of the Registrable Securities being sold), addressed to each selling
Holder and each of the underwriters, if any, covering the matters customarily
covered in opinions of issuer's counsel requested in underwritten offerings,
such as the effectiveness of the Registration Statement and such other matters
as may be requested by such counsel and underwriters, if any;
(k) promptly notify the selling Holders and the managing
underwriters, if any, and confirm such notice in writing.
(1) when a Prospectus or any supplement or post-effective
amendment to such Prospectus has been filed, and, with respect to a
Registration Statement or any post-effective amendment thereto, when the
same has become effective,
(2) of any request by the Commission or any other Federal or
state governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional information,
(3) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any Prospectus or the initiation of any
proceedings by any Person for that purpose,
(4) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable
Securities for offer or sale under the securities or blue sky laws of any
jurisdiction, or the contemplation, initiation or threatening, of any
proceeding for such purpose, and
(5) of the happening of any event or the existence of any facts
that make any statement made in such Registration Statement or Prospectus
untrue in any material respect or that require the making of any changes in
such Registration Statement or Prospectus so that it will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made (in the case of
any Prospectus), not misleading (which notice shall be accompanied by an
instruction to the selling Holders and the managing underwriters, if any,
to suspend the use of the Prospectus until the requisite changes have been
made);
(l) if requested by the managing underwriters, if any, or a Holder of
Registrable Securities being sold, promptly incorporate in a prospectus,
supplement or post-effective amendment such information as the managing
underwriters, if any, and the Holders of a majority of the Registrable
Securities being sold reasonably request to be included therein relating to the
sale of the Registrable Securities, including, without limitation, information
with respect to the number of shares of Registrable Securities being sold to
underwriters, the purchase price being paid therefor by such underwriters and
with respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering, and make all required filings of such
prospectus, supplement or post-effective amendment promptly following
notification of the matters to be incorporated in such supplement or post-
effective amendment;
(m) if requested, furnish to each selling Holder of Registrable
Securities and the managing underwriter, without charge, at least one signed
copy of the Registration Statement;
(n) as promptly as practicable upon the occurrence of any event
contemplated by clause 5(k)(5) above, prepare a supplement or post-effective
amendment to the Registration Statement or the Prospectus, or any document
incorporated therein by reference, or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities being
sold hereunder, the Prospectus will not contain an untrue statement of a
material fact or an omission to state a material fact required to be stated in a
Registration Statement or Prospectus or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and
(o) if such offering is an underwritten offering, enter into such
agreements (including an underwriting agreement in form, scope and substance as
is customary in underwritten offerings) and take all such other appropriate and
reasonable actions requested by the Holders owning a majority of the Registrable
Securities being sold in connection therewith or by the managing underwriters
(including cooperating in reasonable marketing efforts, including participation
by senior executives of the Company in any "roadshow" or similar meeting with
potential investors) in order to expedite or facilitate the disposition of such
Registrable Securities, and in such connection, provide indemnification
provisions and procedures substantially to the effect set forth in Section 7
hereof with respect to all parties to be indemnified pursuant to said Section.
The above shall be done at each closing under such underwriting or similar
agreement, or as and to the extent required thereunder.
Each Holder agrees by acquisition of such Registrable Securities that,
upon receipt of written notice from the Company of the happening of any event of
the kind described in Section 5(k), such Holder will forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Registration Statement contemplated by Section 5(n), or until it is
advised in writing by the Company that the use of the applicable Prospectus may
be resumed, and has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
prospectus (such period during which disposition is discontinued being an
"Interruption Period"), and, if so directed by the Company, such Holder will
deliver to the Company all copies of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice.
Section 6. Registration Expenses.
The Company shall bear all expenses incurred in connection with the
registration or attempted registration of the Registrable Securities pursuant to
Sections 2 and 3 of this Agreement as provided herein. Such expenses shall
include, without limitation, all printing, legal and accounting expenses
incurred by the Company and all registration and filing fees imposed by the
Commission, any state securities commission or the New York Stock Exchange or,
if the Common Stock is not then listed on the New York Stock Exchange, the
principal national securities exchange or national market system on which the
Common Stock is then traded or quoted. Notwithstanding the foregoing sentence,
Holders shall be responsible for any pro rata share of brokerage or underwriting
commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of Registrable
Securities and for any legal, accounting and other expenses incurred by them in
connection with any Registration Statement.
Section 7. Indemnification.
(a) Indemnification by the Company. The Company agrees to
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indemnify, to the fullest extent permitted by law, each Holder, each affiliate
of a Holder and each officer, director, employee, counsel, agent or
representative of such Holder and its affiliates and each Person who controls
any such Person (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) against, and hold it and them harmless from,
all losses, claims, damages, liabilities, costs (including, without limitation,
costs of preparation and attorneys' fees and disbursements) and expenses,
including expenses of investigation (collectively, "Losses") arising out of,
caused by or based upon any untrue or alleged untrue statement of material fact
contained in any Registration Statement, or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading (a "Misstatement/Omission"), or 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, except that the Company shall
not be liable insofar as such Misstatement/Omission or violation is made in
reliance upon and in conformity with information furnished in writing to the
Company by such Holder expressly for use therein; provided, further that the
Company shall not be liable for a Holder's failure to deliver or cause to be
delivered (to the extent such delivery is required under the Securities Act) the
Prospectus contained in the Registration Statement, furnished to it by the
Company at or prior to the time such action is required by the Securities Act to
the person claiming a Misstatement/Omission if such Misstatement/Omission was
corrected in such Registration Statement. In connection with an underwritten
offering, the Company will indemnify such underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, their officers and directors and each Person who controls such
underwriters (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders. This indemnity shall be in
addition to any other indemnification arrangements to which the Company may
otherwise be party. Notwithstanding the foregoing, the indemnity contained in
this section shall not apply to amounts paid in settlement of any such Losses if
such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such Losses to the extent that they arise out of or are based upon
a Misstatement/Omission included in reliance upon and in conformity with written
information furnished expressly for use in connection with such Registration
Statement by such Holder (or any partner, officer, director, underwriter or
controlling person of such Holder).
(b) Indemnification by the Holders. In connection with any
------------------------------
Registration Statement in which a Holder is participating, each such Holder
agrees to indemnify, to the fullest extent permitted by law the Company and each
affiliate, employee, counsel, agent, representative, director or officer of the
Company and each Person who controls the Company (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act) against, and
hold it harmless from, any Losses arising out of or based upon (i) any
Misstatement/Omission contained in the Registration Statement, if and to the
extent that such Misstatement/Omission arose out of or was based upon
information furnished in writing by such Holder for use therein, or (ii) the
failure by the Holder to deliver or cause to be deliv-
ered (to the extent such delivery is required under the Securities Act) the
Prospectus contained in the Registration Statement, furnished to it by the
Company at or prior to the time such action is required by the Securities Act to
the person claiming a Misstatement/Omission if such Misstatement/Omission was
corrected in such Registration Statement. Notwithstanding the foregoing, the
obligation to indemnify will be individual (several and not joint) to each
Holder and will be limited to the net amount of proceeds (net of payment of all
expenses) received by such Holder from the sale of Registrable Securities
pursuant to such Registration Statement giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. In case any action,
--------------------------------------
claim or proceeding shall be brought against any Person entitled to
indemnification hereunder, such indemnified party shall promptly notify each
indemnifying party in writing, and such indemnifying party shall assume the
defense thereof, including the employment of one counsel reasonably satisfactory
to such indemnified party and payment of all fees and expenses incurred in
connection with the defense thereof. The failure to so notify such indemnifying
party shall relieve such indemnifying party of its indemnification obligations
to such indemnified party to the extent that such failure to notify prejudiced
such indemnifying party. Each indemnified party shall have the right to employ
separate counsel in such action, claim or proceeding and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of each indemnified party unless: (i) such indemnifying party has agreed
to pay such expenses; (ii) such indemnifying party has failed promptly to assume
the defense and employ counsel reasonably satisfactory to such indemnified
party; or (iii) the named parties to any such action, claim or proceeding
(including any impleaded parties) include both such indemnified party and such
indemnifying party or an affiliate or controlling person of such indemnifying
party, and such indemnified party shall have been advised in writing by counsel
that either (x) there may be one or more legal defenses available to it which
are different from or in addition to those available to such indemnifying party
or such affiliate or controlling person or (y) a conflict of interest may exist
if such counsel represents such indemnified party and such indemnifying party or
its affiliate or controlling person; provided, however, that such indemnifying
party shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
responsible hereunder for the fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel), which counsel shall be
designated by such indemnified party.
No indemnifying party shall be liable for any settlement effected
without its written consent (which consent may not be unreasonably withheld).
Each indemnifying party agrees, jointly and severally, that it will not, without
the indemnified party's prior written consent, consent to entry of any judgment
or settle or compromise any pending or threatened claim, action or proceeding in
respect of which indemnification or contribution may be sought hereunder unless
the foregoing contains an unconditional release, in form and substance
reasonably satisfactory to the indemnified parties, of the indemnified parties
from all liability and obligation arising therefrom. The indemnifying party's
liability to any such indemnified party hereunder shall not be extinguished
solely because any other indemnified party is not entitled to indemnity
hereunder.
(d) Survival. The indemnification provided for under this
--------
Agreement will (i) remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party, (ii) survive the
transfer of securities and (iii) survive the termination of this Agreement.
(e) Right to Contribution. If the indemnification provided for in
---------------------
this Section 7 is unavailable to, or insufficient to hold harmless, an
indemnified party under Section 7(a) or Section 7(b) above in respect of any
Losses referred to in such Sections, then each applicable indemnifying party
shall have an obligation to contribute to the amount paid or payable by such
indemnified party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of the Company, on the one hand, and
of the Holder, on the other, in connection with the Misstatement/Omission which
resulted in such Losses, taking into account any other relevant equitable
considerations. The amount paid or payable by a party as a result of the Losses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 7(c) above, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation, lawsuit or legal or
administrative action or proceeding.
The relative fault of the Company, on the one hand, and of the Holder,
on the other, shall be determined by reference to, among other things, whether
the relevant Misstatement/Omission relates to information supplied by the
Company or by the Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Misstatement/Omission.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 7(e) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7(e), a Holder shall not be required to contribute
any amount in excess of the amount by which (i) the amount (net of payment of
all expenses) at which the securities that were sold by such Holder and
distributed to the public were offered to the public exceeds (ii) the amount of
any damages which such Holder has otherwise been required to pay by reason of
such Misstatement/Omission.
No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
Section 8. Rules 144 and 144A.
The Company shall timely file the reports required to be filed by it
under the Securities Act and the Exchange Act (including but not limited to the
reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144 adopted by the Commission under the Securities Act)
and the rules and regulations adopted by the Commission thereunder (or, if the
Company is not required to file such reports, it will, upon the request of any
holder of Registrable Securities, make publicly available other information) and
will take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the ex-
emptions provided by (a) Rule 144 and Rule 144A under the Securities Act, as
such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations.
No Person may participate in any registration hereunder which is
underwritten unless such Person (i) 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 (ii) completes and
executes all questionnaires, powers of attorney, customary indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements; provided, that no Holder included in any underwritten
registration shall be required to make any representations or warranties to the
Company or the underwriters other than representations and warranties regarding
such Holder and such Holder's intended method of distribution.
Section 10. Covenants of Holders.
Each of the Holders hereby agrees (a) to cooperate with the Company
and to furnish to the Company all such information in connection with the
preparation of the Registration Statement and any filings with any state
securities commissions as the Company may reasonably request, (b) to the extent
required by the Securities Act, to deliver or cause delivery of the prospectus
contained in the Registration Statement, any amendment or supplement thereto, to
any purchaser of the Registrable Securities covered by the Registration
Statement from the Holder and (c) to notify the Company within three months
after any sale of Registrable Securities by such Holder or, in the case of a
sale of all or substantially all of the Registrable Securities owned by a
Holder, within ten days after such sale.
Section 11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter
--------------------------
enter into any agreement with respect to its securities which is inconsistent
with, adversely effects or violates the rights granted to the Holders in this
Agreement.
(b) Remedies. Any Person having rights under any provision of this
--------
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights provided in the Share Exchange Agreement or granted by
law. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and hereby
agree to waive the defense in any action for specific performance or injunctive
relief that a remedy at law would be adequate. Accordingly, any party may in its
sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and for
other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein, the
----------------------
provisions of this Agreement, including the provisions of this sentence, may be
amended, modified, supplemented or waived only upon the prior written consent of
the Company and Holders of a majority of the outstanding Registrable Securities.
(d) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the successors and assigns of the Company. This
Agreement may only be assigned by any Holder to any other Holder, unless
otherwise consented to by the Company (such consent not to be unreasonably
withheld) and any other attempted assignment hereof by any Holder will be void
and of no effect and shall terminate all obligations of the Company hereunder
with respect to such Holder. None of the rights of any Investor or Holder may be
assigned other than to a Holder who agrees in writing to be bound by this
Agreement. No rights under this Agreement may be assigned to any Person if the
sale of Registrable Securities to such Person is prohibited under the Share
Exchange Agreement or if such Person is a competitor of the Company. The Company
shall be given written notice by the transferring Investor or Holder at the time
of the transfer stating the name and address of the transferee and identifying
the Registrable Securities transferred, provided, that failure to give such
-------- ----
notice shall not affect the validity of such transfer or assignment.
(e) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected, it being intended that the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts, any one of which need not contain the signatures of more than one
party, but each of which when so executed shall be deemed to be an original and
all such counterparts taken together shall constitute one and the same
Agreement.
(g) Descriptive Headings: Interpretation. The descriptive headings
------------------------------------
of this Agreement are inserted for convenience of reference only and shall not
limit or otherwise affect the meaning hereof. The use of the word "including" in
this Agreement shall be by way of example rather than by limitation.
(h) Notices. All notices, demands or other communications to be
-------
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable air courier guaranteeing
overnight delivery (charges prepaid), mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid or sent by
telecopier. Such notices, demands and other communications shall be sent to each
Investor at the address indicated below such Investor's name on the signature
pages to the Share Exchange Agreement and to the Company at the address
indicated below:
CMGI, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ II
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party. Any
notice, demand or other communication given hereunder will be deemed to have
been given as of the date so delivered; as of the first business day after being
delivered to an overnight air courier guaranteeing overnight delivery; on the
fifth business day after being mailed; or when transmission completed, if
telecopied; as the case may be.
(i) GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT SHALL
-----------------------------------------
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS. EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF ANY MASSACHUSETTS STATE COURT SITTING IN THE CITY
OF BOSTON OR ANY FEDERAL COURT SITTING IN THE CITY OF BOSTON IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
REGISTRABLE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
EACH PARTY AGREES THAT IT WILL NOT COMMENCE ANY SUCH SUIT, ACTION OR PROCEEDING
IN ANY OTHER JURISDICTION. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(j) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF the parties hereto have or have caused this
Registration Rights Agreement to be duly executed as of the date first above
written.
THE COMPANY:
CMGI, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
THE INVESTOR:
PACIFIC CENTURY CYBERWORKS LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Address for notices:
-------------------
Pacific Century CyberWorks Limited
38/F, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Facsimile no.: (▇▇▇) ▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy (which shall not constitute notice) to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
Facsimile no: (▇▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇