Exhibit 10.19
SERIES E REGISTRATION RIGHTS AGREEMENT
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THIS SERIES E REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as
of February 3, 2000, by and among divine interVentures, inc., a Delaware
corporation (the "Corporation") and CMGI, Inc., a Delaware corporation (the
"Purchaser").
Pursuant to that Purchase Agreement, dated as of February 3, 2000, by and
between the Purchaser and the Corporation (as amended and modified from time to
time, the "Purchase Agreement"), the other documents and instruments referred to
therein and consummation of the transactions contemplated thereby, Purchaser is
acquiring shares of the Corporation's Series E Senior Participating Convertible
Redeemable Preferred Stock, $0.001 par value per share (the "Series E Preferred
Shares") and shares of the Corporation=s Class A Common Stock. In connection
with the performance of the Purchase Agreement and the other agreements
contemplated thereby and the issuance of the Series E Preferred Shares in the
manner contemplated thereby, the parties have agreed to provide execute and
deliver this Agreement. Except as otherwise indicated herein, capitalized terms
used herein shall have the meanings set forth in Section 1 hereof.
AGREEMENTS
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In consideration of the premises and the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. As used in this Agreement.
"Class A Common Stock" means the Class A Common Stock, $0.001 par value per
share of the Corporation.
"Class B Common Stock" means the Class B Common Stock, $0.001 par value per
share, of the Corporation.
"Commission" means the United States Securities and Exchange Commission or
any successor thereto.
"Common Stock" means, collectively, the Class A Common Stock and the Class
B Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, as the same shall be in effect from time to time.
"Founders Shares" means at any time (i) any shares of Class A Common Stock
then outstanding which were sold by the Corporation prior to the date hereof at
a purchase price of $0.001 per share, (ii) any shares of Class A Common Stock
then outstanding which were issued upon conversion of shares of Class B Common
Stock which were sold prior to the date hereof at a purchase price of $0.001 per
share, (iii) any shares of Class A Common Stock then issuable upon conversion of
outstanding shares of Class B Common Stock which were sold prior to the date
hereof at a purchase price of $0.001 per share, (iv) any shares of Class A
Common Stock then outstanding which were issued as, or were issued directly or
indirectly upon the conversion or exercise of other securities issued as, a
dividend or other distribution with respect to or in replacement of any shares
referred to in (i), (ii) or (iii); and (v) any shares of Class A Common Stock
then issuable directly or indirectly upon the conversion or exercise of other
securities which were issued as a dividend or other distribution with respect to
or in replacement of any shares referred to in (i), (ii) or (iii); provided that
Founders Shares shall not include any shares which have been disposed of
pursuant to an effective registration statement under the Securities Act or sold
pursuant to Rule 144.
"IPO" means the Corporation's first underwritten public offering of shares
of Common Stock pursuant to an effective registration statement under the
Securities Act.
"Junior Preferred Stock" means, collectively, the Series A Junior
Convertible Preferred Stock, $0.001 par value per share, the Series B
Convertible Preferred Stock, $0.001 par value per share, and the Series C
Convertible Preferred Stock, $0.001 par value per share, of the Corporation.
"Junior Preferred Shares" means at any time (i) any shares of Class A
Common Stock then outstanding which were issued upon conversion of shares of
Junior Preferred Stock or upon conversion of shares of Class B Common Stock
issued upon conversion of Junior Preferred Stock; (ii) any shares of Class A
Common Stock then issuable upon conversion of shares of then outstanding Junior
Preferred Stock or upon conversion of shares of Class B Common Stock issued or
issuable upon conversion of Junior Preferred Stock; (iii) any shares of Class A
Common Stock then outstanding which were issued as, or were issued directly or
indirectly upon the conversion or exercise of other securities issued as, a
dividend or other distribution with respect to or in replacement of any shares
referred to in (i) or (ii); and (iv) any shares of Class A Common Stock then
issuable directly or indirectly upon the conversion or exercise of other
securities which were issued as a dividend or other distribution with respect to
or in replacement of any shares referred to in (i) or (ii); provided, however,
that Junior Preferred Shares shall not include any shares which have been (a)
disposed of pursuant to an effective registration statement under the Securities
Act, (b) sold or otherwise transferred in a transaction in which the
registration rights applicable to such shares have not been assigned, or (c)
sold pursuant to Rule 144.
"Other Registrable Shares" means shares of the Company's outstanding or
issuable Class A Common Stock with respect to which the holder thereof has a
contractual registration right that
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is pari passu in order of priority to the Purchaser Registrable Shares, whether
such agreement is effective prior to or after the date of this Agreement,
including Series D Preferred Shares but excluding Founders Shares.
"Person" means an individual, corporation, partnership, limited liability
company, limited partnership, syndicate, person (including, without limitation,
a "Person" as defined in Section 13(d)(3) of the Exchange Act), trust,
association or entity or government, political subdivision, agency or
instrumentality of a government.
"Public Offering" means any offering by the Corporation of its equity
securities to the public pursuant to an effective registration statement under
the Securities Act.
"Purchaser Registrable Shares" means at any time (i) any shares of Common
Stock then outstanding which were (x) issued upon conversion of Series E
Preferred Shares originally issued to the Purchaser under the Purchase Agreement
or (y) originally issued to the Purchaser under the Purchase Agreement; (ii) any
shares of Common Stock then issuable upon conversion of then outstanding Series
E Preferred Shares originally issued to the Purchaser; (iii) any shares of
Common Stock then outstanding which were issued as, or were issued directly or
indirectly upon the conversion or exercise of other securities issued as, a
dividend or other distribution with respect or in replacement of any shares
referred to in (i) or (ii); and (iv) any shares of Common Stock then issuable
directly or indirectly upon the conversion or exercise of other securities which
were issued as a dividend or other distribution with respect to or in
replacement of any shares referred to in (i), (ii) or (iii); provided, however,
that Purchaser Registrable Shares shall cease to be Purchaser Registrable Shares
when such Purchaser Registrable Shares have been (a) disposed of pursuant to an
effective registration statement under the Securities Act, (b) sold or otherwise
transferred in a transaction in which the rights under the provisions of this
Agreement have not been properly assigned, or (c) sold pursuant to Rule 144. For
purposes of this Agreement, a Person will be deemed to be a holder of Purchaser
Registrable Shares whenever such Person has the then-existing right to acquire
such Purchaser Registrable Shares (by conversion or otherwise), whether or not
such acquisition actually has been effected. Subject to the foregoing, Purchaser
Registrable Shares shall continue to constitute Purchaser Registrable Shares in
the hands of any permitted transferee of Purchaser.
"Rule 144" means Rule 144 (including Rule 144(k)) of the Commission under
the Securities Act or any similar provision then in force under the Securities
Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, as the same shall be in effect from time to time.
"Series D Preferred Shares" shall have the meaning given such term in the
Series D Registration Rights Agreement.
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"Series D Registration Rights Agreement" means the Series D Registration
Rights Agreement dated as of December 7, 1999 by and among the Corporation and
the original holders of its Series D Senior Participating Convertible
Redeemable Preferred Stock, as such agreement may be amended from time to time
in accordance with its terms.
"Underlying Class A Common Stock" means shares of Common Stock issuable or
issued upon conversion of the Series E Preferred Shares originally issued to
Purchaser.
2. Piggyback Registration.
2.1 Right to Piggyback. After the consummation of an IPO but subject
to Section 9 below, whenever the Corporation proposes to register Common Stock
under the Securities Act (other than pursuant to a registration statement filed
on Form S-8 or Form S-4, or any successor forms, or otherwise filed in
connection with a merger, acquisition, exchange offer or other business
combination transaction or an offering of securities solely to the Corporation's
existing security holders or employees) whether for sale on its own account or
pursuant to a demand for registration by other holders of shares of Common Stock
(a "Piggyback Registration"), the Corporation will give prompt written notice to
all holders of the Purchaser Registrable Shares of its intention to effect such
a Piggyback Registration and will include in such registration all Purchaser
Registrable Shares (subject to, and in accordance with, the priorities set forth
in Sections 2.2 and Section 2.3 below) with respect to which the Corporation has
received written requests for inclusion in such registration within twenty (20)
days after the Corporation's notice. Notwithstanding the foregoing, if a
Piggyback Registration is not an underwritten registration, the Corporation
shall not be required to include any Purchaser Registrable Shares held by any
Person in such Piggyback Registration if such Person at the time of such notice
would be permitted to sell all of the Purchaser Registrable Shares held by such
Person, without registration, pursuant to Rule 144.
2.2 Priority on Non-Demand Registrations. If a Piggyback
Registration is an underwritten registration on behalf of the Corporation that
does not constitute a "demand" registration required pursuant to an agreement
with the Corporation, and the managing underwriters advise the Corporation in
writing that in their opinion the number of shares of Common Stock requested to
be included in such registration exceeds the number which can be marketed (a) at
a price per share reasonably related to the then-current market value per share
of the Common Stock, and (b) without materially and adversely affecting the
entire offering, the Corporation will include in such registration up to the
amount determined advisable by the underwriters:
(i) first, the shares of Common Stock that the Corporation proposes to
sell;
(ii) second, the Purchaser Registrable Shares and the Other Registrable
Shares requested to be included in such registration, pro rata among the holders
of such Purchaser
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Registrable Shares and Other Registrable Shares based on the number of shares of
Common Stock requested to be included in such registration by the holders
thereof; and
(iii) third, the Junior Preferred Shares and any other shares of Common
Stock held by stockholders of the Corporation which are not Other Registrable
Shares (including the Founders Shares), requested to be included in such
registration, pro rata among the holders of such Junior Preferred Shares and
other shares on the basis of the number of shares which are owned by such
holders and requested to be included in such registration, or otherwise pursuant
to any contractual registration rights applicable to such shares.
2.3 Priority on Demand Registrations. If a Piggyback Registration
is an underwritten registration pursuant to a demand for registration (other
than a Demand Registration under Section 3 hereof, the priority of which will be
governed by Section 3.4 below) by holders of Other Registrable Shares and the
managing underwriters advise the Corporation in writing that in their opinion
the number of shares of Common Stock requested to be included in such
registration exceeds the number which can be marketed (a) at a price per share
reasonably related to the then-current market value per share of the Common
Stock, and (b) without materially and adversely affecting the entire offering,
the Corporation will include in such registration up to the amount determined
advisable by the underwriters:
(i) first, (A) the shares of Common Stock requested to be included therein
by the holders of Other Registrable Shares on behalf of whom such registration
has been initially requested; and (B) the Purchaser Registrable Shares requested
to be included in such registration by the holders of Purchaser Registrable
Shares hereunder pro rata, among the parties in clauses (A) and (B) based on the
number of shares of Common Stock requested to be included in such registration
by the holders thereof;
(ii) second, any securities that the Corporation proposes to sell; and
(iii) third, the Junior Preferred Shares and any other shares of Common
Stock held by stockholders of the Corporation which are not entitled to be pari
passu with the Purchaser Registrable Shares with respect to such registration
(including the Founders Shares), requested to be included in such registration,
pro rata among the holders of such Junior Preferred Shares and other shares on
the basis of the number of shares which are owned by such holders and requested
to be included in such registration, or otherwise pursuant to any contractual
registration rights applicable to such shares.
Without limiting this Section 2.3 or Section 2.2, (i) no Founders Shares
shall be included in an underwritten registration by the Corporation unless all
of the Purchaser Registrable Shares requested to be included in such
registration pursuant to this Agreement are permitted to be included in such
registration, and (ii) no shares of Common Stock (including Founders Shares)
held by executive officers of the Corporation shall be included in an
underwritten registration if
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the managing underwriters advise the Corporation that the inclusion of shares of
Common Stock held by executive officers of the Corporation will adversely affect
the offering.
2.4 Right to Terminate Registration. The Corporation shall have
the right to withdraw any registration initiated by it under this Section 2
prior to the effectiveness of such registration whether or not any holder of its
securities has elected to include securities in such registration.
3. Demand Registrations.
3.1 Requests for Registration. The holders of the outstanding
Purchaser Registrable Shares may request registration under the Securities Act
(a "Demand Registration) of all or any portion of its Purchaser Registrable
Shares on Form S-2 or S-3 or any similar short form registration ("Short-Form
Registrations"), if available, at any time following the twelve-month
anniversary of the consummation by the Corporation of an IPO. Each request for a
Demand Registration shall specify the approximate number of Purchaser
Registrable Shares requested to be registered and the anticipated per share
price range for such offering. Within ten (10) days after receipt of any such
request, the Corporation will give written notice of such requested registration
to all other holders of Purchaser Registrable Shares and, subject to Section 3.4
below, will include in such registration all Purchaser Registrable Shares with
respect to which the Corporation has received written requests for inclusion
therein within fifteen (15) days after the receipt of the Corporation's notice.
3.2 Intentionally Omitted.
3.3 Short-Form Registrations. The holders of at least fifteen percent
(15%) of the Purchaser Registrable Shares will be entitled to request unlimited
Short-Form Registrations in which the Corporation will pay all Registration
Expenses. After the Corporation has become subject to the reporting requirements
of the Exchange Act, the Corporation will use its best efforts to make Short
Form Registrations available for the sale of Purchaser Registrable Shares.
3.4 Priority on Demand Registrations. The Corporation will not
include in any Demand Registration any securities which are not Purchaser
Registrable Shares (except for Other Registrable Shares) without the prior
written consent of the holders of a majority of the Purchaser Registrable
Shares. If a Demand Registration is an underwritten offering and the managing
underwriters advise the Corporation in writing that in their opinion the number
of Purchaser Registrable Shares and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of Purchaser
Registrable Shares and other securities, if any, which can be sold in an orderly
manner in such offering within a price range acceptable to the holders of a
majority of the Purchaser Registrable Shares initially requesting registration,
the Corporation will include in such registration (i) first, the Purchaser
Registrable Shares and Other Registrable Shares requested to be included in such
registration by the holders thereof, pro rata among such holders on the basis of
the number of shares of Purchaser Registrable Shares and Other Registrable
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Shares requested to be included in such registration by the holders thereof, and
(ii) second, the other securities requested to be included in such registration
which in the opinion of such underwriters can be sold in an orderly manner
within the price range of such offering.
3.5 Restrictions on Demand Registrations. The Corporation will
not be obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration. The Corporation may postpone
for up to ninety (90) days (but not more than once in a six (6) month period)
the filing or the effectiveness of a registration statement for a Demand
Registration if the Corporation's board of directors determines that such Demand
Registration is reasonably likely to have an adverse effect on any proposal or
plan by the Corporation or any of its subsidiaries to engage in any acquisition
of assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer or any other material financing or transaction;
provided that, in such event, the holders of Purchaser Registrable Shares
initially requesting such Demand Registration will be entitled to withdraw such
request.
3.6 Intentionally Omitted.
3.7 Other Registration Rights. The Corporation will not grant to
any Persons the right to request the Corporation to register any equity
securities of the Corporation, or any securities convertible or exchangeable
into or exercisable for such securities, other than rights which are pari passu
or junior in all respects to the rights granted to the holders of Purchaser
Registrable Shares hereunder (including, without limitation, priority in any
registration by the Corporation), without the prior written consent of the
holders of at least a majority of the outstanding Purchaser Registrable Shares.
4. Registration Procedures. Whenever the holders of Purchaser Registrable
Shares have requested that any Purchaser Registrable Shares be registered
pursuant to this Agreement, the Corporation will use its reasonable best efforts
to effect the registration and sale of such Purchaser Registrable Shares in
accordance with the intended method of disposition thereof, and, pursuant
thereto, the Corporation will as expeditiously as reasonably possible:
(a) prepare and file with the Commission a registration statement
with respect to such Purchaser Registrable Shares and thereafter use its
reasonable best efforts to cause such registration statement to become and
remain effective for the period of the distribution contemplated thereby,
determined as hereinafter provided (provided that before filing a registration
statement or prospectus or any amendments or supplements thereto with respect to
a Demand Registration, the Corporation will furnish to the counsel selected by
the holders of a majority of the Purchaser Registrable Shares initiating such
registration statement copies of all such documents proposed to be filed, which
documents will be subject to review of such counsel);
(b) notify each holder of Purchaser Registrable Shares of the
effectiveness of each Registration Statement filed hereunder and prepare and
file with the Com mission such amendments and supplements to such registration
statement and the prospectus used
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in connection therewith as may be necessary to comply with the Securities Act;
and, with respect to Demand Registrations, as may be necessary to keep such
registration statement effective for a period of either (i) not less than six
months (subject to extension pursuant to Section 8) or, if such registration
statement relates to an underwritten offering, such period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with sales of Purchaser Registrable Shares by an underwriter or
dealer or (ii) such shorter period as will terminate when all of the securities
covered by such registration statement have been disposed of in accordance with
the intended methods of disposition by the seller or sellers thereof set forth
in such registration statement (but in any event not before the expiration of
any longer period required under the Securities Act), 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 seller of Purchaser Registrable Shares such number
of copies of such registration statement, each amendment and supplement thereto,
the prospectus(es) 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 Purchaser Registrable
Shares owned by such seller;
(d) notify each seller of such Purchaser Registrable Shares, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, contains
an untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading in light of the circumstances under which they
were made, and, at the request of any such seller, the Corporation will prepare
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Purchaser Registrable Shares, such prospectus will not
contain any untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made (and such sellers shall suspend the use
of the prospectus until the requisite changes thereto have been made);
(e) use its reasonable best efforts to cause all such Purchaser
Registrable Shares to be listed on each securities exchange or market on which
the Common Stock is then listed;
(f) use its reasonable best efforts to cause such Purchaser
Registrable Shares to be registered or qualified with or approved by such other
governmental agencies or authorities in such jurisdictions as may be necessary
to consummate the disposition of such Purchaser Registrable Shares;
(g) provide a transfer agent and registrar for all such Purchaser
Registrable Shares not later than the effective date of such registration
statement;
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(h) enter into such customary agreements (including underwriting
agreements in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Purchaser
Registrable Shares;
(i) make available for inspection by any seller of Purchaser
Registrable Shares, 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 Corporation, and cause the
Corporation's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller or underwriter,
attorney, accountant or agent in connection with such registration statement;
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Corporation's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) advise each seller of such Purchaser Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use its reasonable best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if any such stop order
shall be issued (and, if such stop order shall be issued, such sellers shall
suspend the use of the prospectus until it shall be withdrawn); and
(l) at the request of the managing underwriters in connection with an
underwritten offering, furnish on the date or dates provided for in the
underwriting agreement (i) an opinion of counsel, addressed to the underwriters
and, if permitted by applicable professional standards, to the sellers of
Purchaser Registrable Shares, covering such matters as such underwriters and
sellers may reasonably request, including such matters as are customarily
furnished in connection with an underwritten offering; and (ii) a letter or
letters from the independent certified public accountants of the Corporation
addressed to the underwriters and, if permitted by applicable professional
standards, to the sellers of Purchaser Registrable Shares, covering such matters
as such underwriters or sellers may reasonably request, in which letter(s) such
accountants shall state, without limiting the generality of the foregoing, that
they are independent certified public accountants within the meaning of the
Securities Act and that in their opinion the financial statements and other
financial data of the Corporation included in the registration statement, the
prospectus(es), or any amendment or supplement thereto, comply in all material
respects with the applicable accounting requirements of the Securities Act.
Notwithstanding any provision of this Section 4 to the contrary, the
Corporation shall not be required to amend or supplement a prospectus if such
amendment of supplement would require
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the Corporation to disclose a material financing, acquisition or other
transaction then being pursued by the Corporation and the Executive Committee of
the Board of Directors of the Corporation shall determine in good faith that
such disclosure is not in the best interests of the Corporation or would
interfere with such transaction; provided that the Corporation shall give
immediate notice thereof to holders of Purchaser Registrable Shares.
For purposes of Section 4(a) and Section 4(b), the period of distribution
of Purchaser Registrable Shares in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Purchaser Registrable Shares in any other registration shall be deemed to
extend until the earlier of (i) the sale of all Purchaser Registrable Shares
covered thereby and (ii) the end of the period of distribution for the holders
of its shares of Common Stock on whose behalf the registration has been made.
5. Registration Expenses.
5.1 Corporation's Expenses. All expenses incident to the Corporation's
performance of or compliance with this Agreement, including without limitation
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, listing fees, printing expenses, messenger and
delivery expenses, and fees and disbursements of counsel for the Corporation and
all independent certified public accountants, underwriters (excluding discounts
and commissions) and other Persons retained by the Corporation (all such
expenses being herein called "Registration Expenses") shall be borne by the
Corporation.
5.2 Reimbursement. In connection with each Demand Registration, the
Corporation will reimburse the holders of Purchaser Registrable Shares covered
by such registration for the reasonable fees and disbursements of one counsel
chosen by the holders of a majority of the Purchaser Registrable Shares
initially requesting such registration. In connection with each Demand
Registration and each Piggyback Registration, the Corporation shall reimburse
the holders of Purchaser Registrable Shares included in such registration for
the reasonable fees and disbursements of each additional counsel retained by any
holder of Purchaser Registrable Shares for the purpose of rendering any legal
opinion required by the Corporation or the managing underwriter(s) to be
rendered on behalf of such holder in connection with any underwritten Demand
Registration or Piggyback Registration.
5.3 Holder's Expenses. Notwithstanding anything to the contrary
contained herein, each holder of Purchaser Registrable Shares shall bear and pay
all underwriting discounts and commissions and transfer taxes applicable to the
Purchaser Registrable Shares sold for such holder's account.
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6. Indemnification.
6.1 By the Corporation. The Corporation agrees to indemnify, to the
extent permitted by law, each holder of Purchaser Registrable Shares, its
managers, officers and directors and each Person who controls such holder
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses (including without limitation, attorneys' fees)
("Liabilities") caused by 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, except insofar as the same are
caused by or contained in any information furnished in writing to the
Corporation by such holder expressly for use therein or by such holder's failure
to deliver a copy of the registration statement or prospectus or any amendments
or supplements thereto after the Corporation has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Corporation shall indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Purchaser Registrable Shares. The payments
required by this Section 6.1 will be made periodically during the course of the
investigation or defense, as and when bills are received or expenses incurred.
6.2 By Each Holder. In connection with any registration statement in
which a holder of Purchaser Registrable Shares is participating, each such
holder shall furnish to the Corporation in writing such information as the
Corporation reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, shall indemnify the
Corporation, its directors and officers and each Person who controls the
Corporation (within the meaning of the Securities Act) against any Liabilities
resulting from 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 such untrue
statement or omission is contained in any information so furnished in writing by
such holder expressly for use in such registration statement or prospectus;
provided that the obligation to indemnify under this Section 6.2 or to
contribute under Section 6.4 below will be several, not joint and several, among
such holders of Purchaser Registrable Shares, and the liability of each such
holder of Purchaser Registrable Shares under this Section 6.2 and under Section
6.4 shall be limited to the net amount received by such holder from the sale of
Purchaser Registrable Shares pursuant to such registration statement.
6.3 Procedure. 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 (provided that the failure to give
prompt notice shall not impair any Person's right to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party) 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
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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 will 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 will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
6.4 Contribution. To the extent any indemnification by an
indemnifying party provided for in this Section 6 is prohibited or limited by
law, the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such Liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such Liabilities, as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of material
fact or omission or alleged omission to state a material fact, has been made by,
or relates to information supplied by, such indemnifying party or indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph;
provided that the limits in the final proviso of Section 6.2 shall apply to this
Section 6.4. 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.
6.5 Other Indemnification Provisions. The indemnification and
contribution provided for under this Agreement will 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
and will survive the transfer of securities.
7. Compliance with Rule 144. In the event that the Corporation (a)
registers a class of securities under Section 12 of the Exchange Act, (b) issues
an offering circular meeting the requirements of Regulation A under the
Securities Act, or (c) commences to file reports under Section 13 or 15(d) of
the Exchange Act, then at the request of any holder who proposes to sell
securities in compliance with Rule 144 of the Commission, the Corporation will
(i) forthwith furnish to such holder, upon request, a written statement of
compliance with the filing requirements of the Commission as set forth in Rule
144, as such rule may be amended from time to time, and (ii) use its reasonable
best efforts to make available to the public and such holders such information
as will enable the holders to make sales pursuant to Rule 144.
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8. Participation in Underwritten Registrations. No Person may participate
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell its shares of Common Stock on the basis provided in any
underwriting arrangements approved by the Corporation or any other Person or
Persons entitled to approve such arrangements, and (b) completes and executes
all questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements. Each Person that is participating in any
registration hereunder agrees that, upon receipt of any notice from the
Corporation of the happening of any event of the kind described in Section 4(d)
above, such Person will forthwith discontinue the disposition of its Purchaser
Registrable Shares pursuant to the registration statement until such Person's
receipt of the copies of a supplemented or amended prospectus as contemplated by
such Section 4(d). In the event the Corporation shall give any such notice, the
applicable time period mentioned in Section 4(b) during which a registration
statement is to remain effective shall be extended by the number of days during
the period from and including the date of the giving of such notice pursuant to
this Section 8 to and including the date when each seller of Purchaser
Registrable Shares covered by such registration statement shall have received
the copies of the supplemented or amended prospectus contemplated by Section
4(d).
9. Intentionally Omitted.
10. Miscellaneous.
10.1 Assignment of Registration Rights. The registration rights of
the Purchaser under this Agreement with respect to any Purchaser Registrable
Shares may be assigned to any Person who acquires such Purchaser Registrable
Shares; provided that (a) the Purchaser shall give the Corporation written
notice at or prior to the time of such assignment stating the name and address
of the assignee and identifying the shares with respect to which the rights
under this Agreement are being assigned; (b) such assignee shall agree in
writing, in form and substance reasonably satisfactory to the Corporation, to be
bound as the Purchaser by the provisions of this Agreement; and (c) immediately
following such assignment the further disposition of such securities by such
assignee is restricted under the Securities Act.
10.2 No Inconsistent Agreements. The Corporation is not a party to
and will not hereafter enter into any agreement with respect to its securities
which is inconsistent with or violates the rights granted to the holders of
Purchaser Registrable Shares in this Agreement.
10.3 Adjustments Affecting Purchaser Registrable Shares. The
Corporation will not take any action, or permit any change to occur, with
respect to its securities which would materially and adversely affect the
ability of the holders of Purchaser Registrable Shares to include such Purchaser
Registrable Shares in a registration undertaken pursuant to this Agreement or
which would adversely affect the marketability of such Purchaser Registrable
Shares in any such registration (including, without limitation, effecting a
stock split or a combination of shares).
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10.4 Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto will bind and inure to the benefit of the
respective permitted successors and assigns of the parties hereto, whether so
expressed or not.
10.5 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
10.6 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute a
part of, and shall not be utilized in interpreting, this Agreement.
10.7 Notices. Any notices required or permitted to be sent
hereunder shall be delivered personally or mailed, certified mail, return
receipt requested, or delivered by overnight courier service to the following
addresses, or such other address as any party hereto designates by written
notice to the Corporation, and shall be deemed to have been given upon delivery,
if delivered personally, three days after mailing, if mailed, or one business
day after delivery to the courier, if delivered by overnight courier service:
If to the Corporation, to:
divine interVentures, inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Purchasers or other holders of Purchaser Registrable Shares, to
the addresses set forth in the stock records of the Corporation.
10.8 Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement, and the performance of the
obligations imposed by this
14
Agreement, shall be governed by the laws of the State of Delaware applicable to
contracts made and wholly to be performed in that state.
10.9 Amendments and Waivers. The provisions of this Agreement may be
amended upon the written agreement of the Corporation and the holder or holders
of at least a majority of the outstanding Purchaser Registrable Shares. Any
waiver, permit, consent or approval of any kind or character on the part of any
holders of any provision or condition of this Agreement must be made in writing
and shall be effective only to the extent specifically set forth in writing.
10.10 Final Agreement. This Agreement, constitutes the complete and
final agreement of the parties concerning the matters referred to herein and
supersedes all prior agreements and understandings.
10.11 Execution. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute one instrument.
10.12 No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be used against any
party.
[Remainder of page intentionally left blank
Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Series E
Registration Rights Agreement on the date first written above.
DIVINE INTERVENTURES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President
CMGI, INC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ II
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Its: Vice President and General Counsel
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(SIGNATURE PAGE TO SERIES E REGISTRATION RIGHTS AGREEMENT)