Exhibit 99.1
REGISTRATION, REPRESENTATION, AND RELEASE AGREEMENT
This Registration, Representation, and Release Agreement (the "Agreement")
is made and entered into as of November 7, 2001 by and between divine, inc., a
Delaware corporation (the "Corporation"), and those Persons set forth on the
Schedule of Holders hereto who become a party hereto (collectively, the
"Holders" and individually, a "Holder").
RECITALS
A. This Agreement is made pursuant to that certain purchase agreement
between the Corporation and the Holders dated of even date herewith (the
"Purchase Agreement").
B. In order to induce the Holders to make the representations and agree to
the releases contained herein, the Corporation has agreed to provide the Holders
the registration rights set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS. Capitalized terms not defined herein shall have the meaning
attributed to them in the Purchaser Agreement. As used in this Agreement,
"Claims" shall mean any action or actions, cause or causes of action, in
law or in equity, suits, debts, liens, security interests, liabilities, claims,
demands, damages, punitive damages, losses, costs, or expenses, and reasonable
attorneys' fees of any nature whatsoever, including, without limitation, claims
based upon breach of fiduciary or other duty, legal fault, misrepresentation or
omission, negligence, offense, quasi-offense, contract, quasi-contract,
appraisal rights under any law, or any other theory, or for actions taken or
omitted to be taken as a director, shareholder or representative of Latin
American Econetworks, N.V. ("LAE"), whether fixed or contingent and including
known, suspected or Unknown Claims, excluding, notwithstanding the foregoing,
any claim or cause of action that cannot be waived or released under applicable
law, or any claim or cause of action for indemnification as a result of a third
party claim made against the Holder or any of the Releasees.
"Commission" means the United States Securities and Exchange Commission or
any successor thereto.
"Common Stock" means the Class A Common Stock, par value $0.001 per share,
of the Corporation.
"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.
"Holder Registrable Shares" means the shares of Common Stock issued to the
Holders pursuant to the Purchase Agreement and then outstanding, including any
Common Stock or other security issued or issuable with respect to such Common
Stock by reason of a dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation, or other reorganization of
the Corporation; provided, however, that Holder Registrable Shares shall not
include (a) any shares which have been disposed of pursuant to an effective
registration statement under the Securities Act, (b) any shares which have been
sold pursuant to Rule 144, or (c) any shares when the entire amount of then
outstanding Holder Registrable Shares may be sold within a three-month period
pursuant to Rule 144. For purposes of this Agreement, a Person will be deemed to
be a holder of Holder Registrable Shares whenever such Person has the
then-existing right to acquire such Holder Registrable Shares (by conversion or
otherwise), whether or not such acquisition actually has been effected.
"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.
"Releasee" or "Releasees" shall mean any or all of the Corporation, LAE,
and any corporation, partnership, joint venture, or business enterprise
controlled by, under common control with or controlling such companies, each of
the current and former officers, directors, corporate representatives of such
companies, and all direct or indirect subsidiaries of such entities, and each of
the parents, subsidiaries, officers, directors, corporate representatives,
employees, agents, advisors, lawyers, or accountants therefore.
"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.
"Unknown Claims" means any and all Claims including, without limitation,
any Claim which Holder or Releasees do not know or even suspect to exist in its
or their favor at the time of the giving of the release which, if known by it or
them might have affected its or their decision regarding the releases.
2. REQUIRED REGISTRATION. As soon as practicable after the Corporation becomes
eligible to use Form S-3, but not more than ten business days after the Closing,
the Corporation shall register all of the Holder Registrable Shares pursuant to
a registration statement on Form S-3 (the "Shelf Registration"). The Corporation
shall maintain the effectiveness of the Shelf Registration until such time as
the Corporation reasonably determines, based on an opinion of counsel, that the
Holders will be eligible to sell all of the Holder Registrable Shares then owned
by the Holders without the need for continued registration of the Holder
Registrable Shares in the three-month period immediately following the
termination of the effectiveness of the Shelf Registration. The Corporation's
obligations contained in this Section 2 shall terminate on the second
anniversary of the date on which the Holder Registrable Shares are issued. If,
after the Shelf Registration becomes effective, the Corporation advises the
Holders that the Corporation considers it appropriate for the Shelf Registration
to be amended, the Holders shall suspend any further sales of their registered
shares until the Corporation advises them that an amendment to the Shelf
Registration has been declared effective.
3. REGISTRATION PROCEDURES.
(a) The Corporation shall keep each Holder advised in writing as to the
initiation of the Shelf Registration and as to the completion thereof. In
addition, the Corporation shall at its own expense:
(i) prepare and file with the SEC such amendments and supplements to
such registration statement as may be necessary to keep such registration
effective and comply with provisions of the Securities Act with respect to the
disposition of all securities covered thereby during such period;
(ii) update, correct, amend, and supplement such registration as
necessary;
(iii) if an offering under the Shelf Registration is to be
underwritten, in whole or in part, enter into a written agreement in form and
substance reasonably satisfactory to the Corporation, the managing underwriter,
and the selling Holders;
(iv) notify the Holders when the Shelf Registration is declared
effective by the SEC and furnish such number of prospectuses, including
preliminary prospectuses, and other documents incident thereto, as the Holders
may reasonably request from time to time;
(v) register or qualify the Holder Registrable Shares under such other
securities or blue sky laws of such jurisdictions of the United States as the
Holders may reasonably request to enable it to consummate the disposition in
such jurisdiction of the Holder Registrable Shares (provided that the
Corporation will not be required
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to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this provision, or (ii) consent to
general service of process in any such jurisdiction);
(vi) notify the Holders at any time when a prospectus relating to
the Holder Registrable Shares is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in the Shelf Registration contains an untrue statement of a material fact or
omits any fact necessary to make the statement therein not misleading, and at
the request of the Holders, the Corporation will prepare a supplement or
amendment to such prospectus, so that, as thereafter delivered to purchasers of
such shares, such prospectus will not contain any untrue statements of a
material fact or omit to state any fact necessary to make the statements therein
not misleading;
(vii) cause all Holder Registrable Shares to be listed on each
securities exchange or automated quotation system on which similar securities
issued by the Corporation are then listed or quoted and obtain all necessary
approvals for trading thereon;
(viii) provide a transfer agent and registrar for all such Holder
Registrable Shares not later than the effective date of such registration
statement;
(ix) 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 Holder
Registrable Shares;
(x) make available for inspection by 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;
(xi) advise each seller of such Holder Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of: (A) the issuance
of any stop order by the Commission suspending the effectiveness of such
registration statement, (B) the initiation or threatening of any proceeding for
such purpose, or (C) any notice from Nasdaq or any other exchange on which the
Corporation's shares are traded that such shares are subject to a delisting
proceeding, and promptly use its reasonable efforts to prevent the issuance of
any such stop order, or to obtain its withdrawal if any such stop order shall be
issued or such proceeding be initiated (and, if such stop order shall be issued,
or such shares be delisted, such sellers shall suspend the use of the prospectus
until it shall be withdrawn); and
(xii) 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,
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,
covering such matters as such underwriters, 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..
(b) Notwithstanding anything stated or implied to the contrary in the
first paragraph of Section 3 above, the Corporation shall not be required to
consent to any underwritten offering of the Holder Registrable Shares or to any
specific underwriter participating in any underwritten public offering of the
Holder Registrable Shares.
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(c) Except as required by law, all expenses incurred by the Corporation in
complying with this Section 3, including but not limited to, all registration,
qualification, and filing fees, printing expenses, fees and disbursements of
counsel and accountants for the Corporation, blue sky fees and expenses
(including fees and disbursements of counsel related to all blue sky matters)
("Registration Expenses") incurred in connection with any registration pursuant
to this Section 3 shall be borne by the Corporation. All underwriting discounts
and selling commissions applicable to a sale incurred in connection with any
registration of Holder Registrable Shares and the legal fees and other expenses
of any Holder shall be borne by that Holder.
(d) Notwithstanding any provision of this Section 3 to the contrary, the
Corporation shall not be required to amend the Shelf Registration or amend or
supplement a prospectus if (i) such amendment of supplement would require the
Corporation to disclose a material financing, acquisition, or other transaction
then being pursued by the Corporation and 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 or
(ii) the Corporation shall determine in good faith that there is a valid
business purpose or reason for suspending the use of such prospectus in
accordance with Section 3(a)(vi) hereof instead of making such amendment or
supplement. The Corporation shall not be permitted, however, to defer any such
amendment, supplement, or use of the Shelf Registration, or the prospectus
included in the Shelf Registration, pursuant to this Section 3(d) for a period
of more than 45 days per year.
(e) For purposes of this Section 3, the period of distribution of Holder
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.
4. FURTHER INFORMATION. Each Holder shall furnish the Corporation with such
information regarding such Holder as the Corporation may reasonably request and
as shall be required in connection with the Shelf Registration and each Holder
shall indemnify the Corporation with respect thereto in accordance with Section
5 of this Agreement.
5. INDEMNIFICATION.
5.1 BY THE CORPORATION. The Corporation agrees to indemnify, to the extent
permitted by law, each holder of Holder 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
the Shelf Registration statement or the prospectus or preliminary prospectus
included in the Shelf Registration, 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 Shelf Registration, or any
prospectus included in the Shelf Registration, 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 Holder Registrable Shares. The payments required by this Section
5.1 will be made periodically during the course of the investigation or defense,
as and when bills are received or expenses incurred.
5.2 BY EACH HOLDER. Each holder of Holder Registrable Shares shall furnish
to the Corporation in writing such information and affidavits as the Corporation
reasonably requests for use in connection with the Shelf Registration and any
prospectus included in the Shelf Registration, 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 Shelf Registration, any prospectus or preliminary
prospectus included in the Shelf Registration, 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 or affidavit so furnished in writing by such holder
expressly for use in such registration or prospectus; provided that the
obligation to indemnify under this
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Section 5.2 or to contribute under Section 5.4 below will be several, not joint
and several, among such holders of Holder Registrable Shares, and the liability
of each such holder of Holder Registrable Shares under this Section 5.2 and
under Section 5.4 shall be limited to the net amount received by such holder
from the sale of Holder Registrable Shares pursuant to the Shelf Registration.
5.3 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 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.
5.4 CONTRIBUTION. To the extent any indemnification by an indemnifying
party provided for in this Section 5 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
benefits received by, and 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 benefits received by the indemnifying party and the indemnified party
shall be determined by reference to the proportion of total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by such parties. 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 5.4 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 5.2 shall apply to this
Section 5.4. 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.
5.5 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.
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6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may participate in
any offering under the Shelf Registration which is underwritten unless such
Holder (a) agrees to sell its Holder Registrable Shares 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 Holder agrees that, upon receipt of any
notice from the Corporation of the happening of any event of the kind described
in Section 3(a)(vi) above, such Person will forthwith discontinue the
disposition of its Holder Registrable Shares pursuant to the Shelf Registration
until such Holder's receipt of the copies of a supplemented or amended
prospectus as contemplated by such Section 3(a)(vi).
7. HOLDBACK AGREEMENTS. Each holder of Holder Registrable Shares agrees not to
effect any public sale or distribution of equity securities of the Corporation,
or any securities convertible into or exchangeable or exercisable for such
securities, during the seven (7) days prior to the effective date of any
underwritten Public Offering (except as part of such underwritten registration),
unless the underwriters managing the Public Offering otherwise agree to a
shorter period and unless any of the directors and/or officers, of the
Corporation are subject to a shorter period.
8. REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
Each of the Holders hereby separately represents and warrants to the
Corporation that the statements contained in this Section 8 with respect to such
Holder are correct and complete as of the date of this Agreement (except for
statements made as of a specific date, which are correct as of such date).
8.1 ORGANIZATION AND STANDING. Unless an individual, the Holder is an
entity duly organized, validly existing, and in good standing under the laws of
its jurisdiction of organization.
8.2 POWER AND AUTHORIZATION. The Holder has all requisite legal and,
unless an individual, corporate, power and authority to enter into this
Agreement, and to carry out and perform its obligations under the terms of this
Agreement. This Agreement is a legal, valid, and binding obligation of the
Holder, enforceable against the Holder in accordance with its terms.
8.3 NO VIOLATION. None of the execution and delivery of this Agreement,
the consummation of the transactions provided for herein or contemplated hereby,
and the fulfillment by the Holder of the terms hereof, will (with or without
notice or passage of time or both) (a) conflict with or result in a breach of
any provision of the organizational documents of the Holder (if applicable), (b)
result in a default, give rise to any right of termination, cancellation, or
acceleration, or require any consent or approval (other than approval of the
board of directors and stockholders of the Holder, if applicable) under any of
the terms, conditions, or provisions of any note, bond, mortgage, indenture,
loan, license, agreement, lease, or other instrument or obligation to which the
Holder is a party or by which it or any of its Assets may be bound, except in
such case where such result could not have a Material Adverse Effect on the
Holder or (c) violate any law, judgment, order, writ, injunction, decree,
statute, rule, or regulation of any court or Governmental Entity applicable to
the Holder or any of its Assets, except in such case where such result could not
have a Material Adverse Effect on the Holder.
8.4 FEES AND COMMISSIONS. The Holder has retained no finder, broker,
agent, financial advisor, or other intermediary (collectively, "Intermediary")
in connection with this Agreement or the transactions contemplated hereby and
the Holder agrees to indemnify and hold harmless the Corporation from liability
for any compensation to any Intermediary and the fees and expenses of defending
against such liability or alleged liability.
8.5 APPROVALS. No approval, authorization, order, license, or consent of
or registration, qualification, or filing with any Governmental Entity and no
approval or consent by any other Person is required to be obtained or made by
the Holder in connection with the execution, delivery, or performance by the
Holder of this Agreement.
8.6 INVESTMENT REPRESENTATIONS. The Holder (A) understands that the Holder
Registrable Shares have not been, and until an effective registration statement
is filed in accordance with the Securities Act as contemplated herein, will not
be, registered under the Securities Act, or under any state securities laws, and
are being offered and sold in reliance upon federal and state exemptions for
transactions not involving any public
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offering, (B) is acquiring the Holder Registrable Shares solely for his or its
own account for investment purposes, and not with a view to the distribution
thereof, (C) is an accredited investor as defined in Regulation D under the
Securities Act, and a sophisticated investor with knowledge and experience in
business and financial matters, (D) has had the opportunity to obtain
information concerning the Corporation as desired by the Holder in order to
evaluate the merits and risks inherent in holding the Holder Registrable Shares
and that all such additional information requested by the Holder has been
provided by the Corporation to the Holder's full satisfaction, (E) is able to
bear the economic risk and lack of liquidity inherent in holding the Holder
Registrable Shares, and (F) is a bona fide resident of the state or other
jurisdiction set forth opposite such Holder's name on EXHIBIT 8.6.
9. WAIVER AND RELEASE.
9.1 WAIVER. Each Holder hereby waives and releases any right to initiate
or prosecute or participate in the initiating or prosecuting of any Claims
against or with respect to any Releasee. Each Holder hereby specifically waives
any purported right to challenge the validity or seek rescission of, or to
vitiate, this Release on the ground that any information was kept concealed from
such Holder by any of the Releasees and agrees that no remedy shall be available
for any such alleged non-disclosure, and that the right to rescind this Release
on any such grounds is hereby expressly waived.
9.2 RELEASE. Each Holder does hereby release and forever discharge all
Releasees of and from any and all manner of Claims which such Holder now has or
may hereafter have against any Releasee for any Claims arising prior to the date
hereof. Each Releasee does hereby release and forever discharge all Holders of
and from any and all manner of claims which such Releasee now has or may
hereafter have against any Holder for any claims arising prior to the date
hereof
9.3 SCOPE OF RELEASE. The release provided for herein is intended by each
Holder and each Releasee to be as broad as the law allows and is intended
specifically to be a compromise and release generally of all released Claims of
such Holder and such Releasee against all Releasees and Holders, as the case may
be. Holder and Releasees acknowledge that they might hereafter discover facts in
addition to or different from those which they now know or believe to be true
with respect to the subject matter of the Claims released, but nonetheless
Holder and Releasees shall be deemed to have fully, finally, and forever settled
and released any and all Claims whether known or unknown, suspected or
unsuspected, contingent or non-contingent, which now exist, heretofore have
existed, or may come to exist in the future upon any theory of law or equity now
existing or coming into existence in the future.
9.4 REPRESENTATIONS AND WARRANTIES WITH RESPECT TO RELEASE. In connection
with the waiver and release set forth in Sections 9.1 and 9.2 above, each Holder
represents and warrants that the following are true and correct:
(a) To the best knowledge of Holder, no suit, action, investigation,
inquiry, or other proceeding has been instituted or threatened that questions
the validity or legality of the release.
(b) Holder has not currently assigned or transferred any interest in
any of the Claims released by the release and Holder will not in the future
assign or transfer any interest in any such released Claim.
(c) Holder acknowledges that it has been given the opportunity to
review all information and documents with respect to the Claims released hereby
prior to entering into the release. Holder acknowledges that it has made an
independent investigation in making its decision to enter into the release.
Holder is not relying on any statements or representations by any Releasee in
entering into the release.
10. MISCELLANEOUS.
10.1 OTHER REGISTRATION RIGHTS. The Corporation may hereafter grant to any
Person or 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, without the prior written consent of
the holders of the Holder Registrable Shares.
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10.2 ASSIGNMENT OF REGISTRATION RIGHTS. The registration rights of any
Holder under this Agreement with respect to any Holder Registrable Shares may be
assigned to any Person who acquires such Holder Registrable Shares; provided
that (a) the assigning Holder 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 a
Holder 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.
10.3 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.
10.4 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.
10.5 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.
10.6 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, inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to the Holders of Holder Registrable Shares, to the
addresses set forth in the stock records of the Corporation.
10.7 GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Agreement, and the performance of the obligations
imposed by this Agreement, shall be governed by the laws of the State of
Illinois applicable to contracts made and wholly to be performed in that state.
10.8 AMENDMENTS AND WAIVERS. The provisions of this Agreement may be
amended upon the written agreement of the Corporation and the holder or holders
of a majority of the Holder 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.
10.9 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.
10.10 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.
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10.11 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.
10.12 VOLUNTARY AGREEMENT. Each Holder has entered into this Agreement
freely and voluntarily, without coercion, duress, distress, or undue influence
by any other persons or such person's respective directors, officers, partners,
agents, or employees.
10.13 ADVICE FROM COUNSEL. Each Holder understands that this Agreement may
affect legal rights. Each Holder represents that it has received legal advice
from counsel of its choice in connection with the negotiation and execution of
this Agreement and is satisfied with its legal counsel and the advice received.
10.14 NO ADMISSION OF WRONGDOING. Nothing in this Agreement shall be
construed as an admission of liability, fault, or wrongdoing on the part of any
Releasee.
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IN WITNESS WHEREOF, the Corporation has executed this Agreement as of the
date first set forth above.
divine, inc.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Its: Senior Vice President and General
Counsel
10
SCHEDULE OF HOLDERS
Xxxxxxxxx Holding, B.V.
DIVINE, INC.
COUNTERPART SIGNATURE PAGE
TO
REGISTRATION, REPRESENTATION, AND RELEASE AGREEMENT
The undersigned hereby executes the Registration, Representation, and
Release Agreement by and among divine, inc. (the "Corporation") and certain
persons who own issued and outstanding shares of Common Stock of the Corporation
and hereby authorizes this signature page to be attached as a counterpart of
such document executed by the Corporation. The undersigned hereby agrees to be
bound by, and shall be entitled to the rights and benefits of, the terms and
provisions of the Registration, Representation, and Release Agreement.
Dated: _______________ ___, 2001
Xxxxxxxxx Holding, B.V.
By: /s/
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Its:
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