Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
April 7, 1999
To each of the several Stockholders named in
Schedule I to the Stock Purchase Agreement
dated the date hereof
Dear Ladies and Gentlemen:
This will confirm that in consideration of the provisions contained in the
Stock Purchase Agreement dated April 7, 1999 (the "Purchase Agreement") between
CMGI, Inc. ("CMGI"), Engage Technologies, Inc. ("Engage), Internet Profiles
Corporation, a California corporation ("I/PRO"), and certain stockholders of
I/PRO, CMGI covenants and agrees with each of you as follows:
1. Certain Definitions. As used in this Agreement, the following terms
-------------------
shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
----------
other federal agency at the time administering the Securities Act.
"CMGI Common Stock" shall mean the Common Stock, $.01 par value, of
-----------------
CMGI, as constituted as of the date of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Lock-ups" shall mean the stockholder representation and lock-up
-------
letters delivered to the Purchasers by the parties hereto pursuant to the
Purchase Agreement.
"Registration Expenses" shall mean the expenses so described in
---------------------
Section 5.
"Restricted Stock" shall mean the Shares, excluding Shares which have
----------------
been (a) registered under the Securities Act pursuant to an effective
registration statement filed thereunder and disposed of in accordance with the
registration statement covering them or (b) sold pursuant to Rule 144 under the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
--------------
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 6.
----------------
"Shares" shall mean the CMGI Common Stock issued pursuant to the
------
Purchase Agreement.
1
Internet Profiles Corporation Registration Rights Agreement
2. Required Registration.
---------------------
(a) CMGI shall file a shelf registration statement with respect to the
Restricted Stock on From S-3 or any successor thereto within 90 days following
the Closing Date (as defined in the Purchase Agreement) and shall use its
reasonable best efforts to cause such shelf registration statement to be
declared effective within 180 days following the Closing Date. Holders of
Restricted Stock shall notify CMGI when they transfer shares of Restricted Stock
by means of such shelf registration statement. CMGI may place a stop order on
the transfer of any Restricted Stock that remains subject to a Lock-up and will
refuse to recognize on its corporate books any transfer in violation of the
Lock-ups.
(b) CMGI shall be entitled to include in the shelf registration statement
shares of Common Stock to be sold by CMGI for its own account, except as and to
the extent that such method of disposition is an underwritten public offering
and in the opinion of the managing underwriter such inclusion would adversely
affect the marketing of the Restricted Stock to be sold.
(c) Subject to the limitations set forth in Section 3(e) below, CMGI's
obligation to file a shelf registration statement or cause such shelf
registration statement to become effective shall be suspended for up to 30 days
if there exists at the time material non-public information relating to CMGI
which CMGI determines in good faith through action by its board would interfere
with or affect the negotiation or completion of a contemplated transaction
(whether or not a final decision has been made to undertake such transaction) or
involve initial or continuing disclosure obligations that are not in the best
interest of CMGI.
(d) CMGI shall be obligated to keep the shelf registration statement
filed pursuant to Section 2(a) effective until the earliest of (i) the sale of
all of the Restricted Stock, (ii) the agreement by the holders of such shares to
terminate the registration, (iii) each holder of such shares becoming eligible,
under Rule 144 under the Securities Act, to make unregistered sales in a three-
month period of all its shares included on such shelf registration statement or
(iv) the registration rights of the holders of such shares have terminated
hereunder. At such time, CMGI may file a post-effective amendment to such shelf
registration statement removing from registration the shares included in such
shelf registration statement form. Notwithstanding the foregoing, in the event
of a Standstill Period (as defined below), CMGI shall extend the period of
effectiveness of the shelf registration statement by the number of days of each
such Standstill Period. CMGI shall use all reasonable efforts to take such
actions under the laws of various states as may be required, from time to time
during the effectiveness of the shelf registration statement to cause the resale
of the Restricted Shares pursuant to the shelf registration statement to be
lawful. CMGI will use all reasonable efforts to cause as of the effective date
of the shelf registration statement, all the Restricted Shares to be listed for
quotation on The Nasdaq National Market.
3. Registration Procedures. If CMGI is required by the provisions of Sections
-----------------------
2 to file a shelf registration statement covering shares of Restricted Stock,
CMGI agrees to:
2
Internet Profiles Corporation Registration Rights Agreement
(a) subject to the provisions of Sections 2, prepare and file with the
Commission such shelf registration statement including such securities and use
reasonable commercial efforts to cause such shelf registration statement to
become effective;
(b) subject to the provision of Section 3(a), prepare and file with the
Commission such amendments and supplements to such shelf registration statement
and the prospectus included therein as may be necessary to keep such shelf
registration statement effective for the period of distribution contemplated
hereby, and comply with the provisions of the Securities Act;
(c) use reasonable efforts to prevent the issuance of any stop order or
other order suspending the effectiveness of such shelf registration statement
and, if such an order is issued, to obtain the withdrawal thereof at the
earliest possible time and to notify each holder of Restricted Stock included in
such shelf registration statement of such order;
(d) furnish to each seller of Restricted Stock such number of copies of
the prospectus included in such registration statement (including each
preliminary prospectus) as such persons reasonably may request in order to
comply with the requirements of the Securities Act;
(e) notify the holders of Restricted Stock included in the shelf
registration statement upon the occurrence of any event as a result of which the
prospectus included in such shelf registration statement, as then in effect,
contains an untrue statement of material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and as promptly as
practicable, prepare, file and furnish to such holders a reasonable number of
copies of a supplement or an amendment to such prospectus as may be necessary so
that such prospectus does not contain an untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing; provided, however, that CMGI may delay preparing, filing and
distributing any such supplement or amendment if CMGI determines in good faith
that such supplement or amendment might, in the reasonable judgment of CMGI, (i)
interfere with or affect the negotiation or completion of a transaction that is
being contemplated by CMGI (whether or not a final decision has been made to
undertake such transaction) or (ii) involve initial or continuing disclosure
obligations that are not in the best interests of CMGI's stockholders at such
time; provided, further, that (x) CMGI shall give notice (a "Standstill Notice")
of any such delay, (y) such delay shall not extend for a period (the "Standstill
Period") of more than thirty (30) days (or occur in immediate succession)
without the written consent of the holders of a majority of the Registered Stock
included in such shelf registration statement and (z) CMGI shall not exercise
such right more than twice during any twelve-month period.
(f) if required, use reasonable efforts to register or qualify the
Restricted Stock covered by such shelf registration statement under the
securities or "blue sky" laws of such United States jurisdictions as the sellers
of Restricted Stock or, in the case of an underwritten public offering, the
managing underwriter or underwriters reasonably shall request, provided,
however, that CMGI shall not for any such purpose be required to qualify
generally to transact
3
Internet Profiles Corporation Registration Rights Agreement
business as a foreign corporation in any jurisdiction where it is not so
qualified or to consent to general service of process in any such jurisdiction;
and
(g) use reasonable efforts to include the Restricted Stock covered by
such shelf registration statement on the Nasdaq National Market or any
securities exchange on which the Common Stock of CMGI is then listed.
4. Obligations of Holder. In connection with the registration of the
--------------------
Restricted Stock pursuant to a shelf registration statement, each holder of
shares of Restricted Stock included thereon shall:
(a) furnish to CMGI such information regarding itself and the intended
method of disposition as necessary to assure compliance with federal and
applicable state securities laws or as CMGI shall reasonably request;
(b) upon receipt of any notice from CMGI of the happening of any event of
the kind described in Section 3(c), immediately discontinue disposition of
Restricted Stock pursuant to the shelf registration statement until withdrawal
of the stop order referred to in Section 3(c); and
(c) not sell or otherwise transfer any Restricted Stock during the period
from the date specified in the Standstill Notice given by CMGI pursuant to
Section 3(e) above that CMGI has determined that it will delay the preparation
and filing of an amendment or supplement to the prospectus included in the shelf
registration statement until the expiration date specified in such notice.
5. Expenses. All expenses incurred by CMGI in complying with Sections 2 or
--------
3, including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for CMGI, fees and expenses incurred in connection with complying with state
securities or "blue sky" laws, fees payable to the National Association of
Securities Dealers, Inc., fees payable to any securities exchange or over-the-
counter market quotation system (i.e. Nasdaq National Market System), up to
$7,500 in fees of one counsel to the sellers of Restricted Stock (the "Initial
Seller's Counsel Fees"), which counsel shall be Xxxxxx Godward LLP unless
alternative counsel is selected by the holders of a majority of such shares, and
fees of transfer agents and registrars, but excluding any Selling Expenses, are
called "Registration Expenses." All underwriting discounts and selling
commissions, fees of counsel and other advisors to sellers of Restricted Stock
and transfer and similar taxes are called "Selling Expenses."
CMGI will pay all Registration Expenses. All Selling Expenses (except the
Initial Seller's Counsel Fees which shall be paid by CMGI) shall be borne by the
participating sellers.
6. Indemnification and Contribution. In the event that any Restricted Stock
--------------------------------
is included in a shelf registration statement under this Agreement:
(a) to the extent permitted by law, CMGI shall indemnify and hold
harmless each selling stockholder against any losses, claims, damages,
liabilities or reasonable out-of-pocket expenses (whether joint or
several)(collectively, including legal or other expenses
4
Internet Profiles Corporation Registration Rights Agreement
reasonably incurred in connection with investigating or defending same,
"Losses"), insofar as any such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in such shelf
registration statement or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. CMGI will reimburse such stockholders for any legal or other
expenses as reasonably incurred by any such entity or person in connection with
investigating or defending any Loss; provided, however, that the foregoing
indemnity shall not apply to amounts paid in settlement of any Loss if such
settlement is effected without the consent of CMGI (which consent shall not be
unreasonably withheld), nor shall CMGI be obligated to indemnify any person for
any Loss to the extent that such Loss arises out of or is based upon and in
conformity with information furnished by such person for use in such shelf
registration statement; and provided, further, that CMGI shall not be required
to indemnify any person to the extent that any Loss results from such person
selling Common Stock (i) to a person to whom there was not sent or given, at or
prior to the written confirmation of the sale of such shares, a copy of the
prospectus, as most recently amended or supplemented, if CMGI has previously
furnished or made available copies thereof or (ii) following written notice by
CMGI of an event described in Section 3(c) or 3(e).
(b) to the extent permitted by law, each selling stockholder, severally
and not jointly, agrees to indemnify and hold harmless CMGI, the officers,
directors, employees, agents and representatives of CMGI, and each person, if
any, who controls CMGI within the meaning of the Securities Act or the Exchange
Act, against any Losses to the extent that any such Losses arise out of or are
based upon and in conformity with information furnished by such stockholder for
use in such shelf registration statement; and such selling stockholder agrees to
reimburse any legal or other expenses as reasonably incurred by CMGI and any
such officer, director, employee, agent, representative, or controlling person,
in connection with investigating or defending any such Loss; provided, however,
that the foregoing indemnity shall not apply to amounts paid in settlement of
any such Loss if such settlement is effected without the consent of such
stockholder, which consent shall not be unreasonably withheld; provided,
further, that, in no event shall any indemnity under this subsection 6(b) exceed
the sales price of the Restricted Stock sold by such stockholder under the shelf
registration statement; and
(c) promptly after receipt by an indemnified party under this Section 6
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in and to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the reasonably
incurred fees and expenses of one such counsel to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate under applicable standards of
professional conduct due to actual or potential conflicting interests between
such indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, to the extent
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
7 with respect to such action, but the omission so to deliver written notice to
the
5
Internet Profiles Corporation Registration Rights Agreement
indemnifying party will not relieve it of any liability that it may have to
any indemnified party otherwise than under this Section 7 of with respect to any
other action.
7. Miscellaneous.
-------------
(a) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, addressed as follows:
(i) if to CMGI at its address or facsimile number set forth in the
Purchase Agreement with a copy to Xxxxxx & Dodge LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxx Xxxxxxxxxx, Esq., Telephone: (617) 573-
0100, Facsimile: (000) 000-0000;
if to a current holder of Restricted Stock, at the address or facsimile number
set forth under such holder's name on the signature page hereto with a copy to
Cooley Godward LLP, Five Palo Alto Square, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, XX
00000-0000, Attention: Xxxxxx Xxxxxxx, Esq., Telephone: (000) 000-0000,
Facsimile: (000) 000-0000; and
(ii) if to any subsequent holder of Restricted Stock, at such
address as has been furnished to CMGI in writing by such holder with a copy to
Xxxxxx Godward LLP, Five Palo Alto Square, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, XX
00000-0000, Attention: Xxxxxx Xxxxxxx, Esq., Telephone: (000) 000-0000,
Facsimile: (000) 000-0000;
or, in any case, at such other address or addresses as shall have been furnished
in writing to CMGI (in the case of a holder of Restricted Stock) or to the
holders of Restricted Stock (in the case of CMGI) in accordance with the
provisions of this paragraph.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
(c) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of CMGI and the holders of at
least a majority of the outstanding shares of Restricted Stock.
(d) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(e) The obligations of CMGI to register shares of Restricted Stock, or
to keep a shelf registration statement including Shares of Restricted Stock
effective, under Section 2 shall terminate with respect to each holder upon such
time as all of the holder's Shares are eligible for sale during a single three
month period under Rule 144.
(f) The rights hereunder of the holder may be assigned to a transferee
of the Restricted Stock as long as: (i) CMGI is, within thirty (30) days
following such transfer, furnished with written notice of the name and address
of such transferee, (ii) immediately following such transfer, the further
disposition of Restricted Stock is restricted under the
6
Internet Profiles Corporation Registration Rights Agreement
Securities Act, (iii) the transferee agrees in writing with CMGI to be bound by
all of the provisions hereof and (iv) such transfer is made in accordance with
the applicable requirements of the Lock-ups. No rights under this Agreement
shall be assigned to any person or entity to whom less than all of the
Restricted Stock held by transferor are transferred; it is understood, however,
that assignment rights under this Agreement are permissible if made in
connection with distributions without consideration, such as by a partnership to
its partners.
(g) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
7
Internet Profiles Corporation Registration Rights Agreement
Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this Agreement shall be a
binding agreement between CMGI and you.
CMGI, INC.
By
------------------------------------
Name: Xxxxxx X. Xxxxxxxx III
Title: Chief Financial Officer
8
Internet Profiles Corporation Registration Rights Agreement
AGREED TO AND ACCEPTED as of the date first above written.
----------------------------------
(Name of Stockholder)
----------------------------------
(Signature)
----------------------------------
(Print Name)
----------------------------------
(Title, if applicable)
Stockholder's Address for Notice:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
9
Internet Profiles Corporation Registration Rights Agreement
